                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0727
                              Filed August 5, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ERIC EDWARD HARTMAN,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Davis County, Randy S. DeGeest,

Judge.




       Eric Hartman appeals from the judgment and conviction entered after a

jury found him guilty of assault with intent to commit sexual abuse. AFFIRMED.




       Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

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

General, Rick L. Lynch, County Attorney, and Ashley Leyda, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
                                        2


DOYLE, J.

      Following a jury trial, Eric Hartman was found guilty of assaulting his

fifteen-year-old stepdaughter, V.V., with the intent to commit sexual abuse. He

appeals his conviction, contending the district court should not have excluded

testimony from Hartman’s friend who claimed V.V. had told him her biological

father had touched her inappropriately.     Hartman argues this testimony was

evidence of a prior false sexual allegation by V.V. relevant to her credibility and

admissible. Additionally, Hartman asserts his trial counsel was ineffective for

failing to request a limiting instruction concerning V.V.’s testimony that Hartman

had engaged in other acts of a sexual nature with her.        We affirm, and we

preserve his ineffective-assistance-of-counsel claim for possible postconviction-

relief proceedings.

      I. Background Facts and Proceedings.

      In 2013, and as later amended in 2014, the State charged Hartman with

third-degree sexual abuse and its lesser-included offenses. The amended trial

information alleged Hartman “on or about July 20, 2013, through August 28,

2013, . . . did unlawfully and willfully sexually abuse his stepdaughter, V.V., age

[fifteen], by performing a sex act against her will or by force.” On February 7,

2014, Hartman filed his notice of defense witnesses, which included L.F., who

was a good friend of the family and a person V.V. had had a crush on over the

years. The notice did not indicate what evidence L.F. would provide.

      On March 7, 2014, the State filed a motion in limine concerning L.F.,

stating it believed Hartman might “seek to elicit testimony from [L.F.] regarding

comments that [V.V.] allegedly made to him regarding her [biological father]
                                         3


allegedly touching her inappropriately.” The State believed Hartman would try to

use the alleged comments “to portray the alleged touching in a sexual manner

and use [L.F.’s] testimony to impeach [V.V.].” The State asserted that Iowa’s

rape-shield rule, embodied in Iowa Rule of Evidence 5.412, prohibited L.F.’s

potential testimony because Hartman could not establish that V.V. actually made

such a statement to L.F. and, even if she did, that her statement was false

beyond a preponderance of evidence.          It also argued that L.F.’s potential

testimony about a statement made by V.V. would be inadmissible hearsay.

      Hartman filed his resistance on March 18, 2014, the day of trial, arguing

L.F.’s testimony met the necessary requisites. As support for his argument, he

attached a transcript of a portion of L.F.’s interview with the investigating law

enforcement officer wherein the following exchange occurred:

              [THE OFFICER]: I’ve got some kind of hard questions to ask
      you. I can’t really tell you what the actual investigation’s about, just
      other than it concerns you, obviously.
              But it’s just, you know, a situation in general.
              [L.F.]: Okay.
              [THE OFFICER]: Has [V.V.] ever said anything to you about
      like her relationship with her dad or with her mom or anything along
      those lines?
              [L.F.]: She said things about her real dad. But, you know, I
      think she had rough times over there, I think. You know, I don’t
      know if it’s true or not. She’s said that he’s touched her and stuff
      like that before.
              [THE OFFICER]: That her real dad has?
              [L.F.]: Her real dad, yes.
              [THE OFFICER]: What do you mean by “touched”?
              [L.F.]: I—That’s—I’m not sure.
              She just said that he’s touched her. That she didn’t think it
      was appropriate. And I’m like, “Okay. Have you told [Hartman]
      about this?” “No, I’m kind of scared to.” So I—
              [THE OFFICER]:—Okay. Did she—Well, I guess what I’m
      saying is—I mean, I guess—So you were the one talking to her?
              [L.F.]: Yeah.
                                          4


Based upon this conversation, Hartman asserted L.F. “clearly had no idea why

he was being interviewed” by the officer and volunteered that V.V. had previously

told him her biological father had touched her inappropriately. Because V.V.

denied to her interviewer at the child protection center that she had been sexually

abused by anyone other than Hartman, Hartman asserted V.V.’s alleged

statement to L.F., that she had been abused by someone other than Hartman,

was therefore a “prior false allegation” that was not excluded under the rape-

shield rule and thus admissible.

       The matter was taken up before the district court immediately before the

trial began.   Ultimately, the district court ruled L.F.’s testimony should be

excluded, simply explaining: “It’s just not appropriate to have—the weight of that

testimony would be not appropriate to put in a trial of this matter, so I am going to

grant the State’s motion in limine on that issue.”

       Trial commenced thereafter.       V.V. and Hartman both testified.       V.V.

testified Hartman raped her on an evening sometime in August 2013.              She

testified that on that day, Hartman had custody of his child, V.V.’s stepsibling, but

needed to return the child to the child’s mother’s home at the end of the day.

V.V. testified that she had her driver’s instruction permit, and Hartman let her

drive him and the child to the mother’s house. After dropping the child off, she

and Hartman exchanged places, and he drove. While driving, Hartman brought

up her crush on L.F. and text messages she and L.F. had exchanged. V.V.

testified that Hartman told her that she had hurt him and that she had to make it

up to him. Hartman drove out to his mother’s house, located in a rural area, and

parked the vehicle near a dilapidated barn around ten p.m. at night. She testified
                                         5


that Hartman then raped her, and then he drove them home. However, she

testified she did not tell anybody about the rape until November 2013.

       V.V. admitted she had a history of depression and, since she was eleven,

had engaged in self-injury by cutting herself as a stress-coping mechanism.

Though she had stopped cutting for two years, she testified that in November

2013, after breaking up with her boyfriend, she began cutting again, and she took

pictures of her injuries and sent them to her ex-boyfriend. Hartman found the

pictures the next morning on the family’s computer and showed V.V.’s mother,

Hartman’s wife, the pictures. V.V. testified her mother and Hartman woke her up

and confronted her about her injuries. When Hartman left the room, V.V. told her

mother she had something she wanted to tell her, but she wanted to wait until

Hartman left the residence. Her mother told her to tell her, and V.V. told her

mother that Hartman had raped her.

       V.V. testified that prior to the rape, since she was around thirteen or

fourteen, she had become uncomfortable around Hartman.             She testified he

would walk into her room when she was changing or into the bathroom when she

was getting out of the shower. She testified he exposed himself to her, and while

camping, he put his hands down her pants and touched her under her

underwear. She testified that another time while she was driving, Hartman put

his hand on her thigh.       She also testified that she told the woman who

interviewed her at child protective services that nothing like this rape incident had

ever happened to her before. She testified she had told her best friend about the

sexual acts, but she did not tell her about the rape until the day she told her

mother. V.V. explained her best friend’s sister, a law enforcement officer, heard
                                          6


her and her friend talking on the phone, and the sister reported the rape to law

enforcement officials.

         The investigating officer testified Hartman, V.V.’s mother, L.F., and V.V.’s

middle school counselor each told him V.V. had “an issue with truth from time to

time.” However, the investigating officer testified V.V.’s accounts of the rape

during two separate interviews at the child protection center were consistent.

The officer further testified that although there was some discrepancies between

what V.V. reported happened and what V.V.’s friend reported V.V. told her had

happened, V.V. and her friend’s reports were generally consistent with each

other.

         Hartman testified and denied raping V.V. or touching her inappropriately,

and he challenged V.V.’s credibility. He told the investigating officer V.V. was a

habitual liar and that she had “an imagination.” However, Hartman admitted that

one night he had driven V.V. around to talk about V.V.’s obsession with boys, her

texting L.F., and her attitude. He told the investigating officer that he was driving

a Suburban that night, and to conserve gas, he drove them out to his mother’s

farm to talk, where V.V. said the rape occurred. He denied that that happened;

he told the officer they only talked, but he did not know how much of the

conversation V.V. heard because “she was very irate that night,” “doin’ her

growlin,’ and thrashin’ around, crying.” He told the officer that by the end of their

conversation, V.V. seemed to understand and acted like everything was okay.

Hartman’s testimony suggested V.V. made up the story to divert the attention

from her and her self-inflicted injuries or because she was seeking her biological

father’s love and attention.
                                        7


      V.V.’s mother testified she was not sure what the truth was and “prayed

[the jury] would help [her] figure this out.” She testified she wanted to believe

both V.V. and Hartman, but she testified V.V.’s account of the rape to her was

not consistent, that V.V. told her that she was raped at an earlier time than the

time V.V. reported the rape occurred during the investigation. V.V.’s mother also

testified V.V. was very angry and upset when she and Hartman confronted her

about the pictures of her self-harm.

      V.V.’s middle school counselor testified V.V. did not always tell her the

“whole story” or the “whole truth.” She did not specifically recall any particular

untruths V.V. told, but she testified V.V. had never made any comments to her

accusing “anybody of rape or something like that.” She admitted at the time of

trial she had not seen V.V. for two years, and she testified she would not

speculate as to whether V.V.’s rape allegation was accurate or not.

      V.V.’s former therapist testified she started seeing V.V. in August 2012,

and during her initial assessment interview with V.V. and V.V.’s mother, neither

V.V. nor her mother voiced any concerns about sexual or physical abuse. V.V.

and her mother both identified V.V.’s behavior traits to include lying, a violent

temper, hostility and anger, self-injury, impulsivity, and sadness and self-

isolation. The counselor testified that V.V. admitted to her that V.V. had been

untruthful at times, and in the year or so that she worked with V.V., V.V. never

expressed to her any sexual concerns, feelings of discomfort, or even dislike of

Hartman. When asked what V.V. lied about, the counselor identified that V.V.

had lied about skipping school with her friends and throwing a party.
                                         8


       The matter was submitted to the jury, and it subsequently returned a

verdict of guilty to the lesser-included offense of assault with intent to commit

sexual abuse. Hartman now appeals.

       II. Scope and Standards of Review.

       The district court’s rulings on the admissibility of evidence, including

admissibility under rule 5.412, are reviewed for abuse of discretion. See State v.

Edouard, 854 N.W.2d 421, 431 (Iowa 2014); State v. Alberts, 722 N.W.2d 402,

407 (Iowa 2006). To the extent Hartman asserts constitutional claims, our review

is de novo. See Edouard, 854 N.W.2d at 431.

       III. Discussion.

       On appeal, Hartman asserts the district court should not have excluded

testimony from L.F. about an alleged statement V.V. made because, as his

argument goes, the evidence was admissible as a prior false sexual allegation by

V.V. and relevant to her credibility. Additionally, Hartman asserts his trial counsel

was ineffective for failing to request a limiting instruction concerning V.V.’s

testimony that Hartman had engaged in other acts of a sexual nature with her.

We address his arguments in turn.

       A. Exclusion of L.F.’s Testimony.

       On appeal, Hartman asserts he satisfied his burden to overcome the rape-

shield law “through the transcript portions offered by Hartman demonstrating that

L.F. recalled V.V. saying that her father touched her inappropriately and that she

later denied ever being touched inappropriately by anyone other than Hartman.”

The State disagrees, arguing Hartman failed to prove by a preponderance of the

evidence that a prior allegation was made or that it was false. However, the
                                         9


State first contends Hartman failed to preserve error on the issue because he

“did not timely provide notice before trial and did not serve [V.V.]” as required by

Iowa Rule of Evidence 5.412(c)(1).

       1. Error Preservation.

       The rape-shield rule prevents the introduction of reputation or opinion

evidence of a victim’s past sexual behavior, as well as substantially limiting the

admissibility of past incidents of the victim’s sexual behavior. See Iowa R. Evid.

5.412(a), (b); see also Millam v. State, 745 N.W.2d 719, 722 (Iowa 2008). “The

purpose of this rule is to protect the victim’s privacy, encourage the reporting and

prosecution of sex offenses, and prevent the parties from delving into distractive,

irrelevant matters.”   Edouard, 854 N.W.2d at 448-49 (internal citation and

quotation marks omitted). However, “prior false claims of sexual activity do not

fall within the coverage of our rape-shield law.” Alberts, 722 N.W.2d at 409

(citing State v. Baker, 679 N.W.2d 7, 10 (Iowa 2004)).          Once a statement

concerning sexual activity is determined to be false, the activity cannot be “past

sexual behavior,” and thus the statement concerning the activity is not “within the

meaning of our rape-shield law.” See id. at 410. To strike a balance between

the alleged victim’s privacy and a defendant’s use of the statement as part of the

defendant’s defense, the Iowa Supreme Court held “a criminal defendant wishing

to admit such evidence must first make a threshold showing to the trial judge

outside the presence of the jury that (1) the complaining witness made the

statements and (2) the statements are false, based on a preponderance of the

evidence.” Id. at 409. Nevertheless, even if a defendant meets the requisite
                                            10


showing, this evidence still “remains subject to all other applicable evidentiary

requirements and considerations.” Id. at 410.

       That being said, the supreme court in Alberts included a footnote

concerning the rape-shield rule’s procedural requirements. See id. at 409-10 n.3.

The court noted:

              Under our rape-shield law, a defendant intending to offer
       evidence of specific instances of the complaining witness’s past
       sexual behavior must first make a written motion to offer such
       evidence not later than [fifteen] days before the trial date. Iowa R.
       Evid. 5.412(c)(1). This procedural requirement would also apply to
       allegedly false claims of sexual conduct because they are covered
       by the rape-shield law unless proven to be false. The motion must
       be accompanied by a written offer of proof and the trial court must
       order a hearing in chambers to determine the admissibility of such
       evidence. Id. 5.412(c)(2).

Id. (emphasis added); see also Iowa R. Evid. 5.412(c).

       These procedural requirements have not changed, and it is this part of the

rule upon which the State asserts Hartman failed to preserve error. Specifically,

the State argues that because Hartman did not file a rule 5.412(c)(1) motion

stating his intent to offer under rule 5.412(b) evidence of specific instances of the

alleged victim’s past sexual behavior and that motion was not filed at least fifteen

days before trial, he failed to preserve error.1          However, the State did not


       1
          This seems a bit of a conundrum, because, as stated above, a false report of
sexual abuse is not protected by the rape-shield law. See Alberts, 722 N.W.2d at 409
(“[A] falsity determination simply means the statements are not ‘past sexual behavior’
within the meaning of our rape-shield law.”); see also Millam, 745 N.W.2d at 723 (Iowa
2008) (“In this case, the wording of the rape-shield law itself is quite clear: it refers to
sexual behavior, and quite simply, claims of sexual abuse are not sexual behavior.”).
Thus, a defendant seeking to admit a false sexual claim would arguably have no duty to
file a timely notice under rule 5.412(c), because the evidence of the false report would
not fall under rule 5.412(b). See id.; see also Iowa R. Evid. 5.412 (b), (c). However, the
procedural requirement does apply to “allegedly false claims of sexual
conduct . . . unless proven to be false.” Alberts, 722 N.W.2d at 409-10 n.3 (emphasis
added). Consequently, the issue becomes when must that determination take place?
                                            11


challenge Hartman’s failure to comply with rule 5.412(c) before the trial court. On

appeal, the State acknowledges this, but it asserts it “is not limited to the reasons

proffered by the county attorney below” because “evidentiary rulings may be

upheld on appeal on any basis, whether urged below or not,” citing DeVoss v.

State, 648 N.W.2d 56, 62-63 (Iowa 2002), and State v. Hinkle, 229 N.W.2d 744,

748 (Iowa 1975).

       While it is true that in DeVoss the supreme court confirmed it would

“continue to honor the [error preservation] exception involving [evidentiary]

rulings,” it expressly determined it would “not consider a substantive or

procedural issue for the first time on appeal, even though such issue might be

the only ground available to uphold a district court ruling.” 648 N.W.2d at 63.

The State itself states in its brief, “[i]n short, the notice requirement is an

important substantive component of [r]ule 5.412—not a trivial procedural hurdle.”

We agree that the notice requirements of the rule are important, but regardless of

whether it is a substantive element, as asserted by the State, or a procedural

requirement, as described by the supreme court in Alberts, the State did not

argue this issue before the district court. See Alberts, 722 N.W.2d at 409-10 n.3.

Consequently, like in DeVoss, the State’s failure to do so waives Hartman’s

While filing a rule 5.412(c) notice fifteen days in advance of trial where a defendant
seeks to introduce evidence of a “prior false allegation” concerning a victim’s past sexual
history would definitely be a better practice, particularly where the evidence’s veracity
might be contested, the supreme court’s two-part test set out in Alberts only required
that the defendant “make a threshold showing to the trial judge outside the presence of
the jury.” 722 N.W.2d at 409. Hartman’s argument to the trial court was made outside
the presence of the jury, and the court determined the evidence Hartman sought to enter
was inadmissible. Because the court was able to address the issue before trial,
Hartman seems to have met the minimal procedural requirements. But cf. State v.
Schondelmeyer, No. 14-0621, 2015 WL 1817030, at *4 (Iowa Ct. App. Apr. 22, 2015)
(finding “Schondelmeyer failed to file the required written motion” under Iowa R. Evid.
5.412(2) as to a prior false claim by the victim).
                                         12

failure to comply with rule 5.412(c), assuming he was so required. See 648

N.W.2d at 63. We therefore proceed to the merits of Hartman’s claim.

       2. Merits.

       To permit L.F. to testify about V.V.’s “false” statement, Hartman had to

establish to the trial court that V.V. actually made the statement to L.F. and her

statement was indeed false “beyond a preponderance of the evidence.” See

Millam, 745 N.W.2d at 722; Alberts, 722 N.W.2d at 409. The trial court’s ruling

on the matter did not address either element; rather, it found L.F.’s testimony

would not be “appropriate,” seeming to suggest that any such statement was not

relevant or overly prejudicial. The State advances the same on appeal—that

even if Hartman demonstrated that the alleged statement was made and was

false, it would not be admissible for these and other evidentiary reasons.

However, we disagree with the State to the extent that if Hartman did indeed

meet the requisite showing, the supreme court’s ruling in Millam supports the

admissibility of such statement. See 745 N.W.2d at 722-24.

       In Millam, the supreme court found Millam’s trial counsel was ineffective

for not offering evidence of the alleged victim’s prior false claims of sexual abuse,

entitling him to a new trial. See id. at 724. There, the alleged victim’s mother

told investigators that the victim “had made similar accusations against one of

her mother’s previous boyfriends,” and the victim “later recanted those

accusations.” Id. at 722. The supreme court noted the victim’s “own mother

doubted her claims against Millam due to her prior false claims.” Id. at 723.

Ultimately, the court found the alleged victim’s statement to her mother was

indeed a false allegation that “was central to Millam’s defense.” Id. at 722-24.
                                             13


The court explained that in “a case in which the evidence against the defendant

is not overwhelming, such evidence is imperative to an effective defense.” Id. at

723. The court noted the facts of the case demonstrated a classic “he said, she

said” situation, since the State’s case “was based almost exclusively on [the

victim’s] testimony,” no physical evidence of sexual abuse was presented, and

there were no witnesses to the abuse, making the victim’s credibility “pivotal to

the State’s case. Any evidence undermining that credibility could only work in

Millam’s favor, particularly evidence that [the victim] had made, and later

recanted, similar claims of sexual abuse.” Id. at 722-23. Moreover, the court

found that “[e]vidence of [the victim’s] prior false claims of sexual abuse could

have greatly impugned her credibility, thus lending credence to Millam’s

contention that he did not sexually abuse her.” Id. at 723.

       Like in Millam, the State’s case against Hartman was based almost

exclusively upon V.V.’s testimony. Consequently, if Hartman shows V.V. actually

made a prior false sexual allegation, that false claim would be essential to his

defense, making the evidence relevant and more probative than prejudicial.2

See id.    However, we agree with the State that Hartman did not meet that

threshold showing here.

       Hartman declares that L.F.’s statement to the investigating officer confirms

V.V. made a prior allegation of sexual abuse and that the allegation was false.

However, L.F.’s interview with the officer is not that precise. Rather, L.F. only

       2
          We also note that the statement would not be hearsay, as it was not offered for
the truth of the matter asserted—that V.V. was sexually abused by her father. See Iowa
R. Evid. 5.801(c) (defining hearsay as a statement, other than one made by the
declarant while testifying at the trial, offered in evidence to prove the truth of the matter
asserted). Rather, the false statement is a direct attack on V.V.’s credibility.
                                         14


stated V.V. had “said things about her real dad . . . that he’s touched her and

stuff like that before.” When asked what “touched” meant, L.F. told the officer he

was not sure, “[s]he just said that he’s touched her” and “she didn’t think it was

appropriate.” While it could be inferred that V.V., if she made this statement to

L.F., was talking about sexual abuse, V.V. denies that she made the statement.

Though a close call, we do not believe L.F.’s claim that V.V. made such a

statement is more likely true than V.V.’s claim that she did not make the

statement, particularly in light of the vague description given by L.F. and his own

admission he did not know what V.V. meant. See, e.g., Martinek v. Belmond-

Klemme Cmty. Sch. Dist., 772 N.W.2d 758, 761 (Iowa 2009) (“A preponderance

of the evidence is the evidence that is more convincing than opposing evidence

or more likely true than not true. It is evidence superior in weight, influence, or

force.”).

        Here, Hartman was able to challenge V.V.’s credibility based upon her

past instances of untruthfulness through numerous witnesses at trial, but none of

those witnesses testified V.V. had ever made this type of claim before.

Moreover, V.V.’s mother testified she did not know the truth; unlike the victim’s

mother in Millam, V.V.’s mother did not testify she believed V.V. was lying,

though she found some inconsistencies in V.V.’s statements to her about the

rape.       Additionally, the investigating officer testified he believed V.V. was

consistent in her allegations against Hartman. Given that V.V. denied making the

statement to L.F., L.F.’s testimony of the “statement” was too vague to show V.V.

had made a sexual allegation against another, there was no other evidence that

V.V. had ever made such a claim before, V.V. was consistent in her description
                                           15


of the rape, and Hartman was able to attack V.V.’s credibility, we do not find the

district court abused its discretion in not permitting L.F. to testify about V.V.’s

alleged statement.

         B. Ineffective Assistance of Counsel.

         Finally, Hartman argues his trial counsel was ineffective for failing to

request a limiting instruction directing the jury that it could not consider V.V.’s

testimony that Hartman had committed other sexual acts against her as evidence

Hartman committed the charged crime.            We review ineffective-assistance-of-

counsel claims de novo. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa

2015).    To succeed on such a claim, Hartman must prove both that (1) his

counsel failed to perform an essential duty, and (2) he suffered prejudice as a

result of his counsel’s failure. See id.

         We generally preserve such claims for postconviction-relief proceedings

where a proper record can be developed. State v. Null, 836 N.W.2d 41, 48 (Iowa

2013).     “That is particularly true where the challenged actions of counsel

implicate trial tactics or strategy which might be explained in a record fully

developed to address those issues.” State v. Clay, 824 N.W.2d 488, 494 (Iowa

2012). “[A]t a postconviction relief hearing, trial counsel will have an opportunity

to explain [his or] her conduct and performance.” State v. Blair, 798 N.W.2d 322,

329 (Iowa Ct. App. 2011).        “Even a lawyer is entitled to his day in court,

especially when his professional reputation is impugned.” State v. Bentley, 757

N.W.2d 257, 264 (Iowa 2008). Consequently, we will only address claims of

ineffective assistance of counsel on direct appeal when the record is sufficient to

decide the issue. State v. Ross, 845 N.W.2d 692, 697 (Iowa 2014).
                                        16


      When evidence is admissible for one purpose, but not for another, the

district court shall, upon request, restrict the evidence to its proper scope and

give a limiting instruction. See Iowa R. Evid. 5.105. However, counsel may also

have had strategic concerns for not requesting the limiting instruction. See State

v. Reyes, 744 N.W.2d 95, 104 (Iowa 2008). Here, the record is inadequate to

make such a determination.      We therefore preserve this claim for possible

postconviction-relief proceedings.

      IV. Conclusion.

      For the foregoing reasons, we affirm Hartman’s conviction for assault with

intent to commit sexual abuse, and we preserve his ineffective-assistance-of-

counsel claim for possible postconviction-relief proceedings.

      AFFIRMED.
