                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0356
                              Filed March 20, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ASA SOUTH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marion County, Martha L. Mertz,

Judge.



      Asa South appeals the judgment and sentence entered after a jury found

him guilty of third-degree sexual abuse. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.



      Considered by Vogel, C.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

       The State charged Asa South with second-degree sexual abuse, in violation

of Iowa Code sections 709.1, 709.3(1)(A), and 903B.1 (2016).                Both the

complaining witness and South testified at trial, presenting the jury with two very

different versions of events. A jury convicted South of third-degree sexual abuse,

in violation of Iowa Code sections 709.1 and 709.4. South appealed.

       South first contends the trial court abused its discretion in refusing to admit

evidence that the complaining witness made a false claim of sexual abuse

approximately nine or ten years earlier. We review his claim for an abuse of

discretion. See State v. Alberts, 722 N.W.2d 402, 407-08 (Iowa 2006). We only

reverse if the trial court exercised its discretion on clearly untenable grounds, for

clearly untenable reasons, or to a clearly unreasonable extent. See id. at 408.

       Before the trial court could admit evidence that the complaining witness

made a prior false claim of sexual abuse, South had to show “(1) the complaining

witness made the statements and (2) the statements are false, based on a

preponderance of the evidence.” Id. at 409. If South made this showing, the

evidence would not be considered evidence of “past sexual behavior” under Iowa

Rule of Evidence 5.412 (prohibiting admission of evidence of a victim’s past sexual

behavior in a criminal proceeding involving allegations of sexual abuse). See id.

at 410.

       The district court found South failed to prove by a preponderance of the

evidence that the claim was false. We agree. South sought to admit evidence that

the complaining witness told her husband another man had taken advantage of

her while she was drunk. South asserts the statement is false because the
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complaining witness was having an extramarital affair with the man, who testified

he and the complaining witness engaged in sexual relations on multiple occasions.

However, consent to sexual relations at one time does not equate with consent at

all times, and consent cannot be inferred by the existence of a relationship

between the parties. See, e.g., Iowa Code § 709.4(1)(a) (defining third-degree

sexual abuse as a sex act done against the will of the other person, “whether or

not the other person is the person’s spouse or is cohabiting with the person”).

Additionally, intoxication may render a person incapable of consenting. See, e.g.,

id. §§ 709.1(2) (defining sexual abuse as a sex act performed when the other

person is suffering from a mental defect or incapacity that precludes giving

consent), 709.1A(1) (defining mental incapacity as the state of being “temporarily

incapable of apprising or controlling the person’s own conduct due to the influence

of a narcotic, anesthetic, or intoxicating substance”). Because South failed to show

the claim was false, the trial court acted within its discretion in refusing to admit the

evidence.

       South also contends his trial counsel was ineffective in failing to object to

the following jury instruction:

               Evidence has been offered to show that Asa South made
       statements at an earlier time and place.
               If you find any of the statements were made, then you may
       consider them as part of the evidence, just as if they had been made
       at this trial.
               You may also use these statements to help you decide if you
       believe Asa South. You may disregard all or any part of his testimony
       if you find the statements were made and were inconsistent with his
       testimony given at trial, but you are not required to do so. Do not
       disregard his testimony if other evidence you believe supports it or
       you believe it for any other reason.
                                           4

South concedes that the instruction is reproduction of the model instruction. See

Iowa Crim. Jury Instructions 200.44. Although “we are slow to disapprove of the

uniform jury instructions,” State v. Ambrose, 861 N.W.2d 550, 559 (Iowa 2015),

South argues there is no authority requiring the jury to consider out-of-court

statements as bearing the same weight as trial testimony. He claims “the jury

should have been free to assign whatever weight and reliability to the statements

as it saw fit” and “to consider reliability of the statements from within the context in

which they were made.”

       This court has repeatedly rejected similar challenges to this instruction. See

State v. Moore, No. 17-1822, 2019 WL 478236, at *2 (Iowa Ct. App. Feb. 6, 2019)

(further review petition pending); State v. Lopez-Aguilar, No. 17-0914, 2018 WL

3913672, at *8 (Iowa Ct. App. Aug. 15, 2018) (“This court has repeatedly found the

challenged instruction to be a correct statement of the law and repeatedly rejected

the same argument.”), further review denied (Oct. 8, 2018); State v. Garcia, No.

17-0111, 2018 WL 3913668, at *4 (Iowa Ct. App. Aug. 15, 2018) (finding counsel

did not breach an essential duty in failing to object to the instruction), further review

denied (Nov. 15, 2018); State v. Yenger, No. 17-0592, 2018 WL 3060251, at *4-5

(Iowa Ct. App. June 20, 2018), further review denied (Sept. 13, 2018); State v.

Hayes, No. 17-0563, 2018 WL 2722782, at *5 (Iowa Ct. App. June 6, 2018) (“This

court recently held this instruction correctly states the law and giving the instruction

was not in error.” (footnote omitted)), further review denied (Aug. 3, 2018); State

v. Vandekieft, No. 17-0876, 2018 WL 2727720, at *7-9 (Iowa Ct. App. June 6,

2018) (finding jury instruction to consider out-of-court statements “as if they had

been made at this trial” correctly states the law), further review denied (Aug. 3,
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2018); State v. Payne, No. 16-1672, 2018 WL 1182624, at *9 (Iowa Ct. App. Mar.

7, 2018) (“The instruction did not direct the jury to assign the statement any

particular weight or unduly emphasize the matter, nor did it create an improper

permissive inference or presumption.”), further review denied (July 23, 2018);

State v. Wynn, No. 16-2150, 2018 WL 769272, at *2-3 (Iowa Ct. App. Feb. 7, 2018)

(rejecting claim that instruction was a misstatement of law and noting it requires

no presumption or inference), further review denied (Apr. 4, 2018); State v.

Wineinger, No. 16-1471, 2017 WL 6027727, at *3 (Iowa Ct. App. Nov. 22, 2017)

(concluding instruction was “a correct statement of law”), further review denied

(Feb. 28, 2018); State v. Tucker, No. 13-1790, 2015 WL 405970, at *3 (Iowa Ct.

App. Jan. 28, 2015) (“The district court did not err in its instructions to the jury.”),

further review denied (Mar. 25, 2015). We are persuaded by our prior holdings

and see no reason to revisit the issue. Because the instruction is a correct

statement of the law, trial counsel had no duty to object to it. See State v. Fountain,

786 N.W.2d 260, 263 (Iowa 2010) (“Counsel has no duty to raise an issue that has

no merit.”). South cannot show his trial counsel was ineffective on this basis.

       AFFIRMED.
