from the Iowa District Court for Muscatine County, Mark R.
Tovar appeals his conviction for sexual abuse in the third
B. Mears of Mears Law Office, Iowa City, for appellant.
J. Miller, Attorney General, and Bridget A. Chambers,
Assistant Attorney General, for appellee.
Considered by Danilson, C.J., Vogel, J., and Mahan, S.J.
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.
Background Facts and Proceedings
events in question unfolded in the early morning hours of
Saturday, February 16, 2013. The complaining witness, S.M.,
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.
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 and drank around three "regular
size" long island iced teas. 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.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.
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
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.
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.
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
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.
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.
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.
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 ...