                   IN THE COURT OF APPEALS OF IOWA

                                      No. 14-2058
                                  Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DANIEL BRATCHER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, Thomas G.

Reidel, Judge.



      Defendant appeals his conviction and sentence for assault with intent to

commit sexual abuse. AFFIRMED.



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

Stephan J. Japuntich, Assistant Appellate Defenders, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
                                         2


POTTERFIELD, Judge.

       Daniel Bratcher appeals his conviction and sentence for assault with intent

to commit sexual abuse, an aggravated misdemeanor, in violation of Iowa Code

section 709.11 (2013). Bratcher maintains the district court abused its discretion

by allowing a uniformed jailer to accompany him into chambers each time a

prospective juror was individually questioned because it suggested he was

dangerous and deprived him of his right to a fair trial. Bratcher also maintains

the district court abused its discretion when it excluded prior allegations of sexual

abuse made by the complaining witness. Lastly, he argues the court abused its

discretion when it denied his motion for new trial because the verdict is contrary

to the weight of the evidence.

I. Background Facts and Proceedings

       On January 22, 2013, Bratcher was charged by trial information with

sexual abuse in the third degree, a class “C” felony. Because he had been

convicted of felonies at least twice before, the State also notified Bratcher that it

intended to pursue the habitual offender sentencing enhancement, pursuant to

Iowa Code section 902.8.

       On June 13, 2014, Bratcher filed a motion to offer evidence of the

complaining witness’s prior claims of sexual abuse.       Bratcher maintained the

prior claims were false and therefore admissible. The State resisted. Before the

commencement of Bratcher’s jury trial, the court ruled “that the defendant has

failed to prove that the statements are false by a preponderance of the

evidence.” The court denied Bratcher’s motion, thereby excluding the evidence.
                                           3


       The jury trial took place on October 6–8, 2014.              Prior to voir dire,

Bratcher’s attorney made the following statement to the court:

       [A]s the court knows, it uses questionnaires, and that involves
       leaving the Court and coming into chambers.
                Mr. Bratcher is—his rights to a fair trial—he’s been in jail
       since January of 2013. He’s allowed to be—he must be tried in his
       civilian clothes, not a jail uniform, no shackles or other restraints of
       any kind that would create a negative impression or an unfair
       impression on the jury.
                When we went from the courtroom,[1] which is 30 feet from
       chambers here, into chambers and back and forth talking to these
       jurors on an individual basis, the jailer always accompanied Mr.
       Bratcher. I’m not saying that [Bratcher] was cuffed. I’m not saying
       that they led him by the arm or anything else, but they followed
       pretty closely.
                I’m not aware that Mr. Bratcher has ever stated a threat to
       anybody. We’re just asking—but, again, they sit right behind him in
       the courtroom, and I’m not going to raise an issue about that. It’s
       just that it creates the impression to a juror that [Bratcher’s]—he’s
       so dangerous that a jailer must accompany him at all times.
                ....
                We’re asking the jailer, and just in that back and forth from
       the courtroom to chambers, not accompany Mr. Bratcher. I
       understand that there may be some policy or policies in place from
       the Muscatine County Sheriff, but I think that Mr. Bratcher, in this
       fairly limited situation, his right to a fair trial, to avoid an appearance
       that unduly prejudices him, that they should not accompany him.

The State resisted Mr. Bratcher’s request, arguing the jail staff was allowed to

use reasonable measures to ensure the safety of the people within the courtroom

and that it did not imply Mr. Bratcher was dangerous. The court ruled:

       I’m going to deny the request. I don’t think there’s any unfair
       prejudice from that. I think that most members of our community
       are already aware of the fact that there are usually, in criminal
       cases, some sort of uniformed law enforcement. If you watch any
       shows on TV, you’re always going to see a bailiff who is usually in
       uniform.
              We actually don’t have that all the time, but I don’t think our
       jurors are aware that that wouldn’t be the case. He’s not shackled.

1
 Bratcher was previously tried for the same offense, and the first trial resulted in a
mistrial when the jury was unable to come to a unanimous conclusion.
                                         4


      He’s not in cuffs. I think that they’ll think there’s nothing out of the
      ordinary, that we have courthouse security that’s present in the
      courthouse.
             I don’t think there’s any prejudice that attaches to and from
      that, so I’m going to deny the request.

      At trial, the complaining witness, Bobbi Jo, testified that on January 4,

2013, she and a friend had gone out to a few local bars. She was drinking at

each bar and was generally having a good time dancing and talking to people.

They stayed out until the bar closed, which she believed occurred at

approximately 1:45 in the morning of January 5th. When the bar closed, the

friend decided to go home, and Bobbi Jo decided to leave with other friends to go

to their apartment. Bobbi Jo testified she had “quite a few drinks” throughout the

night and did not believe she was sober enough to drive when the bar closed.

      Bobbi Jo proceeded to Ashley and Pedro’s apartment along with a few

other people. By approximately 4 a.m., the party was winding down, and only

Ashley, Pedro, Bobbi Jo, Brenda, and Bratcher remained in the apartment.

Bobbi Jo estimated it was approximately 5 a.m. when she announced she was

going to sleep and laid down on the couch to do so. When she lay down, she

was wearing jeans that were “[f]ully on, buttoned, zipped.” Bobbi Jo testified she

was sleeping on her stomach when she woke up suddenly, feeling pressure in

her vagina and anus. She was unable to stand up or kick her legs, and she

started screaming. Brenda, who had been sleeping sitting up on the couch, got

up and ran out of the room. Bobbi Jo testified that she saw Bratcher step back

from behind her and into her line of vision and the pressure stopped.            She

realized it had been Bratcher’s fingers in her vagina and anus. When Bobbi Jo

stood up, she realized her pants and underwear were pulled down to her knees.
                                           5


She pulled her pants up and attempted to zip them, but the zipper was broken.

Bobbi Jo went to the local hospital a few hours later, and a rape kit and a “head-

to-toe” examination were completed.

       Dr. Katherine Hurst completed the examinations of Bobbi Jo at the

hospital.   She testified Bobbi Jo had reported to her that she was sexually

assaulted at a party. Bobbi Jo reported she had woken up with someone’s hand

or fingers in her vagina. She did not mention her anus to the doctor. Dr. Hurst

testified that she did not see any trauma to the body in either the pelvic exam or

the head-to-toe exam. Dr. Hurst also testified that the lab results taken that

morning indicated Bobbi Jo had alcohol and cocaine in her system, which

corroborated what Bobbi Jo had told the doctor. Dr. Hurst testified there were no

signs of trauma but due to the elasticity of vaginal tissue, there is not always

evidence of injury after sexual assault.

       Ashley and Pedro both testified at the trial as well. Each testified that

Bobbi Jo and Brenda were both asleep on the couch in the living room when they

went to bed in their room.     Additionally, both testified that Bratcher was still

awake in the apartment and was the only other person still there. Ashley testified

she awoke to screaming coming from the living room; she woke Pedro up, and

they entered the living room at the same time. Both testified that Bobbi Jo was

standing by the couch with her pants “halfway” down when they entered the

room. Ashley testified Bratcher was still in the apartment at that time, and Pedro

testified Bratcher was standing in the living room when they entered.
                                          6


       On October 8, 2014, the jury found Bratcher guilty of the lesser included

offense of assault with intent to commit sexual abuse, an aggravated

misdemeanor, in violation of Iowa Code section 709.11.

       On November 26, 2014, Bratcher was sentenced to a term of

incarceration not to exceed two years. Bratcher appeals.

II. Standard of Review

       We review the district court’s decision regarding court room security for an

abuse of discretion. See State v. Wilson, 406 N.W.2d 442, 450 (Iowa 1987)

(“[W]e find no abuse of discretion by the court in its decision to require the

security measures it deemed appropriate under the circumstances.”)            On the

other hand, Bratcher’s claim implicates his constitutional right to due process and

a fair trial; we review constitutional issues de novo. See State v. Iowa Dist. Ct.,

801 N.W.2d 513, 517 (Iowa 2011) (“[W]hen a constitutional issue is presented,

the evidence relevant to that issue is reviewed de novo.”); see also People v.

Stevens, 218 P.3d 272, 285 (Cal. 2009) (holding that trial court decisions

regarding courtroom security are reviewed for an abuse of discretion, but the

“reviewing court will inquire whether, based on the record below, the trial court

reasonably balanced the need for heightened security against the constitutional

rights afforded the defendant”).2

       We review the district court’s evidentiary rulings for an abuse of discretion.

State v. Alberts, 722 N.W.2d 402, 407 (Iowa 2006).




2
  Bratcher has not raised this issue under the Iowa Constitution and he does not argue
for a different standard than that used by federal case law.
                                          7


       “On a weight-of-the-evidence claim, appellate review is limited to a review

of the exercise of discretion by the trial court, not of the underlying question of

whether the verdict is against the weight of the evidence.” State v. Reeves, 670

N.W.2d 199, 203 (Iowa 2003).

III. Discussion

       A. Indicia of Innocence

       Bratcher maintains the district court abused its discretion and prejudiced

his right to a fair trial when it allowed a uniformed jailer to accompany him to and

from chambers each time a prospective juror was privately questioned about

their responses to the “supplemental juror questionnaire.”3

       Bratcher asserts the jailer acted as a “human shackle” and urges us to

analyze his appeal using the framework from previous shackling cases.              “A

criminal defendant is presumed innocent until his guilt is established beyond a

reasonable doubt. Thus, a defendant is entitled to the indicia of innocence in the

presence of the jury.” Wilson, 406 N.W.2d at 448. Shackling a defendant in front

of a jury is inherently prejudicial. Id. at 449; see also Holbrook v. Flynn, 475 U.S.

560, 569 (1986) (discussing Estelle v. Williams, 425 U.S. 501, 505 (1976)). On

rare occasions, the State may overcome the presumption by showing the

necessity for the restraints. Holbrook, 475 U.S. at 568; Wilson, 406 N.W.2d at

449.



3
   We note that voir dire was not reported, and it is unclear from the record how many
times the complained of conduct occurred. By our count, sixty-one prospective jurors
filled out the supplemental questionnaire and twenty provided responses that the court
may have decided warranted further discussion. It is unclear if each of the twenty
people was taken back into chambers and whether the defendant was walked back and
forth for each new prospective juror.
                                          8


       The State, however, asserts the jailer accompanying Bratcher back and

forth from chambers was a more “benign” measure, which was not inherently

prejudicial, and, as such, the burden falls on Bratcher “to show the incident

prejudicially affected the jury or that his ability to present his defense was

impaired.” The State relies on the United States Supreme Court case, Holbrook,

for its proposition. 475 U.S. at 562. In Holbrook, the Court considered whether

“a criminal defendant was denied his constitutional right to a fair trial when, at his

trial with five codefendants, the customary courtroom security force was

supplemented by four uniformed state troopers sitting in the first row of the

spectator’s section.” Id. The Court recognized “that certain practices [such as

shackling] pose such a threat to the ‘fairness of the factfinding process’ that they

must be subject to ‘close judicial scrutiny.’” Id. at 568 (citing Estelle, 425 U.S. at

503–04). As such, the court first had to determine whether the uniformed officers

sitting behind the defendant—the “conspicuous, or at least noticeable,

deployment of security personal in a courtroom during trial”—was an inherently

prejudicial practice. Id.. The Court ultimately concluded the presence of the

armed officers was not inherently prejudicial.      Id. at 574 (“Four troopers are

unlikely to have been taken as a sign of anything other than a normal official

concern for the safety and order of the proceedings.”). Because the action was

not inherently prejudicial, the defendant had the burden to show actual prejudice

was suffered. Id. at 572.

       We believe the present situation is more analogous to the armed guards

sitting near the defendant in Holbrook than the line of “pure shackling” cases. In

fact, even the authority Bratcher cited to support his argument regarding the
                                         9


officer as a human shackle ultimately concluded the armed officer sitting near the

defendant while he testified from the witness stand was not inherently prejudicial.

See Stevens, 218 P.3d at 281 (“We conclude a deputy’s presence at the witness

stand during a defendant’s testimony is not inherently prejudicial. As the United

States Supreme Court observed over 20 years ago, jurors have become

accustomed to seeing security officers in public places such as the courtroom,

and there is a wide range of inferences they may draw from an officer’s presence

near a testifying defendant.”).

       Although the facts of the present case are different than those of Holbrook

because the jailer accompanied Bratcher and the attorneys back and forth from

chambers rather than sitting behind him in the audience, we are persuaded by

the Supreme Court’s reasoning therein.

       Recognizing that jurors are quite aware that the defendant
       appearing before them did not arrive there by choice or
       happenstance, we have never tried, and could never hope, to
       eliminate from trial procedures every reminder that the State has
       chosen to march its resources against a defendant to punish him
       for allegedly criminal conduct.
               ....
               The chief feature that distinguishes the use of identifiable
       security officers from courtroom practices we might find inherently
       prejudicial is the wider range of inferences that a juror might
       reasonably draw from the officers’ presence. While shackling and
       prison clothes are unmistakable indications of the need to separate
       a defendant from the community at large, the presence of guards at
       a defendant’s trial need not be interpreted as a sign that he is
       particularly dangerous or culpable. Jurors may just as easily
       believe that the officers are there to guard against disruptions
       emanating from outside the courtroom or to ensure that tense
       courtroom exchanges do not erupt into violence. Indeed, it is
       entirely possible that jurors will not infer anything at all from the
       presence of the guards. If they are placed at some distance from
       the accused, security officers may well be perceived more as
       elements of an impressive drama than as reminders of the
       defendant’s special status. Our society has become inured to the
                                         10


       presence of armed guards in most public places; they are doubtless
       taken for granted so long as their numbers or weaponry do not
       suggest particular official concern or alarm.

Holbrook, 475 U.S. at 567, 569.

       Because we find that allowing the uniformed jailer to walk behind Bratcher

while he walked to and from chambers is not inherently prejudicial, Bratcher has

the burden of showing he suffered actual prejudice. See id. at 572. Here, the

jury was instructed that Bratcher was “presumed innocent and not guilty. This

presumption of innocence requires you to put aside all suspicion which might

arise from the arrest, charge or the present situation of the defendant.”

(Emphasis added.) We presume juries follow the court’s instructions. State v.

Hanes, 790 N.W.2d 545, 552 (Iowa 2010).

       Bratcher has not established he suffered actual prejudice to overcome that

presumption, so his claim fails.      See Holbrook, 475 U.S. at 572 (“[I]f the

challenged practice is not found inherently prejudicial and if the defendant fails to

show actual prejudice, the inquiry is over.”).

       B. Previous Allegations

       Bratcher maintains the district court abused its discretion when it excluded

evidence of prior false allegations of sexual abuse made by Bobbi Jo.

       Iowa Rule of Evidence 5.412 is known as the “rape-shield law,” and it

provides, “[I]n a criminal case in which a person is accused of sexual abuse,

reputation or opinion evidence of the past sexual behavior of an alleged victim of

such sexual abuse is not admissible.”         The rule’s purpose is “to protect the

victim’s privacy, encourage the reporting and prosecution of sex offenses, and

prevent parties from delving into distracting, irrelevant matters.” State v. Alberts,
                                        11


722 N.W.2d 402, 409 (Iowa 2006). Prior false claims of sexual abuse are not

protected by the rape-shield law. State v. Baker, 679 N.W.2d 7, 10 (Iowa 2004)

(“Because a false allegation of sexual activity is not sexual behavior, such

statements fall outside both the letter and the spirit of the rape-shield law.”). A

criminal defendant wishing to admit such claims “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.” Alberts, 722 N.W.2d at 409.

      Bratcher filed a motion to offer evidence of Bobbi Jo’s prior claim of sexual

abuse along with the report of the incident from the local sheriff’s department.

Although his motion stated he would call the individual accused by Bobbi Jo, he

declined to do so when given the opportunity. The sheriff department’s report

describes its investigation, which involved a claim of sexual abuse while Bobbi Jo

and the male were asleep together on a couch. The report concludes with a

referral to the county attorney. Bratcher maintains this was enough to establish

the allegations were false by a preponderance of the evidence because the

alleged perpetrator denied the incident occurred and the prosecutor never filed

charges against him. The district court concluded:

             The Court had a chance to review both the motion—the
      complete attached report as well as the resistance, and the Court
      finds that based on the motion and the report, that the defendant
      has failed to prove that the statements are false by a
      preponderance of the evidence. The Court cannot draw that
      conclusion from the report itself.

We agree with the district court that Bratcher failed to meet his burden to

establish the prior allegations were false. Bratcher assumes, and urges us to do
                                         12


likewise, that the prosecutor did not file charges because they determined Bobbi

Jo’s allegations were false, but there is nothing in the record provided by

Bratcher that supports the assumption. It is unclear why the prosecutor declined

to prosecute. There is no evidence Bobbi Jo recanted her allegation.

       Because Bratcher failed to establish that the prior allegation was false, the

evidence was protected by the rape-shield law. The district court did not abuse

its discretion by excluding the evidence.

       C. Weight of the Evidence

       Bratcher maintains the district court abused its discretion when it denied

his motion for new trial because the jury’s verdict was contrary to the weight of

the evidence.

       “Trial courts have wide discretion in deciding motions for new trial.

Nonetheless, . . . trial courts [should] exercise this discretion carefully and

sparingly when deciding motions for new trial based on the ground that the

verdict of conviction is contrary to the weight of the evidence.” State v. Ellis, 578

N.W.2d 655, 659 (Iowa 1998). “[W]hen the evidence is nearly balanced, or is

such that different minds would naturally and fairly come to different conclusions

thereon,” the trial court “has no right to disturb the findings of the jury, although

[its] own judgment might incline [it] the other way. In other words, the finding of

the jury is to be upheld by [the trial court] as against any mere doubts of its

correctness.” State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003) (quoting State

v. Oasheim, 353 N.W.2d 291, 294 (N.D. 1984)).

       Bratcher maintains Bobbi Jo was not credible because she had been

drinking and had used cocaine before the incident occurred. Additionally, he
                                         13


points out that sometimes she described the incident as Bratcher “jamming” his

fingers into her and other times she described the incident as feeling “pressure.”

He also focuses on the fact that she never told the doctor that Bratcher had put

his fingers in her anus.

       Bobbi Jo admitted that she had been drinking alcohol the night of the

incident; she testified that she was too drunk to drive when the bar closed. She

did not volunteer the information that she had used cocaine, but she did not deny

the use, as Bratcher implies. At trial, the following exchange occurred during

cross examination of Bobbi Jo:

              Q: Isn’t it true that you also tested positive for cocaine? A: I
       was given that information a week later from my family doctor.
              Q: Nobody at the hospital that day told you that; is that what
       you’re telling us? A: Exactly what I’m telling you, yes, sir.

       Bratcher maintains Bobbi Jo’s intoxicated states makes her testimony

about the incident not credible. The jury heard the information regarding Bobbi

Jo’s state, and they were free to give her testimony the weight they believed it

deserved. See State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006) (“The

function of the jury is to weigh the evidence and ‘place credibility where it

belongs.’” (citation omitted)).   Additionally, we do not find Bobbi Jo’s various

descriptions of the incident as contradictory. She did not change or recant her

allegations; she consistently stated Bratcher used his fingers to penetrate her.

Additionally, both Pedro and Ashley testified that they came out into the living

room after hearing Bobbi Jo screaming and saw her with her pants and

underwear around her knees.         Both agreed that Bratcher was still in the

apartment when they entered the living room.
                                         14


       “Except in the extraordinary case, where the evidence preponderates

heavily against the verdict, trial courts should not lessen the jury’s role as the

primary trier of facts and invoke their power to grant a new trial.” Id. This is not

such a case, and the district court did not abuse its discretion in denying

Bratcher’s motion for new trial.

IV. Conclusion

       The security measure Bratcher complains of was not inherently prejudicial,

and he has not met his burden of proving he suffered actual prejudice.

Additionally, the district court did not abuse its discretion in excluding evidence of

a prior sexual abuse allegation because Bratcher did not establish the allegation

was false based on a preponderance of the evidence. Lastly, the weight of the

evidence was not contrary to the jury’s verdict. We affirm.

       AFFIRMED.
