Opinion
No. 2-182 / 01-0508.
Filed June 19, 2002.
Appeal from the Iowa District Court for Johnson County, DOUGLAS S. RUSSELL, Judge.
Defendant appeals from his conviction and sentences for two counts of second-degree sexual abuse, two counts of false imprisonment, two counts of indecent exposure, lascivious acts with a child, and dissemination and exhibition of obscene material to minors. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, J. Patrick White, County Attorney, and Anne Lahey, Assistant County Attorney, for appellee-State.
Considered by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.
Dominic Jason Fillmer appeals from his convictions and sentences for two counts of second-degree sexual abuse, two counts of false imprisonment, two counts of indecent exposure, lascivious acts with a child, and dissemination and exhibition of obscene material to minors. He contends his trial counsel was ineffective in failing to object to hearsay statements made by the mother of one of the victims. We review his claim de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
To establish an ineffective assistance of counsel claim a defendant must show (1) counsel failed to perform an essential duty, and (2) he was prejudiced by this failure. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The defendant has the burden of proving both elements of his ineffective assistance claim by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001). We can affirm on appeal if either element is lacking. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996).
In order to prove the prejudice prong, the defendant must show a reasonable probability that but for counsel's alleged errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). Because the testimony of which Fillmer complains is merely cumulative in light of the overall evidence of his guilt, we find Fillmer has failed to prove he was prejudiced by counsel's failure to object to the testimony of a victim's mother. Accordingly, we affirm.
AFFIRMED.