               IN THE SUPREME COURT OF IOWA
                             No. 92 / 04-1949

                          Filed October 6, 2006

STATE OF IOWA,

      Appellee,

vs.

MICHAEL JOHN ALBERTS,

      Appellant.

________________________________________________________________________
      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Johnson County, L. Vern

Robinson, Judge.



      Convicted sex abuser seeks further review of court of appeals

decision affirming his conviction. DECISION OF COURT OF APPEALS

PARTIALLY VACATED; CASE REMANDED.


      Paul D. Miller of Miller Law Office, Iowa City, for appellant.



      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant

Attorney General, J. Patrick White, County Attorney, and Victoria Cole,

Assistant County Attorney, for appellee.
                                    2
STREIT, Justice.

      Is skinny-dipping a form of sexual behavior? Michael John Alberts

allegedly sexually assaulted R.M., his nephew’s twenty-two-year-old

girlfriend. Alberts was convicted of third-degree sexual abuse following a

jury trial in Johnson County, Iowa.         On appeal, Alberts alleged the

prosecutor   engaged   in   prosecutorial    misconduct   and   complained

numerous errors were made by the district court. Because we find the

district court erred by failing to determine whether R.M. made a prior

false allegation of sexual misconduct relating to a skinny-dipping

incident, we reverse the district court judgment on this error and remand

for further proceedings.

      I. Facts and Prior Proceedings

      On the night of October 19, 2003, R.M. attended a bachelorette

party at a Cedar Rapids bar named Borrowed Bucks. Alberts was also at

the bar, and the two struck up a conversation. Alberts and R.M. knew

each other through R.M.’s boyfriend, Jesse Goeller.       Alberts is Jesse’s

forty-two-year-old uncle.    R.M. attended a half dozen or so family

gatherings with Jesse where Alberts was present.

      Additionally, a few weeks prior to the bachelorette party, Jesse,

R.M., and a friend of R.M. ran into Alberts at Borrowed Bucks. There,

the four of them danced as a group and at times Alberts and R.M.

danced together in a provocative manner.        When the bar closed, R.M.

and Jesse sat with Alberts in the cab of Alberts’ semi-truck.        R.M.’s

friend waited in the car. R.M. and Alberts smoked marijuana. Before

leaving, R.M. unhooked her bra under her shirt and hung it on Alberts’

rearview mirror. R.M. left the cab and Jesse followed a couple minutes

later after Alberts handed Jesse R.M.’s bra.
                                    3
      During     the    bachelorette party, R.M. drank several beers and

a shot of tequila. At closing time, R.M. went with Alberts to his family’s

lake house instead of remaining with the bachelorette group. When they

arrived at the lake house, R.M. ate some food, headed for the bathroom,

and vomited. She then told Alberts she felt “like crap” and needed to

“sleep this off.” Alberts followed R.M. into one of the bedrooms and sat

next to her on the bed. With Alberts still in the room, R.M. took off her

skirt and climbed into bed.

      Sometime later, R.M. woke to find Alberts sucking her breasts.

According to R.M., she did not respond to his actions.       Alberts then

performed oral sex on her and had intercourse with her. R.M. claims she

pretended to be asleep during the entire episode. Alberts thereafter left

to sleep in another bedroom.

      The next morning, Alberts drove R.M. to her home. R.M. showered

as soon as she got there. Jesse, the boyfriend, who had been visiting

friends in Ames, returned home early in the afternoon. After speaking

with R.M. about the previous night’s events, Jesse took R.M. to the

hospital.

      At the hospital, R.M. told the nurse she needed to report a rape. A

sexual assault examination ensued. The nurse found semen inside her

vagina, but did not observe any evidence of trauma or injury.        Police

officers spoke with R.M. at the hospital and told her she had the option

to press charges, which she did three days later.

      Before trial, the district court granted the State’s motion in limine

which prevented Alberts from presenting testimony about R.M.’s sexual

history or a recent skinny-dipping episode with another man.

      At trial, Alberts testified R.M. consented to the sexual encounter by

kissing him and moving her hips during intercourse.          His attorney
                                     4
argued R.M. only claimed it was non-consensual because she did

not want to lose her relationship with Jesse.             This argument was

unsuccessful, and the jury convicted Alberts of third-degree sexual

abuse.

      Alberts argued a voluminous number of issues on appeal.              He

argued: (1) the district court erred by ruling that R.M.’s mental health

records were not relevant or discoverable; (2) the district court

improperly excluded expert testimony regarding the possible effect of

R.M.’s mental health on her credibility; (3) the district court erred by

excluding certain evidence regarding R.M.’s alleged prior false claim of

sexual assault and flirtatious nature when drinking; (4) his trial counsel

was ineffective when he did not attempt to introduce evidence of R.M.’s

infidelity and promiscuity as impeachment evidence; (5) his trial counsel

erred by failing to object to R.M.’s testimony that she feared for her life

during the sexual assault; (6) his trial counsel failed to object to three

instances of questioning by the prosecution and comments made during

closing arguments which involved possible Graves violations; (7) his trial

counsel failed to object to alleged prosecutorial misconduct; and (8) the

district court erred in overruling the motion for new trial based on

alleged misconduct by the prosecutor during direct examination of R.M.

      The court of appeals addressed all issues and affirmed the decision

of the district court. We granted further review.

      II. Merits

      A. False-Claim Exception to the Rape-Shield Law

      Because Alberts had elicited statements from witnesses during

depositions   regarding   R.M’s   flirtatious   nature,    her   past   sexual

comments, and prior allegation of being trapped by a man during a

skinny-dipping incident, the State filed a motion in limine asking the
                                         5
court to determine whether such evidence was admissible. The State

contended such testimony was either inadmissible under the Iowa rape-

shield law or irrelevant to the case at hand.

       In the unreported pretrial hearing, the State pointed to several

incidents involving R.M. it considered inadmissible and irrelevant. One

specific instance was a Fourth of July party where Jesse’s brother Josh

discovered R.M. skinny-dipping with Chris Slach. In his deposition, Josh

described how he saw R.M. with her arms around Slach in the Cedar

River. 1 Josh said he “busted them” because R.M. was supposed to be

dating his brother.      According to Josh, R.M. came out of the water

crying. She told Josh “[t]hank God you saw me. I didn’t know what to

do out there. . . . I couldn’t get away from him. I didn’t know what to

do.” R.M. later explained that nothing sexual had happened between the

two. Slach was also prepared to testify it was R.M.’s idea to go skinny-

dipping and there was no sexual contact between the two.

       During argument on the motion in limine, Alberts contended this

evidence was relevant because R.M.’s statement to Josh immediately

after the skinny-dipping incident was similar to her response about her

sexual encounter with Alberts. He claimed this evidence was important

to his case because it supported his theory that R.M. accused men of

improper sexual conduct in order to shift blame away from her supposed

infidelity.     He also claimed this incident was particularly relevant

because it reflected on the credibility of the only other witness to the

alleged rape—R.M.


________________________
       1There  is some debate on whether R.M. was wearing any clothing while skinny-
dipping. Josh said R.M. “might” have been wearing her bra and underwear, while the
male skinny-dipper stated in his deposition “I was completely naked, and I believe
[R.M.] was too.”
                                     6
      Alberts   argued     the   rape- shield law was not applicable to

this situation because there was no sexual contact and therefore no

“past sexual behavior.” Alternatively, he argued that if this was sexual

activity or sexual behavior, then it was admissible under the false-claim

exception to the rape-shield law.

      The district court sustained most of the State’s motion in limine

and specifically excluded any evidence pertaining to the skinny-dipping

incident. The court also excluded any testimony which described R.M.’s

character as flirtatious or promiscuous. However, the court allowed the

jury to hear evidence that R.M. had engaged in “dirty dancing” with

Alberts a few weeks before the alleged sexual abuse, smoked marijuana

with him in the cab of his semi-truck, and removed her bra and hung it

on his rear-view mirror.

      1. Preservation of Error

      The State does not contend Alberts failed to preserve this matter

for our review. In its appellate brief, the State conceded the error was

preserved “by motions and an offer of proof.” However, because the issue

was only addressed during the motion in limine, we find it proper to

analyze whether it was properly preserved for our review.

      The general rule regarding the preservation of alleged errors in

rulings on motions in limine was stated in State v. Tangie, 616 N.W.2d

564, 568-69 (Iowa 2000):

      Ordinarily, error claimed in a court’s ruling on a motion in
      limine is waived unless a timely objection is made when the
      evidence is offered at trial. However, “where a motion in
      limine is resolved in such a way it is beyond question
      whether or not the challenged evidence will be admitted
      during trial, there is no reason to voice objection at such
      time during trial. In such a situation, the decision on the
      motion has the effect of a ruling.”
                                     7
(Citations omitted.)

      The key to our analysis is to determine what the trial court ruling

purported to do. State v. O’Connell, 275 N.W.2d 197, 202 (Iowa 1979).

“A ruling only granting or denying protection from prejudicial references

to challenged evidence cannot preserve the inadmissibility issue for

appellate review.” Id. However, “if the ruling reaches the ultimate issue

and declares the evidence admissible or inadmissible, it is ordinarily a

final ruling and need not be questioned again during trial.” Id.

      Before we analyze whether the court’s ruling resolved the matter in

such a way that it was beyond question that the challenged evidence

would not be admitted during trial, we must consider the context of the

court’s ruling. The State filed a motion in limine asking for “a hearing

outside the presence of the jury, accompanied by an offer of proof . . . to

determine whether such testimony would be admissible.” Alberts filed a

response to the State’s motion in limine. His response contained offers of

proof in the form of deposition testimony from R.M., Chris Slach (the

male skinny-dipper), Josh Goeller, and other witnesses related to other

items in the motion. Alberts also filed three separate briefs outlining the

law surrounding the admissibility of such evidence.

      The district court conducted a hearing on the admissibility of such

evidence. Although the hearing was unreported, we can glean from the

court’s oral ruling that both parties had a full opportunity to argue the

merits of their respective positions. After this hearing, the court made an

oral ruling on the motion. The district court sustained the State’s motion

in limine to keep the defense from presenting evidence on the skinny-

dipping incident. In so ruling, the district court judge stated:

      I’m not going to permit testimony or evidence concerning
      [R.M.’s] mental health or past sexual comments or activities,
                                     8
      with the exception of [the event where she danced with
      Alberts a few weeks prior to the alleged sexual assault].

      After the district court sustained the State’s motion, the court

made the following additional comments regarding its ruling:

      if R.M. gets into her virtue, if that’s the right term - - I’m
      referring now to the potential testimony that she had never
      cheated on her boyfriend - - that could open the door to
      some of these other matters that have been raised.

When asked whether testimony that R.M. told Alberts she would never

“cheat” on Jesse would open the door to this excluded evidence, the

court stated “Not necessarily. I can’t tell you right now. It depends on

the context that comes in.”

      Even though the district court stated the evidence may become

admissible if R.M. opened the door to her virtue, this does not change the

fact that the court’s ruling was controlling so long as this door was not

opened. The State specifically asked for a ruling on the admissibility of

such evidence, and the plain language of the court’s ruling——“I’m not

going to permit testimony or evidence concerning [R.M.’s] mental health

or past sexual comments or activities”—rings of a final ruling. Although

the   district   court   did   not   specifically   state   the   evidence   was

“inadmissible,” the State specifically asked that the court determine its

admissibility and the court did so. In addition, both parties treated the

court’s ruling on the motion as a final decision.

      We find the district court did rule on the admissibility of the

testimony regarding the skinny-dipping incident.            See O’Connell, 275

N.W.2d at 202 (“[I]f the ruling reaches the ultimate issue and declares

the evidence admissible or inadmissible, it is ordinarily a final ruling and

need not be questioned again during trial.”). The ruling was definitive

and Alberts was not further required to object at trial. See Tangie, 616
                                      9
N.W.2d at 569 (when court rules on admissibility       of   evidence     in   a

motion in limine, objection need not be renewed at trial); State v. Mark,

286 N.W.2d 396, 410 (Iowa 1979) (same); O'Connell, 275 N.W.2d at 202

(same). Therefore, Alberts preserved error on this issue.

      2. Abuse of Discretion

      Alberts claimed the district court erred when it ruled he could not

present evidence about the skinny-dipping incident or question R.M.

about the incident during cross-examination.

      We review trial court rulings on admissibility of evidence under

rule 5.412 in criminal prosecutions for abuse of discretion.           State v.

Mitchell, 568 N.W.2d 493, 497 (Iowa 1997). Reversal is warranted only

upon showing the “court exercise[d] its discretion on grounds or for

reasons clearly untenable or to an extent clearly unreasonable.” Id.

      The trial court did not elaborate on why it sustained the State’s

motion in limine.   Therefore, we analyze whether the court abused its

discretion in excluding the evidence under the reasons proffered by the

State—the evidence was protected “past sexual behavior” of the

complaining witness or, in the alternative, the evidence was irrelevant

and prejudicial.

      a. Rape-Shield Law

      Rule 5.412 prohibits introduction of reputation or opinion evidence

of a complainant’s “past sexual behavior” and substantially limits

admissibility of evidence of specific instances of a complainant’s past

sexual behavior. Rule 5.412(d) defines “past sexual behavior” as “sexual

behavior other than the sexual behavior with respect to which sexual

abuse is alleged.” We recently clarified this definition:

      “past sexual behavior” means a volitional or non-volitional
      physical act that the victim has performed for the purpose of
                                     10
        the sexual stimulation or gratification of either the
        victim or another person or an act that is sexual intercourse,
        deviate sexual intercourse or sexual contact, or an attempt
        to engage in such an act, between the victim and another
        person.

State v. Baker, 679 N.W.2d 7, 10 (Iowa 2004) (quoting State v. Wright,

776 P.2d 1294, 1297-98 (Or. Ct. App. 1989)).

        In his brief to the district court, Alberts argued the skinny-dipping

incident was not “past sexual behavior” and “not a claim of prior sexual

activity because no actual sexual contact occurred.” In support of this

argument, Alberts offered the deposition testimony of both skinny-

dippers.

        When questioned at her deposition about the incident, R.M. denied

any sexual activity occurred:

        We were skinny dipping in the river together, and he got
        close to me and asked me if he could kiss me, and I said,
        “No, I have a boyfriend.”

Slach corroborated R.M.’s testimony that she declined his request for a

kiss.    Both parties expressly denied any sexual activity occurred.

Nonetheless, based on all of the circumstances, we find the incident to be

past sexual behavior.

        At the outset, we concede the difficulty in determining what sexual

behavior is for purposes of our rape-shield law. In State v. Zaehringer,

280 N.W.2d 416 (Iowa 1979), we were asked to determine the

applicability of the rape-shield law as it then existed to nude posing.

There, we stated:

        We are unable to conclude that posing nude is per se, sexual
        conduct which the legislature intended to exclude. . . .
        [P]osing nude does not in and of itself infer or connote sexual
        activity or conduct. Absent a showing or implication of
        sexual activity of some sort accompanying the posing, §
        782.4 does not come into play. While there may be those to
        whom nude posing is sexually suggestive, to find nude
                                      11
        posing    to   be     “sexual conduct” within the meaning
        of § 782.4 would be to place a strained and unreasonable
        construction on that statute.

Zaehringer, 280 N.W.2d at 420.      Just like nudity alone is not sexual,

skinny-dipping in and of itself is not sexual behavior. But in this case,

the skinny-dipping incident should be deemed sexual behavior based on

the circumstances described. Slach testified he was at a Fourth of July

party drawing a beer from the keg when R.M. approached him and asked

him if he would like to go swimming. It was approximately midnight and

the two of them had never previously spoken. At his deposition, Slach

said:

        I didn’t see any reason to decline her. I wasn’t seeing
        anybody at the time, and I just assumed from the way that
        she come up to me that she was somewhat interested, and it
        didn’t appear to be at the time that she was attached to
        anybody either.

According to Slach, R.M. took her clothes off first and encouraged him to

do the same. He recalls both of them being completely naked. While

they were in the river, R.M. put her arms around Slach’s shoulders,

which prompted him to ask for permission to kiss her. Slach stated “it

kind of seemed to me like she was coming on to me.” After R.M. declined

the kiss, the two of them continued to have their arms around each other

for another five minutes until Josh interrupted them, causing them to

get out of the water.

        Based on these facts, the skinny-dipping was likely a precursor to

sexual activity. This is evidenced by Slach asking for a kiss. To say it

was not sexual behavior would be to say a circumstance where the

complaining witness was thwarted in her attempt to meet someone for an

amorous rendezvous was not sexual behavior. Such a result would be

contrary to the purpose of the rape-shield law, which is to protect the
                                         12
victim’s     privacy,   encourage     the     reporting and prosecution of sex

offenses, and prevent the parties from delving into distractive, irrelevant

matters. Mitchell, 568 N.W.2d at 497. Thus, this particular episode of

skinny-dipping is covered by the rape-shield law unless R.M. made a

related false allegation of sexual misconduct. 2

       In Baker, we held prior false claims of sexual activity do not fall

within the coverage of our rape-shield law.            Baker, 679 N.W.2d at 10

(“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.”). There, we assumed the claim was false and consequently found it

unnecessary to address the procedures and standards to be applied in

making that threshold determination. Id. at 9 n.1. That issue is now

before us.

       In keeping with the policy behind our rape-shield law, it is

imperative that a claim of sexual conduct (or misconduct) by the

complaining witness be shown to be false before it is admissible at trial.

Allowing the jury to make the initial determination of the truth or falsity

of the alleged statement “would contradict the purpose of rape-shield

laws—which is to prohibit a jury from considering evidence about an

alleged victim’s sexual conduct, unless a judge first determines that such

evidence is manifestly necessary to achieve a fair trial.” State v. Quinn,

490 S.E.2d 34, 40 (W. Va. 1997). Thus, we hold 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


________________________
       2Ifwe found this incident was not “sexual behavior” then, assuming relevance, it
would be admissible irrespective of the falsity of R.M.’s alleged statements to Josh.
R.M.’s supposed statements make the incident sexual if it was not already.
                                          13
preponderance of the evidence. 3               We agree with the Supreme Court

of New Jersey that this “standard strikes the right balance, placing an

initial burden on the defendant to justify the use of such evidence while

not setting an exceedingly high threshold for its admission.”                  State v.

Guenther, 854 A.2d 308, 324 (N.J. 2004); see also State v. West, 24 P.3d

648, 656 (Haw. 2001) (adopting preponderance of the evidence as the

standard of proof a defendant must meet when seeking to prove the

complaining witness made a prior false accusation of sexual assault);

Miller v. State, 779 P.2d 87, 90 (Nev. 1989) (same); Morgan v. State, 54

P.3d 332, 339 (Alaska Ct. App. 2002) (same).

       As we said in Baker, a falsity determination simply means the

statements are not “past sexual behavior” within the meaning of our

rape-shield law.      Baker, 679 N.W.2d at 10.             We note “[t]he evidence

remains subject to all other applicable evidentiary requirements and

considerations.” 4 Quinn, 490 S.E.2d at 40. If the trial judge ultimately
________________________
       3
        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 15 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).

       4
         Notwithstanding rules similar to our rule 5.608, some jurisdictions carve out a
special exception and allow the use of extrinsic evidence to contradict the complaining
witness’s answer with respect to a prior false accusation. Compare State v. Long, 140
S.W.3d 27, 31 (Mo. 2004) (allowing a criminal defendant to introduce extrinsic evidence
of prior false allegations “in some cases”) and Morgan v. State, 54 P.3d 332, 336 (Alaska
Ct. App. 2002) (allowing a criminal defendant to both cross-examine the complaining
witness and present extrinsic evidence regarding a prior false accusation of sexual
assault), with State v. Almurshidy, 732 A.2d 280, 287 n.4 (Me. 1999) (noting extrinsic
evidence to prove the falsity of the accusation is not admissible). See also Denise R.
Johnson, Prior False Allegations of Rape: Falsus in Uno, Falsus in Ominibus, 7 Yale J.L.
& Feminism 243, 250 (1995) (making a distinction between a false allegation that
demonstrates a “motive to fabricate” with a false allegation that merely shows the
witness’s “character for untruthfulness,” and challenging the rationale behind allowing
extrinsic evidence to prove the latter).
                                        14
determines    such     evidence    is    admissible,   the     State    may

nevertheless rebut or impeach such evidence before the ultimate trier of

fact. Id.

      In the present case, the trial court sustained the State’s motion in

limine without explanation.     Presumably, the court found the skinny-

dipping incident to be “past sexual behavior.” However, the court failed

to take the additional step of determining whether R.M. made a false

claim of sexual misconduct relating to the incident, which would make

the rape-shield law not applicable.

      b. Relevancy

      In its appellate brief, the State concedes that “[w]hile the skinny-

dipping incident may not be covered under Iowa Rule of Evidence 5.412,

it was properly excluded under general considerations of relevancy.”

      Evidence is properly excluded from trial if it is not relevant to the

trial. Iowa R. Evid. 5.402. Relevant evidence is “evidence having any

tendency to make the existence of any fact . . . more probable or less

probable than it would be without the evidence.” Iowa R. Evid. 5.401.

      The test to determine if evidence is relevant is “‘whether a

reasonable [person] might believe the probability of the truth of the

consequential fact to be different if [such person] knew of the proffered

evidence.’” State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988) (citation

omitted) (first alteration in original); accord State v. Sullivan, 679 N.W.2d

19, 25 (Iowa 2004). The State contends the skinny-dipping incident was

irrelevant because it has nothing to do with whether R.M. consented to

the sexual encounter with Alberts.

      We disagree.    In her deposition, R.M. stated Slach never “forced

himself” on her while they were skinny-dipping. However, at the time of

the incident, R.M. allegedly came out of the water crying. According to
                                    15
Josh, the person who discovered          R.M. and Slach skinny-dipping,

R.M. said: “Thank God you saw me.           I didn’t know what to do out

there. . . .   I couldn’t get away from him.   I didn’t know what to do.”

R.M.’s statements to Josh, if she did say them, are relevant for two

reasons. First, they reflect on her credibility as a witness. Second, the

alleged statements may reveal a motive to lie.     If a fact finder were to

conclude she made untruthful statements to preserve her boyfriend’s

perception of her virtue when she was discovered skinny-dipping with

another man, the fact finder might reasonably conclude she’s also

untruthful with respect to her allegations that Alberts raped her for the

same reason.

       c. Rule 5.403 Balancing

       Even if the evidence was relevant, it may still “be excluded if its

probative value is substantially outweighed by danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative

evidence.” Iowa R. Evid. 5.403.

       In Baker, after we concluded the false claim of past sexual

behavior was not excludable under rule 5.412 because the false claim

was not in fact “sexual behavior,” we analyzed whether the district court

abused its discretion in concluding the unfair prejudice inherent in the

evidence of the prior false claim outweighed its probative value. Baker,

679 N.W.2d at 10-11.      We noted rule 5.412 suggests the complaining

witness’s reputation and privacy are the primary interests in the

balancing process. Id. at 11. However, when the conduct is not covered

by the rape-shield law, it is instead evaluated under the traditional rule

5.403 prejudice analysis. Id. at 11-12. Under rule 5.403, the primary
                                                 16
focus is not upon the witness, but                    the interests of the defendant and

the right of the defendant to present a defense. Id. at 12.

        Based on the record before us, we do not find any of the

aforementioned dangers potentially outweighed the probative value of

this evidence. This evidence would not have been confusing to the jury,

nor would it have been cumulative or a waste of time.                              Moreover, the

evidence would not have been misleading to the jury because R.M. would

have had ample opportunity to deny or explain her allegedly untruthful

statements.        Finally, while it may have been embarrassing for R.M. to

testify about going skinny-dipping, this is not the kind of unfair prejudice

that will outweigh the probative value of clearly relevant evidence. This

is especially true when the countervailing right of a defendant to present

a defense to a criminal charge is at stake. Id.

        Therefore, if on remand R.M.’s alleged statements to Josh satisfy

the threshold showing of falsity we adopt today, we see no reason to

exclude the evidence as irrelevant or unfairly prejudicial.

        3. Resulting Prejudice

        The facts of this case indicate Alberts was entitled to a hearing in

order to prove R.M. made a prior false claim of sexual misconduct

relating to a skinny-dipping incident with another man. 5                             As we have

already said, a showing of falsity merely makes the rape-shield law

inapplicable with respect to the false claim.                         We must now decide

whether the trial court’s failure to conduct such a hearing requires us to

reverse and remand for a new trial. State v. Henderson, 696 N.W.2d 5,

12 (Iowa 2005).


________________________
        5
          At her deposition, R.M. stated Slach never “forced himself” on her while they were skinny-
dipping. However, she was never given the opportunity to admit or deny making statements to that effect
to Josh as she came out of the water.
                                     17
        The verdict was primarily      ground     on       the   conflicting

testimony of R.M. and Alberts R.M. testified Alberts sexually assaulted

her.    Alberts admits having sex with her, but claims the sex was

consensual.    There was no physical evidence of an assault.      No other

witnesses testified Alberts sexually assaulted the victim.       The jury’s

assessment of the relative credibility of R.M. and Alberts was the key to

the conviction, thereby enhancing the relevance of the allegedly false

prior allegation. By denying Alberts the opportunity to prove to the court

R.M. made a prior false claim of sexual misconduct, the court hampered

Alberts' ability to argue R.M. accused another man of improper conduct

to disguise her own questionable behavior. This error may have unduly

prejudiced Alberts’ defense and therefore requires us to remand the case

so the trial court may determine whether R.M. made false statements to

Josh.

        B. Other Matters Raised on Appeal

        With respect to the remaining issues raised by Alberts, we agree

with the court of appeals they have no merit and affirm.

        III. Conclusion

        We find the trial court abused its discretion by excluding evidence

of the skinny-dipping incident without first giving Alberts the opportunity

to prove at a 5.412(c) hearing that R.M. made a prior false claim of sexual

misconduct involving the man with whom she went skinny-dipping. For

the sake of judicial economy, we remand for a hearing to determine

whether R.M. made these statements and if so, whether they are false. If

the trial court finds Alberts meets the threshold showing set forth in this

opinion, then a new trial shall be granted. If Alberts fails to make such a
                                    18
showing,    then    his   conviction     stands.   This matter is remanded

to the trial court for proceedings consistent with this opinion.

      DECISION OF COURT OF APPEALS PARTIALLY VACATED;

CASE REMANDED.
