Opinion
No. 5-939 / 04-1949
Filed March 29, 2006
Appeal from the Iowa District Court for Johnson County, L. Vern Robinson, Judge.
A defendant appeals his conviction for third-degree sexual abuse. AFFIRMED.
Paul D. Miller of Miller Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, J. Patrick White, Johnson County Attorney, and Victoria Cole, Assistant County Attorney, for appellee-State.
Heard by Sackett, C.J., and Vogel and Mahan, JJ.
Michael Alberts appeals from his conviction following a jury trial for sexual abuse in the third degree, a class C felony in violation of Iowa Code sections 709.1 and 709.4(1) (2003). We affirm.
I. Background Facts and Proceedings.
The jury could have found the following facts: Shortly after midnight on October 19, 2003, the victim, R.M., was attending a bachelorette party at a bar in Cedar Rapids called Borrowed Bucks. R.M. encountered her boyfriend's uncle, the defendant Alberts, at the bar and talked to him for several minutes. R.M. was familiar with Alberts from attending a dozen or so family functions with her boyfriend, Jesse Goeller, where Alberts was also present. About six weeks previous to the night in question, R.M. had also danced with Alberts at the same bar in what could be construed as a sexually-suggestive manner, smoked marijuana with him and Jesse in the cab of Alberts's semi-trailer truck, then took off her bra and hung it from the rearview mirror. On the night in question, R.M. decided to ride with Alberts to the family's lake house, rather than going to her own house. R.M. had been drinking fairly heavily at the bar and felt sick to her stomach during the forty to forty-five minute ride. When they arrived at the lake house, R.M. ate some food and promptly headed for the bathroom, where she vomited. She then told Alberts she "felt like crap" and needed to "sleep this off." Alberts followed her into one of the bedrooms where she partially disrobed, repeated her need to sleep, crawled into bed and fell asleep. Sometime later, R.M. woke up as Alberts was engaging in sexual contact with her. She fell back asleep and awoke again, only to find Alberts performing oral sex on her, followed by intercourse. R.M. feigned a continued sleep and did not try to physically resist or otherwise alert Alberts that she was conscious of his actions and did not consent to the sexual contact. The following day R.M. alerted Jesse, his family, and the authorities of the incident. A sexual assault examination confirmed the presence of semen but there was no evidence of trauma or injury. When confronted by family members and the police about the incident, Alberts initially denied any sexual contact with R.M. but later admitted to the contact but claimed the acts were consensual and even initiated by R.M. Following a jury trial in September 2004, Alberts was convicted of third-degree sexual abuse and now appeals his conviction.
R.M.'s account during the course of the case was inconsistent as to whether she actually drifted in and out of sleep or was awake during the assault.
II. Victim's Mental Health.
Alberts asserts that the district court erred by ruling that R.M.'s mental health records were not relevant or discoverable and that his proposed experts would not be allowed to testify.
A. Motion to Compel Discovery.
We review the district court's ruling on a motion to compel discovery for an abuse of discretion. Fettkether v. City of Readlyn, 595 N.W.2d 807, 815 (Iowa Ct.App. 1999). An abuse of discretion occurs when the district court exercises its discretion on grounds or for reasons clearly untenable or to an extent unreasonable. Id. He argues that R.M.'s mental health issues may compromise her ability to observe, communicate and maintain a clear recollection of what happened, thereby affecting her credibility. Alberts therefore contends that the district court erred by ruling R.M.'s mental health records were not discoverable. Alberts's proffered support includes the following facts admitted by R.M.: a psychiatric history of depression with prescribed anti-depressants; a history of sexual abuse as a child; and memory gaps due to alcohol consumption. Alberts also offered support through allegations by Jesse, that R.M. engaged in acts of self-mutilation in the past and that R.M. has made somewhat inconsistent statements about this sexual abuse charge during the course of investigation and discovery. It appears from the motion to compel record that some speculation by Jesse's stepfather, Dr. Jeffrey Wilharm, who is also the brother-in-law of the defendant, seemed to propel Alberts's inquiry into R.M.'s mental health history. Dr. Wilharm's opinions were not based on any examination or clinical diagnosis of R.M., but on casual interaction with her and limited admissions by R.M. that she had suffered from some depression. In total, Dr. Wilharm's recollection was very vague and equivocal as to the sources of his information regarding R.M.'s mental health. At no time during the pendency of this case did R.M. waive her doctor-patient privilege with regard to any possible mental health records.
Information may be discoverable, even if inadmissible, if it "appears reasonably calculated to lead to the discovery of admissible evidence." Iowa R. Civ. P. 1.503(1). Our Supreme Court has noted:
The crucial determination that a trial judge must make in ruling on the admissibility of evidence of a witness's mental instability is whether it is related to the subject of the litigation or whether it affects the testimonial ability of the witness so as to impeach him. The evidence can be said to affect the credibility of a witness when it shows that his mental disorganization in some way impaired his capacity to observe the event at the time of its occurrence, to communicate his observations accurately and truthfully at trial, or to maintain a clear recollection in the meantime.
State v. Harvey, 242 N.W.2d 330, 337-38 (Iowa 1976) (quoting Commonwealth v. Butler, 331 A.2d 678, 680 (Pa.Super.Ct. 1974)). In its ruling, the district court stated that "the best that can be said about [Alberts's] request is that he might find the information interesting." We agree with the district court that the assertions do not detail how R.M.'s perception may be impaired by any confirmed mental health issues. While Alberts raised some suspicions about R.M.'s behavior, the only evidence offered was R.M.'s admission in her deposition that she was diagnosed sometime in 2001 with depression and was prescribed Prozac for a period of time. However, the mere diagnosis of a mental disorder does not make R.M.'s records discoverable. See Harvey, 242 N.W.2d at 338 (stating that the fact a victim is under the care of a psychiatrist is not sufficiently probative to be introduced on the issue of his credibility in the absence of any evidence tending to show the mental disorder affects his capacity to perceive, remember, or relate the facts). No connection was made between R.M.'s mental health and allegations of memory gaps or inconsistency in her pretrial statements. We agree with the district court's conclusion that Alberts did not present a sufficient basis for producing R.M.'s mental health records and therefore affirm the district court's ruling on the motion to compel discovery of such records.
B. Exclusion of Expert Testimony.
Alberts also argues that the district court improperly excluded expert testimony regarding the possible effect of R.M.'s mental health on her credibility. Issues involving the admission of expert testimony are generally within the trial court's discretion. State v. Rains, 574 N.W.2d 904, 916 (Iowa 1998). The trial court is afforded wide latitude in its ruling on the admissibility of expert testimony and will be reversed only if the court abused its discretion and the defendant was prejudiced. State v. Belken, 633 N.W.2d 786, 799 (Iowa 2001). Expert testimony, like all evidence, must first meet a threshold of relevancy before it will be admitted at trial. Leaf v. Goodyear Tire Rubber Co., 590 N.W.2d 525, 533 (Iowa 1999) (citing Iowa R. Evid. 5.402).
Alberts proposed the testimony of family member, Dr. Wilharm, who would opine that R.M.'s alleged self-mutilation was indicative of promiscuous behavior and dissociative episodes that could impact R.M.'s ability to "perceive, communicate, and recall accurately the events on the night in question." Dr. Wilharm did not have first-hand knowledge of R.M.'s alleged self-mutilation but learned of it through his step-son, Jesse. In addition, Alberts proposed the testimony of Dr. William McEchron, a licensed clinical psychologist, who would testify that people who fabricate claims of sexual abuse suffer from a borderline personality disorder, tend to be self-destructive, and have a history of being sexually abused. Neither of these proffered opinions was based upon an examination or clinical assessment of the victim. Rather, Dr. McEchron's opinion was entirely based upon anecdotal reports of others as to R.M.'s alleged behaviors and premised on a given conclusion — that R.M. fabricates claims of sexual abuse. Dr. Wilharm had a very limited basis for his opinion from casual interaction with R.M. and her self-reporting of depression. Dr. Wilharm did state that about a year before this incident, he had given R.M. a prescription for sample packs of Prozac when she ran out of a prescription from her treating physician in Waterloo.
Prior to making its ruling, the district court had available all the pretrial discovery, including the victim's deposition. We also note the district court's exclusion of a State expert witness, Karla Miller, a rape counselor who proposed to testify as to R.M.'s state of mind and reaction during the assault. As we stated above, R.M. did not waive privilege with regard to her medical or psychological records, and the district court excluded Miller's testimony as improperly opening the door to evidence to R.M.'s prior psychological history which was already barred at the State's request. As with the discoverability of R.M.'s mental health records, Alberts failed to make any connection with R.M.'s actual mental status (not speculated mental defects) and any effect these undiagnosed assumptions would have on her ability to perceive and recall the events in question and hence her credibility. The record shows only that R.M. admitted memory gaps due to alcohol consumption, not due to any mental health issues. We conclude that the district court did not abuse its discretion and affirm its ruling excluding Alberts's proposed expert testimony.
III. Other Evidence Excluded by the Motion in Limine.
Alberts alternatively argues that "the district court abused its discretion in denying admission of this evidence after the State opened the door" during direct examination of R.M. However, the district court did not rule on admissibility during the trial because the defense did not try to reintroduce after the State arguably "opened the door." We therefore address this claim in the ineffective assistance division.
Alberts argues that the district court erred by excluding certain evidence regarding R.M.'s alleged prior false claim of sexual assault and flirtatious nature when drinking. We review the admissibility of Rule 5.412 evidence for abuse of discretion and reverse only if the district court abuses that discretion. State v. Mitchell, 568 N.W.2d 493, 497 (Iowa 1997). We find an abuse of discretion only when the district court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id.; State v. Knox, 536 N.W.2d 735, 738 (Iowa 1995).
A.Prior False Claim of Sexual Activity.
Alberts fails to assert on appeal that the skinny-dipping incident or R.M.'s flirtatiousness do not qualify as sexual behavior covered by the scope of 5.412, and we do not reach the underlying issue. In addition, it is unclear from the record made by the district court in ruling on the motion in limine on what ground the evidence was excluded, as the State also urged relevancy, improper-character evidence under 5.403( b) and Rule 5.403 unfairly-prejudicial grounds for exclusion.
Evidence of past false claims of sexual activity is not barred by the rape-shield law under Iowa Rule of Evidence 5.412, as such a false claim could be used to impeach the victim's credibility. State v. Baker, 679 N.W.2d 7, 10-11 (Iowa 2004). However, there must be a prior false claim before this exception is triggered. The incident Alberts proffered to the district court involved R.M. skinny-dipping with another man during the course of a 4th of July party in 2003. When questioned at deposition about the incident, R.M. denied any sexual activity occurred:
Q: Did you contend that he forced himself on you? A: No, he never forced himself on me. We were skinny dipping in the river together, and he got close to me and asked me if he could kiss me, and I said, "No, I have a boyfriend."
The person with whom she was swimming also denied any sexual contact with R.M.:
Q: At any point in time during that conversation did it get more personal than just normal chitchat? A: No.
Q: Approximately how long had you been in the river with [R.M.] up until the time that you asked her if you could give her a kiss? A: About ten to fifteen minutes.
Q: So when you ask her if you can give her a kiss, what happened? A: She said, "No, I'm seeing somebody." And I go, "Well that's fine, I respect that, you know, I'll let you go on your personal business `cause it's no business of mine." I didn't proceed to do anything of that nature after that.
Q: Did you continue speaking to her — A: Yes.
Q: And how much longer were you in the river with [R.M.] after you are informed that she is seeing someone? A: About another five minutes.
Q: What happened then? A: Josh Goeller and Mike Isabel came down the bank from where the bonfire was. . . ."
* * *
Q: And then what happened? A: And then I got out of the water, put my clothes back on, and went up and told my side of the story of what happened to Josh.
Q: And what did Josh say? A: He said, "Well, just because it is my brother I'm not gonna tell him because the way you said it nothing happened, she said the same thing, and there's no reason getting everyone upset about it."
Q: So Josh told you pretty much she said the same thing? A: Yes.
Q: Were you present when Josh spoke to [R.M.]? A: No, I was not.
The only evidence offered by Alberts was through Jesse's brother, Josh Goeller, who claimed R.M. told him she couldn't get out of the situation on her own:
Q: [W]hy don't you tell me about that previous incident? A: We were out on the Cedar River. . . . I saw her and another guy with their arms around each other in the river, kind of skinny-dipping, sort of. I don't — she might have had her bra and underwear on. So I busted them and yelled at them and then she came out of the water and was crying and saying, "Thank God you saw me. I didn't know what to do out there. . . ." that kind of thing.
Q: What did [R.M.] say to you at that time? A: She said that she was glad that I saw her because she couldn't get away from him. "I couldn't get away from him. I didn't know what to do. . . ." that kind of thing.
However, neither R.M. nor the other person stated that any sexual activity occurred during the incident; rather both parties denied it. Josh's statements at deposition do not even indicate that any sexual contact occurred between R.M. and the other man. Under the existing facts, it would be reaching to conclude this incident could be properly characterized as a "prior false claim of sexual activity." Compare Baker, 679 N.W.2d at 9-12 (holding a prior false claim of sexual activity is not barred by Rule 5.412 where the thirteen-year-old victim claimed prior sexual contact with a neighbor, which she later admitted was false). As there was little to link the skinny-dipping activity to a false claim of sexual activity, the district court did not abuse its discretion in excluding testimony regarding this incident.
B. Flirting as Habit Evidence.
Alberts further sought to introduce evidence of R.M.'s flirtatious nature after consuming alcohol as habit evidence under Rule 5.406. The so-called habit evidence is based upon statements by Josh Goeller that when R.M. drinks "she's all over guys," which if admitted would support Alberts's assertion that the sexual contact was not only consensual but actually instigated by R.M. However, the rape shield law under Rule 5.412 contains the introductory clause "notwithstanding any other provision of law," indicating that evidence barred by this provision may not come in by another means. Moreover, in her deposition and trial testimony, R.M. admitted to engaging in some flirtatious behavior when drinking. Alberts was therefore allowed to present evidence damaging to R.M.'s character that included "dirty dancing" with him, smoking marijuana together, and R.M. removing her bra and hanging it from Alberts's review mirror. The ruling on the motion in limine did not exclude any of this testimony which the jury could consider. Therefore, we conclude the district court did not abuse its discretion in limiting additional evidence from other witnesses on this issue. IV. Ineffective Assistance of Trial Counsel.
Alberts also makes other unsupported arguments as to the admissibility of R.M.'s statements that she is a nymphomaniac that thinks about sex "24/7" and other instances regarding her promiscuity and infidelity issues. We deem these issues waived for failure to set them out as separately supported arguments on appeal. See Iowa R. App. P. 6.14.
Alberts assigns several failures of his trial counsel. We review claims of ineffective assistance of counsel de novo. State v. Philo, 697 N.W.2d 481, 485 (Iowa 2005). To prevail on these claims, the defendant must show that his trial counsel failed to perform an essential duty and that prejudice resulted from this failure. State v. McCoy, 692 N.W.2d 6, 14 (Iowa 2005) (citation omitted). Failing to perform an essential duty means counsel's performance fell outside the normal range of competency. Id. Trial counsel has no duty to raise an issue that has no merit. State v. Rice, 543 N.W.2d 884, 888 (1999). Failure to demonstrate either element is fatal to a claim of ineffective assistance. State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).
A. Impeachment Evidence — "Open Door."
The first ineffective assistance claim concerns trial counsel's failure to attempt to introduce evidence of R.M.'s infidelity and promiscuity as impeachment evidence. The district court did not make a final pretrial ruling as to whether R.M.'s anticipated testimony that she "would not cheat" on her boyfriend, would open the door to matters of "her virtue." Rather, the court stated: "I can't tell you right now. It depends on the context that comes in." R.M. testified regarding Alberts's insistence she keep their presence at the lake house a secret:
He had told me not to tell anybody that I was going with him. And I looked at him and I said — I said, "Why? You know nothing is going to happen. You're like" — I said, "You're the only uncle that Jesse likes and I'm not going to cheat on Jesse." And that's when Mr. Alberts said, "Yeah, you're a good girl. You're a sweetheart."
R.M. did not make a declaration in response to questioning that she would not cheat on her boyfriend. She merely relayed what she said to the defendant as further evidence that the later sexual contact was not consensual. It is dubious to say that evidence of prior sexual behavior would have been proper impeachment evidence given the context of R.M.'s statement on direct examination. In addition, courts are generally reluctant to find the prosecution has opened the door to evidence of a sexual abuse victim's past sexual behavior. 3 Clifford S. Fishman, Jones on Evidence § 19:58, at 837 n. 26 (7th ed. 1998). When confronted with an "open door" situation,
the remedy of the defense is to object when the victim [makes a statement about her past sexual behavior]; [the defendant] may not use the prosecution's violation of Rule 412 as an excuse for further inquiry into the victim's past sexual behavior.
United States v. Duran, 886 F.2d 167, 169 (8th Cir. 1989). We conclude trial counsel did not breach an essential duty by failing to introduce evidence of R.M.'s past sexual behavior because such action would have been meritless.
B. Victim's Testimony as to Her State of Mind.
Alberts also contends his counsel erred by failing to object to R.M.'s testimony that she feared for her life during the sexual assault. In response to questioning by the prosecutor, R.M. attempted to explain why she feigned sleep and did not attempt to resist Alberts's assault:
Q: When you started creating scenarios in your mind of things that could happen, where did that come from? A: Where did it — the fact that I trusted [Alberts]. You know, I told him nothing was going to happen, and I thought that he would — he was okay. . . . I didn't trust him at all. I didn't know what he was going to do if he was willing to actually rape his nephew's girlfriend and think he's going to get away. I mean, what's to say he's not going to kill me and throw me in the lake? What's to say he's not going to throw me in his Jeep and kill me and drive me off a road? I didn't know. I mean, what's to say he's not just going to beat me up until I die or I go to the hospital and die? I wanted to get out of there as safely as possible.
Whether R.M. consented to the sexual contact, and hence her state of mind, were vigorously contested by the parties. R.M.'s lost trust in and sudden fear of Alberts were relevant to explain her lack of resistance during the sexual assault, which if left unexplained may infer she consented to the sexual encounter with Alberts. The probative value of such statements may be outweighed by their prejudicial effect. See Iowa R. Evid. 5.403. "[P]robative value gauges the strength and force of" the evidence "to make a consequential fact more or less probable." State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa 2001) (quoting State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988)). Unfairly prejudicial evidence is evidence that appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action that may cause a jury to base its decision on something other than the established propositions in the case. Id. There was no other evidence available as to why R.M. did not resist Alberts or as to her state of mind. Her fear of a physical assault was reasonable in light of Alberts's uninvited and unwanted sexual contact. We conclude that R.M.'s comments concerning physical repercussions for resisting Alberts's assault and the prosecutor's later recitation of her "fear for her life" were not unfairly prejudicial. Trial counsel had no duty to object to these statements, and we affirm on this issue.
C. Alleged Graves Violations.
Alberts also argues his trial counsel failed to object to three instances of questioning by the prosecutor and comments during closing arguments that implicated the credibility of other witnesses. During Alberts's cross examination, the following exchanges occurred:
(1) Q: But what I am saying is that you remember Ms. Barnes also saying she heard you say that? A: Well, Ms. Barnes is wrong.
(2) Q: During that conversation, according to Dr. Wilharm, nothing else was said. A: Dr. Wilharm has forgotten.
(3) Q: Just to make sure. You remember Dr. Wilharm testifying that you told him that, after the two of you had sex, you spent a little bit of time together in bed and that was pretty much it? A: Dr. Wilharm said I said that?
Q: Yes. A: That's false. I did not say that to him and that did not happen.
Q: Do you know if Dr. Wilharm has a hearing problem? A: He might have a little bit of memory problem. I don't know about a hearing problem.
The prosecutor also commented during closing arguments to the effect that the other witnesses must be wrong about their accounts of what occurred, according to the defendant. To determine whether a defendant asserts a meritorious due process claim conferring a duty upon his trial counsel to act, we must first "consider whether the prosecutor was guilty of misconduct in the particulars identified by [the defendant] and whether the record shows [the defendant] was prejudiced, i.e., denied a fair trial." State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). If either element is lacking as a matter of law, we will affirm the defendant's conviction. Id. On the question of prejudice 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. Id. (citations omitted).
Without determining whether the prosecutor's actions amounted to misconduct, we conclude they did not prejudice Alberts so as to deny him a fair trial. The comments were not disparaging, inflammatory, or directly pressing Alberts as to whether the other witnesses were lying. In fact, the prosecutor's questions appear to rest on reminding the defendant of the other witnesses' testimony. Alberts himself offers in his answers that the other witnesses are "wrong" or "have forgotten," when that was not the question asked of him. The only issue in contention at trial was whether the sexual contact was consensual or against R.M.'s will. There was adequate evidence that called Alberts's credibility into question, including his admission of initially lying to several family members about whether there had even been sexual contact. In the entire scope of the trial, with nearly six-hundred pages of testimony and the prosecution's twenty-page closing argument, we cannot say that the three exchanges during cross examination and lone comment in closing argument were so pervasive or so severe as to deny Alberts a fair trial. We conclude trial counsel had no duty to object to or request a mistrial due to the prosecutor's actions, and Alberts suffered no prejudice.
V. Alleged Witness Coaching.
The final issue on appeal is whether the district court erred in overruling the motion for new trial based on alleged misconduct by the prosecutor when questioning the victim. Two jurors signed affidavits stating that (1) they noticed R.M. stop speaking once or twice during direct examination when the prosecutor dropped her pencil; (2) it occurred to them that the action may have been deliberate; and (3) they discussed the alleged "signaling" during deliberations. We review a district court's ruling on a motion for mistrial based on prosecutorial misconduct for abuse of discretion. State v. Greene, 592 N.W.2d 24, 30 (Iowa 1999). We find an abuse of discretion only where there is misconduct, and the defendant was so prejudiced by the misconduct "as to deprive the defendant of a fair trial." Id. at 30-31 (quoting State v. Anderson, 448 N.W.2d 32, 33 (Iowa 1989)). Both the prosecutor and witness R.M. attested by professional statement or affidavit that R.M. was only told to testify truthfully. The district court found no evidence of any witness coaching or signaling by the prosecutor, stating, "The court continually watched the complaining witness testify at trial. The court did not observe any behaviors or method of testifying which would indicate there was any improper conduct by the prosecutor." As the district court was present to make these subtle observations, we defer to its findings and conclude it did not abuse its discretion when it denied the motion for new trial. See State v. Farnum, 397 N.W.2d 744, 747 (Iowa 1986) (stating that we leave credibility determinations to the trial court's sound discretion in the case where, alerted to the possibility of spectator coaching of the witness, the trial court observed none and found no good cause to restrict public access to the proceedings).
AFFIRMED.
Mahan, J., concurs specially; Sackett, C.J., dissents.
I concur specially. I concur with the majority opinion in all respects with the exception of the conclusion on the skinny-dipping incident.
I think this incident is similar to that in State v. Zachringer, 280 N.W.2d 416 (Iowa 1979), and should have been admitted by the district court because it was "relevant and could possibly have limited the implications which the jury may have drawn from the State's evidence." However, because the defendant appears to have failed to preserve error on this issue, I concur specially as opposed to filing a dissent.
I dissent. I would reverse and remand for a new trial. Defendant was convicted of third-degree sexual abuse following a jury trial in Johnson County, Iowa. It was alleged that he had sex with an adult woman, his nephew Jesse's girlfriend. The woman who had been drinking was part of a bachelorette party but asked defendant to take her home with him. She contended that after they reached defendant's home she took off her skirt and got in bed with him. She testified she woke up to find the defendant sucking her breasts and he performed oral sex and had intercourse with her without her consent. Defendant maintains the sexual contact was consensual and she voluntarily participated in the intercourse. Following the encounter the parties both fell asleep. The next morning she called her boyfriend and his brother for a ride home. Defendant finally took the woman home. She had concerns her boyfriend might break up with her. She told her boyfriend's brother "it was kind of rape" and he challenged her to do something about it. After saying that to him, she reported the sexual activity as a rape. There was no medical evidence of force or abuse.
The defendant contends the district court should not have sustained a motion in limine and the jury should have been able to hear testimony from the woman's boyfriend concerning an instance where he found the woman with a man other than his brother skinny-dipping naked and in each other's arms. The boyfriend's brother was to say that, on seeing him the woman cried as she came out of the water and said she "didn't know what to do out there — couldn't get away from him. Didn't know what to do." However the male participant said the idea to take off their clothes and skinny dip was the woman's idea and she initiated the activity. The defendant also contends he should have been able to cross-examine the woman about the incident and other participants about the event. The defendant contended the evidence was admissible because the response to the skinny dipping was identical to the response of the woman when she was confronted by her boyfriend's brother about her sexual encounter with the defendant.
The woman and the other participant agreed they were skinny dipping and in each other's arms. They do not corroborate the brother's testimony in all respects. But this is an issue of credibility, which is for the jury.
The defendant further contends that even if the evidence was not initially admissible she opened the door to this and other evidence when she testified as an explanation of why the encounter was rape and not consensual sex, "I'm not going to cheat on Jesse [her boyfriend]."
Defendant contends that if this second challenge was not preserved by the initial motion in limine, his trial counsel was ineffective in not again offering the evidence when the trial judge indicated he would reconsider the ruling on the admissibility of the evidence once the woman testified.
I believe the evidence was admissible and if error were not adequately preserved then defendant's trial attorney was ineffective in not offering it again after the woman testified.
This evidence went to the credibility of the woman and was important here because the witness testimony is not corroborated. See State v. Chambers, 270 N.W.2d 600, 602-603 (Iowa Ct.App. 1985). Defendant was prejudiced by its omission. I would remand for a new trial.