                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0684
                             Filed February 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

IVAN FERNANDO FIERRO,
      Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea J.

Dryer, Judge.



      Ivan Fierro appeals his conviction for second-degree sexual abuse.

AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

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

Attorney General, for appellee.




      Considered by Danilson, C.J., and Doyle and McDonald, JJ.
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DANILSON, Chief Judge.

       Ivan Fierro appeals his conviction for second-degree sexual abuse, in

violation of Iowa Code sections 709.1(3) and 709.3(1)(b) (2015).1 On appeal, he

contends the conviction is against the weight of the evidence and the district

court erred in its evidentiary rulings. Finding no abuse of discretion in the trial

court’s decisions, we affirm.

       I. Background Facts and Proceedings.

       Fierro was charged with committing a sex act with a person under the age

of twelve from 2008 through 2010. In response to defense motions, the trial

court ruled in limine:

               2. The State shall not make any reference to the defendant’s
       record of prior criminal arrests or convictions, the defendant’s use
       of any name other than Ivan Fierro to identify himself, and any
       charges pending against the defendant other than the one at issue
       in this case until further offers of proof and objections have been
       made to the court.
               3. Evidence that the defendant physically abused D.F. or
       that D.F. saw the defendant physically abusing D.F.’s mother or
       sister may be admitted for the limited purposes of explaining D.F.’s
       delay in or fear of reporting the conduct that the defendant is
       alleged to have committed and responding to contentions that D.F.
       fabricated the allegations.

       Jury trial began on December 9, 2014. Fifteen-year-old D.F. testified she

was Fierro’s adopted daughter, and beginning when she was in fourth grade (age

nine) and ending when she was in sixth grade, when her mother left for work in

the morning, Fierro would take her to his room, take her clothes off, and touch

her breasts and vagina. She also testified on two occasions the sexual abuse

1
  The State’s allegations concerned conduct occurring in 2008 through 2010 and that
conduct would be governed by the code in effect at the time. However, there have been
no substantive changes to the applicable code sections since 1999, and we simply refer
to the 2015 Iowa Code.
                                         3


occurred other than in his bedroom. Once, when D.F. got out of the shower,

Fierro “came downstairs and put [her] on top of the washer and dryer,” and

touched her “the same way as he did in his bedroom.” D.F. was just wearing a

towel; the defendant picked her up, put her on the washer/dryer, told her to lie

down on the towel, and touched her breasts and vagina. The other occasion

occurred in D.F.’s bedroom, where she stated he got into bed with her, took off

her pants, and touched her vagina. She also testified that while she resisted

Fierro’s actions, “[h]e was very abusive, so [she] didn’t say anything out of fear.”

Without objection, D.F. explained Fierro would hit her, her sister (M.F.), and her

mother with a belt or “whatever he could grab” and left injuries. D.F. also testified

she did not report the sexual abuse when Fierro moved out (when she was in

sixth grade) “[b]ecause he could still come back.”

       In 2013, after D.F.’s mother and Fierro were officially divorced and M.F.

“started having issues psychologically,” D.F. told her mother and her mother’s

fiancé (Ed) about the sexual abuse. D.F. told them she did not want to go to the

police because Fierro was out of their lives and she “felt there was nothing more

that could be done.”

       D.F.’s mother testified M.F. was later hospitalized for her mental-health

issues. In filling out admissions paperwork that included a question about sexual

abuse, the mother reported to a nurse:

       I said this had happened to my other daughter. I don’t know if it’s
       happened to [M.F.], because she doesn’t communicate with me, so
       I don’t know how to answer this. And she told me that her being a
       mandatory reporter, she needed to report that. And that’s how all
       of this started.
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      Ed testified about D.F.’s disclosure, stating D.F. was “very nervous” and

“very upset” when she told them what happened and “[w]e were all crying”

because of what D.F. told them. Ed testified he wanted to tell the police, but D.F.

and her mother “were scared” of Fierro.

      Sara Tawil, a department of human services (DHS) child abuse

investigator, testified about her role investigating D.F.’s complaint of sexual

abuse and in observing the interview of D.F. conducted at the child protection

center. Defense counsel began cross-examination of Tawil asking, “There was

some discussion about physical abuse as well during your interview.” Tawil had

not testified about physical abuse prior to defense counsel asking.

      Defense counsel also began his cross-examination of investigator Jeff

Tyler with questions about physical abuse of “other kids in the home.”

      Fierro announced he intended to testify. The State indicated it would, on

cross-examination, ask about his past use of false names.         Fierro’s counsel

objected.   The court ruled “limited questions about whether he’s used other

names on other occasions and who he gave the identification to should be

allowed” because “[c]redibility is important in this case.” Fierro then testified,

denying the allegations and acknowledging using other names to gain

employment.

      On appeal following his conviction, Fierro contends the conviction is

against the weight of the evidence and the district court erred in allowing

evidence of his past use of false names and prior bad acts.
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       II. Weight of the Evidence.

       “Unlike   the    sufficiency-of-the-evidence   analysis,   the   weight-of-the-

evidence analysis is much broader in that it involves questions of credibility and

refers to a determination that more credible evidence supports one side than the

other.” See State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006). On appeal, we

are “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).

       D.F.’s testimony about the sexual abuse was consistent in all relevant

details and consistent with other evidence as to timelines. The inconsistencies in

some details were pointed out by Fierro’s counsel and were for the jury to

consider.   Because the evidence does not preponderate “heavily against the

verdict,” see id. at 202, we find no abuse of the trial court’s denial of Fierro’s

motion for new trial.

       III. Evidentiary Rulings.

       We review evidentiary rulings for an abuse of discretion. State v. Huston,

825 N.W.2d 531, 536 (Iowa 2013).          “A court abuses its discretion when its

‘discretion was exercised on grounds or for reasons clearly untenable or to an

extent clearly unreasonable.’” State v. Putnam, 848 N.W.2d 1, 8 (Iowa 2014)

(citation omitted).

       A. Other Names. As concerning the court’s admission of Fierro’s use of

other names, this court has looked to federal case law and found the use of false

names or identities “highly probative in regards to credibility and truthfulness of
                                           6

the defendant.” State v. Martinez, 621 N.W.2d 689, 696 (Iowa Ct. App. 2000);

see United States v. Mansaw, 714 F.2d 785, 789 (8th Cir.), cert. denied, 464

U.S. 986 (1983). We find no abuse of discretion.

       B. Physical Abuse. As to Fierro’s motion in limine concerning allegations

of physical abuse, the district court ruled:

       [T]he ruling that the [defendant] physically abused [D.F.] that [D.F.]
       saw the defendant physically abusing her mother or sister is
       admissible for the limited purposes of explaining any delay that she
       may have had in reporting the conduct or fear that she may have
       had of the defendant that could have contributed and responding to
       contentions that she may have fabricated the allegations.
               I do find that the evidence of those prior bad acts is relevant
       and material to legitimate issues concerning the sexual abuse
       charge and that the probative value of that physical abuse evidence
       is not substantially outweighed by the danger of unfair prejudice to
       the defendant. The relationship between the parties is relevant to
       issues concerning the allegations of sexual abuse, that evidence
       will be allowed.

       We review the district court’s evidentiary ruling regarding the admission of

prior bad acts for abuse of discretion. State v. Reynolds, 765 N.W.2d 283, 288

(Iowa 2009).

       Fierro contends “the evidence of the prior alleged assaults should not

have come in. The evidence of the prior bad acts was not relevant to show why

D.F. delayed reporting.” We disagree the evidence was irrelevant. A recognized

exception to the prior bad acts rule includes “proof of a sex abuse victim’s state

of mind.” State v. Alderman, 578 N.W.2d 255, 258 (Iowa Ct. App. 1998). Acts of

physical abuse by a perpetrator are relevant to explain a child’s failure to report

or a delay in reporting sexual abuse. See State v. Bayles, 551 N.W.2d 600, 605
                                           7


(Iowa 1996) (noting a victim’s familiarity with the defendant’s prior crimes is

relevant to explain a victim’s fear and attempt to appear agreeable).

         Nonetheless, we believe it to be the better course that a district court

condition the admissibility of the evidence of physical abuse upon the

defendant’s raising the issue of a delay in reporting in the first instance. See,

e.g., State v. Fisher, 202 P.3d 937, 946 (Wash. 2009) (“Only if defense counsel

made an issue of [the victim’s] delayed reporting did the physical abuse become

relevant to the determination of whether sexual abuse occurred.”). When the

State elicited the challenged testimony from D.F., the defense had not yet made

an issue of the delay in reporting. However, we conclude any error in the timing

of the admission did not deny Fierro a fair trial.

         Fierro asserts that “[e]ven if the evidence was somehow relevant, it should

have been excluded because the probative value was substantially outweighed

by the danger of unfair prejudice.” The State asserts Fierro’s complaint is that at

some point during the trial, the balance between probative value and prejudicial

effect    shifted.    The    State   argues    defense   counsel   did   not   make

contemporaneous objections to testimony about particular acts of physical abuse

and did not reassert an objection under Iowa Rule of Evidence 5.403(b), 2 and

therefore the issue is not properly before us.

         It is evident Fierro’s defense strategy was to discredit D.F.’s allegations

and, in fact, discredit the testimony of all D.F.’s family who were witnesses. D.F.

explained on direct examination she did not report the abuse when it occurred


2
  Whether trial counsel should have re-asserted a rule-5.403 motion is more
appropriately addressed in postconviction proceedings.
                                         8


because of her fear of Fierro. Fierro’s attorney cross-examined D.F., including

her claims of physical abuse. Fierro’s counsel also cross-examined investigator

Tyler and DHS employee Tawil regarding the physical abuse to others in the

home consistent with the strategy to discredit D.F. and her family members.

Fierro counsel’s theme in closing argument relied upon the inconsistent

testimony of family members concerning whether another child was abused and

if the mother or Fierro had caused an injury to still another child, in an effort to

show D.F. and all her family were not credible witnesses. Even if Fierro has not

waived his right to assert error because of the order in limine, we conclude it was

not prejudicial. See State v. Duncan, 710 N.W.2d 34, 44-45 (Iowa 2006) (holding

admission of bad acts is not prejudicial where the same evidence was central to

the defense trial strategy).

       We also observe the jury was instructed,

               Evidence has been received concerning physical abuse
       alleged to have been committed by the defendant. The defendant
       is not on trial for those wrongful acts.
               This evidence must be shown by clear proof for the purpose
       of explaining the actions or inaction of a witness and for no other
       purpose.
               If you find those wrongful acts occurred, then and only then
       may those other wrongful acts be considered for the purpose of
       explaining the actions or inaction of a witness.
               You may consider whether the acts were recent or remote
       and all other relevant factors in deciding how much weight and
       effect to give them

       “We presume juries follow the court’s instructions.” State v. Hanes, 790

N.W.2d 545, 552 (Iowa 2010). Moreover, “[i]t is only in extreme cases that such

an instruction is deemed insufficient to nullify the danger of unfair prejudice.”

State v. Plaster, 424 N.W.2d 226, 232 (Iowa 1988). This is not one of those
                                      9


cases. Under the facts and issues as presented, we find no abuse of discretion.

We therefore affirm the conviction.

      AFFIRMED.
