IN THE COURT OF APPEALS OF IOWA

                                    No. 15-2113
                               Filed February 8, 2017


JASON GRONTSAL,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Lars G.

Anderson, Judge.




      Jason Gronstal appeals the denial of his application for postconviction

relief, asserting his trial counsel provided ineffective assistance. AFFIRMED.




      John J. Bishop, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.




      Considered     by   Danilson,   C.J.,   and   Doyle   and   McDonald,      JJ.
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DOYLE, Judge.

         While waiting with other inmates in a hospital’s holding area, inmate Jason

Gronstal exposed himself to a female inmate. Ultimately, Gronstal was charged

with indecent exposure, a serious misdemeanor, in violation of Iowa Code

section 709.9 (2011), and he was appointed counsel.

         The matter proceeded to trial before a jury, and the female inmate testified

that while she was waiting for her appointment, she

         heard a noise that distracted [her]. And a fellow was tapping his
         foot on the floor, and [she] looked up. And when [she] looked up,
         [the man sitting across from her, Gronstal,] winked at [her] and
         looked down; and when he looked down, he had his privates
         exposed and began to masturbate.
                ....
                He had a magazine in his hand that he held . . . up in front of
         what he was doing . . . because there [were] four guards in the
         area. If one of them had looked, he would be as though he was
         reading his magazine.

The female inmate testified she was disgusted and embarrassed, so she told the

correctional officer and asked the officer to turn her chair around so she could

face the wall. A hospital security employee testified that there was a surveillance

camera in the holding area, and about ten to fifteen minutes after the exposure

incident was reported to him, he pulled the video recording of the incident and

reported the incident to other officials. The video was played for the jury.

         Gronstal testified in his defense. Gronstal admitted he did not have any

verbal    communication      with   the   female   inmate,   but   he    testified   they

communicated       through   nonverbal     gestures,   including   “looking    at    each

other, . . . just kind of acknowledging each other was there.”          He testified he
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mentioned to the female inmate, “through nonverbal gestures, that [he] may have

wanted to see if she would flash [him].” He further explained:

              I nodded at her, you know. She kind of—she smiled back.
      And I just, you know, like that, like, Hey; kind of like you would see
      at Mardi Gras, you know, Hey (indicating).
              Umm, and, you know, before—You know, when I was doing
      that, she just kept looking at me, you know. And she—she didn’t
      really, like—She didn’t say yes out loud; she didn’t say no. She
      kind of went like that (indicating) and motioned down with her head
      at me. And although I probably wasn’t on—I probably wasn’t
      thinking too clearly, you know, I figured that’s what she wanted.
      She wanted reciprocation, possibly.
              So, like we said, I am currently an inmate; and yes, it has
      been awhile since I’ve seen any regular female, besides the
      corrections officer which, you know, we don’t really communicate
      with corrections officers unless there would be some kind of
      emergency. So I thought maybe, from her actions, that if I did this,
      maybe I would see what I asked to. This is not something that is on
      my normal agenda.
              ....
              . . . I thought from both of our actions to each other prior to
      the incident, acknowledge—acknowledging each other, you know,
      making—making eyes at each other, however—whatever you want
      to call it, and then her motioning down when I asked to see her
      breast, that it was going to be a two-sided thing. You have to do
      this before I do this for you.

Gronstal testified he believed the female inmate wanted him to pull his penis out

of his pants, and he admitted that he took out his penis, touched it in so doing,

and “may have waved it” but denied masturbating. He did not believe his actions

were offensive to her because “she continued to look at [him] for a little bit and

then called the guard. That’s when she looked away. She continued to look at

[him].” The jury found Gronstal guilty as charged, and we affirmed his conviction

and sentence on direct appeal. See State v. Gronstal, No. 13-0131, 2014 WL

667695, at *2 (Iowa Ct. App. Feb. 19, 2014).
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       In 2014, Gronstal filed an application for postconviction relief (PCR),

asserting his trial counsel provided ineffective assistance in several respects. A

trial on Gronstal’s application was subsequently held, and Gronstal testified he

was not satisfied with his trial counsel’s representation. Because Gronstal’s trial

counsel had passed away since Gronstal’s conviction, trial counsel could not

defend himself or dispute Gronstal’s claims.

       Gronstal testified he told his trial counsel another inmate had been sitting

next to him the day of the incident, and if called to testify, that inmate would have

testified that “he didn’t observe [Gronstal] doing anything that [he] shouldn’t have

except for the one thing and that—that there was conversation between [him]

and the [female inmate],” which would corroborate Gronstal’s defense that the

female inmate was a willing participant. However, Gronstal admitted he did not

know if that inmate saw anything. Gronstal also complained that trial counsel did

not depose any witnesses and claimed the depositions were necessary to give

Gronstal and his counsel

       time to figure out what—what people are going to testify to so that
       [they could] come up with an—at least a strategy. . . . [Gronstal]
       could have told [his trial counsel] to bring up that there was another
       person that was there at the time. . . . [T]here [was] a lot of stuff
       [Gronstal] could have had him bring up . . . .

Gronstal testified he believed there was more than one video camera monitoring

the holding room at the hospital, and from another video angle, his counsel

“could attempt to visually see what the communication between [Gronstal and the

female inmate] was” to show that that female inmate was a willing participant and

to discredit her testimony. But Gronstal admitted he did not know if there were

any other cameras in the room, and no evidence beyond Gronstal’s speculation
                                         5


was presented to establish there were other cameras in the room. Gronstal also

argued his trial counsel should have impeached the female inmate’s testimony

based upon her criminal history, but he admitted that the prosecutor stated in her

opening statement that the female inmate was a felon who was serving a prison

sentence at Mitchellville. Gronstal also admitted he did not know if any of the

female inmate’s convictions were crimes of dishonesty or of that nature.

Thereafter, the PCR court filed its ruling denying Gronstal’s application.

       Gronstal appeals the PCR court’s ruling, arguing the court erred in finding

he did not establish that his trial counsel was ineffective. Our review is de novo,

and to succeed on his claims, Gronstal was required to show “both that counsel

failed an essential duty and that the failure resulted in prejudice.”        State v.

Schlitter, 881 N.W.2d 380, 388 (Iowa 2016). If Gronstal cannot establish both

elements, his claims fail; thus, if we find either element lacking, we need not

address the other element. See id.

       The PCR court resolved the matter on the prejudice component, which

requires the PCR applicant “to show the attorney’s errors functionally deprived

the defendant of a fair trial and further show by a reasonable probability that the

result of the proceeding would have been different without the errors by the

attorney.” Id. The PCR court concluded that Gronstal failed to establish there

was a reasonable probability that the result of the proceeding would have been

different without the attorney’s alleged errors, and upon our review of the record,

we agree with its conclusions.

       A defense attorney’s duty to investigate and prepare a defense is not

limitless.   See Luke v. State, 465 N.W.2d 898, 901 (Iowa Ct. App. 1990).
                                          6


Moreover, when complaining about the adequacy of an attorney’s representation,

it is not enough for the applicant to simply claim that counsel should have done a

better job. See State v. White, 337 N.W.2d 517, 519 (Iowa 1983). Just as we

will not predicate error on speculation, see State v. Belt, 505 N.W.2d 182, 185

(Iowa 1993), we will not predicate a finding of ineffective assistance on

speculation. Finally, an attorney “can hardly be found ineffective for failing to

obtain nonexistent evidence.” Luke, 465 N.W.2d at 902.

       Here, Gronstal’s claims that his trial counsel’s investigation was deficient

are not supported by the record.       But even assuming that a more rigorous

investigation could have been performed by his trial counsel, Gronstal has not

provided any evidence beyond his own mere speculation that additional evidence

could have been found. Notably, Gronstal admitted that he did not know if his

alleged “eyewitness” knew anything at all about the incident or if there was

another camera in the holding area. This speculation is simply insufficient to

satisfy the reasonable-probability-of-a-different-outcome test. See Ledezma v.

State, 626 N.W.2d 134, 141 (Iowa 2001) (“The applicant must also prove he was

actually prejudiced by the alleged error.”). We agree with the PCR court that

Gronstal failed to show he was prejudiced by his trial counsel’s investigation in

the case, and his claim of ineffective assistance on this basis fails.

       Additionally, we agree with the PCR court that “[h]ad trial counsel done

more to impeach [the female inmate] with her felony conviction, there is no

reasonable probability it would have changed the outcome of the trial.” Certainly,

we can understand Gronstal’s desire to discredit her testimony, as her testimony

was the crux of the prosecution’s case against him. But as the PCR court found,
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“[t]he jury knew she had a criminal conviction and that she was in custody when

the incident occurred. The specifics of that conviction (of which this court was

provided no information) would have added little more to what the jury already

knew.” Gronstal failed to show he was prejudiced by his trial counsel’s failure to

further discredit the female inmate’s testimony based upon her criminal history,

and his claim of ineffective assistance fails on this point.

       For the foregoing reasons, Gronstal did not establish his trial counsel

provided him ineffective assistance. Accordingly, we affirm the ruling of the PCR

court denying Gronstal’s PCR application.

       AFFIRMED.