STATE OF IOWA, Plaintiff-Appellee, vs. TRAVIS TAYLOR FREY, Defendant-Appellant.Annotate this Case
IN THE COURT OF APPEALS OF IOWA
No. 7-205 / 06-1081
Filed June 27, 2007
STATE OF IOWA,
TRAVIS TAYLOR FREY,
Appeal from the Iowa District Court for Pottawattamie County, James
Travis Taylor Frey appeals from his convictions following jury trial of thirddegree sexual abuse and domestic abuse assault causing bodily injury.
Mark C. Smith, State Appellate Defender, and James G. Tomka, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney
General, Matthew D. Wilber, County Attorney, and Shelly Sedlak, Assistant
County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Baker, JJ.
Travis Taylor Frey appeals from the judgment and sentence entered by
the district court after a jury returned verdicts finding him guilty of third-degree
sexual abuse in violation of Iowa Code section 709.4 (2005) and domestic abuse
assault causing bodily injury in violation of section 708.2A(2)(b). He contends his
trial counsel was ineffective in several respects. We reject one of his ineffective
assistance claims and affirm his convictions. We preserve his remaining claims
for possible postconviction relief proceedings.
Background Facts and Proceedings
Based on the evidence presented at trial, a jury could have found the
Travis and Ruth Frey were married in 1996.
By 2004 their
marriage was “rocky.” The couple often argued about religious issues. Travis
was unhappy Ruth was attending Southview Bible Church, which he described
as a “very fundamentalist church.”
In the fall of 2004, Travis and Ruth had an argument. Travis threw a set of
keys at Ruth, hitting her in the back of the head.
Later during the same
weekend, he hit her on the head several times with a sofa cushion. Ruth called a
domestic abuse hotline, but decided she did not want to leave Travis.
resolved to “hold [her] tongue and not argue” even when he criticized her about
her family, her activities, and housework.
In 2005 Travis demanded that Ruth participate in anal intercourse. When
she refused, Travis drafted a document of “wifely expectations” that listed his
The document included headings such as “Good Behavior,”
“Misbehavior and Noncomplian[ce],” “Sleep time and On Demand,” “Birthdays
and Anniversary,” “Photos,” “Quarterly Negotiation,” “Dressing Up,” “Shaving,”
“Sleepwear,” and “Fellatio, Intercourse & Other Sex Acts.” The document stated,
“Intercourse includes anal and vaginal intercourse,” and under the heading
“Misbehavior and Noncomplian[ce],” it stated if Ruth failed to comply with Travis’s
demands, she would be tied to the bed. In the document, Travis stated he would
do whatever he wished to Ruth, and “[t]his will continue every night until you are
ready to be complian[t], at which time you will need to apologize and explain how
you are ready to be my sex slave again.”
During the weekend of April 23-24, 2005, Travis and Ruth argued about
Ruth attending church on Sunday. Travis told Ruth if she went to church, he
would tie her to the bed, and she would “have consequences when . . . the night
comes.” Despite Travis’s threats, Ruth went to church. Because she was afraid
Travis would tie her to the bed and attempt to initiate anal sex as a
“consequence,” she called her friend Amy Rambo for advice. Rambo suggested
that Ruth meet with their pastor, Dwight Oswald. Ruth and Amy met with Pastor
Oswald after an evening church service, and then Ruth returned home.
After Ruth went to bed that evening, Travis came to bed and said,
“[Y]ou’re not naked; you know what the rules are. You need to get undressed.”
When Ruth told Travis she was tired and wanted to sleep, Travis said, “[W]ell,
we’ll just get this over then. Get the—the lube. We’re going to have anal sex.”
Ruth told her husband she did not want to have anal intercourse, but Travis
reached for lubricant in a drawer and forced Ruth’s left arm into a loop of rope he
had attached to the bed frame. 1 Ruth struggled with Travis and said, “Please
stop. I love you. I don’t want you to do this. Please stop.” Despite his wife’s
protestations, Travis held her right hand with his left hand above the bed, pried
her legs apart with his knee, and penetrated her vagina with his right hand “really
hard and rough.” He also penetrated her rectum with his fingers. While he
assaulted Ruth, Travis said, “[S]top crying and just take my punishment and this
would be better if [you] would cooperate and it wouldn’t be so hard and it
wouldn’t hurt if [you] would just cooperate.” Ruth testified she never consented
to any act of anal penetration.
The day after the assault, Ruth called Rambo, and they decided to meet
with Pastor Oswald again. Because the pastor did not work on Mondays, Ruth
contacted him Tuesday morning. After she met with the pastor, she decided to
work on her marriage one more time.
She returned home and slept in her
stepdaughter’s bedroom for at least one month.
In the fall of 2005, Travis told Ruth he had more sexual demands. He
said, “[T]here would be a[nother] contract [and] anal sex would be part of it and
[she] couldn’t refuse to sign” or he would post provocative pictures of her on the
Internet. In November 2005 Travis attempted to photograph Ruth while she was
showering and dressing and left another wifely expectations document on the
foot of the bed. After those events occurred, Ruth called her pastor, spoke with
Catholic Charities, contacted the police, and filed for divorce.
Travis testified he had measured ropes while Ruth was sleeping to ensure they were
the right length, and he attached them to the bed frame. Travis claimed he tied the
ropes to the bed frame “to see if [his] wife was interested in being tied up . . . for sexual
On December 20, 2005, the State filed a trial information charging Travis
with first-degree kidnapping and domestic assault causing bodily injury. Jury trial
commenced on March 28, 2006. Travis testified in his own defense. He claimed
he only tied ropes to the bed to see if his wife was interested in being tied up, but
when she refused to participate, they had consensual “regular vaginal sex.”
Travis testified he digitally penetrated Ruth’s rectum in April 2005, but he
suggested Ruth had consented to that activity on prior occasions.
admitted he drafted the wifely expectations documents, but he claimed “it was
things that [Ruth] mutually agreed upon and if she didn’t they were taken out.”
The defendant also admitted he possessed numerous pornographic images,
including pictures where he superimposed the faces of his wife and sister-in-law
on the bodies of women engaged in anal intercourse. According to Travis, he
and Ruth engaged in a lot of sexual experimentation.
The jury found Travis guilty of third-degree sexual abuse as a lesserincluded-offense of the kidnapping charge and also found him guilty of domestic
abuse. Travis was sentenced to ten years imprisonment on the sexual abuse
conviction and sixty days on the domestic abuse conviction. Travis now appeals.
He claims his trial attorney was ineffective in four respects. He contends his trial
counsel was ineffective for (1) failing to object to the use of the term “victim” at
trial, (2) failing to object to hearsay evidence, (3) failing to object to testimony
about his wife’s religious faith, and (4) failing to object to references to
Scope and Standards of Review
A claim of ineffective assistance of counsel requires a de novo review
because the claim derives from the Sixth Amendment of the United States
Constitution. State v. Collins, 588 N.W.2d 399, 401 (Iowa 1998). Travis has the
burden to establish by a preponderance of evidence that his trial counsel was
ineffective. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001). In order to
prove his trial counsel was ineffective, Travis must prove his counsel failed to
perform an essential duty and prejudice resulted. State v. Martin, 587 N.W.2d
606, 609 (Iowa Ct. App. 1998).
To establish breach of duty, Travis must
overcome the presumption counsel was competent and prove counsel’s
performance was not within the range of normal competency. State v. Buck, 510
N.W.2d 850, 853 (Iowa 1994).
To prove prejudice, Travis must show a
reasonable probability that, but for counsel's errors, the result of the proceeding
would have differed. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). We
may dispose of Travis’s ineffective assistance claims if he fails to prove either
breach of duty or prejudice. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct. App.
Usually, we preserve ineffective assistance claims for postconviction relief;
however, if the record sufficiently presents the issues, we will resolve the claims
on direct appeal. State v. Martens, 569 N.W.2d 482, 484 (Iowa 1997). We find
the record in this case adequate to rule on Travis’s claim that his trial counsel
was ineffective for failing to object to the use of the term “victim” during trial.
Because we find the record inadequate to address his remaining claims, we
preserve them for possible postconviction relief proceedings.
Use of the Term “Victim”
Travis contends his trial counsel was ineffective for failing to object to the
use of the term “victim” in reference to Ruth Frey and women in general who
have experienced domestic abuse. The record reveals Detective Cathy Shanno
referred to Ruth as “the victim” on several occasions. Jean Brazda, a domestic
violence expert, referred to “victims” of domestic violence generally, but she gave
no opinion about Ruth and did not refer to her specifically as a “victim.” 2 The
prosecutor referred to Ruth as “our victim” on one occasion, and defense counsel
referred to her as a “victim” once during cross-examination.
Travis asserts his trial counsel had a duty to object to the label “victim”
because it was irrelevant, it appealed to the jury’s sympathies, and it provoked
the jury’s instinct to punish him. The defendant has cited no appellate case in
support of his breach of duty argument, and we find it unnecessary to analyze his
breach of duty claim in the context of this case.
We reach this conclusion
because we conclude Travis has failed to show he was prejudiced in any way by
his counsel’s failure to object.
When raised in the context of an ineffective assistance of counsel claim,
the degree of prejudice that must be shown is set forth in Strickland v.
Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698
(1984). To sustain his claim, Travis must show “there is a reasonable probability
Brazda’s testimony included general statements about women who experience
domestic abuse, such as, “On average a victim will leave seven times before finally
breaking all ties with their abuser.”
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id.
Other jurisdictions that have addressed the use of the term “victim” have
not found such references prejudicial. See State v. Wigg, 889 A.2d 233, 236-38
(Vt. 2005) (finding a detective’s use of “victim” was synonymous with
“complainant” and did not prejudice the defendant); State v. Nomura, 903 P.2d
718, 722 (Hawaii Ct. App. 1995) (finding the use of the term “victim” in jury
instructions did not prejudice a defendant). In this case, Detective Shanno used
the term “victim” as synonymous with the term “complainant.” Brazda only used
the term to refer to a class of people who have experienced domestic violence.
She did not apply the term directly to Ruth. The term “victim” was not used
gratuitously at trial by the prosecutor, the trial court, or defense counsel, and the
record provides no basis for concluding the jury was diverted from their factfinding mission by occasional references to the term. Upon careful review of the
record, we find no reasonable probability that the result of this proceeding would
have been different if trial counsel had successfully objected to the use of the
term “victim” during this trial. 3 Because we conclude Travis has failed to satisfy
the Strickland standard for granting relief, we reject this assignment of error.
We now turn our attention to Travis’s three remaining claims of ineffective
assistance of counsel. Travis contends his trial counsel was ineffective for failing
to object to testimony by Rambo and Pastor Oswald that he alleges was
We recognize it is desirable to prevent misuse or overuse of the term “victim.” In some
circumstances, it would be better to use more neutral terms such as complainant,
complaining witness, or alleged victim
improper hearsay. Rambo testified she told the pastor’s wife that “Travis was
expecting to enforce anal sex that night because [Ruth] had gone to church that
morning.” Pastor Oswald testified, “Because of what [Ruth] shared with me that
night in terms of the nature of the assault that she had told me about, I was very
concerned about her—her safety and well-being.” Travis maintains both of these
statements constitute hearsay, so his counsel should have objected to the
testimony at trial.
Travis also claims his trial counsel was ineffective for failing to object to
Ruth’s testimony regarding her strong religious faith and his apparent lack of
faith. Travis argues this testimony was irrelevant to any of the issues in the case,
and the probative value of the evidence was substantially outweighed by the
danger of unfair prejudice. See Iowa R. Evid. 5.403.
The defendant also claims his trial counsel should have objected to
testimony regarding pornography and documents discovered on his computer.
Ruth testified about the titles of documents found on the computer, such as
“hypnotic suggestions for the perfect wife,” “subliminal programming for the
perfect wife,” “wifely expectations,” “the submissive wife versus the modern wife,”
and “the one, two, threes of anal sex.” Ruth also testified about pornographic
photographs with her face superimposed on other women’s bodies.
Teigland, a computer forensic expert with the Iowa Division of Criminal
Investigation, testified he discovered a large number of pornographic images on
During trial, Travis admitted in his testimony he visited pornographic
Internet sites and placed his wife’s face on pictures where objects were inserted
into women’s rectums. These computer documents and photographs were not
admitted into evidence. Travis contends the testimony regarding pornography
and documents discovered on his computer was irrelevant, and the probative
value was substantially outweighed by the danger of unfair prejudice.
In response to these claims of ineffective assistance, the State suggests
that Travis’s trial counsel “likely had a strategic reason for each decision
challenged on appeal.”
As we stated previously, we generally preserve
ineffective assistance of counsel claims for postconviction relief proceedings
because of the seriousness of the claims to trial counsel whose performance is
being challenged. Kellogg v. State, 288 N.W.2d 561, 563 (Iowa 1980). “Even a
lawyer is entitled to his [or her] day in court, especially when his [or her]
professional reputation is impugned.” State v. Coil, 264 N.W.2d 293, 296 (Iowa
Upon review of the trial record, we conclude that defense counsel’s
failure to object may well have been a tactical decision. We conclude the record
is inadequate to determine whether the decision not to object was a reasonable
tactical decision. We generally presume counsel competent, and we will not
second guess a reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564
Accordingly, we affirm Frey’s convictions and preserve these
issues for possible postconviction proceedings where the record can be fully
developed and defense counsel can be given an opportunity to explain his
actions. State v. Baker, 560 N.W.2d 10, 15 (Iowa 1997).
We affirm Frey’s convictions. We conclude Frey suffered no prejudice by
use of the term “victim” during trial. We preserve the defendant’s remaining
ineffective assistance of counsel claims for possible postconviction relief