from the Iowa District Court for Poweshiek County, Shawn
Elliott appeals from convictions for four counts of
second-degree sexual abuse. AFFIRMED.
Messamer of Parrish Kruidenier Dunn Boles Gribble Gentry
Brown & Bergmann L.L.P., Des Moines, for appellant.
J. Miller, Attorney General, and Israel Kodiaga, Assistant
Attorney General, for appellee.
Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.
Elliott appeals from his convictions for four counts of
sexual abuse in the second degree, in violation of Iowa Code
sections 709.1, 709.3(1)(b), and 903B.1 (2011). He argues the
district court erred when it rejected Elliott's proposed
evidence that the minor victim had been sexually abused
before. Alternatively, he argues that his counsel was
ineffective for failing to argue the evidence was
"constitutionally required" under Iowa Rule of
Evidence 5.412 and asks this court to apply a different
ineffective-assistance-of-counsel test than contained in
existing law. Elliott also asserts trial counsel should have
objected to alleged prosecutorial misconduct during the
prosecutor's rebuttal closing argument.
Background Facts and Proceedings.
and his wife lived in Indiana, along with his wife's two
biological children, who Elliott adopted when they were
young. The Elliotts became foster parents to three children,
including H.E., who was seven years old at the time she came
to live with the Elliotts, and her younger brother. H.E. and
her brother had been removed from their biological
mother's care because H.E. had been sexually abused by
her mother's boyfriend, who ultimately pled guilty to
child molestation. In 2012, after living with the Elliotts
for three years, H.E. and her brother were formally adopted.
In August 2012, when H.E. was eleven years old, the family
decided to move to Iowa.
and H.E. traveled to Iowa before the rest of the family to
make repairs to the house and allow H.E. to begin the school
year in Iowa. During the time only Elliott and H.E. were in
the house, Elliott had sexual contact with H.E. When the
other family members moved to Iowa, H.E. did not tell anyone
what had happened because H.E. "was too scared to say
anything" and did not know how Elliott would react to
what she said.
2014, H.E. wrote a letter to her adoptive mother explaining
that Elliott had abused her when they first moved to Iowa. In
the letter, H.E. told her adoptive mother that she did not
want to tell what happened to her because "I'm
afraid of losing you, Mom" and that "I can't
lose you like I lost [her biological mother]."
H.E.'s mother read the letter then discussed it with
Elliott. He admitted to his wife that he was unclothed with
H.E. while the two were alone in Iowa. His explanation was
that he and H.E. had worked in the yard and were naked with
each other at some point to check for ticks.
2016, the department of human services learned of H.E.'s
allegations, and a police investigation ensued. Elliott
repeated the tick explanation to law enforcement and also
stated that there was a time when H.E. had taken a shower and
he was waiting to take a shower when they would have been
naked next to one another.
was charged with four counts of sexual abuse in the second
degree. Prior to trial, the State filed a motion in limine
seeking to exclude any evidence regarding H.E. having been
sexually abused in the past. The State asserted H.E.'s
prior abuse was inadmissible under Iowa Rule of Evidence
5.412, Iowa's rape- shield law. The defense sought to
introduce evidence concerning the prior abuse on the
MS. CROOKHAM-JOHNSON [DEFENSE COUNSEL]: We- once again, going
back to the credibility and motivations of [H.E.] for making
the allegations that she does against Mr. Elliott, we believe
it's important that there be discussion about what she
did when she was a child, I believe of age six. [H.E.] is an
adopted child. At six, she was living in her biological
household that included a stepfather. Not only did she make
allegations against the stepfather, he was convicted and may
still be in prison for those events. And we believe that the
actions that she took at that time compared to the actions
that she took after these ...