Harlan Mott Jr. v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-0834
Filed January 21, 2021

HARLAN MOTT Jr.,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,

Judge.

The applicant appeals from the denial of application for postconviction relief.

AFFIRMED.

John J. Bishop, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee State.

Considered by Vaitheswaran, P.J., May, J., and Potterfield, S.J.*

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

(2021).
2

POTTERFIELD, Senior Judge.

Harlan Mott Jr. was convicted of first-degree kidnapping in 2007, and he

received the mandatory sentence of life imprisonment.1 He challenged his

conviction on direct appeal, and this court affirmed. See State v. Mott, 759 N.W.2d

140, 151 (Iowa Ct. App. 2008). Mott filed a pro se application for postconviction

relief (PCR) shortly after—in January 2009. He was appointed counsel, and his

amended application came on for hearing in 2019.2 The district court denied Mott’s

application. He appeals.

Based on the evidence presented at the underlying trial, the jury could have

found the following:

Lisa Floyd met Mott through friends in late October 2006.
Floyd saw Mott almost daily after they met and spent at least two
nights at his home. On November 4, 2006, Floyd had the night off
work and made plans to go out with Mott, Timothy and Martha Miller
(Mott’s nephew and his wife), and two other friends. The group met
at Mott’s and then rode in two cars to Prairie Meadows Casino. Floyd
and Mott gambled and each drank about four drinks. From Prairie
Meadows, the group went to a nearby truck stop for breakfast. After
breakfast, Floyd and Mott rode with the Millers to the Brew Haus, a
bar owned by Floyd’s relatives, to continue drinking. The two other
friends went home. The group left the Brew Haus when Mott
punched a man in the face and knocked him to the ground for making
a derogatory comment about the Millers’ dancing ability. Mott was
mad and blamed Floyd for the incident because her family owned the
bar. Mott swore at Floyd and hit her in the ribs and the face as Floyd
and Mott rode in the backseat of the Millers’ car to Mott’s house.

1 Mott was also convicted of assault causing bodily injury. The district court
determined this conviction merged with his kidnapping conviction.
2 Mott has been represented by several different attorneys during the intervening

years. In 2012, his PCR application was dismissed by default judgment after Mott,
who was represented by counsel, did not appear at trial. We reversed the district
court’s ruling and remanded for trial on Mott’s PCR application. Mott v. State, No.
12-1293, 2013 WL 5962908, at *1 (Iowa Ct. App. Nov. 6, 2013). After innumerable
continuances, Mott’s PCR application was heard more than a decade after it was
filed.
3

The Millers dropped Floyd and Mott off at Mott’s house, and
Floyd got into her car to leave. As she backed out of the driveway,
her car window exploded in her face and showered her with glass.
Floyd quickly drove away, but stopped at a nearby QuikTrip to tend
to her injuries. The Millers had also stopped at the QuikTrip, and
Martha Miller went with Floyd into the QuikTrip bathroom. Soon Mott
arrived at the QuikTrip and kicked the bathroom door open. He
grabbed Floyd by her hair and said, “Let’s go, bitch, now.” Floyd
went with Mott because she did not know what else to do. She did
not think there was anyone that could help her and did not want to
be hurt anymore.
She drove her car to Mott’s house, with Mott following closely
behind her in his car. Once they were inside Mott’s house, Mott
continued to beat Floyd, and she lost consciousness a couple times.
Mott got on top of her, choked her, and told her he was going to kill
her. Later, under Mott’s orders, Floyd went to Mott’s bedroom and
undressed because Mott said he was going to rape her and
threatened to make her “suck his dick.” Instead of doing that,
however, Mott unfolded a knife and threw it at Floyd twice. The first
time the knife missed, but the second time the knife hit Floyd in her
arm. Mott told her he was going to kill her and her children.
Eventually Floyd lay down in bed, but she did not sleep. Mott got in
bed next to her, but Floyd did not think he was sleeping.
The next morning Floyd heard people knock on the door four
times, but Mott did not respond and ordered Floyd to lie still.
Eventually Floyd persuaded Mott to let her leave to go to the hospital
to get medical attention for her eye. She promised she would tell the
hospital that she had been beaten up at QuikTrip and that she would
not call the police. Floyd also promised she would return to Mott’s
house, and she left her bag of clothes there. Floyd received
treatment at the hospital for her scratched cornea, broken ribs,[3]cuts,

3 Mott maintains Floyd’s medical records, which he introduced as exhibits in his
PCR hearing, do not show that Floyd had broken ribs as a result of this incident
and our court’s prior finding is incorrect. The PCR court noted it would not consider
broken ribs as part of Floyd’s injuries.
We recognize the medical record from radiology finding “normal bones”
after an x-ray of Floyd’s chest. However, we also note another medical report that
states, “If you had x-rays or blood tests, please note that these don’t always show
what’s wrong. Sometimes x-rays don’t show broken bones. After review by a
specialist you will be notified if there is an abnormality.” This disclaimer matches
testimony from Mott’s underlying trial. Floyd’s cousin, Lisa Cline, testified, “I wasn’t
in the room when they view [the x-rays]. [Floyd] told me the doctor said that he
couldn’t see a break, but that if she had a hairline fracture, he wouldn’t pick it up
anyway and that the treatment was the same. There’s basically nothing you can
do.” For purposes of this appeal, we will assume Floyd did not sustain broken ribs
as a result of Mott’s actions.
4

and other wounds. She did not tell the truth about what happened
because she was scared of what Mott would do if she turned him in.
Floyd’s family was eventually able to persuade her to call the police
later in the evening of November 5, 2006.

Id. at 143–44.

For the jury to convict Mott of first-degree kidnapping, the State had to

prove:

1. On or about November 4-5, 2006, [Mott] confined Lisa
Floyd and/or removed Lisa Floyd from one place to another.
2. [Mott] did so with the specific intent to:
a. Inflict serious injury upon Lisa Floyd; or
b. Subject Lisa Floyd to sexual abuse; or
c. Secretly confine Lisa Floyd.
3. [Mott] knew he did not have the consent or authority of the
victim to do so.
4. As a result of confinement or removal, Lisa Floyd suffered
a serious injury and/or was intentionally subject to torture.

As to the final element of the crime, Mott contends the jury convicted him based

on evidence that Floyd suffered from post-traumatic stress disorder (PTSD) as a

result of his actions and its determination that PTSD was a “serious injury.”4 This

evidence included testimony from Richard Joens, a clinical social worker who

diagnosed Floyd with PTSD following the incident with Mott.

As he did to the district court, Mott contends his trial counsel denied him

effective assistance by failing “to even consider pursuing an expert witness that

might either call into question” Floyd’s diagnosis of PTSD and whether it fit the

legal definition of serious injury. For the first time, he also argues his PCR counsel

4 The jury was instructed that a “serious injury” is
disabling mental illness, a condition which cripples, incapacitates,
weakens or destroys a person’s normal mental functions, or a bodily
injury which creates a substantial risk of death or which causes
serious permanent disfigurement or extended loss or impairment of
the function of any bodily part or organ.
5

denied him effective assistance by failing to obtain an expert witness to testify at

the PCR hearing as to what he or she would have said to counter the State’s expert

at the underlying trial if trial counsel had sought their opinion. See Dunbar v. State,

515 N.W.2d 12, 16 (Iowa 1994) (allowing applicant to raise claim PCR counsel

was ineffective for first time on appeal).

We review claims of ineffective assistance raised in a PCR proceeding de

novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). PCR “applicants who

seek relief as a consequence of ineffective assistance of counsel must establish

counsel breached a duty and prejudice resulted.” Lamasters v. State, 821 N.W.2d

856, 866 (Iowa 2012) (citation omitted). Both elements must be proved by a

preponderance of evidence, so we may affirm if either element is lacking. See id.

First, it is unclear whether Mott’s underlying theory of his conviction—that

he was convicted based on the jury’s determination Floyd suffered from PTSD,

which was a serious injury—is correct. It is possible the jury concluded the scar

on Floyd’s arm, which she got from Mott throwing a knife at her and then preventing

her from obtaining medical treatment, was a serious injury. See State v. Hanes,

790 N.W.2d 545, 554 (Iowa 2010) (providing that while scarring is not a “per se

serious permanent disfigurement,” it is up “to the jury to determine whether a scar

constitutes a serious permanent disfigurement” as included in the definition of

serious injury). We also cannot rule out the possibility that the jury concluded Mott

intentionally subjected Floyd to torture. The jury was instructed that “torture”

means “the intentional infliction of several physical or mental pain.” See State v.

White, 668 N.W.2d 850, 857 (Iowa 2003) (deciding “torture” as used in first-degree
6

kidnapping “includes mental anguish unaccompanied by physical or sexual

assault. In other words, ‘torture’ is either physical and/or mental anguish”).

And second, even if his theory is correct, Mott has failed to establish his

claims of ineffective assistance on this record. As he seems to recognize with his

claim PCR counsel was ineffective, Mott cannot succeed on his claim that trial

counsel breached an essential duty in failing to call an expert witness to challenge

Floyd’s PTSD diagnosis when Mott has failed to prove there is an expert who would

have provided such an opinion in court. See, e.g., Stewart v. Nix, 31 F.2d 741,

744 (8th Cir. 1994) (“To prove prejudice from a trial attorney’s failure to investigate

potential witnesses, a petitioner must show that the uncalled witnesses would have

testified at trial and that their testimony would have probably changed the outcome

of the trial.”); Cox v. State, 554 N.W.2d 712, 715 (Iowa Ct. App. 1996) (“[The

applicant] claims his trial counsel was ineffective in failing to call an expert to rebut

the statement of the State’s expert . . . . At the [PCR] hearing, [the applicant]

presented no independent evidence to establish a contrary expert would exist.

Absent such proof, he cannot prove prejudice. [The applicant] has not carried his

burden of proof with respect to this claim.”). For similar reasons, on this record

Mott cannot prove his PCR counsel breached an essential duty that prejudiced

Mott’s PCR action. See Jones v. State, No. 02-0854, 2003 WL 22438596, at *2

(Iowa Ct. App. Oct. 29, 2003) (rejecting applicant’s claim on appeal that PCR

“counsel was ineffective in failing to produce expert testimony” because the

applicant “makes no express assertion that such an expert opinion was available

and could have been produced”).
7

Because we do not know if an expert who would have challenged Floyd’s

PTSD diagnosis even exists, we cannot find fault with either trial counsel’s or PCR

counsel’s representation for failing to obtain such a witness. See State v. Lorenzo

Baltazar, 935 N.W.2d 562, 868 (Iowa 2019) (“[W]e presume the attorney

competently performed his or her duties.”); Dunbar, 515 N.W.2d at 15 (“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.”). Mott’s claims of

ineffective assistance fail.

We affirm the district court’s denial of Mott’s application for PCR.

AFFIRMED.