Opinion
No. 5-736 / 04-1170
Filed December 21, 2005
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
Ronald Lee May, Sr. appeals his conviction and sentence for second-degree sexual abuse. AFFIRMED.
Ronald Lee May, Sr., Anamosa, pro se.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, John P. Sarcone, County Attorney, and Jeff Noble, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Ronald Lee May, Sr. appeals his conviction and sentence for second-degree sexual abuse in violation of Iowa Code section 709.3 (1997). We affirm.
I. Background Facts and Proceedings
M.W., the victim in this case, was born in 1991. Her mother, Mary Jane, married the defendant in 1994. A son, R.M., was born shortly thereafter. The family lived in an apartment in West Des Moines between March 1998 and April 1999. They lived in a house in Des Moines between May 1999 and September 2000.
In the fall of 2000, M.W.'s friend, S.M., stayed overnight at M.W.'s house. S.M. saw May come and get M.W. and asked M.W. why she went into May's room. M.W. told S.M. and, later, S.M.'s mother, that May had sexually abused her. S.M.'s mother reported the alleged sexual abuse to the Iowa Department of Human Services (DHS). A DHS worker interviewed M.W., who denied May had engaged in any sexual conduct with her. May refused to cooperate with the investigation and would not allow Mary Jane to talk to the DHS worker.
At some point following the investigation, M.W. told Mary Jane something had happened between her and May. Mary Jane got angry, started packing clothes, and told M.W., "We're getting out of here." When M.W. realized how angry her mother was, she told her, "It's just a joke. It's not true. I made it up."
In April 2001, a second DHS worker and a detective from the Des Moines Police Department questioned M.W. at school. She told them May put his finger in her body ten times and his "ding-a-ling" in her body ten times or more. She also said May showed her pornographic movies and threatened to hurt her or Mary Jane. M.W. did not say anything about oral sex.
In May 2001, Dr. Rizwah Shah examined M.W. Dr. Shah found the opening of M.W.'s hymen had been stretched beyond what was normal for her age. M.W. also had a tear or cut to her hymen. Dr. Shah opined the injuries were consistent with penetration of a large object and that such injuries in children were usually the result of digital or penile penetration by an adult. She did not find evidence of complete penile penetration by an adult, which would have caused more damage to the hymen, but her findings were consistent with attempted penile penetration or digital penetration. According to Dr. Shah, M.W.'s injuries could have been caused by one incident, and that there would be no evidence of injury from oral sexual contact.
May's medical records, introduced at trial, showed he sought treatment for genital warts in 1997. Dr. Shah did not find evidence of any sexually transmitted disease during her examination of M.W., but indicated M.W. would not necessarily contract genital warts from penile penetration by May.
Also in May 2001, M.W. began seeing therapist Lori Nelson-Salsbury. M.W. told Nelson-Salsbury that May sexually abused her from age five to about age nine, and threatened to hit or kill her if she told. On June 19, M.W. told Nelson-Salbury that May had sex with her about thirty times.
On August 8, during an in-home visit from DHS, Mary Jane told the DHS worker in M.W.'s presence that M.W.'s accusations were made-up. About the same time, Mary Jane instructed M.W. to tell Nelson-Salsbury that May had done nothing to M.W. On August 14, M.W. told Nelson-Salsbury that May had never had sexual relations with her, that she had made up the story, and that she had had sexual relations with a nine-year-old boy, D.P. However, during the same therapy session M.W. told Nelson-Salsbury what happened with D.P. was "like what happened with my dad." In a later session M.W. reaffirmed that May had sexually abused her and told Nelson-Salsbury she felt bad about lying to her. During a session attended by M.W. and Mary Jane in December 2001, M.W. said May "stuck his ding-a-ling" in her vagina a hundred times.
On September 17, M.W. and R.M. were removed from Mary Jane's custody and placed in foster care. The removal was due to Mary Jane's failure to cooperate with DHS, her failure to ensure M.W. and R.M. attended therapy sessions consistently, and failure to abide by a court order providing that May was not to have contact with the children. The children were returned to Mary Jane's custody on December 20, 2001.
In a trial information filed June 18, 2001, the State charged May with two counts of sexual abuse in the second degree, in violation of Iowa Code section 707.3. In October or November 2001, May met with Donald Hall, a therapist and director of the Intra-Family Sexual Abuse Program (IFSAP). On December 6, May signed an agreement to participate in the IFSAP. As part of the agreement, May gave a taped statement to authorities, admitting responsibility for acts committed upon M.W., and agreed to participate in therapy. If he successfully completed the program he would be allowed to plead guilty to the reduced target charge of lascivious acts with a child. The State agreed to recommend probation at sentencing. The agreement stated that if he was terminated from the IFSAP, "any and all statements made during the course of the program" could be introduced at trial.
During his first group session on December 10, May remarked that sex abuse "wasn't that big a deal, it was only a big deal because society had a problem with it." He became angry when confronted about the statement by other members of the group. At other group sessions, he said sex with children was natural and happened routinely throughout history, and he justified sexually abusing M.W. by telling himself that she liked it. He admitted to sexually abusing M.W. by oral sexual contact and partial penile penetration. He repeatedly admitted the sexual abuse in written assignments and written statements in answer to written questions from M.W. He expressed remorse for the abuse and showed empathy regarding the impact of the abuse on M.W. and the rest of his family.
M.W. and R.M. were removed from Mary Jane's custody again in December 2002. In the fall of 2003, May and Mary Jane divorced, believing this would improve Mary Jane's chance of regaining custody of the children and May's chance of having some contact with them. However, in November or early December 2003, May and Mary Jane learned the State was moving to terminate May's parental rights with respect to R.M. and Mary Jane's parental rights with respect to both children.
At about the same time, after two years in the IFSAP, Hall believed May had received maximum gains from the IFSAP and was ready to proceed with the plea agreement to lesser charges. On December 15, however, May recanted and refused to plead guilty to the lesser charge. He believed the State had promised family reunification under the IFSAP agreement and had reneged on that promise by initiating the termination proceedings.
In its amended trial information, filed April 2004, the State charged May with two counts of second-degree sexual abuse. The trial information alleged May performed a sex act with M.W. between March 1, 1998, and April 30, 1999, while the May family lived in the apartment, and that he performed a sex act with M.W. between May 1, 1999, and September 30, 2000, while the family lived in the house.
During her deposition in May 2004, M.W. stated May put his penis in her vagina fifteen or more times and that it happened at least two times a week for a period of years. M.W. was asked for the first time about oral sex and revealed that May had performed oral sex on her. M.W. subsequently mentioned oral sex in her counseling with Nelson-Salsbury.
The case proceeded to jury trial on May 24, 2004. At trial, M.W. testified to incidents of sexual abuse by May at the apartment and the house. May testified and denied all allegations of sexual abuse of M.W. He claimed the admissions he made while participating in the IFSAP were not true. He testified that he made them up in order to comply with the requirements of the program because he believed participation in the IFSAP was the only way to reunite his family. May testified he backed out of the plea agreement once he learned the State was moving to terminate his parental rights.
The jury found May guilty of two counts of second-degree sexual abuse. The district court sentenced May to two consecutive indeterminate twenty-five-year terms of incarceration. May appeals, raising the following issues: (1) sufficiency of the evidence; (2) the trial court erred in admitting expert testimony that improperly bolstered M.W.'s credibility; (3) the trial court erred in failing to grant a mistrial due to improper remarks by the prosecutor during closing arguments; (4) the trial court abused its discretion in sentencing him to consecutive, rather than concurrent, terms of imprisonment; and (5) ineffective assistance of counsel. Additional facts will be discussed as they relate to the issues raised.
May filed a pro se brief in which he separately raises the sufficiency-of-the-evidence and sentencing issues. The remaining issues are raised in appellate counsel's brief.
II. Sufficiency of the Evidence
We review sufficiency-of-the-evidence claims for errors at law. Iowa R. App. P. 6.4. We uphold a verdict if substantial evidence supports it. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). "Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt." State v. Biddle, 652 N.W.2d 191, 197 (Iowa 2002). We consider all record evidence, not just the evidence supporting guilt, when making sufficiency-of-the-evidence determinations. Quinn, 691 N.W.2d at 407. Direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)( p). We view the evidence in the light most favorable to the State, "including legitimate inferences and presumptions that may fairly and reasonably be deduced from the record evidence." Biddle, 652 N.W.2d at 197.
May argues the State failed to prove him guilty beyond a reasonable doubt. Specifically, he claims the evidence was insufficient to prove sex acts between May and M.W. The State argues May has not preserved this argument for appeal because his motion for judgment of acquittal did not include the specific grounds he raises on appeal.
To preserve error for appellate review on a claim of insufficient evidence, "the defendant must make a motion for judgment of acquittal at trial that identifies the specific grounds raised on appeal." State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). However, "we recognize an exception to the general error-preservation rule when the record indicates that the grounds for a motion were obvious and understood by the trial court and counsel." State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005).
To prove its allegations of second-degree sexual abuse, the State was required to prove (1) May performed a sex act with M.W. on the dates in question and (2) M.W. was under age twelve at the time. See Iowa Code § 709.3. May's trial counsel moved for a judgment of acquittal at the close of the State's case and again at the close of all the evidence. The basis of the motion was that there was insufficient evidence to prove beyond a reasonable doubt that May used or threatened to use force creating substantial risk of death or serious injury. See Iowa Code § 709.3(1). The State responded as follows:
[STATE]: Judge, the defendant is not charged under any of those alternatives under 709.3. The alternative that makes this sexual abuse in the second degree is that the victim is under the age of twelve. [ See Iowa Code § 709.3(2).] That doesn't seem to be a dispute. The only factual dispute seems to be whether sexual contact actually occurred, and that's a fact question for the jury. So I resist the motion and ask you to overrule it.
THE COURT: The defendant here is charged under the alternative subsection of the code section for sex abuse second which is that the child is under the age of twelve. And I think viewing the evidence in the light most favorable to the State, there is substantial evidence justifying an inference of guilt, and the motion for judgment of acquittal is denied.
Under these circumstances, we conclude the trial court and counsel understood the basis for the motion for judgment of acquittal. Therefore, we conclude error was preserved.
M.W. accused May of acts of sexual abuse on numerous occasions before and during trial. Dr. Shah testified the injuries she observed during her examination of M.W. were consistent with attempted penile or digital penetration. In his pre-trial statements, May admitted penetrating M.W. with his finger, attempting to penetrate her with his penis, performing oral sex on M.W. and having M.W. perform oral sex on him. The statements concerning sex acts made by M.W. and May and corroborated by medical evidence, along with other evidence presented at trial, were sufficient to prove beyond a reasonable doubt that those acts occurred.
May points to evidence in the record that supports a contrary conclusion. However, the existence of evidence which might support a different verdict does not negate the existence of substantial evidence sufficient to support the jury's verdict in the case. State v. Frake, 450 N.W.2d 817, 818-19 (Iowa 1990). We conclude substantial evidence supports the jury's verdict in this case, and we affirm on this issue.
III. Expert Testimony
We review evidentiary rulings, including the admission of expert testimony, for an abuse of discretion. State v. Belken, 633 N.W.2d 786, 793 (Iowa 2001). An abuse of discretion occurs when the trial court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Rodriquez, 636 N.W.2d 234, 245 (Iowa 2001).
May argues the trial court abused its discretion by admitting expert testimony by M.W.'s therapist that improperly bolstered M.W.'s credibility. The State contends the court's ruling was not an abuse of discretion and that any error would have been harmless because the challenged testimony was cumulative to other similar testimony in the record without objection.
Iowa Rule of Evidence 5.702 permits expert testimony to "assist the trier of fact to understand the evidence or to determine a fact in issue." Iowa R. Evid. 5.702. "We take a liberal approach to the admissibility of expert testimony" under the rule. State v. Allen, 565 N.W.2d 333, 338 (Iowa 1997). "The trend of our cases has been toward broadening the scope of admissibility of expert testimony." State v. Schutz, 579 N.W.2d 317, 319 (Iowa 1998) (citation omitted).
"Expert testimony directly expressing an opinion on the credibility of a witness is not admissible." Allen, 565 N.W.2d at 338. Similarly, an expert cannot testify as to the guilt or innocence of the defendant. State v. Myers, 382 N.W.2d 91, 94 (Iowa 1986). The credibility of a witness and the determination of a defendant's guilt or innocence "are reserved solely for the fact finder." Id.
However, an expert "may express opinions on matters explaining the pertinent mental and physical symptoms of the victims of abuse." Allen, 565 N.W.2d at 338. "There is a fine but essential line between testimony that is helpful to the jury and an opinion that merely conveys a conclusion concerning the defendant's guilt." Id.
M.W.'s therapist, Nelson-Salsbury, testified that dissociation is "an altered state of consciousness." In particular, it is "where there's a break with an alert state of consciousness, and typically the person will take themselves to a different place, whether it's a daydream that they go to or just a blocking out of what's happening." The prosecutor asked whether M.W. "ever describe[d] anything to you that appeared that it might have been dissociation?"
After the trial court overruled May's objection to the question, the prosecutor elicited the following:
Q. Did [M.W.] ever describe to you events that you recognized as being dissociative? A. On one occasion she described to me a way of coping. She had told me about — this was during a time in our session that we were talking about the sexual abuse where she was giving me details, and she said that she would look at the wall or look at the decorations on the wall when her father would be on top of her.
Q. Why was that significant to you? A. It was significant because it seems as if she were trying to remove herself from the situation.
On appeal, as he did at trial, May argues Nelson-Salsbury's testimony constituted improper opinion evidence on the credibility of M.W. and on May's guilt or innocence. He contends the purpose of the proffered evidence was to bolster the testimony of M.W. who, at various times prior to trial, had related inconsistent accounts of May's sexual abuse. We disagree.
The challenged testimony explained unusual behavior on the part of M.W. Thus, it fell within the rule that permits experts to express opinions "on matters explaining the pertinent mental and physical symptoms of the victims of abuse." Allen, 565 N.W.2d at 338. In addition, the State offered Nelson-Salsbury's testimony in conjunction with other testimony to show that May's pre-trial admissions concerning M.W.'s behavior during the sexual abuse were consistent with M.W.'s independent descriptions of her own behavior during the sexual abuse.
M.W. testified that during the abuse she would think about "what went on at school that day, what my friends are doing right now, what [her friend S.M.] was doing, and sometimes I wished I was over staying the night at a friend's house."
Donald Hall, May's therapist, testified without objection as follows:
Q. What is [dissociation]? A. Dissociation is an altered state of consciousness. It's attributable to someone going through an agonizing ordeal that is too bizarre, unusual for the brain to be able to frame it or understand it.
Q. In the course of your treatment of the defendant, did you talk to him about how [M.W.] acted during the sexual abuse? A. He told me — he told me how she acted.
Q. Did he ever describe anything that you as a therapist recognized as dissociation? A. Yes, he did.
Q. What did he say? A. He said she would lay over on her side or almost as if she were asleep and that was compared to the fact that she sometimes complained of him hurting her.
May's expert, Dr. Donner Dewdney, agreed that dissociation is essentially when a person who is subjected to a trauma psychologically tunes out the source of that trauma. He testified that in cases of extreme dissociation a person subjected to trauma may not remember it or be able to explain it in detail, and that sexual abuse can cause dissociation.
The State was not attempting to bolster M.W.'s credibility with an improper expert opinion when it elicited the challenged testimony from Nelson-Salsbury. Rather, it was attempting to show that both May and M.W. described the same or essentially similar incidents, supporting the inference that those incidents occurred. The trial court did not abuse its discretion in admitting Nelson-Salsbury's testimony. Moreover, any error would have been harmless, due to the related testimony from other witness, admitted without objection. See State v. Brotherton, 384 N.W.2d 375, 379 (Iowa 1986).
IV. Prosecutorial Misconduct
May contends the prosecutor made statements during summation which rose to the level of misconduct. Specifically, he argues the statements constitute a "golden rule argument" in which jurors are urged to place themselves in the position of the victim and decide the case from that perspective. In addition, May argues the prosecutor's comments were an "improper emotional appeal designed to persuade the jury to decide the case on issues other than the facts before it." See State v. Johnson, 534 N.W.2d 118, 128 (Iowa Ct.App. 1995).
During closing argument, the prosecutor told the jury "the world of a child is different," and asked the jury to consider "what's important in the life of a nine-year-old girl" in order to fairly analyze M.W.'s testimony. The prosecutor described the things "nine-year-old kids are supposed to be worrying about" and asked the jury to remember "what it was like at nine years old looking at our parents." He continued, "So when [M.W.], in her nine-year-old world, has the courage to point her finger at this man, she is taking on the dictator of her nine-year-old world." At the conclusion of the State's closing argument, the prosecutor asked the jury to return a verdict finding May guilty, in part because "justice for [M.W.] demands it."
May's counsel objected and requested a mistrial immediately following the prosecutor's closing argument. The court overruled the motion, concluding the prosecutor's remarks were "in the context of explaining . . . the inconsistent statements of the child," but gave an oral limiting instruction that the jury was "not to place yourselves in the shoes of the alleged victim or the defendant in this case. Your job is to consider whether the State has proved its case beyond a reasonable doubt."
As a preliminary matter, the State argues May's motion for mistrial was untimely. We disagree. "Where closing arguments are reported, certified and made part of the record, objections to remarks of counsel during final jury argument are timely if urged at the close of argument and in a motion for mistrial made before submission to the jury." State v. Nelson, 234 N.W.2d 368, 371 (Iowa 1975).
We review the district court's ruling on a motion for mistrial based on prosecutorial misconduct for an abuse of discretion. State v. Greene, 592 N.W.2d 24, 30 (Iowa 1999). "We find an abuse of discretion only where (1) there is misconduct, and (2) the defendant was so prejudiced by the misconduct `as to deprive the defendant of a fair trial.'" Id. (quoting State v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989)). Thus, "it is the prejudice resulting from misconduct, not the misconduct itself, that entitles a defendant to a new trial." State v. Piper, 663 894, 913 (Iowa 2003). In determining whether prosecutorial misconduct warrants a new trial, we consider such conduct within the context of the entire trial. Id. We consider "(1) the severity and pervasiveness of the misconduct, (2) the significance of the misconduct to the central issues in the case, (3) the strength of the State's evidence, (4) the use of cautionary instructions or other curative measures, and (5) the extent to which the defense invited the misconduct." State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (citations omitted).
A "golden rule" argument is "the suggestion by counsel that jurors should place themselves in the position of a party, a victim, or the victim's family members." State v. McHenry, 78 P.3d 403, 410 (Kan. 2003). Such arguments are generally improper and not permitted "because they encourage the jury to depart from neutrality and to decide the case on the improper basis of personal interest and bias." Id.; see also Russell v. Chicago, Rock Island Pacific R.R. Co., 249 Iowa 664, 672, 86 N.W.2d 843, 848 (1957) ("Direct appeals to jurors to place themselves in the situation of one of the parties, to allow such damages as they would wish if in the same position . . . are condemned by the courts.").
The prosecutor's statements were not improper. The prosecutor was not asking jurors to identify with the victim in order to arouse sympathy and suggest the jurors decide the case on some basis other than the evidence. See, e.g., State v. McDaniel, 462 S.E.2d 882, 884 (S.C.Ct.App. 1995) (prosecutor's use of "you" or a form of "you" forty-five times during closing arguments, asking the jury to put themselves in the place of the victim, was reversible error). Rather, the prosecutor was attempting to help the jurors understand M.W.'s actions and the gaps or inconsistencies in her testimony which might result from the fact that she did not look at events with the eyes of an adult. See, e.g., McHenry, 78 P.3d at 410 (holding there was no prosecutorial misconduct where prosecutor asked jurors to consider why witnesses, victim's brothers, finally approached their mother regarding defendant's alleged sexual abuse of his daughter); State v. Rose, 353 N.W.2d 565, 568-69 (Minn.Ct.App. 1984) (holding there was no prosecutorial misconduct where prosecutor asked the jurors to place themselves in the victim's posture as she testified, not during the crime, to assist the jury in assessing her credibility). M.W.'s credibility was a fighting issue at trial, and the prosecutor did not go beyond the latitude allowed in discussing the evidence during closing arguments. See Greene, 592 N.W.2d at 32. The district court did not abuse its discretion in overruling May's motion for mistrial.
V. Sentencing
Our review of the district court's sentencing decision is for an abuse of discretion. State v. Evans, 671 N.W.2d 720, 727 (Iowa 2003).
May, in his pro se brief, argues the trial court abused its discretion by sentencing him to consecutive, rather than concurrent, terms of imprisonment. He argues the district court judge was "particularly biased against" May, as evidenced by the following statement by the court after imposing consecutive sentences:
You are ordered to register as a sex offender in the State of Iowa within five days from release of custody. . . . I will also advise you, and I'm sure your attorney can advise you about this, Iowa law places restrictions on places where sex offenders may live in relation to schools and day cares and so forth. That law has been declared unconstitutional by a federal judge and declared unenforceable. That ruling is on appeal. Where that will all end up, I'm not sure, but that's the status. So that part is unsettled at this time, but it has been ordered not to be enforced at this time.
May argues the court's statement is evidence of bias because the federal judge to whom the court alluded was the Honorable Robert W. Pratt, who had submitted a letter to the court recommending leniency for May. We disagree. The court's mention of Judge Pratt's decision came during a routine discussion of various matters connected with May's sentence. Nothing in the record supports May's claim he was the victim of "political bias."
The court stated it imposed consecutive sentences based on the separate and serious nature of the crimes and M.W.'s age. The court acted within its discretion in sentencing May, and we affirm on this issue.
VI. Ineffective Assistance of Counsel
May raises two claims of ineffective assistance of counsel: (1) trial counsel failed to object to Hall's testimony that the victim was dissociating since it was evidence which improperly bolstered the victim's credibility and (2) trial counsel should have conducted a more probing cross-examination of Hall regarding the plea agreement.
We need not address May's third claim of ineffective assistance of counsel, that trial counsel failed to properly object to improper remarks by the prosecutor during summation and failed to move for mistrial in a timely manner, because we conclude the motion for mistrial was timely.
To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). The defendant must prove both elements by a preponderance of the evidence. State v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003). "[T]here is a strong presumption that trial counsel's conduct fell within the wide range of reasonable professional assistance." DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002). We may dispose of an ineffective-assistance-of-counsel claim if the applicant fails to meet either the breach of duty or the prejudice prong. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 699 (1984); State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
We generally preserve ineffective-assistance-of-counsel claims for postconviction relief proceedings "to afford the defendant an evidentiary hearing and thereby permit development of a more complete record." Reynolds, 670 N.W.2d at 411. However, we will resolve such claims on direct appeal "where the record is adequate to determine as a matter of law that the defendant will be unable to establish one or both of the elements of his ineffective-assistance claim." Id. Under such circumstances, we affirm the defendant's conviction without preserving the ineffective-assistance claims. Id. We can resolve May's ineffective-assistance-of-counsel claims on direct appeal because we conclude he cannot prevail on either claim as a matter of law.
A. Hall's testimony.
May contends trial counsel rendered ineffective assistance by failing to object when Donald Hall offered testimony related to M.W.'s dissociation. As we concluded in conjunction with Nelson-Salsbury's testimony, we conclude Hall's testimony fell within the rule that permits experts to express opinions "on matters explaining the pertinent mental and physical symptoms of the victims of abuse." Allen, 565 N.W.2d at 338. The State offered Hall's testimony in conjunction with Nelson-Salsbury's testimony to show that May's pre-trial admissions concerning M.W.'s behavior during the sexual abuse were consistent with M.W.'s independent descriptions of her own behavior during the sexual abuse. Trial counsel was not ineffective for failing to object to proper testimony. Id. B. Cross-examination of Hall concerning plea agreement.
May contends trial counsel was ineffective for failing to adequately cross-examine Hall. During cross-examination, Hall disagreed with counsel that the crime defendant would have been allowed to plead guilty to under the IFSAP would have been "substantially less serious" than the crime for which he was on trial. May claims Hall's statements "left jurors with the false impression that defendant had little to lose by rejecting the plea agreement," and that trial counsel had "other ways of conveying the magnitude of the plea bargain" without violating the court's previous rulings limiting evidence of specific sentences.
May has failed to show how he was prejudiced by his attorneys' alleged breach of duty. In order to show prejudice, May must show a "`reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" DeVoss v. State, 648 N.W.2d at 64 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). May argues additional evidence about the fact he was "willing to walk away from an extremely favorable plea bargain and fight the charges would bolster his credibility at trial." However, May's own testimony undercuts this argument. May repeatedly insisted his desire to reunite his family — not the possibility of a reduced sentence — motivated him to confess and participate in the IFSAP. He testified the plea bargain "didn't mean a damn thing to me" and that his purpose for entering into the plea bargain "was to get my family back together and to get my son back into my life." May has failed to show a reasonable probability that additional testimony from Hall on cross-examination would have altered the jury's verdict.
VII. Conclusion
We affirm May's conviction and sentence.