Michael Ray Wineinger v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-0053
Filed April 13, 2022

MICHAEL RAY WINEINGER,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.

Kilnoski, Judge.

The defendant appeals the denial of his application for postconviction relief.

AFFIRMED.

Drew H. Kouris, Council Bluffs, for appellant.

Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee State.

Considered by Bower, C.J., Ahlers, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
2

BLANE, Senior Judge.

Michael Ray Wineinger appeals the district court’s denial of his application

for postconviction relief (PCR). He claims his criminal trial counsel was ineffective

in agreeing to the admission of video recordings of the interviews of the child sex

abuse complainant and failing to request a limiting jury instruction regarding those

videos. We affirm the PCR court decision finding the trial court did not err in

admitting the prior recorded video and thus trial counsel not ineffective, but based

on a different evidentiary rule, and find the limiting instruction challenge is not

preserved for our consideration.

I. Background facts and proceedings.

Following a jury trial, Wineinger was convicted of four counts of sexual

abuse in the second degree, in violation of Iowa Code sections 709.1, 709.3(2),

and 903B.1 (2013). Wineinger appealed, and the appeal was transferred to our

court. In our opinion, we set out the factual background, which we repeat here.

In December of 2011, Wineinger moved into an apartment
with Fred, Fred’s three children, and Stephanie, who the children
considered their mother. The living accommodations included only
two small bedrooms. The children shared one bedroom. At the time
of trial, the oldest child, a male, J.L., was fourteen years of age; L.L.,
the alleged victim, was a female age ten; and there was a younger
child, age nine. The children eventually came to share their bedroom
with Wineinger. The children referred to Wineinger as Uncle Mike,
and they appeared to have a good relationship with him.
Stephanie became concerned with Wineinger’s drinking
problem, and confronted Wineinger, requesting he permanently
move from the apartment. Wineinger complied. The children
overheard the confrontation.
Soon after, in April of 2014, J.L. reported to school authorities
that Wineinger had inappropriately touched L.L. J.L. has been
diagnosed with autism and mental-health issues that require
medication, and he was not always considered truthful. On April 14,
2014, immediately after being notified about J.L.’s statement, Fred
and Stephanie took L.L. to Project Harmony, where L.L. was
3

interviewed by Mindee Rolles, a social worker. Project Harmony is
an organization that helps children by providing various services.
L.L. told Rolles nothing had happened between her and Wineinger.
That evening, Stephanie confronted J.L. about lying concerning the
inappropriate contact with L.L., but J.L. insisted he had been truthful.
When Stephanie confronted L.L., she admitted lying, and on the
following day, Stephanie took L.L. back to Project Harmony, where
she was again interviewed by Rolles. Videos were made of both
interviews.
At the second interview, L.L. stated that Wineinger awakened
her one night by touching her private parts and he otherwise sexually
abused her. L.L. testified the abuse started when she was in the
second grade. She further testified that Wineinger made her perform
oral sex and he put his penis in her vagina and her anus. She
testified the abuse took place over and over. L.L. had frequently
asked Wineinger to stop, but he would continue and say “no.” She
testified she had hesitated to tell anyone because Wineinger had told
her that if she told anyone about the sexual abuse, “her mom would
go away.” At trial, Wineinger contended L.L. concocted the story to
punish him after his confrontation with Stephanie and to protect J.L.
from being punished for lying.
....
Prior to trial, Wineinger filed a motion in limine to keep the
second video interview out of evidence. Counsel agreed, however,
that . . . if the second interview came in then the first interview should
also come in. The State agreed both videos could come in but
opposed the first coming in without the second. The district court
found the parties to be “on the same page.” With the court
understanding both interviews would be admitted into the record, no
further consideration was given of the matter.
At a break in the State’s case, and prior to the playing of either
video, Wineinger’s counsel advised the court and the State that the
essential elements of L.L.’s first video were already in the record,
showing the first video was not required, and he did not intend to
present it. Wineinger contended that if he elected not to show the
first interview, the agreement had been abandoned and, therefore,
the second interview would not be admissible. Wineinger’s counsel
stated, “I am not seeking any further to admit the first interview of
Project Harmony and likewise I think the second interview
should . . . be . . . excluded . . . .” The court ruled during the break:
Both opening statements referred to it. All of the
examination of witnesses referred to it. Everything
refers to it as something that will occur during this trial.
That is no longer a trial strategy. That’s an
agreement . . . .
. . . So I’m going to allow the evidence in.
4

State v. Wineinger, No 16-1471, 2017 WL 6027727, at *1–2 (Iowa Ct. App.

Nov. 22, 2017). Both L.L. and forensic interviewer Rolles testified at the trial.

In the direct appeal, Wineinger raised four claims of ineffective assistance

of his trial counsel.1 In our opinion we found trial counsel was not ineffective

regarding his failure to object to Instruction No. 15 and Wineinger’s statements but

stated: “Defense counsel’s failure to object to the second video and to request an

appropriate limiting instruction are reserved for a possible postconviction relief

action.” Id. at *4. We affirmed Wineinger’s convictions. Id.

Wineinger filed his self-represented PCR application on March 7, 2019,

which alleged a lack of evidence, an unreasonable sentence, and that he was not

advised by his trial counsel of the plea offer made by the State.2 Wineinger’s

appointed counsel filed an amended application.3 Wineinger sent a letter to the

judge dated April 7, 2019, which the court also deemed an amendment to the

application.4 The State answered the amended application. Trial was held on

August 12, 2020.5 After counsel provided post-trial briefs, the court filed its ruling

denying Wineinger’s application as amended.

1 Those claims were: (1) Failing to object to the introduction of the second video
on hearsay grounds; (2) not requesting a limiting instruction addressing interviewer
Rolles’s questions during the video interview; (3) failing to object to court’s
Instruction No. 15, which paraphrased Uniform Instruction 200.44; and (4) failing
to object to Wineinger’s statements to L.L. as hearsay.
2 The plea offer called for Wineinger to plead guilty to two class “C” felony sex

crimes with consecutive ten-year prison terms.
3 The amended application asserted ineffective assistance of trial counsel in failing

to depose two State’s witnesses: Rolles, the forensic interviewer, and Officer Brian
Kernes, who first investigated the complaint; stipulating to the admission of the two
videotaped forensic interviews into evidence; and failing to utilize an investigator.
4 This amendment requested that Wineinger be permitted to accept the State’s

earlier plea offer.
5 Wineinger waived his right to be present at the PCR trial.
5

In addition to several other issues not appealed, the PCR court addressed

the ineffective-assistance claim related to the admission of the Project Harmony

videos. The ruling identified those issues as “trial counsel’s agreeing to the

admission of the second video, not objecting to the admission of the second video,

not requesting a limiting instruction regarding the second video, not objecting to

the video as hearsay, and not objecting to the court’s instruction to the jury on the

video.” The court denied these claims, finding a lack of prejudice.

Wineinger filed a timely notice of appeal on January 6, 2021. On appeal,

Wineinger raises two issues: trial counsel’s failure to object to the admission of the

second Project Harmony video and failing to request a limiting jury instruction

regarding the videos.

II. Standard of review.

We review ineffective-assistance-of-counsel claims de novo. Sothman v.

State, 967 N.W.2d 512, 522 (Iowa 2021). “Ineffective-assistance-of-counsel

claims require a showing by a preponderance of the evidence both that counsel

failed an essential duty and that the failure resulted in prejudice.” State v. Lorenzo

Baltazar, 935 N.W.2d 862, 868 (Iowa 2019) (citation omitted) To establish

ineffective assistance of counsel, a claimant must show his counsel failed to

perform an essential duty and prejudice resulted therefrom. Strickland v.

Washington, 466 U.S. 668, 687 (1984).

III. Discussion.

On appeal, Wineinger limits his contentions. He claims his criminal trial

counsel was ineffective, first, for agreeing to the admission of both forensic videos

and, second, in failing to object to the admission of the second video on hearsay
6

grounds. At the criminal trial, the court did not rule on the videos’ admissibility

since it found defense counsel had agreed to their admission and deemed it too

late during trial for counsel to withdraw from that agreement. In the PCR ruling,

the district court found, even if there had been a hearsay objection, the second

video would have been admissible under the residual exception found in Iowa Rule

of Evidence 5.807(a) and, thus, Wineinger suffered no prejudice from his attorney’s

failure to object. In this appeal, Wineinger challenges that ruling.

In two recent Supreme Court opinions, filed after the briefs were submitted

in this case, the court analyzed the admissibility at trial of a video-recorded forensic

interview of a child sex abuse victim. See State v. Fontenot, 958 N.W.2d 549 (Iowa

2021); State v. Skahill, 966 N.W.2d 1 (Iowa 2021).

In Skahill, the court stated:

We review evidentiary rulings on hearsay for errors at law.
State v. Fontenot, 958 N.W.2d 549, 555 (Iowa 2021); see also State
v. Veverka, 938 N.W.2d 197, 202 (Iowa 2020) (“Our review of the
district court’s ruling on a preliminary question of admissibility is for
the correction of legal error.”). We review for errors at law because
“a district court ‘has no discretion to admit hearsay in the absence of
a provision providing for it.’” Veverka, 938 N.W.2d at 202 (quoting
State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003)).

966 N.W.2d at 8. We apply this standard to determine whether, applying either

Fontenot or Skahill, the objection would have been overruled if Wineinger’s trial

counsel had posed a hearsay objection.6

6We are not restricted to the district court’s decision based on the residual hearsay
exception. If the hearsay objection would have been overruled as either a prior
consistent statement or under the residual exception, then Wineinger suffered no
prejudice and his claim fails. See Fontenot, 958 N.W.2d at 555 (“Although it is
unclear from the record exactly which rule the district court relied on in determining
7

In Fontenot, the supreme court found a child sex abuse complainant’s

video-recorded forensic interview was admissible as a prior consistent statement

when the defendant asserted at trial that the witness had recently fabricated her

trial testimony. Iowa Rule of Evidence 5.801(d)(1)(B) provides that a prior

statement is not hearsay and is admissible as substantive evidence if:

[t]he declarant testifies and is subject to cross-examination about a
prior statement, and the statement: . . . [i]s consistent with the
declarant’s testimony and is offered to rebut an express or implied
charge that the declarant recently fabricated it or acted from a recent
improper influence or motive in so testifying.

In Skahill, the court discussed the residual hearsay exception.

The residual exception to the hearsay rule provides,
[A] hearsay statement is not excluded by the rule against
hearsay even if the statement is not specifically covered by a hearsay
exception in rule 5.803 or 5.804 [if]:
(1) The statement has equivalent circumstantial guarantees of
trustworthiness;
(2) It is offered as evidence of a material fact;
(3) It is more probative on the point for which it is offered than
any other evidence that the proponent can obtain through
reasonable efforts; and
(4) Admitting it will best serve the purposes of these rules and
the interests of justice.
Iowa R. Evid. 5.807(a).

966 N.W.2d at 10.

The requirements of the residual exception can be
summarized as “trustworthiness, materiality, necessity, service of the
interests of justice, and notice.” State v. Rojas, 524 N.W.2d 659,
662–63 (Iowa 1994). These are not factors to be weighed; all five
requirements must be satisfied. State v. Weaver, 554 N.W.2d 240,
247 (Iowa 1996), overruled on other grounds by State v. Hallum, 585
N.W.2d 249, 254 (Iowa 1998). Skahill challenges the district court’s
determination that the necessity and interests-of-justice
requirements were met.

the video was admissible, this does not prevent us from upholding the district
court's admission of the video if it was properly admissible on any ground.”).
8

Id.

The supreme court in Skahill then focused on the “necessity” requirement.

It noted two previous Iowa cases most directly on point, Rojas, 524 N.W.2d, and

State v. Neitzel, 801 N.W.2d 612 (Iowa Ct. App. 2011), which provided examples

of when admission of a hearsay video interview was a necessity. In Rojas, the

video interview was admitted under the residual exception when a ten-year-old girl

recanted her prior accusations during her trial testimony. 524 N.W.2d at 663–64.

In Neitzel, our court held that a video interview was admissible under the residual

exception when the complaining witness was ten years old and could no longer

remember the abuse she had suffered when she was seven. 801 N.W.2d at 617.

The court also discussed the Fontenot case, stating: “We determined the CPC

interview video was admissible as a prior consistent statement once defense

counsel had attempted to impeach the child’s credibility on cross-examination to

show she had changed her story.” Skahill, 966 N.W.2d at 13. Thus, Fontenot was

not decided on the residual exception rule. Id.

The court then stated: “While the present case differs in many respects, the

underlying principle of our decision is the same: when the same evidence is

available through in-court testimony, hearsay statements are generally not

necessary under the residual exception.” Id. at 13–14. In Skahill, since the child

testified at trial, the supreme court found the necessity requirement was not met

and the video recorded statement was not admissible under the residual exception

to hearsay. Id. at 15.
9

We conclude that Fontenot and the prior consistent statement exception in

rule 5.801(d)(1)(B) would have allowed admission of the second video. It is clear

from the criminal trial record that Wineinger’s counsel’s trial strategy was to cast

doubt on L.L.’s credibility by presenting evidence about her giving two inconsistent

recorded interviews—the first being a denial that Wineinger committed sex abuse

and the second that he did. The second interview was consistent with L.L.’s trial

testimony and was admissible under Iowa Rule of Evidence 5.801(d)(1)(B). Thus,

Wineinger suffered no prejudice.

We next address Wineinger’s argument his trial attorney was ineffective in

failing to ask for a limiting instruction. The State contends Wineinger failed to

preserve error on this issue. Wineinger himself admits the issue was mentioned

only briefly in his application, and the district court did not consider or rule on it. In

reply briefing, he attempts to raise the issue as ineffectiveness of PCR counsel.

But we do not address arguments raised for the first time in a reply brief. Villa

Magana v. State, 908 N.W.2d 255, 260 (Iowa 2018). Nor can we consider any

issue that was neither raised before nor decided by the PCR court. See Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). We find he failed to preserve error

on this claim. So, we affirm the denial of his application.

AFFIRMED.