IN THE COURT OF APPEALS OF IOWA
No. 23-2039 Filed June 18, 2025
STATE OF IOWA, Plaintiff-Appellee,
vs.
MICHAEL WILLIAM TOBIN JR., Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Butler County, Rustin Davenport,
Judge.
A defendant appeals his convictions and sentence for eleven counts of
sexual exploitation of a minor. AFFIRMED IN PART, VACATED IN PART, AND
REMANDED FOR RESENTENCING.
Martha J. Lucey, State Appellate Defender, and Melinda J. Nye (argued),
Assistant Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Louis S. Sloven (argued), Assistant
Attorney General, for appellee.
Heard at oral argument by Tabor, C.J., and Ahlers and Langholz, JJ. 2
TABOR, Chief Judge.
A jury convicted former police officer Michael Tobin Jr. of eleven counts of
sexual exploitation of a minor in violation of Iowa Code section 728.12 (2021).
Tobin appeals, arguing that the evidence could not support his nine convictions for
promoting or possessing sexually explicit images of minors because he did so in
the performance of his official duties. Short of that, he claims that six of the eight
possession violations were not supported by substantial evidence. The State’s
load-bearing evidence was the testimony of C.T., a minor then-Officer Tobin lured
into a sexual relationship. But, as Tobin notes, when testifying, C.T. identified only
two photographs from the images that the State alleged he possessed outside the
scope of his law enforcement duties.
Tobin also raises two evidentiary challenges. First, he argues that the
district court should not have admitted testimony from a twenty-year-old woman
about her contemporaneous affair with Tobin under Iowa Rule of Evidence
5.404(b). Second, he contends that the court misapplied rule 5.412 in excluding
C.T.’s testimony that she was bisexual. Finally, Tobin contests his indeterminate
fifteen-year sentence.
As explained below, we find no reversible error in the evidentiary rulings.
On the first sufficiency claim, we find Tobin was not conducting official duties when
he showed sexually explicit images to C.T. But the evidence was insufficient to
prove he wrongly possessed six of those eight images. Thus, we vacate his
possession convictions on counts four, five, six, seven, ten, and eleven. We 3
remand for entry of judgment of acquittal on those counts and for resentencing on
counts one, two, three, eight, and nine.1
I. Facts and Prior Proceedings
“This has happened to me twice now. So different, yet so similar.” That
haunting observation was the heart of the victim impact statement delivered by
C.T., the State’s key witness against Tobin. C.T. was fourteen when she was
sexually exploited by an online predator named Cody Blue, and sixteen when she
was sexually exploited by Tobin, the officer who investigated the Blue case.
C.T. met then-Officer Tobin when he interviewed her as part of the
Clarksville police investigation into Blue’s solicitation of nude pictures from minors
online. After Blue was convicted and sentenced, C.T. again encountered Tobin.
This time she bumped into him when she was out with her older sister, A.T., and
their friends at a local festival in June 2021. Tobin—then thirty-three—recognized
C.T. from the case and “appear[ed] to want to socialize.” C.T. and the other
teenagers were making TikTok videos, and Tobin joined in. His relationship with
C.T. and A.T. developed from there.
Because C.T. and A.T. were interested in law enforcement careers, Tobin
invited them to participate in “ride-alongs” in his patrol car. The first night out,
according to A.T.’s testimony, Tobin drove to a secluded area, turned off his lights,
and “started touching [her]” without asking permission. In the same vein, during
her first ride-along with Tobin, C.T. recalled that “the Cody case got brought up.”
She told Tobin that she was embarrassed that he had seen naked photos of her.
1 Given this remedy, we need not address Tobin’s sentencing challenge. 4
He responded: “Don’t be embarrassed. They looked good.” And then he asked
her if she still had them. She had kept them in her “My Eyes Only” file on Snapchat.
She showed him, and he again commented on how good they looked. During the
rest of that summer and early fall, C.T. rode with Tobin as often as three times per
week for eight-hour shifts. C.T. recalled that Tobin peppered their conversations
with sexual comments, for instance, bragging about his “dick size.”
C.T. and A.T. also frequented the police station, which doubled as city hall.
During a visit to the station in September 2021, C.T. saw a case folder labelled
“Cody Blue” on Tobin’s desk. According to C.T., “it had the case testimonies from
some of the victims. And he would talk about that, and he helped me look at my
testimony that was in the binder.” Tobin also “opened up” his computer and
showed her images from the Cody Blue file. She recalled “one video where a girl
was masturbating with a hair brush.”2 C.T. also remembered seeing two still
images of classmates from her high school, as well as one other “Snapchat picture
of a girl taking nudity pictures in the mirror.”
That same month, Tobin asked C.T. to “give oral sex to him.” When she
declined, he claimed he was joking. Yet Tobin persisted. In late October, he asked
for photos of C.T. wearing “inappropriate” Halloween costumes she had received
by mail. In early November, according to her testimony, Tobin “gave [her] oral sex”
at the police station. After that, they continued to engage in sex acts both at the
2 A.T. also testified that she was present at the station when Tobin was showing
that video, but she was “not paying attention.” A.T. added that she “didn’t want to see the pictures of naked girls” because “that’s disgusting.” 5
station and in the patrol car during ride-alongs.3 Tobin also asked C.T. to send
him sexually explicit photos of herself. She testified: “He wanted me to put my
phone in between my legs and take a picture of both genital holes.” She did as he
asked. Tobin told both C.T. and A.T. to delete any messages from him.
In February 2022, C.T. was at the station when her friend L.M. sent a
Snapchat photograph of her bare buttocks, “asking if it looked good.” C.T. recalled
that Tobin told her to ask L.M. for more photos like that. C.T. texted L.M.: “send
more my love.” C.T. also testified that Tobin expressed concern when he learned
that L.M. knew about his sexual relationship with C.T. According to C.T., his
proposed solution was to “invite her to have a threesome, and that way she
wouldn’t be able to say anything.”
That same month, on Valentine’s Day, C.T. spent the evening at the police
station, having sex with Tobin. After sex, she was giving him a foot massage when
the Clarksville mayor walked in. The mayor asked Tobin why she was there. Tobin
lied, telling the mayor that he was fixing C.T.’s car, which she would park inside
the station’s garage to avoid suspicion. Also around Valentine’s Day, C.T. thought
she might be pregnant and took a home pregnancy test, which her mother found.
C.T. lied to her mother, telling her that she was involved with “a random guy from
school.” In reaction, her mother grounded C.T. and took away her phone.
Without her phone, C.T. switched to contacting Tobin by Google Docs that
she accessed through her school-issued Chromebook. C.T. recalled that their
3 Unbeknownst to C.T., Tobin was also having sex with A.T. that summer. A.T. testified that Tobin also showed her the Cody Blue file, making jokes about the victims in that case. 6
exchanges included “a lot of sexual communication.” For instance, Tobin sent her
a “picture of him in a mirror. He was completely unclothed with only cowboy boots
on.” He also requested more nude photos of C.T. and sent her links to videos on
a pornography website. C.T. revealed that she often had these sexually charged
communications with Tobin during her Advanced Placement (AP) government
class. In AP government, C.T. sat next to M.C., who disapproved of her
relationship with Tobin. M.C. could see them talking on the Google Doc and was
“really grossed out” by the sexually explicit nature of their conversation.
Concerned that her friend was being “groomed,” M.C. reported the incident to
school officials.
The school principal’s inquiry led to a criminal investigation against Tobin.
Because of the conflict with local officers, Special Agent Matthew Schalk with the
Iowa Division of Criminal Investigation led that investigation. Armed with witness
interviews and digital files, the State charged Tobin with eleven counts of sexual
exploitation, including two class “C” felonies under Iowa Code section 728.12(1)
for soliciting sexually explicit photos of minors (counts one and two), one class “D”
felony under section 728.12(2) for promoting a sexually explicit video of a minor
(count three) and eight aggravated misdemeanors under section 728.12(3) for
possessing explicit images of minors (counts four through eleven). In counts three
through eleven, the trial information alleged that Tobin did not promote or possess
the sexually explicit images for any law enforcement purposes because he showed
them to C.T. 7
The jury convicted Tobin as charged, and the court sentenced him to a term
not to exceed fifteen years in prison followed by a lifetime special sentence under
chapter 903B. He appeals.
II. Analysis
A. Sufficiency of the Evidence
Tobin raises two challenges to the State’s proof of sexual exploitation in
counts three through eleven. First, he contends the State did not prove that he
promoted or possessed the explicit images outside of his capacity as a police
officer. Alternatively, Tobin claims that testimony from C.T. and Agent Schalk
could only prove his promotion of the video (count three) and his possession of
two other images (counts eight and nine).
We review his sufficiency claims for the correction of legal error. State v.
Kieffer, 17 N.W.3d 651, 655 (Iowa 2025). We will not disturb the jury’s verdicts if
they are supported by substantial evidence. Id. Evidence is substantial if it can
persuade a reasonable fact finder that the accused is guilty beyond a reasonable
doubt. Id. When assessing sufficiency, we view the record in the light most
favorable to the State, embracing all reasonable inferences we may fairly draw
from the evidence. Id.
Our assessment starts with the marshaling instructions for the challenged
counts. For count three, the State had to prove these elements:
1. [B]etween September 1, 2021, and November 1, 2021, the defendant knowingly promoted printed material, picture, photograph, motion picture, or other pictorial representation or recording. 2. The material depicted a live performance of a person under the age of 18 years engaging in fondling or touching the pubes or genitals of a minor. 8
For counts four through eleven, the State had to prove these elements for
eight minors—identified by their initials:
1. [B]etween September 1, 2021, and November 1, 2021, the defendant knowingly possessed a negative, slide, book, magazine, or other print or visual medium; 2. That material shows [. . .], a person under the age of 18 years, engaging in a prohibited sexual act . . . .
The jury found that the State satisfied its burden on all nine counts. Tobin
now contests those verdicts.
1. Performance of Official Duties
Recognizing his role as lead investigator in the Cody Blue case, Tobin did
not dispute his access to the images in that file. Neither did he contest that the
images as charged in counts three through eleven “depict[ed] female minors
engaged in prohibited sexually explicit acts or simulations.” And for each count,
he stipulated that the named victim was a minor when the image was created. In
accepting the stipulation, the court said its purpose was to avoid calling the minors
depicted as witnesses and to “streamline matters” at trial.
Given those admissions, Tobin focused his defense on Iowa Code
section 728.12(4), which provides an exception to sexual exploitation for law
enforcement officers who handle explicit images in the performance of their official
duties.4 He contends that the State did not prove that his promotion or possession
of the depictions in counts three through eleven fell outside his role as a police
4 The court instructed the jury that “[a]n exception to the charges against the defendant is if his conduct occurred in the performance of his official duty as a law enforcement officer. The State contends the alleged acts were not part of his performance of his official duty as a law enforcement officer.” 9
officer.5 To support this contention, he notes that he only accessed the explicit
images on his work computer. He also claims that the exception at
section 728.12(4) applies because he “showed them to C.T. and A.T. in the police
department while he was on duty, while they were participating in a ride-along
program with the Clarksville Police Department.”
The State refutes Tobin’s claim that his actions were in the performance of
his official duties. In the State’s view,
the evidence showed that Tobin accessed the Cody Blue file and showed the explicit images and video to C.T. and her sister, as a way to add more of a sexual dimension to his interactions with them and to erode boundaries that he hoped to cross for sexual gratification— not for any purpose related to a legitimate law-enforcement function.
As its bottom line, the State argues that Tobin’s scope of duty was a fact question
for the jury to decide. Cf. Bodin v. Vagshenian, 462 F.3d 481, 484–86 (5th Cir.
2006) (explaining in appeal under the Federal Tort Claims Act that scope-of-duty
determinations were generally fact questions but noting that trial court’s finding that
employee’s conduct was motivated by personal gratification “forecloses the
conclusion that he was acting within the scope of his employment”).
We agree that the State presented sufficient evidence for the jury to find
that Tobin was not performing his official duties when possessing or promoting the
sexually explicit images of minors.
On the promotion count, the jury could accept C.T.’s testimony that Tobin
“opened up” the Cody Blue file on his computer and played a video showing “a girl
5 The court instructed the jury that “promote” means to “procure, manufacture,
issue, sell, give, provide, lend, mail, deliver, transfer, transmute, transmit, publish, distribute, circulate, disseminate, present, exhibit or advertise.” See Iowa Code § 728.1(8). But the court did not define “possession” in the jury instructions. 10
masturbating with a hair brush.” Reasonable jurors could easily find that Tobin
was not performing his official duties when showing that video to C.T.—telling her
that “it was Cody’s fetish.” And C.T. testified that Tobin wasn’t doing any police
work when exhibiting the video.
On the possession counts, the law enforcement exception did not immunize
Tobin’s act of showing the sexually explicit images to C.T. to satisfy his personal
motivations removed from any law enforcement role. Cf. Godar v. Edwards, 588
N.W.2d 701, 707 (Iowa 1999) (addressing question of respondeat superior and
finding alleged sexual abuse by Edwards was “conduct so far removed from his
authorized duties” as a school district employee that the scope of his employment
was properly determined by the court). True, the court did not define possession
for the jury. But Tobin stipulated that he had access to the Cody Blue file. When
he used that access to show the explicit images to a civilian, without any
connection to an ongoing investigation, and with whom he desired a sexual
relationship, his possession fell outside his official duties. As the State
persuasively argues, “While he may have ‘possessed’ those files for a legitimate
law-enforcement purpose while they lay dormant in his folders, that possession
exceeded the scope of his law-enforcement duties when he showed them to
teenage girls whom he was trying to groom for sex.” Contrary to Tobin’s argument,
the State’s evidence was sufficient to show that he promoted and possessed the
images outside his role as a law enforcement officer.
2. Identification of Specific Images
Beyond asserting that he was acting in his official role, Tobin argues that
the State only presented proof that he promoted the video in count three and 11
possessed the images of H.G. in count eight and M.H. in count nine. He asks us
to vacate his convictions on counts four, five, six, seven, ten, and eleven.
To support this fallback argument, Tobin points to C.T.’s testimony that she
could identify only two of the minors in images from the Cody Blue file—H.G. and
M.H.—who were classmates from her high school. C.T. also recalled seeing a girl
masturbating in the video. The only other specific image that she recalled was “a
Snapchat picture of a girl taking nudity pictures in the mirror, and she had a red
squiggly line over her face.” But the State did not connect that image to counts
four, five, six, seven, ten, or eleven—each of which listed the initials of a specific
victim. For her part, A.T. testified that she did not look at the images because they
were “disgusting.” And, according to Tobin, the State did not gain any helpful
details from the testimony of Agent Schalk, who interviewed C.T. Schalk recalled
showing C.T. about twenty redacted images from the roughly one-hundred
photographs in the Cody Blue file. He testified: “There was some images that she
saw where she knew the person in the image and then there was images she either
just confirmed that she had seen that image before.” Schalk offered nothing
beyond those generalities.
The State challenges the premise of Tobin’s argument, asserting that “Tobin
was not convicted for showing those materials to C.T.—he was convicted for
possessing them.” See Iowa Code § 728.12(3). In the State’s view, proof that
Tobin “showed at least some of the explicit materials within that file to C.T. and her
sister was proof that he had accessed/possessed the whole file (and its stipulated
contents) while acting outside of the scope of any official duty.” 12
Trouble is, the State’s theory—from the filing of the trial information—has
been that Tobin was acting outside of his police role because he showed the
explicit images to C.T. The district court explained its basis for denying the defense
motion for judgment of acquittal: “I think the evidence is that the materials in Counts
4 through 11 were shown to C.T., which is what is alleged.” And on appeal, the
State acknowledges that the touchstone for Tobin’s unlawful possession of the
images was “when he showed them to [the] teenage girls”—not when they “lay
dormant in his folders.” So because C.T. could identify only two photos that Tobin
showed her, the State did not prove that Tobin possessed the other images outside
of his official duties. And the stipulation does not save the State. In it, Tobin
conceded the sexually explicit content of the images charged in counts three
through eleven and that the images depicted specific minors. He also stipulated
to having access to the images because “he was investigating the Cody Blue
case.” But Tobin did not stipulate that he was guilty of those counts. 6
Because the State failed to offer evidence to support its allegations that
Tobin showed the images to C.T. for counts four, five, six, seven, ten, and eleven,
those convictions cannot stand. The proof presented at trial—even viewed in the
light most favorable to the State—could not convince a rational jury of Tobin’s guilt
for those counts. See State v. Fenton, 13 N.W.3d 573, 579–80 (Iowa 2024). In its
6 The trial prosecutor misrepresented the strength of the stipulation in closing argument, saying: Now let’s talk about the evidence. Like I say, I don’t think they’ll sit here and challenge Count IV to Count XI. They simply can’t. They have a stipulation to it. I don’t think they’ll fairly come here and tell you, ‘Oh, don’t find him guilty of that.’ I don’t think so. They stipulated to it. 13
appellee’s brief, the State argued that if we did reach this outcome, the correct
remedy is to vacate Tobin’s convictions on counts four, five, six, seven, ten, and
eleven and remand for resentencing on counts one, two, three, eight, and nine.
We agree with that remedy. See State v. Vandermark, 965 N.W.2d 888, 895 (Iowa
2021) (explaining the appellate court may remand for resentencing even if
sentences are severable).
B. Evidentiary Challenges
Next, Tobin renews his objections to two evidentiary rulings. First, he
contends the district court should have excluded testimony from C.G., a twenty-
year-old woman who had a sexual relationship with Tobin contemporaneous to his
liaisons with C.T. and A.T. Second, he urges that the court should have allowed
him to ask C.T. about her revelation on a TikTok video, offered into evidence by
the State, that she was bisexual. We review both claims to see if the court abused
its discretion. See State v. Alberts, 722 N.W.2d 402, 407 (Iowa 2006) (rape shield);
State v. Thoren, 970 N.W.2d 611, 620 (Iowa 2022) (other bad acts).
1. Admission of Other Bad Acts Evidence
Before trial, Tobin moved to exclude testimony from C.G., who met Tobin in
2019 when she worked as a clerk at the local convenience store. At first, he just
flirted with her, but when they started texting in 2021, their conversations turned
sexual. Like C.T. and A.T., C.G. would meet Tobin for trysts at the police station
while he was on duty late at night. He also asked her to send him nude pictures
of herself. And he texted her nude photos of himself, asking her to delete them.
In his motion in limine, Tobin urged that C.G. had no relevant information
and the State was only using her testimony for “character assassination.” He 14
argued the evidence of his sexual relationship with C.G. was inadmissible under
Iowa Rule of Evidence 5.404(b). Under that rule, “[e]vidence of any other crime,
wrong, or act is not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the character.” Iowa
R. Evid. 5.404(b)(1). In other words, the rule prohibits evidence that “serves no
purpose except to show the defendant is a bad person.” State v. Rodriquez, 636
N.W.2d 234, 239 (Iowa 2001). But such evidence “may be admissible for another
purpose such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Iowa R. Evid. 5.404(b)(2).
Rule 5.404(b) is a rule of exclusion. See State v. Wilde, 987 N.W.2d 486,
495–96 (Iowa Ct. App. 2022). Unless the prosecutor offers a legitimate,
noncharacter theory of admissibility, the bad-acts evidence must be kept out.
Thoren, 970 N.W.2d at 625. Admissibility depends on three questions: (1) was the
evidence relevant to a disputed factual issue, (2) is there clear proof the defendant
engaged in the act, and (3) does the danger of unfair prejudice from its admission
substantially outweigh the act’s probative value? Id. at 626.
The trial prosecutor contended that the State needed C.G.’s testimony to
show that Tobin had “no legitimate purpose to possess the photos” and his
possession was not a mistake or an accident. The prosecutor also argued that the
evidence went to Tobin’s intent, motive, “and all the other factors that 404(b)
allows.” The district court denied Tobin’s motion to exclude, noting that C.G.’s
encounters with Tobin revealed “similar facts” at a “similar time” to the conduct
reported by C.T. From there, the court decided “it goes to proof of the State’s
theory of the defendant’s plan or intent.” 15
During trial, Tobin renewed his objection to C.G.’s testimony. But the court
stuck to its ruling:
We’ve had similar testimony from other witnesses that this is the way that the defendant acted towards [C.T.], and that there’s been challenge or at least a question raised regarding her credibility about the incidents. And to have similar acts is relevant in order to show . . . essentially, a common scheme taking place here.
The court allowed C.G. to testify about her sexual relationship with Tobin and
admitted two exhibits containing a series of sexually explicit text messages,
including a semi-nude photo of Tobin.
But to guard against the jury misusing the evidence, the court gave this
limiting instruction:
[Y]ou will hear evidence from the next witness, [C.G.], concerning [her] relationship with the defendant. Considerations of this evidence is limited to understanding if there was a motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident regarding defendant’s relationship with [C.T.]. The defendant is not on trial concerning [C.G.].
Dissatisfied with that measure, Tobin reprises his objection to C.G.’s
testimony on appeal.7 His attack is three-pronged. One, he argues that his
extramarital affair with C.G. was not relevant to his intent or lack of mistake
because he did not deny having a sexual relationship with C.T. Two, Tobin
contends that C.G.’s testimony was inadmissible to prove a common scheme or
plan because evidence of his relationship with C.G. “involves wholly independent
acts” and an unrelated sexual partner. Thoren, 970 N.W.2d at 632. Three, he
balks at the State’s suggestion that the evidence was admissible to bolster C.T.’s
7 We agree with Tobin that the limiting instruction was not “specifically tailored to
the reasons for allowing the testimony.” But it did properly advise the jury that he was not on trial for his conduct with C.G. 16
credibility. For that third point, he quotes State v. Mitchell: “If the State is allowed
to prevail on its theory that there is an independent relevancy to bad-acts evidence
for credibility purposes, this doctrine could be invoked in nearly every criminal
case.” 633 N.W.2d 295, 300 (Iowa 2001). Tobin adds: “Allowing a jury to consider
the evidence for credibility purposes is essentially allowing it to use it for propensity
purposes.” Thoren, 970 N.W.2d at 631.
On appeal, the State retreats from its trial position. The State now concedes
that C.G.’s testimony did not show a common scheme or plan. Instead, the State
argues that C.G.’s testimony was admissible to “corroborate” certain details of
C.T.’s testimony. But the State insists that this case differs from Mitchell and
Thoren. According to the State, in those cases, “the credibility-bolstering effect” of
the other-acts evidence “could only arise from a propensity inference.” In other
words, “he did it before so he must be lying about not doing it now.” By contrast,
here, the State argues that it needed C.G.’s testimony to show that, like C.T., she
was asked by Tobin to delete his compromising messages. And to show how he
used the same method to let them into the police station at night. If we don’t accept
that distinction, the State asks us to find that admission of C.G.’s testimony was
harmless error.
We choose that last option. Assuming without deciding that C.G.’s
testimony should have been excluded under rule 5.404(b), we find its admission
did not prejudice Tobin’s defense. Tobin “may claim error in a ruling to admit or
exclude evidence only if the error affects [his] substantial right[s].” Iowa R.
Evid. 5.103. When, as here, the defendant claims a nonconstitutional error, the
test is whether his rights have been “injuriously affected by the error” or whether 17
he has “suffered a miscarriage of justice.” See State v. Parker, 747 N.W.2d 196,
209 (Iowa 2008). We presume prejudice and reverse unless the record
affirmatively shows otherwise. Id.
Several factors show that Tobin was not prejudiced. First, the district court
gave the jury a limiting instruction just before C.G.’s testimony. “We have often
recognized the importance limiting instructions have in minimizing prejudice.”
State v. Martin, 704 N.W.2d 665, 673 (Iowa 2005).8 Second, C.G.’s testimony did
not forge new ground. A.T. testified to many of the same corroborative facts as
C.G. without objection. See State v. Duncan, 710 N.W.2d 34, 45 (Iowa 2006)
(finding no reversible error where “the testimony was cumulative”). Third, through
C.T.’s testimony, the State offered very strong evidence on counts one, two, three,
eight, and nine. See Wilde, 987 N.W.2d at 498 (noting strength of State’s case
can make error harmless). So we decline to order a new trial on this ground.
2. Rape Shield Ruling
Tobin’s second evidentiary challenge involves Iowa’s rape shield rule. In
proceedings involving alleged sexual misconduct, evidence is inadmissible if it is
(1) offered to prove that a victim engaged in other sexual behavior or (2) offered to
prove a victim’s sexual predisposition. Iowa R. Evid. 5.412(a).
Tobin claims that the district court misapplied this rule in granting the State’s
motion to exclude evidence of C.T.’s bisexuality. To set the stage, we consider
C.T.’s direct testimony, during which the State offered Exhibit 43, a TikTok video
8 We recognize that the limiting instruction did not “identify the specific purpose or purposes to which the evidence [was] relevant.” Thoren, 970 N.W.2d at 627. But it did caution the jury that Tobin was “not on trial for” his conduct with C.G. See State v. Putman, 848 N.W.2d 1, 15 (Iowa 2014). 18
of C.T. and her sister A.T. lip-syncing to a song in the police station while Tobin
stood watching. The lyrics included: “Oh my, oh my, oh my God. This girl straight
and this girl not.” On cross-examination, defense counsel asked C.T. about the
significance of those lyrics. She responded: “I came out as bi in that to Tobin.”
The prosecutor objected under rule 5.412, asking for C.T.’s response to be
stricken from the record. Defense counsel responded: “Your Honor, he opened
the door by playing the video.” Outside the presence of the jury, the prosecutor
countered: “[T]here’s no door open from the State. I mean, there was nothing that
was mentioned about her sexuality. Nothing about that in the video, or anything
to that extent.” The court questioned the relevancy of C.T.’s sexuality. Defense
counsel pointed out that C.T. had testified how her friend L.M. sent her a photo of
her naked buttocks “asking if it looked good.” And C.T. recalled: “Tobin instructed
that I text her and ask her for more.” Defense counsel suggested the video drew
that testimony into question—“but stating that she’s bisexual, it puts into doubt
whether he’s the one requesting them or she is.” The court ruled that the evidence
of C.T.’s “sexual predisposition” should be excluded under rule 5.412(a). And it
granted the State’s motion to strike C.T.’s answer to defense counsel’s question
about the significance of the lyrics.
Tobin challenges that ruling on appeal, claiming that the district court
misapplied rule 5.412(a). He asserts that L.M., not C.T., was the sexual
exploitation victim under count two, the class “C” felony. From there, he notes that
the rape shield rule applies only “to prohibit the admission of other sexual behavior
or sexual predisposition of victims, it does not prohibit the admission of C.T.’s
sexual orientation to allow for Tobin to defend himself against allegations he 19
solicited L.M. for a nude photo.” Tobin also maintains that he was prejudiced by
the erroneous exclusion of evidence suggesting that C.T. had a personal motive
to solicit the sexually explicit photographs of L.M. In his view, “Given that the
request came from C.T.’s Snapchat account and did not identify Tobin as the
actual person making the request, Tobin’s defense that he did not tell C.T. to ask
for the images is probable, particularly in light of C.T.’s sexual orientation.”
The State defends the rape-shield ruling on four levels. First, it contends
that Tobin didn’t preserve error on this “interesting argument” because he did not
present it to the district court. Second, it argues C.T. was a victim of that solicitation
offense because Tobin “instructed that [she] text L.M and ask her for more” nude
photos. Third, the State suggests that we could bypass the rape shield issue and
decide that C.T.’s sexual orientation was inadmissible under rule 5.404(a)(1)
(“Evidence of a person’s character or character trait is not admissible to prove that
on a particular occasion the person acted in accordance with the character or
trait.”). Fourth and finally, the State contends that any error in the court’s rape-
shield ruling was harmless.
We choose to bypass the State’s error preservation argument and affirm
the district court on the merits. In doing so, we keep in mind that the purpose of
rule 5.412 is “to (1) protect the privacy of victims, (2) encourage reporting, and
(3) prevent time-consuming and distracting inquiry into collateral matters.” State
v. Mitchell, 568 N.W.2d 493, 497 (Iowa 1997). Tobin’s argument that C.T. was not
the victim of count two—even if it had been presented to the district court—does
not carry the day. C.T. was “a victim” of another count tried in these proceedings,
which involved sexual misconduct. So evidence offered to prove her sexual 20
predisposition was inadmissible under the plain language of rule 5.412(a). The
district court did not abuse its discretion in excluding that evidence.
III. Summary
To recap, we vacate Tobin’s possession convictions on counts four, five,
six, seven, ten, and eleven and remand for entry of judgment of acquittal on those
counts. We affirm his convictions on counts one, two, three, eight, and nine, and
remand for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR
RESENTENCING.