                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0526
                              Filed March 20, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GARY WAYNE ELLIOTT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Poweshiek County, Shawn Showers,

Judge.



      Gary Elliott appeals from convictions for four counts of second-degree

sexual abuse. AFFIRMED.



      Gina Messamer of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee.



      Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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MAHAN, Senior Judge.

       Gary Elliott appeals from his convictions for four counts of sexual abuse in

the second degree, in violation of Iowa Code sections 709.1, 709.3(1)(b), and

903B.1 (2011).     He argues the district court erred when it rejected Elliott’s

proposed evidence that the minor victim had been sexually abused before.

Alternatively, he argues that his counsel was ineffective for failing to argue the

evidence was “constitutionally required” under Iowa Rule of Evidence 5.412 and

asks this court to apply a different ineffective-assistance-of-counsel test than

contained in existing law. Elliott also asserts trial counsel should have objected to

alleged prosecutorial misconduct during the prosecutor’s rebuttal closing

argument.

I. Background Facts and Proceedings.

       Elliott and his wife lived in Indiana, along with his wife’s two biological

children, who Elliott adopted when they were young. The Elliotts became foster

parents to three children, including H.E., who was seven years old at the time she

came to live with the Elliotts, and her younger brother. H.E. and her brother had

been removed from their biological mother’s care because H.E. had been sexually

abused by her mother’s boyfriend, who ultimately pled guilty to child molestation.

In 2012, after living with the Elliotts for three years, H.E. and her brother were

formally adopted. In August 2012, when H.E. was eleven years old, the family

decided to move to Iowa.

       Elliott and H.E. traveled to Iowa before the rest of the family to make repairs

to the house and allow H.E. to begin the school year in Iowa. During the time only

Elliott and H.E. were in the house, Elliott had sexual contact with H.E. When the
                                           3


other family members moved to Iowa, H.E. did not tell anyone what had happened

because H.E. “was too scared to say anything” and did not know how Elliott would

react to what she said.

       In 2014, H.E. wrote a letter to her adoptive mother explaining that Elliott had

abused her when they first moved to Iowa. In the letter, H.E. told her adoptive

mother that she did not want to tell what happened to her because “I’m afraid of

losing you, Mom” and that “I can’t lose you like I lost [her biological mother].” H.E.’s

mother read the letter then discussed it with Elliott. He admitted to his wife that he

was unclothed with H.E. while the two were alone in Iowa. His explanation was

that he and H.E. had worked in the yard and were naked with each other at some

point to check for ticks.

       In 2016, the department of human services learned of H.E.’s allegations,

and a police investigation ensued. Elliott repeated the tick explanation to law

enforcement and also stated that there was a time when H.E. had taken a shower

and he was waiting to take a shower when they would have been naked next to

one another.

       Elliott was charged with four counts of sexual abuse in the second degree.

Prior to trial, the State filed a motion in limine seeking to exclude any evidence

regarding H.E. having been sexually abused in the past. The State asserted H.E.’s

prior abuse was inadmissible under Iowa Rule of Evidence 5.412, Iowa’s rape-

shield law. The defense sought to introduce evidence concerning the prior abuse

on the following theory:

             MS. CROOKHAM-JOHNSON [DEFENSE COUNSEL]: We—
       once again, going back to the credibility and motivations of [H.E.] for
       making the allegations that she does against Mr. Elliott, we believe
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      it’s important that there be discussion about what she did when she
      was a child, I believe of age six. [H.E.] is an adopted child. At six,
      she was living in her biological household that included a stepfather.
      Not only did she make allegations against the stepfather, he was
      convicted and may still be in prison for those events. And we believe
      that the actions that she took at that time compared to the actions
      that she took after these allegations are important to show an
      inconsistency in pattern of character for [H.E.] and how she responds
      to abuse.
              THE COURT: So you want to get in the evidence that the
      alleged victim made an allegation against the stepfather that was
      proven to be accurate and that he was convicted and went to prison?
      Is that—and that that is somehow similar to this situation?
              MS. CROOKHAM-JOHNSON: And that it is dissimilar to this
      situation because of the approach she took and the way she made
      the allegations and protected herself when something really
      happened as opposed to this time. When she was abused by her
      stepfather, her allegations were made within moments of the abuse
      happening, and those allegations were proven true. He pled guilty.
      There was not even a trial, and he was incarcerated. It was a very
      successful pattern of events for her in protecting herself. She
      demonstrated that she’s able to protect herself instantly. And in this
      situation, she waited over two years to make the allegations and only
      made the allegations after some family arguments had taken place.
              ....
              MS. PETIG [PROSECUTOR]: Thank you, Your Honor. I
      believe that the rape shield law kicks into play here and that this
      evidence is precluded under Iowa Rule of Evidence 5.412. I would
      direct the court’s attention to State v. Jones, 490 N.W.2d 787, an
      Iowa Supreme Court case from 1992 which indicates that under the
      rape shield law, past sexual behavior includes prior sexual abuse of
      the victim.
              THE COURT: And I agree with the State. Had there been a
      prior allegation that turned out to be false, then I think you’ve got an
      argument that there is an exception under [5.]412. I think that that
      situation is the reason there’s a rape shield statute to begin with. I
      understand the argument, and I want to be clear on the record that I
      believe that Rule of Evidence 5.412 precludes this sort of evidence
      from being offered, and I think I’ll leave it at that.

      H.E., sixteen years of age at the time of trial, testified about four specific

incidents of sexual contact with Elliott when they first moved to Iowa and they were

living alone together in the house. The 2014 letter H.E. wrote to her adoptive

mother was introduced into evidence. H.E. stated she first felt relieved when her
                                          5


mother read the letter, “but when nothing was done about it, I felt hurt.” And when

her mother did not report it to law enforcement, H.E. was upset “[b]ecause I thought

she was supposed to protect me.”

       The defense again sought to admit evidence of prior abuse and proferred a

report from Indiana. The court ruled:

       [I]f the allegation was in Indiana, [H.E.] had the same exact set of
       facts that were in the case in [Iowa], I think that the defendant here
       would have a pretty good constitutional argument that some of that
       evidence should come in. I don’t think it’s close enough in
       description to match this set of facts to meet one of the exceptions
       under the Rape Shield Statutes. There is an exception that, for
       essentially constitutional reasons, you need to allow the evidence. I
       don’t think that standard’s been met . . . .

       The defense brought out testimony that Elliott and his wife had run a

licensed day care in Indiana and were licensed foster parents. They had passed

background and criminal checks, and there were no other allegations of sexual

abuse concerning Elliott. Mrs. Elliott testified for the defense and stated H.E. gave

her the letter in 2014 after an adult sister had returned home for several months

and was getting attention from the Elliotts. Mrs. Elliott testified she, along with

H.E., confronted Elliott with the letter. Elliott explained that he and H.E. had been

working outdoors in long grass and had seen ticks on themselves: “And so they

ended up declothing, taking their clothes off, just to make sure that they didn’t miss

any ticks.” Mrs. Elliott testified,

       [I]t just seemed like every time things were going well in our home,
       she would do things to disrupt them. I mean, little things, but it kept
       escalating more and more and more. And I know there was the
       jealousy going on with her and [the adult sibling.] I don’t know what
       provoked this.
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She testified further that the Elliotts sought assistance from their church pastor,

who suggested H.E. was perhaps triggered by former trauma or was engaging in

self-seeking attention. Mrs. Elliott testified that after speaking with the pastor,

Elliott addressed the letter again with H.E., who stated she wrote the letter because

she was mad.

         Mrs. Elliott testified her relationship with H.E. between 2014 and 2016 was

“strained.” She also described Elliott as a “God-fearing man” who thought it

inappropriate for adults and children to be unclothed in front of each other. And

she stated Elliott had several heart bypasses as a result of which “his sexual drive

is pretty much gone” and he “cannot stand anything . . . touching his chest because

of his scar.” She stated Elliott did not sexually abuse H.E.

         On cross-examination, Mrs. Elliott acknowledged she and Elliott used

corporal punishment on the children “[i]f needed”—after adoption.1 She

acknowledged that could have included using a belt to hit the children. She also

acknowledged Elliott admitted being naked in front of H.E.

         Elliott was convicted as charged and now appeals.

II. Scope and Standard of Review.

         The district court’s rulings on the admissibility of evidence are reviewed for

abuse of discretion. See State v. Alberts, 722 N.W.2d 402, 407 (Iowa 2006) (“We

review trial court rulings on admissibility of evidence under rule 5.412 in criminal

prosecutions for abuse of discretion.”).




1
    As foster parents they agreed not to use corporal punishment.
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       Ineffective-assistance-of-counsel claims, which are constitutional in nature,

are reviewed de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).

III. Discussion

       A. Evidence of prior abuse.          Elliott first argues he was denied his

constitutional right to present a defense when the district court prohibited him from

presenting evidence of H.E.’s prior abuse. He asserts exclusion of the evidence

of the past abuse violated his due process rights, the right to confrontation, and

the right to a fair trial under the federal and state constitutions.

       The State responds that the only error preserved is Elliott’s limited argument

that the victim’s prior abuse was relevant to the victim’s credibility. We agree with

the State that Elliott’s new arguments of relevancy and the constitutional claims

that were not presented to the district court are not properly before us for review.

See Taft v. Iowa Dist. Ct., 828 N.W.2d 309, 322 (Iowa 2013) (“Even issues

implicating constitutional rights must be presented to and ruled upon by the district

court in order to preserve error for appeal.”).

       Iowa Rule of Evidence 5.412(a) provides that evidence of the past sexual

behavior of the alleged victim of sexual abuse is not admissible. State v. Edouard,

854 N.W.2d 421, 448 (Iowa 2014). This rule is known generally as the rape shield

law. State v. Clarke, 343 N.W.2d 158, 160–61 (Iowa 1984). The purposes of the

rule are to (1) protect the privacy of victims; (2) encourage the reporting and

prosecuting of sex offenses; and (3) prevent time-consuming and distracting

inquiry into collateral matters. State v. Ogilvie, 310 N.W.2d 192, 195 (Iowa 1981).

       Our supreme court has held past sexual behavior “encompasses prior

sexual abuse perpetrated upon the victim.” State v. Jones, 490 N.W.2d 787, 790
                                              8

(Iowa 1992), overruled on other grounds by State v. Plain, 898 N.W.2d 801, 826

(Iowa 2017). Consequently, the evidence offered by Elliott of past sexual abuse

perpetrated upon H.E. is inadmissible under by Iowa Rule of Evidence 5.412(a).

         Rule 5.412(b)(1) provides an exception if the evidence is “[a]dmitted in

accordance with rules 5.412(c)(1) and 5.412(c)(2) and is constitutionally required

to be admitted.” See Edouard, 854 N.W.2d at 449. Rule 5.412(c)(1) states a

person seeking to offer evidence of specific instances of an alleged victim’s sexual

behavior must file a written motion to offer such evidence. The motion must be

accompanied by an offer of proof. Iowa R. Evid. 5.412(c)(2). The court may then

hold a hearing in chambers to determine if the evidence is admissible. Id.

         Rule 5.412(c)(3)2 provides:

                 If the court determines on the basis of the hearing described
         in rule 5.412(c)(2) that the evidence which the accused seeks to offer
         is relevant and that the probative value of such evidence outweighs
         the danger of unfair prejudice, such evidence shall be admissible in
         the trial to the extent an order made by the court specifies evidence
         which may be offered and areas with respect to which the alleged
         victim may be examined or cross-examined.

         In State v. Jones, the defendant was convicted of sexually abusing a ten-

year-old. 490 N.W.2d at 789. He sought to admit evidence that the child had been

sexually abused before, arguing the evidence was relevant to counteract the

commonly-held belief that children have no basis of knowledge of sexual activity

unless they had been abused before. Id. He also argued the evidence should be

admitted to show the child was confusing the incidents of her previous sexual

abuse with her alleged abuse by Jones. Id. at 790. The supreme court held that



2
    The substance of this rule is now found at Iowa Rule of Evidence 5.412(c)(2)(C).
                                        9


the term “past sexual behavior” of rule 5.412 “clearly encompasses prior sexual

abuse perpetrated upon the victim.” Id. The supreme court then addressed

whether evidence of prior sexual abuse was admissible under the constitutional-

relevancy exception in rule 5.412(b)(1) and found the proffered evidence

inadmissible. Id. Under the analysis of Jones, we conclude the district court did

not abuse its discretion in excluding the evidence of prior sexual abuse here.

      B. Ineffective assistance of counsel. Elliott alleges his trial counsel was

ineffective for failing to comply with the procedural requirements of Iowa Rule of

Evidence 5.412, in failing to make a constitutional argument for admission of the

complaining witness’s prior sexual abuse, and in failing to object to the

prosecutor’s closing argument.

      We ordinarily preserve ineffective assistance of counsel claims for

postconviction relief proceedings. Clay, 824 N.W.2d at 494. “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.” Id.

(quoting State v. Rubino, 602 N.W.2d 558, 563 (Iowa 1999)). “We will resolve the

claims on direct appeal only when the record is adequate.” Id.

      To prevail on a claim of ineffective assistance of counsel, a claimant must

satisfy the Strickland test by showing “(1) counsel failed to perform an essential

duty; and (2) prejudice resulted.” Id. at 495. Elliott acknowledges the record is

inadequate to establish prejudice but requests that we overrule the requirement

that it is a defendant’s burden to establish prejudice. “We are not at liberty to

overrule controlling supreme court precedent.” State v. Beck, 854 N.W.2d 56, 64
                                        10


(Iowa Ct. App. 2014). Because the record is inadequate, we preserve the claims

for possible postconviction-relief proceedings.

      AFFIRMED.
