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State v. Trane

Supreme Court of Iowa

October 11, 2019

STATE OF IOWA, Appellee,

          Appeal from the Iowa District Court for Lee County, Mark Kruse, Judge.

         The 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.

          Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney General, for appellee.

          Mansfield, Justice.

         I. Introduction.

         The 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.

         On 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.

         On our 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 proceeding.

         II. Facts and Procedural History.

         In the 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 requirements.

         Midwest 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.

         A 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.[1] 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 would reset.

         A.H. 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.

         B.V. 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.

         In 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.

         Meanwhile, 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.

         Like 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.

         In late 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.

         Over 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] (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] (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.

         Shortly 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.

         However, 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."

         Also, 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 subjects.

         Trane 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."

         On 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.

         On 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 December 12.

         As 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.

         On 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 depositions.

         K.S., 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.

         The 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).[4] 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."

         On 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 mother:

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 true.

         The 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 would be.

         Trane's 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.

         The 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."

         The district court denied Trane's motion. It concluded that the motion was untimely. Turning to the merits, it also found:

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.

         At 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.

         Both Trane and Trane's wife testified for the defense. The State and the defense called other witnesses as well, including former students and staff.

         The 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 fourteen years.
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 safety.
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 ...

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