from the Iowa District Court for Marion County, Martha L.
South appeals the judgment and sentence entered after a jury
found him guilty of third-degree sexual abuse.
C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Vogel, C.J., and Doyle and Mullins, JJ.
State charged Asa South with second-degree sexual abuse, in
violation of Iowa Code sections 709.1, 709.3(1)(A), and
903B.1 (2016). Both the complaining witness and South
testified at trial, presenting the jury with two very
different versions of events. A jury convicted South of
third-degree sexual abuse, in violation of Iowa Code sections
709.1 and 709.4. South appealed.
first contends the trial court abused its discretion in
refusing to admit evidence that the complaining witness made
a false claim of sexual abuse approximately nine or ten years
earlier. We review his claim for an abuse of discretion.
See State v. Alberts, 722 N.W.2d 402, 407-08 (Iowa
2006). We only reverse if the trial court exercised its
discretion on clearly untenable grounds, for clearly
untenable reasons, or to a clearly unreasonable extent.
See id. at 408.
the trial court could admit evidence that the complaining
witness made a prior false claim of sexual abuse, South had
to show "(1) the complaining witness made the statements
and (2) the statements are false, based on a preponderance of
the evidence." Id. at 409. If South made this
showing, the evidence would not be considered evidence of
"past sexual behavior" under Iowa Rule of Evidence
5.412 (prohibiting admission of evidence of a victim's
past sexual behavior in a criminal proceeding involving
allegations of sexual abuse). See id. at 410.
district court found South failed to prove by a preponderance
of the evidence that the claim was false. We agree. South
sought to admit evidence that the complaining witness told
her husband another man had taken advantage of her while she
was drunk. South asserts the statement is false because the
complaining witness was having an extramarital affair with
the man, who testified he and the complaining witness engaged
in sexual relations on multiple occasions. However, consent
to sexual relations at one time does not equate with consent
at all times, and consent cannot be inferred by the existence
of a relationship between the parties. See, e.g.,
Iowa Code § 709.4(1)(a) (defining third-degree sexual
abuse as a sex act done against the will of the other person,
"whether or not the other person is the person's
spouse or is cohabiting with the person"). Additionally,
intoxication may render a person incapable of consenting.
See, e.g., id. §§ 709.1(2)
(defining sexual abuse as a sex act performed when the other
person is suffering from a mental defect or incapacity that
precludes giving consent), 709.1A(1) (defining mental
incapacity as the state of being "temporarily incapable
of apprising or controlling the person's own conduct due
to the influence of a narcotic, anesthetic, or intoxicating
substance"). Because South failed to show the claim was
false, the trial court acted within its discretion in
refusing to admit the evidence.
also contends his trial counsel was ineffective in failing to
object to the following jury instruction:
Evidence has been offered to show that Asa South made
statements at an earlier time and place.
If you find any of the statements were made, then you may
consider them as part of the evidence, just as if they had
been made at this trial.
You may also use these statements to help you decide if you
believe Asa South. You may disregard all or any part of his
testimony if you find the statements were made and were
inconsistent with his testimony given at trial, but you are
not required to do so. Do not disregard his testimony if