STATE OF IOWA, Plaintiff-Appellee, vs. DENISE HARMON, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-866 / 09-0639
Filed December 17, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DENISE HARMON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Colin J. Witt, Judge.
Appeal from conviction of wanton neglect of a resident of a health care
facility. REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and David Arthur Adams,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, John P. Sarcone, County Attorney, and Celene Gogerty, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., Vaitheswaran and Danilson, JJ.
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SACKETT, C.J.
Defendant-appellant, Denise Harmon, appeals from her conviction of
wanton neglect of a resident of a health care facility. She contends trial counsel
was ineffective in not objecting to irrelevant prior-bad-acts evidence. We reverse
and remand for new trial.
Background. Appellant, a former employee of a health care facility, was
charged by trial information with two counts of wanton neglect of a resident of a
health care facility, in violation of Iowa Code section 726.7 (2007). The trial
information alleged the crimes occurred ―on or about September–October, 2007.‖
Harmon’s motion in limine, seeking to exclude evidence concerning her actions
toward any residents except the two that were the basis for the charges (D.J. and
S.S.), was granted.
The State offered testimony of a coworker concerning
Harmon’s actions toward D.J. that occurred in ―July or August‖ of 2007. Trial
counsel did not object to the testimony. On cross examination, trial counsel
inquired again into the dates of the actions, to confirm whether they were in July
or August. After the State rested, it moved to amend the trial information to
conform to the evidence, to extend the time from September–October to July–
October. Trial counsel resisted, but the court allowed the amendment.
The jury found Harmon guilty of the charge concerning D.J. and not guilty
of the charge concerning S.S. The court sentenced Harmon to two years in
prison, suspended the sentence, and placed her on probation for two years.
Scope of Review. Review of ineffective-assistance-of-counsel claims is
de novo.
State v. Cromer, 765 N.W.2d 1, 6 (Iowa 2009).
―The successful
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ineffective-assistance-of-counsel claim requires proof by a preponderance of the
evidence that (1) counsel failed to perform an essential duty, and (2) prejudice
resulted.‖ Id.
Merits.
Harmon contends counsel was ineffective in not objecting to
irrelevant evidence of an act that occurred before the time period of the acts
forming the basis for the charges.
See Iowa Rs. Evid. 5.402 (relevance),
5.404(b) (other bad acts). She argues that if counsel had objected, the evidence
would not have been admitted. If the evidence had not been admitted, the court
would not have allowed the State to amend the trial information to include the
additional acts. She further argues she was prejudiced because, without the
evidence of the prior act, she likely would have been acquitted of the charge
concerning D.J. as she was of the charge concerning S.S.
The State argues the evidence of prior acts concerning D.J. was direct
evidence of Harmon’s commission of wanton neglect of a resident of health care
facility, and not subject to rule 5.404(b). The State argues, alternatively, that the
prior act was ―so closely related to that conduct that it was intrinsic to the
offense.‖
We agree with Harmon that her ―trial attorney failed to make a timely and
appropriate objection . . . on the basis that this evidence was evidence of a prior,
irrelevant bad act and, even if relevant, this evidence was more prejudicial than
probative.‖ The trial information restricted the charged events to ―on or about
September—October, 2007.‖
Harmon’s motion in limine, concerning events
outside that time period and related to other persons than D.J and S.S., was
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granted. When the State elicited testimony concerning an event that counsel
should have known was outside the time period of the trial information, counsel
should have objected on the grounds of relevance and that the testimony was
improper prior-bad-acts evidence.1 See Iowa Rs. Evid. 5.401, 5.402, 5.404(b).
Although the State argues the evidence was either not improper under rule
5.404(b) or was not subject to the rule at all, we do not believe the evidence was
relevant to the charges set forth in the original trial information. The analysis of
the evidence under rules 5.404(b) or 5.403 would not be necessary if the court
had sustained a proper objection based on relevance. We conclude counsel
failed in an essential duty. See Cromer, 765 N.W.2d at 7.
To prevail on her claim of ineffective assistance, however, Harmon must
also demonstrate prejudice. See id. To establish prejudice, a defendant must
show the probability of a different result is ―sufficient to undermine confidence in
the outcome.‖ State v. Reynolds, 746 N.W.2d 837, 845 (Iowa 2008) (quoting
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d
674, 698 (1984)). ―In determining whether this standard has been met, we must
consider the totality of the evidence, what factual findings would have been
affected by counsel's errors, and whether the effect was pervasive or isolated
and trivial.‖ State v. Graves, 668 N.W.2d 860, 882-83 (Iowa 2003). In the case
before us, the evidence of Harmon’s actions in July provided the basis for the
court to grant the State’s motion to amend the trial information, expanding the
time period to include July and August. It also provided the basis for modifying
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Or if counsel felt blind-sided counsel should have moved to strike the evidence.
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the proposed jury instructions to include the additional time period and the acts
that occurred therein. The evidence of Harmon’s acts in July concern only D.J.
The actions encompassed by the original trial information that relate to D.J. are
the same as those that relate to S.S.
The only difference between the two
counts of the amended trial information is to include Harmon’s July actions
affecting D.J. The jury acquitted Harmon of the charge concerning S.S. We see
no reason, if the evidence concerning both residents was the same, that the jury
would not have acquitted Harmon of the charge concerning D.J. as well. Since
the effect of counsel’s failure to object to the evidence is likely the basis for the
different result, our confidence in the outcome is undermined and we conclude
Harmon has demonstrated a reasonable probability of a different result. See
Reynolds, 746 N.W.2d at 845.
Conclusion.
As Harmon has demonstrated both counsel’s failure to
perform an essential duty and prejudice, we conclude she has proved counsel
was ineffective in not objecting to the evidence and the subsequent amendment
of the trial information. We reverse her conviction concerning D.J. and remand
for new trial.
REVERSED AND REMANDED.
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