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State v. Elliott

Court of Appeals of Iowa

March 20, 2019

STATE OF IOWA, Plaintiff-Appellee,
GARY WAYNE ELLIOTT, Defendant-Appellant.

          Appeal from the Iowa District Court for Poweshiek County, Shawn Showers, Judge.

         Gary Elliott appeals from convictions for four counts of second-degree sexual abuse. AFFIRMED.

          Gina Messamer of Parrish Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney General, for appellee.

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

          MAHAN, Senior Judge.

         Gary 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.

         I. Background Facts and Proceedings.

         Elliott 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.

         Elliott 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.

         In 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.

         In 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.

         Elliott 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 following theory:

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 ...

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