IN THE COURT OF APPEALS OF IOWA
No. 16-1440 Filed November 21, 2018
STATE OF IOWA, Plaintiff-Appellee,
vs.
TOMAS TOVAR, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Mark R. Lawson,
Judge.
Tomas Tovar appeals his conviction for sexual abuse in the third degree.
AFFIRMED.
Philip B. Mears of Mears Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., Vogel, J., and Mahan, S.J.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018). 2
MAHAN, Senior Judge.
Tomas Tovar appeals his conviction for sexual abuse in the third degree in
violation of Iowa Code section 709.4(4) (2013). Tovar brings several challenges
on appeal. He contends there is insufficient evidence supporting his conviction,
his trial counsel was ineffective in failing to move for judgment of acquittal as it
relates to one of the prosecution’s alternative theories, the district court erred in
permitting the jury to reach its verdict without requiring a unanimous verdict with
regard to the prosecutor’s alternate theories, and the court erred in submitting jury
instructions for lesser-included offenses. For the foregoing reasons, we affirm his
conviction.
I. Background Facts and Proceedings
The events in question unfolded in the early morning hours of Saturday,
February 16, 2013. The complaining witness, S.M.,1 had planned a special
getaway with her boyfriend, David Faust, for that weekend. On Friday, S.M. had
a few glasses of wine at home before Faust picked her up on the way to the Clarion
hotel in Muscatine, arriving around 7:00 p.m.
S.M., Faust, and Faust’s friend then traveled to The Pearl, a local Muscatine
restaurant. While at The Pearl, S.M. ate a few buffalo wings 2 and drank around
three “regular size” long island iced teas.3 Around 10:00 p.m., the party traveled
to The Brew, a bar across the street. S.M. continued to drink, either rum and Cokes
1 We refer to the complaining witness by her initials in this opinion. At trial, she testified she identified herself by her full name in a related civil lawsuit in an effort to express to others that complaining witnesses should not feel ashamed. Our use of her initials is not a comment on this message. Rather, it follows this court’s common practice and preserves S.M.’s privacy. 2 S.M. also had a breakfast sandwich around lunchtime. 3 At trial, long island iced teas were described as containing multiple types of alcohol. 3
or long island iced teas. Faust’s friends at the bar also bought S.M. multiple shots.4
While at the Brew, S.M. began to feel extremely intoxicated. The group traveled
back to The Pearl to retrieve S.M.’s coat, and then S.M. and Faust left in Faust’s
vehicle. Faust drove and went through a Taco Bell drive-through. By this time,
S.M. was falling asleep in the passenger seat. Upon pulling out of the Taco Bell
parking lot, Muscatine police officer Minnat Patel pulled Faust over at around 2:00
a.m. Saturday morning.
Defendant Tovar, then working as a Muscatine police officer, arrived to
serve as Officer Patel’s backup. Officer Patel initially stopped Faust for driving
while barred but suspected Faust was intoxicated. While Patel talked with Faust,
Tovar went to the passenger side of the vehicle and stood next to S.M.’s window.
Though there is dash camera footage of the traffic stop and audio from Patel’s
body microphone, Tovar did not have his body microphone on during the
encounter. Patel administered several field sobriety tests to Faust and arrested
him for driving while barred and operating a vehicle while intoxicated. Tovar then
asked Faust where S.M. was staying and offered to drive her to the Clarion Hotel,
which was nearby but would require S.M. to cross a major roadway.
Patel’s dash camera shows S.M. get out of the car with significant difficulty.
She got into Tovar’s squad car for the trip to the Clarion. Like the body
microphone, Tovar’s squad car’s audio recording system did not engage, and there
is no audio recording from the trip. Tovar escorted S.M. into the hotel and into her
room. While in the room, Tovar engaged S.M. in vaginal intercourse. Tovar then
4 S.M. described shots as “really high alcohol concentrated small little things that you just take like medicine.” 4
radioed in to police dispatch to indicate he was “clear” of the call though he stayed
and continued to engage S.M. in intercourse. Shortly after, he received a call to a
domestic-disturbance incident and left the hotel. Once Tovar returned to the police
station, he told others that S.M. was so intoxicated she could not carry her own
belongings and broke the hotel key-card while trying to open the door, requiring
him to get a new key from the hotel’s front desk. He made no mention of the
intercourse.
After being released from police custody, Faust returned to the Clarion
hotel. Upon his return, he found S.M. in the nude and asleep on top of the bed’s
covers. The scene startled him because S.M. typically did not sleep this way.
When Faust woke S.M. she was confused, had little memory of the prior evening’s
events, and was still intoxicated. S.M. began to have fragmented memories of the
prior night and remembered the feeling of another person on top of her and a harsh
feeling material against her skin. Upon this revelation, Faust grew concerned that
the officer who drove S.M. to the hotel assaulted her. S.M. maintained she could
not confidently say she had intercourse with someone given the poor state of her
memory.
Faust called the police station with his concerns around 5:30 a.m.
Lieutenant Anthony Kies, Tovar’s supervisor, then confronted Tovar with Faust’s
allegation. Tovar suggested he should talk to S.M. to clear things up, emphasizing
she was very intoxicated and was likely just mistaken. Faust called the station
again, this time talking with Kies. Faust shared the details S.M. could remember
from the night before, including the harsh feeling material against her skin. Kies
had his phone on speaker during the conversation, and Tovar was also in his office. 5
At the end of the phone call, Kies told Faust he would meet Faust and S.M. at the
Clarion. Upon hearing this statement, Tovar’s demeanor changed and he removed
his outer vest. Kies had Tovar follow him out to the Clarion hotel and wait outside.
At the Clarion, S.M. prepared for Kies’s arrival by putting on her clothes from the
evening before.
Kies first stopped at the hotel’s front desk to inquire about the broken key-
card. Once Tovar became aware that Kies visited the front desk, he admitted to
Kies that he made up the story about S.M. breaking her key-card and suggested
he embellished his story to add interest. When Kies met with S.M. and Faust, it
was apparent to him that S.M. was still intoxicated and too drunk to go into the
police station at that time, around 6:00 a.m. Kies contacted Tovar in the parking
lot and instructed him to get out of the vehicle, Tovar complied and removed his
glasses. Kies asked S.M. to look out the window at Tovar and asked if she
recognized him from the night before. S.M., afraid of what Faust would do, failed
to identify Tovar. Kies took S.M. to look at the front desk attendant to see if he
was her assailant. Once out of Faust’s presence, S.M. told Kies she recognized
Tovar but said she did not want to identify him in front of Faust.
Because S.M. was still intoxicated, Kies made arrangements for her and
Faust to come into the police station around 10:30 a.m. S.M. and Faust arrived at
the police station to make a statement. While there, an officer visited the hotel
room, took photographs, retrieved S.M.’s suitcase, and collected the bedsheets.
Once the officer brought the suitcase into the station, S.M. identified the clothing
she had on the night before, the same clothing she put on earlier that morning
when Kies visited. The identified clothing and bed sheets were then preserved for 6
forensic testing. S.M. could provide little detail about the prior evening. She had
difficulty remembering her time at The Brew and the following events. She refused
to definitively say she had intercourse with anyone the night before because she
could not concretely remember anything, instead she just had flashes of memory.
Due to a possible conflict of interest, Kies turned over the investigation to
the Iowa Division of Criminal Investigation (DCI). Special Agent Richard Rahn
collected the preserved clothing and bedding from the Muscatine Police and sent
it to the DCI testing facility. Tovar’s seminal fluid was found on both the fitted sheet
and on the interior crotch of S.M.’s jeans. Upon this discovery, Tovar was charged
with sexual abuse in the third degree.
The case proceeded to a jury trial; S.M. and Tovar both testified. S.M.
maintained she had little memory of the night. Tovar admitted to the sexual
intercourse but maintained S.M. was not intoxicated and was a willing participant.
Tovar also presented expert testimony regarding memory lapses due to
intoxication. The expert indicated there are two types of blackouts: one described
as a brown out or fragmentary, which allows the individual to remember short blips
or details, and the other called an en block, which prevents the individual from
remembering anything from the period of intoxication. The jury found Tovar guilty
of third-degree sexual abuse due to sexual contact with S.M. while S.M. was either
physically helpless or mentally incapacitated. Tovar now appeals.
II. Standard of Review
We review Tovar’s challenge to the sufficiency of the evidence supporting
his conviction for correction of errors at law. See State v. Keeton, 710 N.W.2d
531, 532 (Iowa 2006). We review Tovar’s claim of ineffective assistance of counsel 7
de novo. See State v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018). We also review
Tovar’s challenges to the jury instructions for corrections of errors at law. See id.
III. Analysis
Tovar claims there is insufficient evidence supporting his conviction. He
also argues his trial counsel was ineffective in failing to move for judgment of
acquittal arguing there was insufficient evidence to conclude S.M. was physically
helpless. He claims the district court erred in not requiring the jury reach a
unanimous verdict regarding the alternate theories of physical helplessness and
mental incapacity. He also argues the court erred in submitting instructions for
lesser included offenses to the jury. We will address each claim in turn.
A. The Sufficiency of the Evidence Supporting Tovar’s Conviction
To convict Tovar of third-degree sexual abuse, the marshalling instruction
required the jury find the following:
1. On or about February 16, 2013, in Muscatine County, Iowa, the defendant performed a sext act on [S.M.] 2. The defendant performed the sex action while [S.M.] was mentally incapacitated or physically helpless and the defendant knew or reasonably should have known that [S.M.] was mentally incapacitated or physically helpless.
On appeal, this instruction is “the law of the case.” See In re Estate of Workman,
903 N.W.2d 170, 175 (Iowa 2017) (“When instruction are not objected to, they
become ‘the law of the case.’” (quoting Hoskinson v. City of Iowa City, 621 N.W.2d
425, 430 (Iowa 2001))); accord State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009).
Tovar admits a sex act occurred and only challenges the jury’s finding with regard
to the second element. 8
“A jury verdict finding of guilt will not be disturbed if there is substantial
evidence to support the finding.” State v. Robinson, 859 N.W.2d 464, 467 (Iowa
2015). Evidence is substantial if it would “convince a rational trier of fact that the
defendant is guilty beyond a reasonable doubt.” Id. (quoting State v. Torres, 495
N.W.2d 678, 681 (Iowa 1993)). We consider all evidence, but we view the record
in the light most favorable to the State. See id. Further, “[w]e draw all fair and
reasonable inferences that may be deduced from the evidence in the record.”
State v. Meyers, 799 N.W.2d 132, 139 (Iowa 2011). When reviewing the
sufficiency of the evidence, circumstantial evidence is as probative as direct
evidence. See id.
1. Mental Incapacitation
We first address the sufficiency of evidence supporting a finding of S.M.’s
mental incapacity. Jury instructions clarified “‘mentally incapacitated’ means that
a person is temporarily incapable of apprising or controlling the person’s own
conduct due to the influence of an intoxicating substance.” With this instruction
guiding our analysis, we review the available evidence.
When considered in the light most favorable to the State, a review of the
evidence reveals substantial evidence supporting a finding of S.M.’s mental
incapacitation. Tovar concedes the record supports a finding of intoxication but
argues it fails to demonstrate S.M. was so intoxicated she was incapable of
apprising or controlling her own conduct. Tovar is mistaken. S.M. testified to the
large quantity of alcohol she consumed over the course of the evening and the
little amount of food she had to eat. She cannot remember most of the evening.
According to Tovar’s expert witness, this memory loss is consistent with a form of 9
memory black out, a brown out, due to extremely high alcohol consumption. S.M.
testified she was either passing out or falling asleep in Faust’s vehicle when he
was pulled over. Dash camera footage shows S.M. exit Faust’s vehicle as she
struggles to stand and control herself, stumbling back from the front-passenger
door all the way towards the cargo area of Faust’s sport-utility vehicle as she
attempts to close the door. Officer Patel described S.M. as having “extreme
difficulty maintaining balance” and indicated she “almost tripped over her own feet.”
S.M. was still intoxicated when Officer Kies arrived at the hotel hours after the sex
act occurred. When he arrived back at the police station, Tovar also told other
officers about S.M.’s extreme intoxication and inability to carry her personal items
into the hotel. While Tovar testified he made up his story to explain why he was at
the hotel for an extended period of time, the jury was free to reject Tovar’s
explanation and instead believe the statements he made shortly after the
encounter. A jury could consider S.M.’s substantial alcohol consumption, loss of
memory, inability to stay awake mere minutes before her contact with Tovar,
inability to stand and control herself as she closed the vehicle door, lingering
intoxication into the morning, and Tovar’s own incriminating statements that S.M.
needed help to get into the hotel to infer she was incapable of apprising or
controlling her own conduct due to her intoxication during the sex act. See id.
(permitting juries reach fair and reasonable inferences).
Further, a jury could conclude Tovar knew or should have known S.M. was
mentally incapacitated. Tovar asked Faust, not S.M., where to take S.M. upon
Faust’s arrest. A reasonable juror could conclude he asked Faust, rather than
S.M., because he knew she was incapable of providing an answer due to her 10
extreme level of intoxication. He also observed her difficultly exiting Faust’s
vehicle, indicating her inability to control her conduct. Tovar also told other officers
about S.M.’s extreme intoxication and inability to enter the hotel unaided. When
considering this evidence in the light most favorable to the verdict, there is
sufficient evidence supporting Tovar’s conviction on the basis of mental
incapacitation.
2. Physical Helplessness
We next assess whether there is sufficient evidence of S.M.’s physical
helplessness to support Tovar’s conviction. The State argues Tovar failed to
preserve error on this issue by failing to bring a motion for judgment of acquittal
claiming insufficient evidence of physical helplessness. Error is preserved through
a motion for judgment of acquittal and only the specific basis alleged in the motion
is preserved on appeal. See State v. Brubaker, 805 N.W.2d 164, 170 (Iowa 2011)
(requiring a defendant file a motion for judgment of acquittal identifying specific
grounds for dismissal to preserve error on appeal when claiming insufficient
evidence); State v. Schertz, 328 N.W.2d 320, 321 (Iowa 1982) (limiting review to
specific basis alleged in motion for judgment of acquittal).
Tovar’s trial counsel stated:
We would renew our motion for judgment of acquittal as to the sex abuse. On the issue of against the will or—well, I think we took that out. On the issue of her alleged incapacity. If mentally incapacitated or physically incapacitated on the basis we don’t believe they’ve established—provided sufficient evidence to raise the jury question on the issue of whether she was incapacitated physically or mentally.
The only relevant reference in the motion is to mental incapacity. While the motion
also mentions physical incapacitation, this is a third and distinct basis for conviction 11
of third-degree sexual abuse not at issue in this case. See Iowa Code § 709.4(4)
(criminalizing sexual acts when, “[t]he act is performed while the other person is
mentally incapacitated, physically incapacitated, or physically helpless”); see also
id. § 709.1A(3) (“Physically incapacitated” means that a person has a bodily
impairment or handicap that substantially limits the person’s ability to resist or
flee.”). Because Tovar’s motion did not specifically challenge the sufficiency of the
evidence supporting a finding of physical helplessness, he has not preserved error
on this issue.
B. Ineffective Assistance of Counsel
He asserts his trial counsel was ineffective in failing to preserve error by
failing to specifically challenge the sufficiency of the evidence of physical
helplessness in the motion for judgment of acquittal.5 “Failure of trial counsel to
preserve error at trial can support an ineffective-assistance-of-counsel claim.”
Brubaker, 805 N.W.2d at 170. Ineffective-assistance-of-counsel claims are an
exception to our error preservation rules. See State v. Lucas, 323 N.W.2d 228,
232 (Iowa 1982). To succeed under the ineffective-assistance-of-counsel
framework, Tovar must show counsel failed to perform an essential duty and
resulting prejudice. See Brubaker, 805 N.W.2d at 171; see also Strickland v.
Washington, 466 U.S. 668, 687 (1984). If Tovar is unable to prove either element
by a preponderance of the evidence, then his claim fails. See Ledezma v. State,
626 N.W.2d 134, 142 (Iowa 2001). Of course, we will not conclude counsel was
5 Tovar asserts counsel was ineffective in failing to move for a directed verdict. We interpret this reference to a motion for directed verdict as a motion for judgment of acquittal. 12
ineffective for failing to raise a meritless claim. See State v. Halverson, 857
N.W.2d 632, 635 (Iowa 2015).
We must consider the merits of Tovar’s underlying claim: whether there was
sufficient evidence of S.M.’s physical helplessness. The marshalling instruction
permitted the jury to convict Tovar based on S.M.’s physical helplessness during
the sex act. The jury instructions clarify “‘physically helpless’ means that a person
is unable to communicate an unwillingness to act because the person is
unconscious, asleep, or otherwise physically limited.” Tovar argues there was
insufficient evidence of S.M.’s physical helplessness. Reviewing the evidence in
the light most favorable to the State, we conclude there is sufficient evidence of
S.M.’s physical helplessness. S.M. testified she was either passing out or falling
asleep in Faust’s car when Officer Patel pulled Faust over. This was just before
Tovar drove S.M. to the hotel and engaged her in intercourse. Most critically, S.M.
testified that while in the hotel room with Tovar, she remembers feeling as though
she “couldn’t really physically do anything.” From this evidence, the jury could
reasonably conclude S.M. was physically helpless during the sex act. Because
there is sufficient evidence supporting a finding of physical helplessness, Tovar’s
trial counsel was not ineffective in failing to argue insufficient evidence of physical
helplessness in the motion for judgment of acquittal. See id.
C. Unanimity With Regard to Alternative Theory Supporting
Conviction
Tovar argues the district court erred in submitting the following instruction:
When two or more alternative theories are presented, or where two or more facts would produce the same result, the law does not require each juror to agree as to which facts lead to his or her 13
verdict. It is the verdict itself which must be unanimous, not the theory or fact upon which it is based.
This instruction is a correct statement of the law. See State v. Bratthauer, 354
N.W.2d 774, 776 (Iowa 1984) (permitting jurors to embrace different theories of
the crime so long as the theories are not repugnant on one another); State v.
Retterath, No. 16-1710, 2017 WL 6516729, at *13 (Iowa Ct. App. Dec. 20, 2017)
(permitting the jury embrace different theories of the crime so long as they are not
repugnant of one another); Wright v. State, No. 16-0275, 2017 WL 1401475, at *5
(Iowa Ct. App. Apr. 19, 2017) (concluding jurors can reach different conclusions
with regard to the means of committing the crime); State v. Rodriguez, No. 14-
0424, 2015 WL 4158765, at *7 (Iowa Ct. App. July 9, 2015) (noting unanimity in
the mode of the crime is not required so long as there is sufficient evidence
supporting each mode and they are not repugnant of each other). However, Tovar
argues the instruction is inapplicable to the instant case because the two theories,
mental incapacitation and physical helplessness, are repugnant to each other,
necessitating unanimity as to which alternative was used to commit the offense.
The crux of Tovar’s claim “is the principle that the unanimity rule requires
jurors to be in substantial agreement as to just what a defendant did as a step
preliminary to determining whether the defendant is guilty of the crime charged.”
See State v. Silva, No. 17-0802, 2018 WL 1858294, at *4 (Iowa Ct. App. Apr. 18,
2018) (quoting Bratthauer, 354 N.W.2d at 776) (internal quotations omitted). To
determine if the jury was required to reach a unanimous verdict as to which
alternative it relied upon, we first consider if the applicable statute provides multiple
ways to commit one offense or defines multiple offenses. See State v. Conger, 14
434 N.W.2d 406, 409 (Iowa Ct. App. 1988). Here Iowa Code section 709.4(4)
provides alternative means of committing a single offense, third-degree sexual
abuse, not multiple offenses, and our first consideration is satisfied. Second, we
must confirm substantial evidence supports both alternatives. See Silva, 2018 WL
1858294, at *4. As discussed above, substantial evidence supports both
alternatives.
Finally, we consider whether these alternatives are consistent with each
other and not repugnant. See Conger, 434 N.W.2d at 409. “The two alternatives
used in this case are consistent in that they merely describe different situations
that are considered [sexual abuse in the third degree].” See id. A person cannot
commit third-degree sexual abuse under either alternative without performing a
sex act on another when that person is unable to consent, “so the two are not
inconsistent.” Cf. id. Tovar argues each alternative cannot be reconciled with the
other because mental incapacity implies the person is awake while physical
helpless implies the person is asleep or unconscious. However, one could imagine
a scenario where a person was both mentally incapacitated and physically
helpless; the two are not always mutually exclusive of each other. Further, these
two alternatives are “consistent with and not repugnant to each other” because
both seek to prohibit sexual conduct when one party is unable to consent to the
conduct. Cf. id.; Silva, 2018 WL 1858294, at *6 (finding statutes are not repugnant
of each other because both seek to protect people from nonconsensual sex acts).
Because the alternative theories are not inconsistent or repugnant, the
district court did not violate the rule of unanimity and err in submitting the instruction
permitting the jury to rely on different alternatives in reaching their verdict. 15
D. Jury Instructions on Lesser Included Offenses
Finally, Tovar challenges the inclusion of jury instructions for assault with
intent to commit sex abuse and assault as lesser included offenses of sexual
abuse in the third degree. He contends these are not lesser included offenses of
third-degree sexual abuse under Iowa Code section 709.4(4) and their instruction
misled the jury as to the elements of third-degree sexual abuse. However, we
need not determine whether these instructions were properly given; Tovar is not
entitled to relief. “Errors in jury instructions are presumed prejudicial unless ‘the
record affirmatively establishes there was no prejudice.’” State v. Murray, 796
N.W.2d 907, 908 (Iowa 2011) (quoting State v. Hanes, 790 N.W.2d 545, 551 (Iowa
2010)).
No prejudice resulted from the inclusion of the lesser-included-offense
instructions because Tovar was convicted of the greater offense. “The general
rule applies that when a defendant is convicted of a greater offense he cannot
complain of the fact the jury was permitted to consider his guilt of a lesser offense.”
State v. Douglas, 485 N.W.2d 619, 623 (Iowa 1992); accord State v. Musedinovic,
No. 10-0381, 2011 WL 768801, at *4 (Iowa Ct. App. Mar. 7, 2011) (finding no
prejudice when defendant challenged the inclusion of a lesser-included-offense
instruction as improper but was convicted of the greater offense). A review of the
submitted jury instructions supports this conclusion. “We do not consider an
erroneous jury instruction in isolation, but look at the jury instructions as a whole.”
Murray, 796 N.W.2d at 908 (citing State Fintel, 689 N.W.2d 95, 104 (Iowa 2004)).
Additionally, “[w]e presume the jury follows the court’s instructions.” State v.
Hanes, 790 N.W.2d 545, 552 (Iowa 2010). The marshaling instruction for third- 16
degree sexual abuse made clear the jury should only consider the lesser included
offenses if it found the State failed to prove an element of third-degree sexual
abuse; here the jury found all elements of third-degree sexual abuse satisfied.
Assuming, as we must, the jury followed the instruction, it did not go on to consider
the instructions for the lesser included offenses during its deliberation and Tovar
was not prejudiced.
IV. Conclusion
There was sufficient evidence to support Tovar’s conviction under both
submitted alternatives. Because there was sufficient evidence supporting a finding
of physical helplessness, Tovar’s trial counsel was not ineffective in failing to base
the motion for judgment of acquittal on this basis. The alternative theories were
not inconsistent or repugnant to each other, so the court did not err in permitting
the jury to rely on different alternatives. Finally, because Tovar was convicted of
the greater offense, he was not prejudiced by the inclusion of lesser-included-
offense instructions.