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State v. Asa South

Court of Appeals of Iowa

March 20, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
ASA SOUTH, Defendant-Appellant.

          Appeal from the Iowa District Court for Marion County, Martha L. Mertz, Judge.

         Asa South appeals the judgment and sentence entered after a jury found him guilty of third-degree sexual abuse. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney General, for appellee.

          Considered by Vogel, C.J., and Doyle and Mullins, JJ.

          DOYLE, Judge.

         The 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.

         South 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.

         Before 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.

         The 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.

         South 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 other ...

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