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State v. Tovar

Court of Appeals of Iowa

November 21, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
TOMAS TOVAR, Defendant-Appellant.

          Appeal from the Iowa District Court for Muscatine County, Mark R. Lawson, Judge.

         Tomas Tovar appeals his conviction for sexual abuse in the third degree. AFFIRMED.

          Philip B. Mears of Mears Law Office, Iowa City, for appellant.

          Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., Vogel, J., and Mahan, S.J. [*]

          MAHAN, SENIOR JUDGE.

         Tomas Tovar appeals his conviction for sexual abuse in the third degree in violation of Iowa Code section 709.4(4) (2013). Tovar brings several challenges on appeal. He contends there is insufficient evidence supporting his conviction, his trial counsel was ineffective in failing to move for judgment of acquittal as it relates to one of the prosecution's alternative theories, the district court erred in permitting the jury to reach its verdict without requiring a unanimous verdict with regard to the prosecutor's alternate theories, and the court erred in submitting jury instructions for lesser-included offenses. For the foregoing reasons, we affirm his conviction.

         I. Background Facts and Proceedings

         The events in question unfolded in the early morning hours of Saturday, February 16, 2013. The complaining witness, S.M., [1] had planned a special getaway with her boyfriend, David Faust, for that weekend. On Friday, S.M. had a few glasses of wine at home before Faust picked her up on the way to the Clarion hotel in Muscatine, arriving around 7:00 p.m.

         S.M., Faust, and Faust's friend then traveled to The Pearl, a local Muscatine restaurant. While at The Pearl, S.M. ate a few buffalo wings[2] and drank around three "regular size" long island iced teas.[3] Around 10:00 p.m., the party traveled to The Brew, a bar across the street. S.M. continued to drink, either rum and Cokes or long island iced teas. Faust's friends at the bar also bought S.M. multiple shots.[4]While at the Brew, S.M. began to feel extremely intoxicated. The group traveled back to The Pearl to retrieve S.M.'s coat, and then S.M. and Faust left in Faust's vehicle. Faust drove and went through a Taco Bell drive-through. By this time, S.M. was falling asleep in the passenger seat. Upon pulling out of the Taco Bell parking lot, Muscatine police officer Minnat Patel pulled Faust over at around 2:00 a.m. Saturday morning.

         Defendant Tovar, then working as a Muscatine police officer, arrived to serve as Officer Patel's backup. Officer Patel initially stopped Faust for driving while barred but suspected Faust was intoxicated. While Patel talked with Faust, Tovar went to the passenger side of the vehicle and stood next to S.M.'s window. Though there is dash camera footage of the traffic stop and audio from Patel's body microphone, Tovar did not have his body microphone on during the encounter. Patel administered several field sobriety tests to Faust and arrested him for driving while barred and operating a vehicle while intoxicated. Tovar then asked Faust where S.M. was staying and offered to drive her to the Clarion Hotel, which was nearby but would require S.M. to cross a major roadway.

         Patel's dash camera shows S.M. get out of the car with significant difficulty. She got into Tovar's squad car for the trip to the Clarion. Like the body microphone, Tovar's squad car's audio recording system did not engage, and there is no audio recording from the trip. Tovar escorted S.M. into the hotel and into her room. While in the room, Tovar engaged S.M. in vaginal intercourse. Tovar then radioed in to police dispatch to indicate he was "clear" of the call though he stayed and continued to engage S.M. in intercourse. Shortly after, he received a call to a domestic-disturbance incident and left the hotel. Once Tovar returned to the police station, he told others that S.M. was so intoxicated she could not carry her own belongings and broke the hotel key-card while trying to open the door, requiring him to get a new key from the hotel's front desk. He made no mention of the intercourse.

         After being released from police custody, Faust returned to the Clarion hotel. Upon his return, he found S.M. in the nude and asleep on top of the bed's covers. The scene startled him because S.M. typically did not sleep this way. When Faust woke S.M. she was confused, had little memory of the prior evening's events, and was still intoxicated. S.M. began to have fragmented memories of the prior night and remembered the feeling of another person on top of her and a harsh feeling material against her skin. Upon this revelation, Faust grew concerned that the officer who drove S.M. to the hotel assaulted her. S.M. maintained she could not confidently say she had intercourse with someone given the poor state of her memory.

         Faust called the police station with his concerns around 5:30 a.m. Lieutenant Anthony Kies, Tovar's supervisor, then confronted Tovar with Faust's allegation. Tovar suggested he should talk to S.M. to clear things up, emphasizing she was very intoxicated and was likely just mistaken. Faust called the station again, this time talking with Kies. Faust shared the details S.M. could remember from the night before, including the harsh feeling material against her skin. Kies had his phone on speaker during the conversation, and Tovar was also in his office. At the end of the phone call, Kies told Faust he would meet Faust and S.M. at the Clarion. Upon hearing this statement, Tovar's demeanor changed and he removed his outer vest. Kies had Tovar follow him out to the Clarion hotel and wait outside. At the Clarion, S.M. prepared for Kies's arrival by putting on her clothes from the evening before.

         Kies first stopped at the hotel's front desk to inquire about the broken key-card. Once Tovar became aware that Kies visited the front desk, he admitted to Kies that he made up the story about S.M. breaking her key-card and suggested he embellished his story to add interest. When Kies met with S.M. and Faust, it was apparent to him that S.M. was still intoxicated and too drunk to go into the police station at that time, around 6:00 a.m. Kies contacted Tovar in the parking lot and instructed him to get out of the vehicle, Tovar complied and removed his glasses. Kies asked S.M. to look out the window at Tovar and asked if she recognized him from the night before. S.M., afraid of what Faust would do, failed to identify Tovar. Kies took S.M. to look at the front desk attendant to see if he was her assailant. Once out of Faust's presence, S.M. told Kies she recognized Tovar but said she did not want to identify him in front of Faust.

         Because S.M. was still intoxicated, Kies made arrangements for her and Faust to come into the police station around 10:30 a.m. S.M. and Faust arrived at the police station to make a statement. While there, an officer visited the hotel room, took photographs, retrieved S.M.'s suitcase, and collected the bedsheets. Once the officer brought the suitcase into the station, S.M. identified the clothing she had on the night before, the same clothing she put on earlier that morning when Kies visited. The identified clothing and bed sheets were then preserved for forensic testing. S.M. could provide little detail about the prior evening. She had difficulty remembering her time at The Brew and the following events. She refused to definitively say she had intercourse with anyone the night before because she could not concretely remember anything, instead she just had flashes of memory.

         Due to a possible conflict of interest, Kies turned over the investigation to the Iowa Division of Criminal Investigation (DCI). Special Agent Richard Rahn collected the preserved clothing and bedding from the Muscatine Police and sent it to the DCI testing facility. Tovar's seminal fluid was found on both the fitted sheet and on the interior crotch of S.M.'s jeans. Upon this discovery, Tovar was charged with sexual abuse in the third degree.

         The case proceeded to a jury trial; S.M. and Tovar both testified. S.M. maintained she had little memory of the night. Tovar admitted to the sexual intercourse but maintained S.M. was not intoxicated and was a willing participant. Tovar also presented expert testimony regarding memory lapses due to intoxication. The expert indicated there are two types of blackouts: one described as a brown out or fragmentary, which allows the individual to remember short blips or details, and the other called an en block, which prevents the individual from remembering anything from the period of intoxication. The jury ...


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