                   IN THE COURT OF APPEALS OF IOWA

                                      No. 15-1093
                                  Filed May 25, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSE GUERRA-FLORES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Buena Vista County, Patrick M.

Carr, Judge.



      Jose Guerra-Flores appeals his conviction for assault with intent to commit

sexual abuse. AFFIRMED.



      Christopher J. Roth of Kasaby & Nicholls, L.L.C., Omaha, Nebraska, 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.
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VOGEL, Judge.

      Jose Guerra-Flores appeals his conviction for assault with intent to commit

sexual abuse. He argues insufficient evidence supports his conviction and the

district court erred in denying his motion to exclude evidence of the complaining

witness’s prior sexual history. While Guerra-Flores did not preserve error on his

insufficiency-of-the-evidence claim, we choose to address the merits. In light of

the complaining witness’s testimony that Guerra-Flores tried to drag her upstairs

into the bedroom, we find sufficient evidence to support the intent element of the

offense. Additionally, we conclude the court properly denied his motion in limine

pursuant to Iowa Rule of Evidence 5.412.           Consequently, we affirm his

conviction.

      Following a jury trial, Guerra-Flores was convicted of assault with intent to

commit sexual abuse against N.G. The assault took place on the night of August

16, 2014; N.G. described what occurred that night in the following manner:

             [The State]: Had he tried to be affectionate with you? [N.G.]:
      He had, um, tried to kiss me a couple times, and I told him to back
      off. And up until this point he did, until that night when we were
      having this discussion. He kept insisting that we get back together;
      that that’s something we had to do. He started getting upset when
      we were talking saying that he didn’t understand why we couldn’t
      get back together, why I was being like that. I just told him I didn’t
      want to; that I’d made that clear that he couldn’t keep coming
      around then if he kept on like that.
             I remember that I was trying to get him to leave shortly after
      that because he was getting really upset, and he tried to drag me
      up the stairs.
             [The State]: What do you mean by that, drag you up the
      stairs? [N.G.]: He grabbed me by the hand and tried to get me to
      go upstairs, and when I said I was tired and he needed to leave he
      was like, well, let’s go to bed. I said no. I’m going to go to bed.
      You’re going to go home. He tried to drag me up the stairs. He
      said come on. Let’s go—
             ....
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              [The State]: Okay. So how were you able to get him out of
      the house, and about what time was that? [N.G.]: Then he kept
      trying to drag me upstairs. I kept fighting back saying no, no. He
      even tried to pick me up once. I was forcing myself back down.
              He eventually got frustrated with it. And I kept pushing him
      and everything. And he eventually got upset and stopped trying,
      and I got him to leave. I locked the door behind him.

      On May 14, 2015, the jury returned a verdict of guilty as to the charge of

assault with intent to commit sexual abuse, in violation of Iowa Code section

709.11 (2013), though it acquitted on the charge of sexual abuse in the third

degree. Guerra-Flores appeals.

      We review sufficiency-of-the-evidence claims for correction of errors at law

and evidentiary rulings for an abuse of discretion. State v. Quinn, 691 N.W.2d

403, 407 (Iowa 2005). To the extent Guerra-Flores raises constitutional issues,

our review is de novo. State v. Groves, 742 N.W.2d 90, 92 (Iowa 2007).

      With regard to the claim sufficient evidence does not support his

conviction, we conclude Guerra-Flores did not preserve error on this argument.

On appeal, he notes the lack of evidence supporting the intent element of the

offense; however, his motion for directed verdict made only a generalized

sufficiency argument, with defense counsel stating, “We would just make a

motion for a directed verdict, Judge. We believe the prosecution has not proven

their case beyond a reasonable doubt on the crimes charged; and like I said, we

would ask you, Your Honor, for a directed verdict of not guilty.” The court then

overruled the motion, and no further argument was presented.

      The record establishes the argument raised on appeal was not presented

to the district court—that is, the motion was generalized and did not address the

lack of evidence with regard to the intent element of the crime. Consequently,
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error was not preserved. See State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005)

(holding the lack of argument with regard to the sufficiency of the evidence for

the specific elements of the offense resulted in error not being preserved on the

defendant’s sufficiency argument).

       Nonetheless, we choose to address the merits of Guerra-Flores’s claim.

When we review challenges to the sufficiency of the evidence, we view the

record in the light most favorable to the State and make all legitimate inferences

and presumptions that may be reasonably deduced from the evidence. Quinn,

691 N.W.2d at 407. If substantial evidence supports the verdict, we will affirm.

Id. Evidence is substantial if it would convince a reasonable trier of fact the

defendant is guilty beyond a reasonable doubt. Id.

       Guerra-Flores challenges the intent element of the crime. Specific intent

with regard to sexual abuse can be inferred from “a sexual comment made by the

defendant to the victim, touching in a sexual way, the removal or request to

remove clothing, or some other act during the commission of the crime that

showed a desire to engage in sexual activity.” State v. Casady, 491 N.W.2d 782,

787 (Iowa 1992). The evidence found in N.G.’s testimony supports the jury’s

conclusion Guerra-Flores had the specific intent to commit sexual abuse. She

testified Guerra-Flores was trying to convince her to resume their intimate

relationship. He tried to be affectionate to her by kissing her and tried to drag her

upstairs, saying, “Let’s go to bed.”    He even picked N.G. up off the ground

attempting to force her to go upstairs with him. The jury was free to believe

N.G.’s testimony. The credibility of witnesses is within the province of the trier of

fact, and we decline to disturb this finding on appeal. See State v. Ragona, 5
                                        5


N.W.2d 907, 910 (Iowa 1942) (noting it is not the province of the appellate court

“to usurp the jury’s function in determining credibility of witnesses”). Therefore,

we conclude sufficient evidence supports the conviction for assault with intent to

commit sexual abuse.

      Guerra-Flores further argues the district court improperly denied his

motion to introduce evidence of N.G.’s past sexual history. In overruling the

motion, the court stated:

              [The] motion to admit other evidence about a subsequent
      sexual activity with [N.G.’s boyfriend], which we heard about
      yesterday afternoon, is overruled. I do not believe the constitution
      requires any of that to be admitted.
              I would be forced to reconsider that question if this—if
      identity becomes an issue in this record, which I do not expect.

      We find no error in this conclusion. Rule 5.412 states, “Notwithstanding

any other provision of law, in a criminal case in which a person is accused of

sexual abuse, evidence of a victim’s past sexual behavior other than reputation

or opinion evidence is also not admissible.” Iowa R. Evid. 5.412(b). Guerra-

Flores attempted to introduce evidence showing N.G. had, in the past week, had

sexual intercourse with her then-boyfriend, which is evidence of her past sexual

behavior, and therefore excluded under this rule as not relevant. See State v.

Edouard, 854 N.W.2d 421, 449 (Iowa 2012) (noting that, pursuant to this rule,

any evidence of a victim’s past sexual behavior is not relevant, and therefore not

required to be admitted).

      Moreover, there was no issue as to the identity of Guerra-Flores, that is,

who committed the assault, or any other applicable exception that, under this

rule, would require that the evidence be admitted.           See Iowa R. Evid.
                                         6

5.412(b)(1)–(2); see also State v. Clarke, 343 N.W.2d 158, 161 (Iowa 1984)

(noting irrelevant evidence is not constitutionally required to be introduced).

Therefore, evidence of N.G.’s past sexual behavior is not admissible under this

rule, and the district court did not abuse its discretion when denying the motion in

limine. See Edouard, 854 N.W.2d at 449–50.

      For these reasons, we affirm Guerra-Flores’s conviction.

      AFFIRMED.
