State of Iowa v. Steven Eugene Kroll

IN THE COURT OF APPEALS OF IOWA

No. 23-0449
Filed October 30, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

STEVEN EUGENE KROLL,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Monona County, Tod Deck, Judge.

A defendant appeals his convictions for sex offenses against minors.

CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND

REMANDED FOR FURTHER PROCEEDINGS.

Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Genevieve Reinkoester, Nicole L.

Leonard, and Ian McConeghey, Assistant Attorneys General, for appellee.

Heard by Greer, P.J., Langholz, J., and Gamble, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
2

GAMBLE, Senior Judge.

Steven Kroll appeals his convictions for an array of sex offenses against

minors. He contests the exclusion of evidence under Iowa Rule of Evidence 5.412,

asserts the district court erred in denying his request for a voluntary-participation

instruction, challenges the sufficiency of the evidence for one offense, and claims

the district court exceeded its authority in sentencing. We find the district court did

not abuse its discretion by excluding the evidence under rule 5.412 or in denying

his requested instruction, and sufficient evidence supports Kroll’s conviction of

sexual exploitation of a minor. We sever and vacate part of Kroll’s sentence and

remand for entry of a corrected sentencing order.

I. Background Facts & Proceedings.

On June 11, 2019, the State charged Kroll with eleven criminal offenses

related to his actions with two minors. The charges arose after his daughter S.K.

(born 2003) alleged Kroll had sexual contact with her when she was thirteen years

old and again when she was fifteen years old. Another minor female, S.L., alleged

when she had been friends with S.K., Kroll had propositioned her multiple times

and had touched her breast against S.L.’s will. Before trial, the State amended the

trial information, dismissing several of the charges.

S.K.

Between 2016 and 2019, S.K. lived in Monona County, Iowa with her father,

Kroll, and her younger brother N.K. (born 2013). Although S.K. had her own

bedroom, Kroll had her sleep in the room he shared with N.K. Kroll had S.K.

perform many parenting functions for N.K., including feeding him and putting him

to bed each night. S.K. testified that when she was thirteen, Kroll’s fiancée died,
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and he would have S.K. sleep in his bed and touch her after N.K. went to sleep.

She described an incident when Kroll took off her clothes, had sexual intercourse

with her, ejaculated on her, and told her to clean it up. S.K. testified she told Kroll

to quit multiple times, but he didn’t. Kroll told S.K. not to tell anybody or she and

N.K. would be taken away and put into foster care. S.K. testified Kroll showed

concerning behaviors before the incident and in the following years—he grabbed

her thighs occasionally, criticized her body to his friends, let his friends make

inappropriate comments to her, and told her to wear a bikini or “shorty shorts.”

S.K. then described a second incident when she was fifteen years old. Kroll

had S.K. sleep in his bed with him, and N.K. had a smaller bed in the room. Kroll

rolled over, started touching her under her sports bra, then held her down, pulled

down her pants, and had intercourse while S.K. told him to quit. When N.K. started

to stir, Kroll finished on S.K.’s stomach and walked out. Kroll again told S.K. not

to tell or she would “get taken away” and never get to see him or N.K. again. S.K.

testified she was more concerned about not seeing N.K. again than never seeing

Kroll again.

A few months later—in late February 2019—S.K. told a friend, Blake Bellis,

what had happened. They started a group chat including S.K., Bellis and S.K.’s

classmates S.L. and Ethan Gray, “saying that we needed to tell the truth.” S.K.

testified part of her motive for telling her friends was “so it wouldn’t happen again.”

At Bellis’s urging, S.K. called the sheriff’s office the next morning to report Kroll; an

officer met her at school to get her statement. A worker from the Department of
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Human Services (DHS)1 removed S.K. from Kroll’s custody that night and took her

to stay at her great-grandmother’s house. Before she left, Kroll asked “Did you tell

them what I did? Why did you do it?”

DHS told Kroll not to have any contact with S.K. during the investigation.

But soon after the DHS worker left her at her great-grandmother’s, Kroll showed

up at the residence wanting to see S.K. Kroll again told her not to tell what

happened, then he had S.K. take her password off her phone and give it to him;

Kroll took the phone and left. Shortly after, Kroll’s mother called and said she was

going to take S.K. home with her. While S.K. was riding with her grandmother to

Sioux City, Kroll called and talked with them through the vehicle’s Bluetooth

speakers. The next night, Kroll’s mother had S.K. “write him a letter to make him

feel better saying that none of it was true, that [she] made it up, and just to tell him

that [she] love[d] him.” S.K. testified her grandmother said if she did not write the

letter, she couldn’t watch TV or do her schoolwork. Kroll’s mother had S.K. hold

the letter up, telling her “to smile and act happy,” then she took a picture and sent

it to Kroll.

The next day, S.K. had an interview at the child advocacy center (CAC).

S.K. only talked to the interviewer about the incident from when she was thirteen

“because I thought we focused on the one.” She did not mention the second

incident in that interview, although the interviewer asked if there had been “any

other times recently.” She disclosed the second incident in a later interview.

1 In 2022, DHS and the Iowa Department of Public Health merged into the Iowa

Department of Health and Human Services. Because all relevant agency actions
took place before the merger, we will refer to the agency as it was then—DHS.
5

Instead, during the first interview, she spoke of Kroll’s friends mocking her body

and that Kroll was “getting too close.” After the interview, the DHS worker asked

S.K. if she wanted to write another letter to Kroll, and she did: apologizing, saying

everything will be okay and she would miss him. Although DHS recommended a

medical exam of S.K., her grandmother refused it, saying “there was no need for

one.” S.K.’s grandmother was generally uncooperative with DHS and CAC during

the interview process. A few days later, S.K. went to stay with her mother.

During S.K.’s testimony, the State asked, “Is it fair to say at times you made

statements other than [what you testified to]?” and S.K. answered, “Yeah.”

S.L.

S.L. and S.K. met their freshman year of high school in fall 2017; S.L. soon

became S.K.’s best friend. They were usually at S.K.’s house. After a while, Kroll

started making inappropriate comments that made S.L. feel uncomfortable. Kroll

would tell S.L. “she needed to have sex because she was still a virgin as a

freshman in high school” and said he or his friends “would help her do it.” Kroll

nicknamed S.L. “chicken dick” because she wouldn’t have sex and constantly

bullied S.L. with that nickname. S.K. used the nickname at first but stopped when

S.L. said it made her “uncomfortable.” Kroll asked S.L. to have sex with him

several times and made a comment about when she would reach the age of

consent. He told her she could drive his vehicle “if [she] would break it in with him,”

with similar comments about snowmobiles after winter came. Once she turned

sixteen, Kroll “got pretty consistent with asking [her] to have sex with him.” S.L.

always told him no and was very uncomfortable. Another time, he asked her

through Snapchat if she sent nude photos and if she wanted to see his cock, after
6

which he sent a picture of a rooster. Kroll talked about his penis with S.L., calling

it “the punisher”—again making S.L. feel very uncomfortable.

Kroll sometimes joined in without asking when S.L. and S.K. were teasing

each other. S.K. testified when S.L. came over, Kroll “would always try to tickle

her” and recounted an occasion when Kroll grabbed her butt and S.L. yelled for

him to stop, but Kroll just thought it was funny. S.L. testified about a time she and

S.K. were teasing, and Kroll “smacked [S.L.] on the butt and then pulled [her] down

on the couch,” where Kroll had N.K. smack S.L. Another time, S.L, S.K., and N.K.

were having a tickle fight when Kroll jumped in, held S.L. down as the other two

backed away, and kept tickling her chest area, grabbing or slapping her breasts as

she pushed him away, until she faked an asthma attack and then started vomiting.

S.L. asked S.K. for help, and she said she didn’t want to get involved and couldn’t

do anything about it.

S.K. and S.L. would communicate through social media, but Kroll had

access to S.K.’s Facebook account on his phone and would use it. Kroll used

S.K.’s accounts to send inappropriate comments to S.L. S.L. knew it wasn’t S.K.

sending the messages because she was often sitting with her or chatting with her

on another platform, and S.K. did not send emojis and gifs in her messages.

In the fall of 2018, S.L. stopped visiting S.K. because she was “tired of all

the nasty comments [Kroll] would say to her.” After one comment where Kroll

asked if S.L. wanted company in bed, the girls had a big fight and stopped talking

for a time.
7

Defense

Kroll’s defense was that S.K. was fabricating the abuse because she “was

out of control and engaging in risky behavior” that he was trying to stop. He pointed

to S.K.’s communications with eighteen- and nineteen-year-old men—including

Bellis and Dylan Fassler. Kroll and S.K. fought about her cell phone use, and he

took away her phone at times. Yet, when S.K. was asked about her own

behavior—including what she talked about with the older boys and fighting with

Kroll—she frequently answered, “I don’t remember” and “I don’t know.”

S.K. started messaging with Bellis on Snapchat in fall 2018—she was

fifteen, and he was nineteen years old. Both S.K. and Bellis testified they did not

meet up in person during the relevant time period. In the weeks leading up to

S.K.’s report to police, she had many long phone calls with Bellis, but she testified

to not having much recollection of what they talked about. Kroll did not like S.K.

chatting with Bellis, called him “a bad influence on people,” and at one point called

the police about him. S.K. denied knowledge about a Snapchat prank on Kroll, but

a username and password to an account was allegedly found in her journal with a

note “Snapchat prank on dad w/ blake”; the user was one in S.K.’s Snapchat

contact list.

In May 2018, when S.K. was fourteen, she started messaging and

Snapchatting with Fassler, an eighteen-year-old male who lived in another town.

In early February 2019 S.K. was googling about “dirt bike family goals” and

searches relating to Fassler’s dirt bike/motocross hobby. Throughout 2018, S.K.

wrote in her journal being Fassler’s girlfriend, which at trial she testified was

“fantasy” and they were “just best friends or friends.” S.K. testified they met the
8

first time in March 2019 after S.K. had moved in with her mother, but they did not

start “hanging out in person on a regular basis” until late 2020. 2 During a

deposition, S.K. had denied wanting to be Fassler’s girlfriend in 2018 and 2019.

And she denied writing sections of the journal entries about him, saying the rest

wasn’t in her writing. When asked if she wrote “Dylan is my everything and Dad

isn’t going to stop me,” S.K. answered “I don’t remember.” The parties entered a

stipulation the journals belonged to S.K. and “the handwriting was consistent with

having been written by a single author.”

The jury found Kroll guilty of two counts of sexual abuse in the third degree

(as to S.K.), two counts of incest (as to S.K.), one count of sexual exploitation of a

minor (S.L.), and one count of assault causing bodily injury which “was sexually

motivated and committed upon a minor under the age of [eighteen]” (as to S.L.).

II. Standard of Review.

“We review district court rulings on the admissibility of evidence, including

admissibility under Iowa Rule of Evidence 5.412 in criminal prosecutions, for abuse

of discretion.” State v. Trane, 934 N.W.2d 447, 455 (Iowa 2019). We reverse only

if the court exercised its discretion on clearly untenable grounds or to a clearly

unreasonable extent. Id. But “[w]e apply a de novo standard of review to claimed

violations of the constitutional right to present a defense and the Sixth Amendment

right to confrontation.” State v. Montgomery, 966 N.W.2d 641, 649 (Iowa 2021)

(internal citation omitted).

2 By the time of the 2022 trial, S.K. was nineteen years old, S.K. and Fassler were

a couple, and they had a child together.
9

We review challenges to jury instructions, and the refusal to give a

requested instruction, for correction of errors at law. Id.

We review sufficiency-of-the evidence challenges “‘for the correction of

errors at law, viewing the evidence in the light most favorable to the State.’ This

includes making ‘legitimate inferences and presumptions that may fairly and

reasonably be deduced from the record evidence.’” State v. Brown, 5 N.W.3d 611,

615–16 (Iowa 2024) (citations omitted). Kroll briefly asserts we should change our

standard to de novo because sufficiency-of-the-evidence claims “implicate[ ] a

constitutional right.” Even if we had the authority to overrule decades of supreme

court precedent—which we do not, see State v. Beck, 854 N.W.2d 56, 64 (Iowa

Ct. App. 2014)—we would not do so based on a bare assertion with no supporting

legal authority.

Claims of an illegal sentence are reviewed for correction of errors at law.

State v. Petty, 925 N.W.2d 190, 195 (Iowa 2019).

III. Analysis.

A. Evidence of other sexual relationships. Before trial, the State filed a

motion in limine to exclude all evidence of the victims’ other sexual behavior under

Iowa Rule of Evidence 5.412 (2022).3 Rule 5.412 provides:

a. Prohibited uses. The following evidence is not admissible in a civil
or criminal proceeding involving alleged sexual abuse:
(1) Reputation or opinion evidence offered to prove that a victim
engaged in other sexual behavior.
(2) Evidence of a victim’s other sexual behavior other than
reputation or opinion evidence.

3 Iowa Rule of Evidence 5.412 was amended effective January 1, 2023. We use
the prior version as the rule in effect at the time of trial.
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b. Exceptions.
(1) Criminal cases. The court may admit the following evidence
in a criminal case:
(A) Evidence of specific instances of a victim’s sexual
behavior, if offered to prove that someone other than the
defendant was the source of semen, injury, or other physical
evidence.
(B) Evidence of specific instances of a victim’s sexual
behavior with respect to the person accused of sexual abuse,
if the defendant offers it to prove consent.
(C) Evidence whose exclusion would violate the defendant’s
constitutional rights.

Kroll asked the court to admit evidence S.K. allegedly lied about several

topics relating to her past conduct, arguing the evidence was intended to impeach

S.K.’s CAC interview and deposition testimony, and that its exclusion would violate

Kroll’s constitutional rights. See Iowa R. Evid. 5.412(b)(1)(C). The court held a

rule 5.412 hearing, where counsel argued, “It’s not even necessarily as much

about the material that they lied about as the fact that they actually told a lie under

oath.” The court issued a ruling which excluded under rule 5.412 three of the topics

listed by Kroll—including whether S.K. had been truthful regarding sending and

receiving nude photos—and determined three other topics were not barred by the

rule. The court ruled the evidence relating to the photos “is likely irrelevant and/or

collateral to the issues involved in this matter and not otherwise appropriate for

use as impeachment, if introduced by [Kroll].”

Kroll raised the issue again at trial and raised it as an error in his post-trial

motion for new trial. Each time, the court maintained its ruling.

On appeal, Kroll argues the court “erred by excluding evidence that S.K. . . .

had engaged in non-platonic relationships with two adult men.” More specifically,

he argues the evidence was admissible under rule 5.412 because (1) the evidence
11

of S.K. sending and receiving nude or partially nude photographs was not “sexual

behavior,” and (2) even if it was sexual behavior the exclusion violated his

confrontation and due process rights.

Our supreme court has explained the purpose and effect of Rule 5.412:

Iowa Rule of Evidence 5.412, Iowa’s rape shield law, prohibits
introduction of reputation or opinion evidence of a complaining
witness’s other sexual behavior and substantially limits the
admission of evidence of specific instances of a complaining
witness’s other sexual behavior. Its purpose “is to protect the victim’s
privacy, encourage the reporting and prosecution of sex offenses,
and prevent the parties from delving into distractive, irrelevant
matters.” As a result, “[t]he rule presupposes that much evidence
which the accused wishes to place before a jury will be excluded.”

Trane, 934 N.W.2d at 456–57 (footnote and internal citations omitted). The

exception under subparagraph (C) that Kroll seeks to invoke “codifies a safety

valve to avoid an unconstitutional application of the rape shield rule.” Montgomery,

966 N.W.2d at 654.

Sexual behavior definition. First, we address whether a minor sending

and/or receiving nude photographs qualifies as sexual behavior for purposes of

rule 5.412(a)(1).

Posing nude is not per se sexual conduct under Iowa case law, as it “does

not in and of itself infer or connote sexual activity or conduct.” State v. Zaehringer,

280 N.W.2d 416, 420 (Iowa 1979). The court went on to say the 1979 equivalent

to rule 5.412 did not come into play “[a]bsent a showing or implication of sexual

activity of some sort accompanying the posing.” In State v. Alberts, the supreme

court observed, “Just like nudity alone is not sexual, skinny-dipping in and of itself

is not sexual behavior,” but it could be “deemed sexual behavior based on the
12

circumstances.” 722 N.W.2d 402, 408 (Iowa 2006). Indeed, both parties cite the

supreme court’s approved definition of sexual behavior as

a volitional or non-volitional physical act that the victim has
performed for the purpose of the sexual stimulation or gratification of
either the victim or another person or an act that is sexual
intercourse, deviate sexual intercourse or sexual contact, or an
attempt to engage in such an act, between the victim and another
person.

State v. Baker, 679 N.W.2d 7, 10 (Iowa 2004) (citation omitted).

Kroll sought to introduce evidence4 that S.K. exchanged nude photographs

with two young men to establish their relationships were non-platonic, asserting

they fabricated allegations of incestuous sexual abuse because he was attempting

to control his daughter’s risky behavior and she wanted freedom. Ironically, while

Kroll characterizes S.K.’s behavior as “non-platonic” and “risky,” he argues it was

not “sexual behavior” within the meaning of the rape-shield law.

So we must decide whether S.K.’s alleged act of sending nude photographs

by mobile phone through social media was a “physical act that the victim has

performed for the purpose of the sexual stimulation or gratification of either the

victim or another person” constituting “sexual behavior” as defined in Baker.5 In

4 The evidence in the record of S.K. sending photographs was limited to exhibits

offered at a hearing on motions in limine, including (1) deposition testimony from
Bellis that S.K. “maybe” or “probably” sent him nude or topless photos, (2)
deposition testimony from Gray that he had seen a topless photo of S.K. on Bellis’s
phone, and (3) a diary entry about S.K. seeing a photo and receiving a video from
another man. The offer of proof was not renewed at trial. Kroll discusses S.K.’s
deposition, but no part of that deposition was entered into the record through an
offer of proof, so we cannot review it. If there were photos, they no longer exist
because they were allegedly sent on Snapchat.
5 We recognize the mere receipt of such photographs without a corresponding

volitional act by the victim (such as requesting or sharing them) would not per se
constitute sexual behavior by the victim.
13

Alberts, the defendant sought to enter evidence of a prior false allegation by the

victim. 722 N.W.2d at 405. In the prior allegation, the victim asked a man to go

skinny-dipping, and thinking she was coming on to him, the man asked for a kiss

while they were naked in the river. Id. at 408. After she declined the kiss, they

held each other in their arms for five minutes until they were interrupted by the

brother of the victim’s boyfriend. Id. at 409. Under these circumstances, the court

held the act of skinny-dipping was “sexual behavior” covered by the rape-shield

law because it “was likely a precursor to sexual activity.” Id. Comparably, in State

v. Mayes, this court determined the act of a minor victim watching a pornographic

video shown to her by another adult was a non-volitional physical act falling within

“other sexual behavior” again because “it was likely a precursor to sexual activity.”

No. 19-0252, 2020 WL 2060306, at *5 (Iowa Ct. App. Apr. 29, 2020) (citation

omitted). And even if the evidence did not fall within “other sexual behavior,”

because the pornography was “in and of itself . . . of such a nature that the danger

of unfair prejudice outweighs the probative value,” it still would have been

inadmissible under rule 5.403. Id. at *5 n.3.

Likewise, we believe an act of sending nude pictures to men by a mobile

device through social media falls within “sexual behavior” because it was likely a

precursor to sexual activity between individuals engaged in non-platonic
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relationships.6 This behavior is colloquially known as “sexting.”7 S.K.’s alleged

use of Snapchat to send nude photographs was a volitional act “performed for the

purpose of the sexual stimulation or gratification of either the victim or another

person.” Baker, 679 N.W.2d at 10 (citation omitted); accord Mayes, 2020

WL 2060306 at *4 (citation omitted). There was an “implication of sexual activity

of some sort accompanying the posing.” Zaehringer, 280 N.W.2d at 420. And, it

“was likely a precursor to sexual activity.” See Alberts, 722 N.W.2d at 405; Mayes,

2020 WL 2060306 at *5. Under the circumstances of this case, where Kroll wanted

to introduce evidence of S.K. allegedly sending nude photographs of herself to

teenage boys she was messaging, exchanging nude photos falls within rule

5.412(a)(1) as “other sexual behavior.” We reach this conclusion, in part, by

considering the purpose of the rule 5.412(a)(1) “which is to protect the victim’s

6 We note that a “prohibited sexual act” for supporting a charge of sexual
exploitation of a minor includes “[n]udity of a minor for the purpose of arousing or
satisfying the sexual desires of a person who may view a visual depiction of the
nude minor.” Iowa Code §§ 728.1(7)(g), .12(1); cf. State v. Hunter, 550
N.W.2d 460, 465–66 (Iowa 1996) (rejecting a constitutional challenge to a charge
for sexual exploitation of a minor by use of nude photographs).
7 Sexting has been defined as the practice of sending nude or
partially nude photos of oneself or others via text message or mobile
phone. “Sexting evolved from adolescents’ need to explore their
sexuality and the rise in technology that allows them to build sexual
relationships via private photographs.”
New technology has jump-started sexting among teens and
others. Snapchat, a mobile phone application that sends
self-destructing messages, has led to the sexting of photos that
disappear. . . . This has provided those who are sexting with a
comfort level that their images are private and will quickly
“disappear,” and that no one other than the intended receiver will
view them.
Monique C.M. Leahy, Proof of Sexting Civil and Criminal Liability, 160 Am. Jur.
Proof of Facts 3d 283 § 1 (2017) (footnotes omitted). “Sexting has become today’s
new first base. It’s becoming a part of growing up.” Id. (cleaned up).
15

privacy, encourage the reporting and prosecution of sex offenses, and prevent the

parties from delving into distractive, irrelevant matters.” See Alberts, 722 N.W.2d

at 409; see also Iowa Rs. Evid 5.403 (allowing exclusion of even relevant evidence

“if its probative value is substantially outweighed by a danger of . . . unfair

prejudice, confusing the issues, [or] misleading the jury”), 5.102 (“These rules

should be construed so as to administer every proceeding fairly, eliminate

unjustifiable expense and delay, and promote the development of evidence law, to

the end of ascertaining the truth and securing a just determination.”).8 The district

court did not abuse its discretion in excluding evidence of the alleged nude

photographs under rule 5.412(a)(1).

Confrontation and due process claim. Kroll argues this evidence should

have been admitted under the exception in rule 5.412(b)(1)(C) because its

exclusion impinged on his right to a fair trial and to confront the witnesses against

him. He calls S.K. “uncontrollable,” theorizes she only made claims against him

because he interfered in what her relationships with adult men, and argues the jury

needed “the full context” of her relationships when considering S.K.’s testimony.

“Iowa courts have repeatedly cautioned that an accused does not have a

constitutional right to admit evidence of a victim’s other sexual behavior that is

irrelevant or whose probative value is outweighed by unfair prejudice.” 7 Laurie

Kratky Doré, Iowa Practice Series: Evidence § 5.412:1 (2023 update). “The high

8 Rule 5.102, which is identical to Federal Rule 102, sets forth
the general principle of construction to be utilized in applying the
Iowa Rules of Evidence. The overriding purpose of the rules, as
reflected in Rule 5.102, is to secure fairness in the administration of
justice. To this end, the rules are to be liberally construed.
7 Laurie Kratky Doré, Iowa Practice Series: Evidence § 5.102:1 (2023 Update).
16

bar of the constitutional exception establishes a heightened standard that requires

a defendant to show that the ‘evidence in question is essential to the presentation

of his defense.’” Id. (cleaned up). In evaluating whether to admit evidence through

the constitutional rights violation exception, the court weighs the defendant’s

constitutional rights against the State’s need “(1) [to] protect the privacy of the

victims; (2) [to] encourage the reporting and prosecuting of sex offenses; and (3) to

prevent time-consuming and distracting inquiry into collateral matters.”

Montgomery, 966 N.W.2d at 654 (citation omitted). This exception has been

applied in the past to “prior false claim[s] of sexual behavior” and concurrent sexual

abuse by a family member. See id. at 661; Baker, 679 N.W.2d at 12.

Excluding evidence—particularly of a contemporaneous sexual relationship

with a witness for the State—may present “a misleadingly incomplete picture to the

jury.” Montgomery, 966 N.W.2d at 660. But “evidence can be excluded ‘if its

probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.’” Id. at 655. And the

supreme court observed in a case concerning prior false claims of sexual behavior,

“while the complaining witness might have been embarrassed by being shown to

be a boaster, or even a liar, about a previous sexual experience, this is not the

kind of unfair prejudice that will outweigh the probative value of clearly relevant

evidence.” Baker, 679 N.W.2d at 12.

Kroll’s argument centers almost entirely on S.K.’s relationships as the driver

behind her allegations. He argues “Bellis was an adult who was involving S.K. in

‘sex offenses’” (which his brief identifies as sexual exploitation of a minor and child
17

pornography by creating the nude or topless photos, possessing them, and

showing them to Gray) and that S.K. was angry Kroll called the police on Bellis.

He then veers to S.K.’s text messages with Fassler, arguing they were evidence

of sexual activity; S.K. and Fassler testified they messaged but did not meet until

March of 2019 (after S.K. had reported Kroll). Not only does Kroll argue the

excluded evidence would give context to his actions and the conflict between him

and S.K., he asserts it was highly relevant for the jury’s evaluation of the credibility

of S.K., Bellis, Gray, and Fassler. He argues “the jury only heard S.K.’s testimony

she told the truth during the interview,” despite conflicting testimony in her

deposition. As trial counsel put it at the post-trial hearing, the photographs would

answer the question of “why would she make this up? The answer is these

photographs,” and “It’s to show [a] pattern of fabrication.” Kroll contends the

evidence of photographs would allow more pointed impeaching questions of things

S.K. and Bellis denied during their testimony and to provide an alternate purpose

for the age of consent screenshot.

Yet, Kroll’s counsel effectively cross-examined S.K. about inconsistencies

with her CAC interview, including S.K.’s denial of a second assault during her

interview and a discussion about Kroll’s dislike of her talking with Bellis. And

counsel was able to highlight discrepancies between S.K.’s deposition and her

journal entries about Fassler. For instance, S.K. disclaimed writing portions of the

journal entries about wanting to be in a relationship with Fassler and Kroll

interfering; but the State stipulated all the entries were written by a single person.

The defense was able to impeach S.K.’s general credibility as to her in-court

testimony and what was relayed to others, and to raise doubts through S.K.’s
18

inability or unwillingness to answer questions that might show herself in a bad light,

instead claiming to not know or remember many relevant communications. That

leaves us with the question whether keeping out the photo and message evidence

hampered Kroll’s ability to present his defense of a father trying to protect a

rebellious daughter, and whether the district court erred when balancing the

interests protected by rule 5.412 and Kroll’s constitutional rights.

We acknowledge that reference to the nude photographs may have

supported Kroll’s arguments of fabrication and witness credibility. But we conclude

Kroll failed to satisfy the heightened standard that the evidence was essential to

the presentation of his defense. S.K. did not make prior false claims of sexual

behavior. See Baker, 679 N.W.2d at 12. And unlike Montgomery, where the State

witness was alleged to have contemporaneously sexually abused the child victim

in a manner similar to the defendant’s alleged abuse, there is no evidence Bellis

had sexual relations with S.K. See 966 N.W.2d at 658. S.K. had only a virtual

relationship with Bellis by phone, text, and alleged nude or topless images over

social media. The limited evidence of the photos in the record requires us to follow

a speculative chain, starting with Gray’s deposition that Bellis identified a topless

photo on his phone as S.K., to Bellis’s equivocal deposition testimony that S.K.

“maybe” or “probably” sent a photo but he could not remember, to S.K.’s denial in

her CAC interview of sending photos. The evidence is far from convincing that

Bellis was involving S.K. in sex offenses as Kroll claims. At best the evidence

shows S.K. was “sexting.” And Kroll was able to cross-examine S.K. and Bellis

about the extent of their phone calls and text messages without reference to the

photographs. Kroll presented effective arguments to the jury about their lack of
19

credibility as witnesses and their motive to fabricate. The State did not present “a

misleadingly incomplete picture to the jury.” See Montgomery, 966 N.W.2d

at 660–61. The probative value of limited evidence S.K. may have sent nude

photographs to Bellis on Snapchat was substantially outweighed by the danger of

unfair prejudice to the State’s need (1) to protect the privacy of the victim; (2) to

encourage the reporting and prosecution of sex offenses; and (3) to prevent time-

consuming and distracting inquiry into collateral matters. See id. at 654; see also

Iowa Rs. Evid 5.403 (allowing exclusion of even relevant evidence “if its probative

value is substantially outweighed by a danger of . . . unfair prejudice, confusing the

issues, [or] misleading the jury”). Therefore, based upon our de novo review, we

conclude exclusion of the evidence of nude photographs did not violate Kroll’s

constitutional rights.

The district court did not abuse its discretion in excluding the evidence of

nude photographs under the rape-shield protections of rule 5.412.

B. Consent defense instruction. Relating to the charge of assault causing

bodily injury of S.L., Kroll proposed a jury instruction on an exception to assault for

voluntary participation:

An act described in Instructions No. __ shall not be an assault if the
person doing any of the enumerated acts, and other such person,
are voluntary participants in a sport, social or other activity, not in
itself criminal, and such act is reasonably foreseeable incident of
such sport or activity, and does not create an unreasonable risk of
serious injury or breach of the peace.

Kroll argues this instruction was relevant to a “tickling fight” among S.K., S.L., and

S.K.’s brother, in which Kroll joined and touched S.L.’s breast while tickling her.

When considering that argument in the context of Kroll’s motion for a directed
20

verdict, the district court observed, “With regard to taking advantage or with regard

to the fact that this was just a tickling fight that everyone was involved in . . . an

individual cannot just take advantage of that type of situation for their own sexual

motivation and in the process commit an assault.”

An assault occurs “when, without justification, the person does . . . [a]ny act

which is intended to cause pain or injury to, or which is intended to result in physical

contact which will be insulting or offensive to another, coupled with the apparent

ability to execute the act.” Iowa Code § 708.1(2)(a). The statutory exception Kroll

seeks to invoke is applied

[i]f the person doing any of the enumerated acts, and such other
person, are voluntary participants in a sport, social or other activity,
not in itself criminal, and such act is a reasonably foreseeable
incident of such sport or activity, and does not create an
unreasonable risk of serious injury or breach of the peace.

Id. § 708.1(3)(a).

The State argued the “voluntary participation” instruction and defense does

not apply in sexual assault situations and S.L. did not voluntarily participate in the

tickle fight with Kroll—he had inserted himself into an already-occurring action.

The district court agreed with the State, and relied on parameters referenced in

State v. Collier, 372 N.W.2d 303 (Iowa Ct. App. 1985), to exclude the instruction.

More specifically, the court determined,

[I]n this case, the tickling and horsing around so to speak, is not the
type of social activity that is intended by the legislature to be
excluded from being an assault, particularly in this case where there
is evidence of some sexual motivation . . . for the acts, and the jury
will answer that question as well.
So if for some reason the jury were to find it was not sexually
motivated, the Court could revisit the issue . . . .

In a special interrogatory, the jury found the assault “was sexually motivated.”
21

In Collier, the defendant asserted the assaulted person had “requested him

to tie her up to the bed and beat her” as voluntary sadomasochistic activity, so it

qualified as “a social activity within the meaning of Iowa Code section 708.1.” 372

N.W.2d at 304–05. The Collier court observed that section 708.1 did not define

what was included in “sport, social or other activity” and determined to use a

“sensible, workable, practical, and logical construction . . . avoiding inconvenience

or absurdity.” Id. at 306. The court declined to precisely define the statutory terms

but considered it “obvious . . . that the legislature did not intend the term to include

an activity which has been repeatedly disapproved by other jurisdictions and

considered to be in conflict with the general moral principles of our society.” Id.

at 307. The court noted, “Whatever rights the defendant may enjoy regarding

private sexual activity, when such activity results in [assault] of another resulting in

bodily injury, such rights are outweighed by the State’s interest in protecting its

citizens’ health, safety, and moral welfare.” Id. Kroll argues this case is

distinguishable from Collier, and we should overrule that case and re-interpret Iowa

Code section 708.1(3)(a).

Cases subsequent to Collier invoking the voluntary-participation exception

focused on language that to meet the exception, the act had to be “a reasonably

foreseeable incident of such sport or activity.” Iowa Code § 708.1(3); State v.

Floyd, 466 N.W.2d 919, 921–22 (Iowa 1990) (considering an altercation breaking

out after official play had ceased at a basketball game); State v. Vulich,

No. 15-1851, 2017 WL 363234, at *5 (Iowa Ct. App. Jan. 25, 2017) (expressing

skepticism an “ice fight” fell within the statutory scope, and certainty a sexual

assault with ice cubes was not a reasonably foreseeable incident of an ice fight).
22

Even if we were to determine a tickle fight falls within the parameters of the

statute—a question we do not decide here—we find S.L. did not voluntarily

participate in said tickle fight with Kroll and his pinning, tickling only her, and then

touching her breasts was not a reasonably foreseeable incident to her

participation. S.L. was “playing around” with S.K. and N.K.—a peer and young

child. Kroll then inserted himself into the tickle fight uninvited, targeted the child

he was not related to and had been propositioning, did not stop when she asked

him to get off her and leave her alone, and touched her breasts.

Because there is no evidence S.L. voluntarily participated in a tickle fight

with Kroll, nor was his pinning and groping her a reasonably foreseeable incident

to her actions with S.K. and N.K., we agree with the district court that Kroll was not

entitled to the voluntary-participation instruction.

C. Sufficiency of the evidence. Kroll next argues that for his conviction

for sexual exploitation of a minor9 (S.L.), the State did not establish Kroll was the

Snapchat user messaging S.L. soliciting prohibited sexual contact. He also argues

the message allegedly sent does not qualify as “enticing, soliciting, or attempting

to cause S.L. to send nude photographs of herself.”

S.L. testified she had received a request from Kroll’s Snapchat account

asking, “Do you send nudes?” She answered no, saying it was gross and he was

her friend’s dad. He then replied “Do you want to see my cock?” When she said

no, he sent a rooster picture. She then blocked all communication channels with

9 The count for sexual exploitation of a minor alleged Kroll “did entice, solicit, or

attempt to cause S.L. . . . to engage in nudity of the minor for the purpose of
arousing or satisfying the sexual desire of a person who may view” the depiction.
23

Kroll other than S.K. Kroll told S.L. he had been joking, but S.L. did not believe

him.

Kroll asserts the State presented no evidence linking him to the Snapchat

account sending the message, either through identification testimony by S.L., a

witness who had contacted Kroll through Snapchat, or from the digital forensic

examiner who analyzed Kroll’s phone.

It is true the State could not produce direct evidence of the message from

Kroll’s phone at trial. When law enforcement searched Kroll’s phone—obtained by

warrant in May 2019—it revealed no record of messages or phone calls before

February 27, 2019 (the day S.K. was removed from the home), though the phone

had been in use since March 2018.10 The digital forensic examiner testified there

were “remnants,” including screenshots and temporary and cache files, indicating

Snapchat and Facebook had been on the phone at one time, but the apps had

been deleted along with the phone’s history of calls and text messages. So the

State’s efforts were hampered by Kroll’s destruction or concealment of direct

evidence. Yet, “we follow a rule that direct and circumstantial evidence are equally

probative for the purposes of proving guilty beyond a reasonable doubt.” State v.

Bentley, 757 N.W.2d 257, 262 (Iowa 2008) (cleaned up).

And there is significant circumstantial evidence from which the jury could

infer the message occurred. See State v. Tipton, 897 N.W.2d 653, 692

(Iowa 2017) (“A defendant may be convicted solely on circumstantial evidence if it

10 The digital forensic examiner testified to various reasons why there might not be

a record on the phone before February 27, 2019, but “[t]he explanation that makes
the most sense would be that the older messages were probably deleted” by
someone using the phone.
24

is sufficiently compelling to convince a judge or jury of the defendant’s guilt beyond

a reasonable doubt.”).

S.L. testified she had previously been friends with Kroll on Snapchat, and

had changed his name in her contacts so she would know who it was. She noted

his username had “snowmobile” in it and was very close to S.K.’s username. S.K.’s

Snapchat contacts list included “Dad” with username “snowmobile1981.”

Gray testified about having contacted Kroll on at least two different

occasions through Snapchat, including to purchase a snowmobile. Gray

confronted Kroll on Snapchat about some of his comments about S.L., and Kroll’s

response was to send him a screenshot about Iowa’s age of consent law. Gray

did not provide specific account information. The digital forensic examiner testified

a screenshot was found on Kroll’s phone about Iowa’s sexual consent laws—the

screenshot was taken December 26, 2018.

The second half of Kroll’s argument as to sufficiency of the evidence is that

the message “Do you send nudes?” does not qualify as “enticing, soliciting, or

attempting to cause S.L. to send nude photographs of herself.” Instead, he

suggests “It is an inquiry into whether or not S.L. sends nude photos to people.”

Here, additional context is important, which includes Kroll asking S.L. to “break in”

his vehicle and snowmobiles in exchange for driving them, frequent references to

her having sex, asking if she wants company in bed, talk about his penis, and

making other inappropriate comments.

“In our system of justice, it is the jury’s function to determine the credibility

of a witness.” State v. Dudley, 856 N.W.2d 668, 677 (Iowa 2014). And “[t]he jury

is free to believe or disbelieve any testimony as it chooses and to give weight to
25

the evidence as in its judgment such evidence should receive.” State v. Thornton,

498 N.W.2d 670, 673 (Iowa 1993). Taken as a whole, the circumstantial evidence

was sufficient a reasonable jury could conclude beyond a reasonable doubt that

Kroll solicited nude photographs from S.L. We affirm his conviction for sexual

exploitation of a minor.

D. Illegal sentence. Kroll’s last claim is the sentencing court did not have

the authority to require Kroll to complete a sex offender assessment and

recommended treatment. He requests that portion of his sentence be severed and

vacated. The State agreed with his assessment and the requested remedy. We

agree with the parties the court did not have the authority to require Kroll participate

in the assessment or treatment. See State v. Smith-Berry, No. 19-0839, 2020

WL 2988410, at *4 (Iowa Ct. App. June 3, 2020). We vacate that portion of the

sentencing order and remand for entry of a corrected sentencing order.

IV. Conclusion

We find the district court did not abuse its discretion in its application of Iowa

Rule of Evidence 5.412. Nor did it err in refusing to include the voluntary

participation instruction. Sufficient evidence supports Kroll’s conviction for

solicitation of a minor. And last, we sever and vacate as beyond the court’s

authority the portion of Kroll’s sentence ordering sex offender treatment and

remand for the entry of a corrected sentencing order.

CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND

REMANDED FOR FURTHER PROCEEDINGS.