DAVID LEE HANSE, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-267 / 08-0640
Filed May 6, 2009
DAVID LEE HANSE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Humboldt County, Kurt L. Wilke,
Judge.
David Hanse appeals from the denial of his application for postconviction
relief. AFFIRMED.
Duane M. Huffer of Huffer Law P.L.C., Story City, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers and Robert J.
Glaser, Assistant Attorneys General, Jennifer A. Benson, Humboldt County
Attorney, for appellee State.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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DOYLE, J.
David Hanse appeals the denial of his application for postconviction relief.
He claims the district court erred in finding (1) there was sufficient specific
evidence for a multiple-acts conviction of child endangerment; (2) Hanse was not
prejudiced by the withholding of evidence; and (3) his trial counsel and appellate
counsel were not ineffective. Because we find Hanse has failed to preserve
these issues for appellate review, we affirm the district court.
At the postconviction relief hearing, the assistant attorney general who
originally prosecuted Hanse stated: “This was a very unique case and it’s one
that I will never forget because this is the most horrendous case of abuse I have
ever seen.”
Upon our review of the record, we must agree with her
characterization of the case.
In 2003 Hanse was charged in three counts with sexual abuse in the
second degree in violation of Iowa Code section 709.3(2) (2001), multiple acts of
child endangerment in violation of sections 726.6 and 726.6A, and child
endangerment in violation of section 726.6(1)(a). A jury convicted Hanse on all
three counts. He was sentenced to an indeterminate twenty-five-year term of
imprisonment on the first count, a fifty-year indeterminate term on the second
count, and a two-year indeterminate term on the third count, with the terms to be
served consecutively. This court affirmed his convictions on direct appeal. See
State v. Hanse, No. 04-0943 (Iowa Ct. App. June 29, 2005).
On October 24, 2005, Hanse filed a pro se application for postconviction
relief. His appointed counsel subsequently filed an amended application. Hanse
alleged in his application that he was denied a fair trial because (1) evidence of
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subsequent sexual abuse inflicted by others on the victim that may have caused
serious injury to the victim was not presented to the jury; (2) the prosecutor
spoke with a potential juror outside the presence of Hanse and his attorney;
(3) DNA evidence that was exculpatory was not presented to the jury; and
(4) Hanse’s computer that did not contain pornographic pictures of the victim as
alleged was not presented to the jury. Hearing was held March 12, 2008. After
addressing all four issues presented to it, the district court denied postconviction
relief in its March 20, 2008 order. Hanse appeals.
I. Insufficient Evidence & Ineffective Assistance of Counsel Claims.
On appeal Hanse claims insufficient evidence was presented at his trial to
prove beyond a reasonable doubt that he committed at least three separate acts
to support a multiple-acts conviction of child endangerment under Iowa Code
section 726.6A. He also claims his trial and appellate counsel were ineffective in
failing to raise the issue of an allegedly improper jury instruction. The State
contends Hanse failed to preserve error on these claims. Upon our review of the
record, we agree.
The claims Hanse raises for the first time in this appeal were never
presented to or ruled upon by the postconviction court. Under Iowa Code section
822.8 (2005), “[a]ll grounds for relief available to an applicant under this chapter
must be raised in the applicant’s original, supplemental or amended application.”
Because the district court did not have an opportunity to consider these issues
that Hanse now raises on appeal, there is nothing for our court to review. Meier
v. Senecaut, 641 N.W.2d 532, 539 (Iowa 2002) (holding that an issue not ruled
on by the district court is not preserved for appellate review).
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In his reply brief, Hanse vaguely refers to some “newly gathered evidence
brought to light in the postconviction hearing.” An appellant may not raise an
argument for the first time in a reply brief. State v. Schultz, 245 N.W.2d 316,
318-19 (Iowa 1976).
II. Brady Claim.
Hanse claims he is entitled to a new trial, contending the State failed to
disclose allegedly exculpatory material as required by Brady v. Maryland, 373
U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963). He mades
only an oblique reference to a Brady claim in his amended application for
postconviction relief. In his explanation of grounds and facts he stated:
The child endangerment offense that Hanse was convicted of
required the Jury to find a serious Injury. The state relied upon
Post Traumatic Stress as the injury. It has been learned that the
alleged victims of this case were sexually abused in their adoptive
home. This evidence needs to be heard by the fact finder, since
any Post Traumatic Distress could be a result of the abuse in the
adoptive home. Counsel was ineffective for not discovering this
fact or pursuing it. The prosecutor knew of this exculpatory
evidenced and did not fully disclose it.
(Emphasis added.)
Hanse urged that his counsel was ineffective in failing to pursue and
present at trial evidence of the subsequent sexual abuse (an issue not raised in
this appeal). At best, any Brady argument was by implication. The court ruled
on the subsequent sexual abuse evidence issue as one of ineffective assistance
of counsel, concluding Hanse could not show that “but for” his counsel’s failure to
alert the jury to the subsequent abuse the result would have been different. In
the court’s opinion “it clearly would not.” The court made no Brady violation
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finding. Hanse made no application to expand the court’s findings. The State
argues Hanse failed to preserve error on this claim. We agree.
“It is a fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we will decide them on
appeal.” Meier, 641 N.W.2d at 537. As this issue was not decided, we have
nothing to review. See Stammeyer v. Divison of Narcotics Enforcement, 721
N.W.2d 541, 548 (Iowa 2006) (“If the court does not rule on an issue and neither
party files a motion requesting the district court to do so, there is nothing before
us to review.”). Even issues implicating constitutional rights must be presented
to and ruled upon by the district court in order to preserve error for appeal. In re
K.C., 660 N.W.2d 29, 38 (Iowa 2003). Because the district court made no ruling
on the Brady issue, an issue Hanse now raises on appeal, we have nothing to
review.
III. Conclusion.
Because no issues were preserved for appellate review, we affirm the
district court.
AFFIRMED.
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