from the Iowa District Court for Lee County, Mark Kruse,
former owner of a school for troubled youth appeals his
convictions for assault with intent to commit sexual abuse,
pattern or practice of sexual exploitation by a counselor or
therapist, and child endangerment.
Alfredo Parrish and Adam Witosky of Parrish Kruidenier Dunn
Boles Gribble Gentry Brown & Bergmann, L.L.P., Des
Moines, for appellant.
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee.
former owner of a now-shuttered school for troubled youth was
convicted of three criminal charges-(1) assault with attempt
to commit sexual abuse, (2) pattern, practice, or scheme to
engage in sexual exploitation by a counselor or therapist,
and (3) child endangerment. The first two convictions
involved acts of sexual misconduct against a former female
student. The third conviction related to the school's
physical mistreatment of two former male students when each
was confined for long periods of time in an isolation room.
The defendant appeals.
appeal, the defendant raises the following claims of error:
(1) the district court abused its discretion in excluding
evidence the female student made false allegations of sexual
abuse against her adoptive and foster parents without
conducting a rule 5.412 hearing; (2) the district court erred
in refusing to consider allegations of ineffective assistance
of counsel at the motion-for-new-trial stage and before
appeal; (3) the district court should have severed the two
counts involving the female student from the count involving
the male students for trial purposes; (4) the district court
should not have permitted testimony by a state expert witness
that purportedly vouched for the credibility of the female
student; (5) the district court erred in instructing the jury
that they could find child endangerment by determining that
either of the male students had been victimized,
without requiring the jury to agree on a single
victim-student; and (6) there was insufficient evidence to
support the defendant's convictions.
review, we find the evidence sufficient to sustain the
defendant's convictions. We also hold the district court
did not err in declining to consider ineffective-assistance
claims as part of the motion- for-new-trial proceedings.
However, we hold the district court should have conducted a
rule 5.412 hearing before or during trial to determine, by a
preponderance of the evidence, whether the female student
made false accusations of sexual abuse against her adoptive
or foster parents. We therefore conditionally affirm the
defendant's convictions but remand with directions for
the court to conduct such a hearing. The defendant's
remaining arguments are before us only as
ineffective-assistance-of-counsel claims; we conclude they
should be addressed (if necessary) in a postconviction-relief
Facts and Procedural History.
fall of 2002, Benjamin Trane and his wife moved from Utah to
Iowa with hopes of establishing a private, therapeutic
boarding school for troubled teens. Their efforts paid off,
and Midwest Academy opened its doors in June 2003 in Keokuk.
Eventually, Trane became the sole owner of the school.
Midwest Academy offered programming unique from that of other
private, military, or residential schools, rendering it
appealing to parents of teens with a variety of behavioral
and disciplinary struggles. Midwest Academy purported to
offer a combination of character-building, therapeutic, and
educational programming, although it operated outside the
purview of the Iowa Board of Education and its licensing
Academy functioned under a rules-and-consequences-based
levels system, providing structure for its cognitive
behavioral therapy program. There were six levels that
students could ascend (or descend) through as part of the
program. All students began at Level 1, the most restrictive
level. Examples of restrictions at Level 1 included not being
permitted to use condiments with food, not being allowed to
look in a mirror or out of windows, and being allowed to
speak with students at higher levels only at specified times.
Students could earn greater freedom through a points-based
reward system while working up through the program. For
example, Level 2 came with the ability to get second helpings
at mealtime, Level 3 offered the ability to speak with family
members by telephone, and Level 4 permitted off-campus trips.
number of students, however, were unable to progress past
Level 1, and their inability to do so sometimes resulted in
harsh consequences. Relevant to the child endangerment charge
was the use of Out-of-School Suspension (OSS) rooms. OSS
rooms were designed for a single student to occupy for up to
twenty-four hours at a time, with constant supervision. The
OSS rooms were employed as a "last ditch effort" to
curb undesirable behaviors; for instance, constant
distractions in the classroom or physical attacks on an
instructor would land a student in OSS. While in OSS, the
student was expected to sit in structure except for bedtime,
meaning he or she could choose from one of three positions in
which to sit without moving. The lights in the OSS room were
always on. Should the student break structure without
permission or otherwise act out, the twenty-four-hour clock
and B.V. were each confined in an OSS room for significant
periods of time. A.H. arrived at Midwest Academy in May 2014
when he was twelve years old. A.H. had been diagnosed with
anxiety, depression, and oppositional defiant disorder, and
had been unsuccessfully treated at a psychiatric hospital.
A.H.'s psychiatrist recommended Midwest Academy to
A.H.'s parents. At Midwest Academy, A.H. continued his
pattern of defiance, and as a result, he spent approximately
half of his time in OSS. While in OSS, A.H. engaged in
behavior such as urinating on the walls, punching his own
nose to make it bleed, and throwing his chewed- up food at
the surveillance camera. When A.H.'s parents removed him
from Midwest Academy after approximately a year, A.H.'s
weight had declined from 120 to 90 pounds.
was admitted to Midwest Academy a few months after A.H., when
he too was twelve years old. B.V. came to the school with a
diagnosis of attention deficit hyperactivity disorder and
bipolar disorder, as well as a past history of assaultive
behavior. While at Midwest Academy, B.V. spent at least 133
of his 210 days in OSS-sixty-three percent of his time at
Midwest Academy. While in OSS, B.V. defecated and urinated in
the room and often refused to eat. By the time B.V. left
Midwest Academy in March 2015, his weight had gone down from
115 pounds to 89 pounds.
March 2015, the Iowa Department of Human Services (DHS)
received a hotline tip that students were being held at
Midwest Academy in isolation to the detriment of their
health. Accordingly, DHS opened an inquiry. The Federal
Bureau of Investigation (FBI), having already received
similar information, contacted DHS to coordinate
investigations into the alleged abuse at Midwest Academy.
in December 2015, the Iowa Division of Criminal Investigation
(DCI) was asked to look into a possible sexual abuse case at
Midwest Academy involving K.S., a seventeen-year-old female
student. At Midwest Academy, each student was assigned a
"family representative." Trane, the owner, was also
the family representative for four students, including K.S.
As K.S.'s family representative, Trane controlled what
level K.S. was on, whether K.S. could call home, and whether
K.S. could go on outings.
other students at Midwest Academy, K.S. had undergone a
troubled childhood before entering the school. She had been
adopted by her aunt and uncle when she was eight years old.
(Her adoptive mother was the sister of her biological
father.) Before that, K.S. had lived in foster care and with
her grandparents. In January 2015, after K.S. ran away from
her adoptive home, K.S.'s adoptive parents arranged for
her to be sent to Midwest Academy.
2015, K.S. disclosed to a night-time staff member named
Cheyenne Jerred that Trane had been sexually abusing her, and
Jerred reported the allegations to DHS. K.S.'s disclosure
to Jerred apparently came the day after Trane delivered to
K.S. the ill-received news that she would not be permitted to
travel off campus with anyone for Thanksgiving. The
allegations were later investigated by DCI.
the course of several interviews with DCI, K.S. disclosed the
following incidents of sexual contact with Trane: (1) Trane
pulled K.S.'s pants down enough to expose her underwear
under the guise of looking for and photographing distinctive
birthmarks for the Child Protection Center
(CPC); (2) after lights out, Trane knelt next to
K.S.'s bed while she faced away from him and slid his
hand under the covers, under her shorts, and into her
vagina; (3) Trane placed K.S.'s hand over the
groin area of his pants while he developed an erection; (4)
Trane unbuttoned K.S.'s uniform pants and put his finger
into her vagina while she visited his home with other
students; (5) Trane videotaped himself engaging in sexual
intercourse with K.S. and ordered K.S. to clean the floor
where the act occurred so that K.S. would be permitted to
call her sister; (6) Trane had sexual intercourse with K.S.
on at least one other occasion; (7) Trane had K.S. perform an
act of oral sex on him; (8) Trane had K.S. perform a manual
masturbatory act on him while he guided her hands with his;
and (9) Trane moved his groin against K.S. while laying fully
clothed on top of K.S.
after DHS was notified, K.S. was removed from Midwest
Academy. Trane consistently denied having any sexual contact
with K.S. None of the incidents were directly corroborated by
any witnesses other than K.S.
in addition to K.S.'s allegations of sexual abuse, K.S.
and others testified that Trane would conduct a "body
image" exercise. During this exercise, each female
student was instructed to go off alone in a private room,
disrobe, look at herself in a full-length mirror, and
determine what shape her body was, such as
"pear-shaped" or "apple-shaped." Trane
and the girls would then discuss their body shapes as a
group. The body image exercise was supposedly intended to
provide guidance on diet and exercise habits. At trial, Trane
testified that "in hindsight" he would not have
conducted this exercise because "it sounds bad."
Trane instructed students, including K.S., to complete an
anonymous written survey. The survey included questions on
sexual subjects such as when the student first learned about
sex, when the student had her first sexual experience, when
the student lost her virginity, and when the student first
masturbated. At trial, Trane and his wife testified that
there were surveys taken on various subjects, not just sexual
also brought upper-level female students to Victoria's
Secret for their birthdays. One witness explained that this
was to allow a student the privilege of getting the kind of
bras and underwear she was not normally allowed to have in
the school, where the dress code was strictly regimented. For
K.S.'s seventeenth birthday, Trane took K.S. and another
female student out for sushi and shopping. This included a
stop at Victoria's Secret, where K.S. testified she
"didn't let him buy [her] anything."
January 28, 2016, law enforcement executed a search warrant
at Midwest Academy, interviewed every student enrolled, shut
down the facility, and sent all of the children home. Two
further searches were performed on February 1 and February
11, generating a vast amount of paper and electronic evidence
that was subsequently digitized. Digitization of the evidence
was completed over a year later in April 2017. The files
amounted to between five and six terabytes of data.
September 18, 2017, Trane was charged by trial information in
the Iowa District Court for Lee (South) County with one count
of sexual abuse in the third degree in violation of Iowa Code
sections 709.1 and 709.4(1)(a) (2015); one count of
sexual exploitation by a counselor or therapist in violation
of Iowa Code sections 709.15(1), 709.15(2)(a)(1),
and 709.15(4)(a); and one count of child
endangerment in violation of Iowa Code sections
726.6(1)(a) and 726.6(7). Trane pled not guilty and
asserted his right to a speedy trial, which was then set for
previously noted, the discovery materials were voluminous.
Moreover, the discovery contained the identifying information
of hundreds of persons that would have been unwieldy to
redact. As a result, the parties entered a nondisclosure
discovery agreement on October 27.
November 16, Trane, who was represented by appointed counsel,
moved for approval of a $200-$250 purchase expense of an
external hard drive on which the State could provide a copy
of these voluminous discovery materials. In his motion, Trane
asserted the State would only provide discovery on a newly
purchased hard drive. The trial court granted Trane's
motion, and he obtained this discovery on November
28-fourteen days before trial and on the first day of
who now resided out of state, was deposed on December 11, the
afternoon before trial was to begin. In her deposition, she
testified that she had previously made allegations of sexual
abuse against her foster parents and her adoptive parents.
Upon conferring with K.S.'s adoptive mother following the
deposition, Trane's counsel filed a rule 5.412 motion
that evening. The motion asserted that K.S. had made prior
false allegations of sexual abuse against both sets of
parents and sought to "introduce testimony through both
cross-examination and through the complaining witness'
adoptive mother as to the falsity of those allegations."
The motion elaborated that "prior false allegations are
not considered 'prior sexual behavior' and therefore
do not fall within the protections of Rule 5.412." The
motion was time-stamped 5:39 p.m. on December 11.
State resisted Trane's motion. The State maintained that
the motion was untimely, since it was being filed on the eve
of trial. See Iowa R. Evid. 5.412(c)(1)(A)
(generally requiring motions based on an exception to rule
5.412 to be filed at least fourteen days before
trial). The State further maintained that the
motion was deficient because it was not accompanied by an
offer of proof. Lastly, the State urged that the motion
should be denied on the merits because "K.S. has never
recanted her prior abuse allegations."
December 12, following jury selection, the court allowed the
parties to make a further record on the motion. Trane's
counsel recounted her conversation with K.S.'s adoptive
I explained to her what it was specifically that [K.S.] was
accusing her specifically of as far as sexual abuse, and she
made it clear that that was not true, and this was a pattern
of behavior that [K.S.] would engage in of making false
allegations against her and her husband, both of a physical
abuse nature and a sexual abuse nature.
She would also testify that my advising her was the first she
knew of--she knew that there had been sexual abuse
allegations, but she did not know exactly what they entailed.
And she would further testify that they simply weren't
district court expressed concern about permitting a
telephonic deposition of K.S.'s adoptive mother for
purposes of a rule 5.412 hearing. However, the district court
also asked Trane's counsel, "[W]ould [the statements
you have made] be substantially what [the adoptive mother]
would say if she was called as a witness, if you were to make
an offer of proof?" Trane's counsel agreed they
counsel added further detail as to what she had learned from
K.S.'s deposition. Apparently, the allegations of
physical abuse had arisen before K.S. arrived at Midwest
Academy. They had been investigated and determined to be
unsubstantiated. Upon K.S.'s arrival at Midwest Academy,
she had also made allegations of sexual abuse against both
her adoptive parents and her foster parents.
State responded that Trane's motion should not be heard
because it was too late: "The Defendant wanted a speedy
trial, and this is of his making."
district court denied Trane's motion. It concluded that
the motion was untimely. Turning to the merits, it also
The information before the court requires the court speculate
to a degree that is inconsistent with a finding that there
was a false claim of sexual abuse as set forth in the Motion
filed by the defendant by a preponderance of the evidence.
trial, K.S. and B.V. (but not A.H.) testified for the State.
Additionally, the State offered expert testimony from Dr.
Anna Salter, a forensic psychologist. During her testimony,
Dr. Salter spoke of a "double standard" as between
how the public responded to the "Boston Strong"
phenomenon following the Boston Marathon bombing and how the
public responds generally to survivors of sexual abuse who do
not complain about the abuse and continue to interact with
their abusers. Less directly, Dr. Salter referred to the
then-ongoing and high-profile case of the physician-trainer
who had sexually abused many athletes on the United States
Women's Olympic Gymnastics Team. Dr. Salter also
testified that sexual abuse allegations are false
"roughly 2 to 8 percent" of the time. Trane did not
object to this testimony.
Trane and Trane's wife testified for the defense. The
State and the defense called other witnesses as well,
including former students and staff.
district court's marshaling instruction on count III,
child endangerment, did not require the jury to agree that a
specific child- either A.H. or B.V.-had been endangered.
Rather, it stated as follows:
Under Count III of the Trial Information, the State must
prove all of the following elements of Child Endangerment:
1. On or between September 18, 2014, and January 31, 2016[, ]
the defendant was the person having custody or control of
[B.V.] and/or [A.H.]
2. [B.V.] and/or [A.H.] were under the age of
3. The defendant knowingly acted in a manner that he was
creating a substantial risk to [B.V.] and/or
[A.H.]'s physical or mental or emotional health or
If the State has proved all of the elements, the defendant is
guilty of Child Endangerment. If the State has failed to
prove any one of the elements, the defendant ...