IN THE COURT OF APPEALS OF IOWA
No. 21-0206 Filed August 17, 2022
STATE OF IOWA, Plaintiff-Appellee,
vs.
ROBERT CONWAY, III, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Grundy County, Bradley J. Harris,
Judge.
A defendant appeals his conviction for lascivious acts with a minor.
AFFIRMED.
Jennifer Frese of Kaplan & Frese, LLP, Marshalltown, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., Chicchelly, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022). 2
GAMBLE, Senior Judge.
Robert Conway appeals his convictions for lascivious conduct with a minor.
He claims the district court abused its discretion by excluding evidence under the
rape-shield law and admitting evidence of his silence. He also claims the court
should have granted his motion for new trial based on the inconsistency in the
verdicts.1 We affirm.
I. Background Facts and Prior Proceedings
In March 2018, law enforcement became aware of allegations that Conway
sexually abused H.W. in 2017. Kirk Dolleslager, the chief deputy of the Grundy
County Sheriff’s department, contacted Conway as part of the investigation. He
informed Conway of the sexual abuse allegations, and Conway said he would “get
back ahold of” Dolleslager. Dolleslager called Conway three times in an attempt
to speak with him, but was not successful in contacting Conway again.
The State eventually charged Conway with sexual abuse in the third degree
(count I); sexual exploitation of a minor (count II); telephone dissemination of
obscene material to a minor (count III); and lascivious acts with a minor (count IV).
1Conway also makes passing reference to a proposed instruction the district court declined to submit to the jury. It stated, [I]n this case you heard evidence that the defendant did not return calls from law enforcement. The defendant is under no obligation to cooperate with law enforcement, and no inference of guilty shall be drawn from that fact. The burden of proof remains upon the State to prove the guilt of the defendant. However, Conway does not develop an argument as to how the court erred in denying this instruction. So this claim is waived. See State v. Louwrens, 792 N.W.2d 649, 651 n.1 (Iowa 2010) (“[P]assing reference to an issue, unsupported by authority or argument, is insufficient to raise the issue on appeal.”). 3
In anticipation of trial, Conway filed a “notice of intent to proffer evidence
pursuant to Iowa Rule of Evidence 5.412,” Iowa’s rape-shield law. He claimed
H.W. had made prior false “allegations of sexual abuse against several people.”
The district court held a pre-trial hearing on the matter and issued a written order.
In its ruling, the court determined that Rule 5.412 was inapplicable to some of the
proposed evidence because it did not relate to the sexual conduct of H.W. and it
prohibited introduction of the remaining proposed evidence because Conway
failed to show by a preponderance of the evidence that H.W.’s prior allegations
were false.
The morning of trial, Conway argued2 (outside the presence of the jury) that
any references to him telling Chief Deputy Dolleslager that he would speak to a
lawyer or that he did not call Dolleslager back would implicate his right to counsel
and right to remain silent so those statements should be prohibited. He also
claimed the statements were not relevant and even if they were, they could not
pass a Rule 5.403 balancing test. The State clarified that it did not intend to offer
the fact that Conway referenced an attorney—only “that he had stated that he
would get back to [Dolleslager] and did not.” The court determined it would allow
testimony that Conway was aware of the investigation and that he did not return
phone calls but prohibited references to Conway wanting to contact an attorney.
With that, the jury trial commenced, and Conway testified in his own
defense. Following submission of the case to the jury, it returned not guilty verdicts
2From the transcript, we understand defense counsel sent an email containing a corresponding written argument to the trial judge and the prosecutor. However, it appears counsel never filed anything through EDMS, so we do not have access to counsel’s written arguments. 4
on counts I, II, and III. However, the jury found Conway guilty of count IV. In
response, Conway filed a motion for new trial claiming, among other things, that
the jury’s verdicts were inconsistent. The court denied the motion, finding that the
verdicts were not inconsistent.
Conway appeals.
II. Standard of Review
When reviewing Conway’s various claims, we employ varying standards of
review. “We review trial court rulings on admissibility of evidence under rule 5.412
in criminal prosecutions for abuse of discretion.” State v. Alberts, 722 N.W.2d 402,
407 (Iowa 2006). So “[r]eversal is warranted only upon showing the ‘court
exercise[d] its discretion on grounds or for reasons clearly untenable or to an
extent clearly unreasonable.’” Id. at 408 (alteration in original) (citation omitted).
To the extent a claim takes on a constitutional dimension, our review is de novo.
State v. Cox, 781 N.W.2d 757, 760 (Iowa 2010). “The consequence of a potentially
inconsistent jury verdict is a question of law, and accordingly, our review is de
novo.”3 State v. Montgomery, 966 N.W.2d 641, 649 (Iowa 2021) (citation omitted).
3Normally, our review of questions of law is for errors of law. See State v. Allen, 965 N.W.2d 909, 911 (Iowa 2021). However, the supreme court has stated, “[T]he question of the validity of an inconsistent verdict . . . can be approached only with due regard to important constitutional concepts including double jeopardy, guilt beyond a reasonable doubt, and the right to a unanimous jury verdict.” State v. Halstead, 791 N.W.2d 805, 808 (Iowa 2010). “To the extent constitutional issues are raised, review is de novo.” Id. at 807. 5
III. Discussion
A. The Rape-Shield Law
First, Conway claims the district court abused its discretion when it
prevented him from presenting evidence that H.W. made prior false allegations of
sexual activity.
Generally, the rape-shield law prevents a defendant from introducing
evidence of a complaining witness’s prior sexual activity. See Iowa R.
Evid. 5.412(a). But see Iowa R. Evid. 5.412(b) (providing limited exceptions to the
prohibition). However, the “false claims of sexual activity do not fall within the
coverage of our rape-shield law.” Alberts, 722 N.W.2d at 409. So for a defendant
to be able to introduce a complaining witness’s false allegations of sexual activity,
they “must first make a threshold showing to the trial judge outside the presence
of the jury that (1) the complaining witness made the statements and (2) the
statements are false, based on a preponderance of the evidence.” Id.
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IN THE COURT OF APPEALS OF IOWA
No. 21-0206 Filed August 17, 2022
STATE OF IOWA, Plaintiff-Appellee,
vs.
ROBERT CONWAY, III, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Grundy County, Bradley J. Harris,
Judge.
A defendant appeals his conviction for lascivious acts with a minor.
AFFIRMED.
Jennifer Frese of Kaplan & Frese, LLP, Marshalltown, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., Chicchelly, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022). 2
GAMBLE, Senior Judge.
Robert Conway appeals his convictions for lascivious conduct with a minor.
He claims the district court abused its discretion by excluding evidence under the
rape-shield law and admitting evidence of his silence. He also claims the court
should have granted his motion for new trial based on the inconsistency in the
verdicts.1 We affirm.
I. Background Facts and Prior Proceedings
In March 2018, law enforcement became aware of allegations that Conway
sexually abused H.W. in 2017. Kirk Dolleslager, the chief deputy of the Grundy
County Sheriff’s department, contacted Conway as part of the investigation. He
informed Conway of the sexual abuse allegations, and Conway said he would “get
back ahold of” Dolleslager. Dolleslager called Conway three times in an attempt
to speak with him, but was not successful in contacting Conway again.
The State eventually charged Conway with sexual abuse in the third degree
(count I); sexual exploitation of a minor (count II); telephone dissemination of
obscene material to a minor (count III); and lascivious acts with a minor (count IV).
1Conway also makes passing reference to a proposed instruction the district court declined to submit to the jury. It stated, [I]n this case you heard evidence that the defendant did not return calls from law enforcement. The defendant is under no obligation to cooperate with law enforcement, and no inference of guilty shall be drawn from that fact. The burden of proof remains upon the State to prove the guilt of the defendant. However, Conway does not develop an argument as to how the court erred in denying this instruction. So this claim is waived. See State v. Louwrens, 792 N.W.2d 649, 651 n.1 (Iowa 2010) (“[P]assing reference to an issue, unsupported by authority or argument, is insufficient to raise the issue on appeal.”). 3
In anticipation of trial, Conway filed a “notice of intent to proffer evidence
pursuant to Iowa Rule of Evidence 5.412,” Iowa’s rape-shield law. He claimed
H.W. had made prior false “allegations of sexual abuse against several people.”
The district court held a pre-trial hearing on the matter and issued a written order.
In its ruling, the court determined that Rule 5.412 was inapplicable to some of the
proposed evidence because it did not relate to the sexual conduct of H.W. and it
prohibited introduction of the remaining proposed evidence because Conway
failed to show by a preponderance of the evidence that H.W.’s prior allegations
were false.
The morning of trial, Conway argued2 (outside the presence of the jury) that
any references to him telling Chief Deputy Dolleslager that he would speak to a
lawyer or that he did not call Dolleslager back would implicate his right to counsel
and right to remain silent so those statements should be prohibited. He also
claimed the statements were not relevant and even if they were, they could not
pass a Rule 5.403 balancing test. The State clarified that it did not intend to offer
the fact that Conway referenced an attorney—only “that he had stated that he
would get back to [Dolleslager] and did not.” The court determined it would allow
testimony that Conway was aware of the investigation and that he did not return
phone calls but prohibited references to Conway wanting to contact an attorney.
With that, the jury trial commenced, and Conway testified in his own
defense. Following submission of the case to the jury, it returned not guilty verdicts
2From the transcript, we understand defense counsel sent an email containing a corresponding written argument to the trial judge and the prosecutor. However, it appears counsel never filed anything through EDMS, so we do not have access to counsel’s written arguments. 4
on counts I, II, and III. However, the jury found Conway guilty of count IV. In
response, Conway filed a motion for new trial claiming, among other things, that
the jury’s verdicts were inconsistent. The court denied the motion, finding that the
verdicts were not inconsistent.
Conway appeals.
II. Standard of Review
When reviewing Conway’s various claims, we employ varying standards of
review. “We review trial court rulings on admissibility of evidence under rule 5.412
in criminal prosecutions for abuse of discretion.” State v. Alberts, 722 N.W.2d 402,
407 (Iowa 2006). So “[r]eversal is warranted only upon showing the ‘court
exercise[d] its discretion on grounds or for reasons clearly untenable or to an
extent clearly unreasonable.’” Id. at 408 (alteration in original) (citation omitted).
To the extent a claim takes on a constitutional dimension, our review is de novo.
State v. Cox, 781 N.W.2d 757, 760 (Iowa 2010). “The consequence of a potentially
inconsistent jury verdict is a question of law, and accordingly, our review is de
novo.”3 State v. Montgomery, 966 N.W.2d 641, 649 (Iowa 2021) (citation omitted).
3Normally, our review of questions of law is for errors of law. See State v. Allen, 965 N.W.2d 909, 911 (Iowa 2021). However, the supreme court has stated, “[T]he question of the validity of an inconsistent verdict . . . can be approached only with due regard to important constitutional concepts including double jeopardy, guilt beyond a reasonable doubt, and the right to a unanimous jury verdict.” State v. Halstead, 791 N.W.2d 805, 808 (Iowa 2010). “To the extent constitutional issues are raised, review is de novo.” Id. at 807. 5
III. Discussion
A. The Rape-Shield Law
First, Conway claims the district court abused its discretion when it
prevented him from presenting evidence that H.W. made prior false allegations of
sexual activity.
Generally, the rape-shield law prevents a defendant from introducing
evidence of a complaining witness’s prior sexual activity. See Iowa R.
Evid. 5.412(a). But see Iowa R. Evid. 5.412(b) (providing limited exceptions to the
prohibition). However, the “false claims of sexual activity do not fall within the
coverage of our rape-shield law.” Alberts, 722 N.W.2d at 409. So for a defendant
to be able to introduce a complaining witness’s false allegations of sexual activity,
they “must first make a threshold showing to the trial judge outside the presence
of the jury that (1) the complaining witness made the statements and (2) the
statements are false, based on a preponderance of the evidence.” Id.
Here, Conway argues he established by a preponderance of the evidence
that H.W. made false allegations of sexual activity involving three people (Kain
Redix, Chris Conway, and Tim Hampton) that should have been permitted.4 We
disagree.
First, as the district court pointed out, the rape-shield law is inapplicable to
the evidence Conway wished to present regarding Kain. Conway wanted to
introduce evidence H.W. claimed Kain made sexually explicit statements to her
4 Of course even if the proposed evidence was not prohibited by the rape-shield law, it would still “remain subject to all other applicable evidentiary requirements and considerations.” Alberts, 722 N.W.2d at 410 (citation omitted). 6
and she ran away but Kain denied the exchange ever occurred. This does not
involve any allegations of H.W.’s sexual activity, so the rape-shield law is not
applicable and would not prohibit this evidence, which the district court made clear
in its ruling. Specifically, the court “determine[d] that Rule 5.412 is not applicable
to this evidence. The evidence may therefore be admissible if it meets all other
applicable evidentiary requirements and considerations.” So the district court’s
ruling did not prevent Conway from introducing this evidence. Yet Conway never
attempted to introduce the evidence at trial. So there is nothing for Conway to
appeal.
Second, as to Chris and Tim, Conway failed to establish H.W. made false
statements about sexual activity involving either person by a preponderance of the
evidence. With respect to Tim, Conway claimed H.W. made false claims that she
and Tim touched each other’s genitals. But Conway only offered Tim’s denial in
an attempt to show H.W.’s claims were false. And Tim sent H.W. sexually
suggestive text messages., casting doubt on his denial. With respect to Chris,
Conway offered H.W.’s mother’s testimony wherein she stated the Iowa
Department of Human Services (DHS) investigated the claims against Chris and
determined the claims were unfounded. However, H.W. explained that her mother
talked to DHS before she did and told them a different story than she shared, so
DHS determined there was not enough consistency between them to determine
the incident was founded. H.W. stated the issue was that her mother just didn’t
really listen to her. And at the preliminary hearing, H.W.’s recounting of her sexual
contact with Chris remained consistent with her prior allegations. So Conway
failed to establish that H.W.’s claims against Tim and Chris were false by a 7
preponderance of the evidence, and the district court did not abuse its discretion
in determining Rule 5.412(1) prevented introduction of this evidence.
B. Conway’s Lack of Cooperation
Next Conway argues the district court should have prohibited the State from
presenting evidence that he did not return Dolleslager’s phone calls because it
infringed on his constitutional right to remain silent.5 He likens his prearrest
avoidance of law enforcement to a person’s silence following arrest or refusal to
testify at trial. But he presents no authority explicitly supporting his contention that
a defendant’s prearrest avoidance of law enforcement is off limits at trial.6
Rather in Jenkins v. Anderson, the Supreme Court determined “the Fifth
Amendment is not violated by the use of prearrest silence to impeach a criminal
defendant’s credibility.” 447 U.S. 231, 238 (1980). It also held “impeachment by
use of prearrest silence does not violate the Fourteenth Amendment.” Id. at 240.
This dispels Conway’s notion that there is an absolute bar on evidence of his
prearrest silence. See State v. Goodrich, No. 00-1644, 2002 WL 984477, at *4
5 Conway does not make clear whether he is bringing his claim under the state or federal constitution. Likewise he does not ask us to apply a differing standard than that applied under the Fifth Amendment to the United States Constitution, so we apply federal standards. See State v. Dewitt, 811 N.W.2d 460, 467 (Iowa 2012). 6 The State suggests Conway’s claim is most akin to alleging a Doyle v. Ohio
violation. 426 U.S. 610 (1976). In Doyle the defendant was pressed at trial about why he didn’t tell the arresting investigator that he was innocent or explain what happened. Id. at 614. The prosecution argued that the defendant’s silence could be discussed to show the defendant’s explanation at trial was fabricated at some point because he did not disclose it right away. Id. at 616–17. The Supreme Court rejected that contention and instead held that a defendant’s silence at the time of arrest and post Miranda warning, even for impeachment purposes, violates the Due Process Clause of the Fourteenth Amendment. Id. at 619. The present case differs significantly in that Conway’s avoidance of law enforcement occurred prior to any arrest or Miranda warning. 8
(Iowa Ct. App. May 15, 2002) (citing Jenkins, 447 U.S. at 235–38). And we have
previously held testimony about an investigator’s inability to complete a prearrest
interview with a defendant was permissible “when viewed in the context of the
defense’s trial strategy” because “[t]he primary strategy was to impeach the quality
of the police’s investigation.” State v. Werner, No. 16-1315, 2017 WL 2684348, at
*2 (Iowa Ct. App. June 17, 2017). That is what happened here—the defense
strategy was to attack the thoroughness of the investigation. For example, in
opening statements, defense counsel told the jury, “[Y]ou heard the prosecutor talk
about what they didn’t do. This case went from allegation to jury.” Conway
criticized the investigation throughout the trial. And in closing argument defense
counsel asserted, “Now, the investigation in this case is absolutely deplorable.” So
given “the context of the defense’s trial strategy,” evidence of Conway’s prearrest
avoidance of law enforcement preventing them from interviewing him was
permissible to meet Conway’s attack on the investigation. See id.
C. Inconsistent Verdicts
Finally we address Conway’s contention that the verdicts were inconsistent.
“A jury verdict may be deemed inconsistent based upon inconsistent application of
facts or inconsistent application of the law.” Halstead, 791 N.W.2d at 807. A
verdict is factually inconsistent when “[t]here is no legal flaw in the jury’s verdict,
but the verdicts seem inconsistent with the facts.” Id. A verdict is legally
inconsistent when a defendant is convicted of a compound crime but acquitted on
all predicate offenses. Id.
Here, it appears Conway is claiming the verdict is factually inconsistent
rather than legally inconsistent. But “our case law prohibits only legally 9
inconsistent verdicts,” so Conway’s conviction for lascivious acts with a minor is
not invalid. See State v. Huffman, No.13-1058, 2014 WL 3931416, at *4 (Iowa Ct.
App. Aug. 13, 2014). To the extent Conway claims legal inconsistency, he is not
successful. None of the counts he was acquitted of (third-degree sexual abuse,
sexual exploitation of a minor, and telephone dissemination of obscene material to
a minor) are predicate offenses of lascivious acts with a minor (the offense for
which he was convicted). Compare Iowa Code §§ 709.4(1)(b)(3)(a) (third-degree
sexual abuse), 728.12(3) (sexual exploitation for a minor), .15(1)(b) (telephone
dissemination of obscene material to a minor), with Iowa Code § 709.14 (lascivious
conduct with a minor). And for good measure, our review of the marshalling
instructions confirms Conway could commit lascivious acts with a minor as
instructed without committing the remaining three charged offenses. Halstead,
791 N.W.2d at 815. The verdicts are not factually or legally inconsistent.
Therefore, Conway is entitled to no relief.
IV. Conclusion
We affirm Conway’s conviction for lascivious acts with a minor.