William Paul Roland v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 23-0671
Filed October 30, 2024

WILLIAM PAUL ROLAND,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.

An applicant appeals from the district court’s denial of his application for

postconviction relief related to his criminal conviction in Polk County. AFFIRMED.

Jessica Donels of Parrish Kruidenier L.L.P., Des Moines, for appellant.

Brenna Bird, Attorney General, and Thomas J. Ogden (until withdrawal) and

Louis S. Sloven, Assistant Attorneys General, for appellee State.

Considered by Tabor, C.J., Badding, J., and Carr, S.J.* Buller, J., takes no

part.

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
2

CARR, Senior Judge.

William Roland appeals from the district court’s denial of his application for

postconviction relief (PCR) related to his 2018 criminal conviction in Polk County

for one count of sexual exploitation of a minor, in violation of Iowa Code

section 728.12(3) (2017). He argues that his trial counsel was ineffective for failing

to object to the lack of unanimity in the charge and jury verdict and failing to consult

experts for his defense. Because his counsel was not ineffective, we affirm.

I. Background Facts and Proceedings

In October 2017, Roland was attending a deposition at the Polk County

courthouse for a different criminal case in which he was charged with one count of

sexual exploitation of a child, in violation of Iowa Code section 728.12(3). At that

deposition, a prosecutor in the case noticed that Roland was carrying two pictures

alleged to be child pornography in a notebook. The prosecutor explained that “one

of the pictures was of a naked minor black female holding open her vagina. The

other picture is a mixture of naked adults and naked minor children hanging around

what appears to be a campsite.” Following this incident, Roland was charged with

one count of sexual exploitation of a minor, in violation of Iowa Code

section 728.12(3). The matter was tried in September 2018, and Roland was

found guilty of one count of sexual exploitation of a child. On direct appeal his

conviction was affirmed and his sentence was affirmed in part, vacated in part, and

remanded for resentencing for recalculation of Roland’s ability to pay restitution.

See State v. Roland, No. 18-1917, 2020 WL 7021508, at *4 (Iowa Ct. App. Nov.

30, 2020). Roland then applied for PCR, which the district court denied. We now

review.
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II. Standard of Review

Iowa Code section 822.8 forbids PCR applicants from raising any ground

not raised at trial absent a “sufficient reason.” Because Roland did not raise the

issue of a nonunanimous verdict at trial and does not provide explanation for why

he is raising it for the first time in his PCR application, we only consider that issue

in the context of an ineffective assistance of counsel claim. Claims for ineffective

assistance of counsel are reviewed de novo. Ledezma v. State, 626 N.W.2d 134,

141 (Iowa 2001).

III. Discussion

To prevail on a claim of ineffective assistance of counsel, an applicant “must

typically show that (1) counsel failed to perform an essential duty and (2) prejudice

resulted.” State v. Keller, 760 N.W.2d 451, 452 (Iowa 2009). “[T]here is a strong

presumption trial counsel’s conduct fell within the wide range of reasonable

professional assistance.” State v. Graves, 668 N.W.2d 860, 881 (Iowa 2003)

(citation omitted).

“Miscalculated trial strategies and mere mistakes in judgment normally do

not rise to the level of ineffective assistance of counsel.” Ledezma, 626 N.W.2d at

143. But such tactical decisions must “satisfy the ultimate test: whether ‘under the

entire record and totality of the circumstances’ counsel performed competently.”

Graves, 668 N.W.2d at 881. “When complaining about the adequacy of an

attorney’s representation, it is not enough to simply claim that counsel should have

done a better job.” Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). On appeal,

“[t]he applicant must state the specific ways in which counsel’s performance was
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inadequate and identify how competent representation probably would have

changed the outcome.” Id.

We address each of Roland’s arguments in turn.

A. Unanimity in Charge and Jury Verdict

Roland first contends his trial counsel was ineffective for failing to object to

the lack of unanimity in the charge and the jury verdict.

The jury shall “agree[] on a verdict unanimously . . . .” Iowa R. Crim. P.

2.22(5). In reaching a verdict the jury need not “concur in a single view of the

transaction disclosed by the evidence. If the conclusion may be justified upon

either of two interpretations of the evidence, the verdict cannot be impeached by

showing that a part of the jury proceeded upon one interpretation and part upon

another.” State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981) (citation omitted).1

In Duncan, the State alleged that Duncan entered both a marina and a boat

with the intent to commit a theft. Id. The jury instructions did not require that the

jury agree on whether it was Duncan’s breaking, entering, or remaining in the

marina or the boat that satisfied the first element for burglary in the second degree.

Id. at 522–23. Duncan argued the jury should have been required to separately

and unanimously find that his actions in relation to the marina or boat met the first

1 Addressing the State’s reliance on Duncan in its brief, Roland in reply advances

that Duncan is “distinguishable, unworkable and ought to be overturned,” and later
that “it should be disregarded.” Duncan was alleged to have burglarized a marina
and a boat within it at the same time and place. Roland was alleged to have
possessed two images containing child pornography at the same time and place.
We have struggled to distinguish the two scenarios. Roland argues with some
force that he might have been convicted with some but not all jurors agreeing on
which photo was contraband. But that was the case for Duncan as well. We are
not at liberty to overrule or disregard precedent of our supreme court.
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element for burglary. Id. at 522. But our supreme court held that this is not

required. Id. at 523 (“[W]here a statute makes either of two or more distinct acts

connected with the same general offense and subject to the same measure and

kind of punishment indictable separately and as distinct crimes when each shall

have been committed by different persons and at different times, they may, when

committed by the same person and at the same time, be coupled in one count as

together constituting but one offense . . . .” (alteration in original) (citation

omitted)).

In State v. Bratthauer, 354 N.W.2d 774, 776 (Iowa 1984), the supreme court

clarified that Duncan requires a two-step inquiry. “The first step is to determine

whether the statute defines a single offense that may be committed in more than

one way or instead defines multiple offenses. When a single offense is defined,

the second step is to determine if the alternative modes are consistent with and

not repugnant to each other.” Bratthauer, 654 N.W.2d at 776. A panel of our court

has defined repugnant in this context as “opposed, contradictory, or incompatible.”

State v. Shiltz, No. 02-1908, 2004 WL 136375, at *2 (Iowa Ct. App. Jan. 28, 2004)

(cleaned up). The two photos at issue here are not repugnant as so defined.

Roland asserts that the State should not have charged a total of one count

of sexual exploitation of a minor for both images that he possessed, and that his

counsel should have objected. He argues the campsite photo is not sexual in

nature and that it is unclear whether the nude female in the other photo is a child.

According to Roland, it is possible that a portion of the jury may have convicted

him based on his possession of the campsite photo and the other portion of the

jury may have convicted him based on his possession of the other photo. His
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contention on that point is correct—instruction no. 18 permitted the jury to convict

even if the jurors did not agree as to which photo constituted child pornography:

Where two or more alternative theories are presented, or
where two or more facts would produce the same result, the law does
not require each juror to agree as to which theory or fact leads to his
or her verdict. It is the verdict itself which must be unanimous, not
the theory or facts upon which it is based.

But it is not correct that the jury needed to agree as to which photos constituted

child pornography for them to unanimously convict on the sexual-exploitation

charge.

The unanimity rule only “requires jurors to be in substantial agreement as

to just what a defendant did as a step preliminary to determining whether the

defendant is guilty of the crime charged.” Bratthauer, 354 N.W.2d at 776 (citation

omitted). Here, the jurors all substantially agreed that Roland possessed a visual

depiction of a person under the age of eighteen years which showed that person

engaging in a prohibited sexual act. The jury need not conduct a cross-tabulation

analysis of all the photos submitted to collectively agree on which images depicted

a minor engaged in sexual activity—they only needed to agree that Roland was in

possession of images and among those images was a depiction of a minor

engaged in sexual activity.

As the State points out, each image can support a separate unit of

prosecution under section 728.12(3). Roland contends that the statute requires

that each image containing a different minor be charged separately. But the

statute only requires that separate offenses be charged for each minor contained

within a single image—a single image is referred to as “[a] visual depiction.” Iowa

Code § 728.12(3)(a) (“A visual depiction containing pictorial representations of
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different minors shall be prosecuted and punished as separate offenses for each

pictorial representation of a different minor in the visual depiction.”). And Roland

has never argued that he should have been charged separately for each minor

contained within the campsite photo.

Because there was no error on the issue of unanimity of the charge or jury

verdict, Roland’s trial counsel could not have been ineffective in failing to object.

See State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999) (“Counsel is not

ineffective when the issue counsel failed to raise has no merit.”).

B. Failure to Consult Experts

Roland next argues his trial counsel was ineffective for failing to consult

experts. He asserts that “[t]rial counsel was ineffective for failing to obtain an

expert witness to determine the age of the black female or identify either photo as

preexisting child pornography.”

Roland claims that Shawn Kasal, a digital forensics expert but not a medical

expert, testified at his PCR trial that neither of the images had “been recognized

as child pornography by the National Center for Missing and Exploited Children

[(NCMEC)] nor were any of the people depicted identified as exploited children.”

But Kasal never made such statements. He simply speculated that the images

could have been compared against the NCMEC database despite not having

reviewed the images nor confirming that these non-digital photos could be

compared against the database. He never stated that the images had been run

against the database.

Similarly, the deposition statements of State witnesses Doug Elrick and

Michael Kirchner do not support Roland’s claim. Neither of those witnesses stated
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that the persons in the images were known child pornography victims nor did they

offer expert opinions about the persons’ ages. And Roland’s trial counsel attacked

those statements at trial, arguing that the State witnesses could not agree on the

ages of the persons in the photos. Roland has failed to show that his counsel’s

failure to hire an expert prejudiced him. Accordingly, we affirm the district court’s

denial of Roland’s application for postconviction relief.

AFFIRMED.