CourtListener 2738804

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IN THE COURT OF APPEALS OF IOWA

No. 13-0828
Filed October 1, 2014

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ROBERT GERALD HOOSE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Mills County, Timothy O’Grady,

Judge.

Defendant appeals from his convictions and sentence for sexual abuse in

the third degree and three counts of sexual abuse in the second degree.

AFFIRMED.

Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Eric Hansen, County Attorney, and Kate Walling, Student Legal Intern,

for appellee.

Heard by Danilson, C.J., and Vogel and Bower, JJ.
2

DANILSON, C.J.

Robert Hoose appeals from his convictions and sentence for sexual abuse

in the third degree, in violation of Iowa Code sections 709.1 and 709.4(b)(2), and

three counts of sexual abuse in the second degree, in violation of Iowa Code

sections 709.1 and 709.3(2).1 He contends the district court erred in denying his

request to dismiss new charges brought against him nearly two years after his

initial arrest, in violation of the speedy indictment rule contained in Iowa Rule of

Criminal Procedure 2.33(2)(a). He also contends trial counsel was ineffective for

failing to object to expert testimony presented by the State. Hoose maintains the

court erred in two different evidentiary rulings: (1) in finding Hoose failed to

demonstrate in good faith a reasonable probability that D.H.’s medical and

mental health records contained exculpatory information and was not available

from any other source, and (2) in holding statements relating to past sexual

abuse allegations made by D.B. were not admissible because Hoose did not

establish by a preponderance of the evidence that the statements were false.

It is undisputed Hoose was formally arrested on May 12, 2010, and he

was aware of the charges he was being arrested for, so the reasonable-person

test is not applicable here. Because the second trial information alleges offenses

occurring on different dates than the original charges levied, they are not the

same, and the speedy indictment rule was not violated. Additionally, we find

Hoose failed to meet the threshold requirement of a “reasonable probability that

1
According to the sentencing order entered by the district court on May 15, 2013, the
date of the offense for sexual abuse in the third degree was between October 3, 2008
and May 3, 2010. The date of each of the three offenses for sexual abuse in the second
degree occurred between October 2006 and September 2008.
3

the information sought is likely to contain exculpatory information,” and there is

no error in the trial court’s refusal to conduct a second in camera review of D.H.’s

mental health and medical records. Also, because Hoose failed to show by a

preponderance of the evidence that prior allegations made by D.H. were false,

the claims are protected by the rape shield law, and the district court did not

abuse its discretion in finding they were inadmissible at trial. Finally, we preserve

Hoose’s claim of ineffective assistance for possible postconviction-relief

proceedings, and we affirm.

I. Background Facts and Proceedings.

Hoose is the father of D.H., born in October 1996. On May 4, 2010,

Hoose and his wife, Crystal, were out with friends while D.H., her sister, and her

two half-siblings were at the family home. After Hoose and Crystal got home,

Crystal went to the bathroom to shower, and Hoose went to D.H.’s room.

According to D.H., Hoose came into her room and ordered her to take her

clothes off. He placed her on her hands and knees, pulled down his shorts, and

got behind her. At that time, Crystal walked into the room and screamed at

Hoose, asking him what he was doing. D.H. ran to the basement. After some

time, Crystal and D.H. left the house to talk. D.H. told Crystal that Hoose had

been sexually abusing her for the previous five years.

The next day, D.H. reported the sexual abuse to the police. D.H. was

interviewed at Project Harmony, a child protection center, on May 11, 2010.

During the interview, D.H. provided detailed statements alleging Hoose had

sexually abused her for the previous five years. The allegations included oral,

vaginal, and anal sex.
4

On May 12, 2010, the State filed three complaints under case number

FECR0945719 charging Hoose with sex abuse in the third degree, lascivious

acts with a child, and incest. The facts listed in support of the charges were

identical on each complaint. They stated:

On 05-05-10, a juvenile female reported that she had been sexually
assaulted by father Robert Hoose. The female reported that on 05-
04-10 her father came into her bedroom after Mr. Hoose and his
wife Crystal had been out drinking. Mr. Hoose told the juvenile
female to remove her pants. The juvenile female was made to arch
her back with her butt in the air as Mr. Hoose performed anal sex
on the juvenile female. Crystal Hoose came into the room and
wanted to know what was happening. Juvenile female spent the
night at the neighbor’s house. Juvenile female was interviewed at
Project Harmony on 05-11-10. Juvenile female stated the sex
abuse had been going on for five years and has included vaginal,
anal, and oral sex. Juvenile female had also been forced to
perform oral sex on Mr. Hoose.

The same day the complaints were filed, an arrest warrant was obtained, and

Hoose was arrested pursuant to the arrest warrant.

On May 24, 2010, the State filed a trial information with minutes of

testimony, charging the defendant with the same crimes. Four of the five

witnesses2 listed in the minutes of testimony were prepared to testify in-depth

about the allegations of abuse beginning when D.H. was eight years old.

Over two years later, on June 26, 2012, the State filed a motion to amend

the trial information and charges against Hoose. Hoose resisted the motion to

amend the trial information, alleging it violated Iowa Rule of Criminal Procedure

2.4(8).

2
The fifth witness would testify regarding the chain of evidence involving a video made
of the interview of D.H. regarding her allegations of sexual abuse.
5

Apparently, the motion to amend was never pursued further as on July 9,

2012, the State filed a new trial information and arrest warrant for Hoose under

case number FECR046498. Hoose was charged with three counts of sexual

abuse in the second degree and one count of sexual abuse in the third degree.

The minutes of testimony included four of the five witnesses from the previous

minutes of testimony, as well as others.

On July 13, 2012, the State filed a motion to consolidate the two cases.

On July 26, 2012, Hoose filed a motion to dismiss the second case for violation

of Iowa Rule of Criminal Procedure 2.33(2)(a), also known as the speedy

indictment rule. The district court granted the State’s motion to consolidate and

denied Hoose’s motion to dismiss, finding the second trial information charged

different crimes relating to different occurrences of sex abuse that Hoose was not

arrested for on May 12, 2010.

On October 31, 2012, the State again amended the trial information.

Under the consolidated case number FECR045719, the amended trial

information listed the charges against Hoose as two counts of sexual abuse in

the third degree and three counts of sexual abuse in the second degree.

The State filed a final amended trial information April 1, 2013, removing

the count of sexual abuse in the third degree involving the May 4, 2010 incident.

The remaining charges involved dates between October 2004 and September

2008.

The matter proceeded to jury trial on April 2, 2013. The jury returned a

guilty verdict on each of the four charges on April 5, 2013. During the trial, the

State called Dr. Anna Salter, a psychologist who specializes in sexual abuse and
6

violence, to testify as an expert on child sexual abuse. Relying on various

published studies and journals, Salter testified about percentages and

generalities concerning children who are abused. She also testified about

specific statements made to her by victims and perpetrators during her practice.

Hoose’s attorney did not object to any of the statements. Hoose now contends

his attorney was ineffective for failing to object to this testimony.

Hoose was sentenced on May 15, 2013. The district court sentenced him

to a term of incarceration not to exceed twenty-five years for each of the sexual-

abuse-in-the-second-degree convictions and a term of incarceration not to

exceed ten years for the sexual-abuse-in-the-third-degree conviction. Each term

was set to run consecutive to each other, for a maximum term of incarceration

not to exceed eighty-five years.

Hoose appeals.

II. Standard of Review.

“We review a district court’s decision regarding a motion to dismiss for

lack of speedy indictment for correction of errors at law.” State v. Wing, 791

N.W.2d 243, 246 (Iowa 2010).

A defendant may raise an ineffective-assistance claim on direct appeal if

he has reasonable grounds to believe the record is adequate for us to address

the claim on direct appeal. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). If

we determine the record is adequate, we may decide the claim. Id. We review

claims of ineffective assistance of counsel de novo. Id.

We review discovery rulings challenged on constitutional grounds de

novo. State v. Cashen, 789 N.W.2d 400, 405 (Iowa 2010) (“Because the issues
7

in this case rest on constitutional claims involving [the defendant’s] due process

right to present a defense, our review is de novo.”).

We review the district court’s evidentiary rulings for abuse of discretion.

State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013). A district court abuses

its discretion when its decision “rests on grounds or for reasons clearly untenable

or to an extent clearly unreasonable.” State v. Rodriguez, 636 N.W.2d 234, 239

(Iowa 2001).

III. Discussion.

A. Speedy Indictment.

Hoose maintains his right to speedy indictment was violated when the

State filed a new trial information under a new case number on July 9, 2012,

adding an additional count of sex abuse in the third degree and three counts of

sex abuse in the second degree.

Both the federal and state constitutions guarantee a right to a speedy trial.

See U.S. Const. amend. XI; Iowa Const art. I, § 10. “Iowa’s speedy indictment

rule ensures the enforcement of the United States and Iowa Constitutions’

speedy trial guarantees, which assure the prompt administration of justice while

allowing an accused to timely prepare and present his or her defense.” State v.

Utter, 803 N.W.2d 647, 652 (Iowa 2011). Iowa’s speedy indictment rule is

codified in Iowa Rule of Criminal Procedure 2.33(2)(a), which provides, “When an

adult is arrest for the commission of a public offense . . . and an indictment is not

found against the defendant within 45 days, the court must order the prosecution

to be dismissed, unless good cause to the contrary is shown or the defendant

waives the defendant’s right thereto.” The term indictment, as used in the rule,
8

includes a trial information. Iowa R. Crim. P. 2.5(5); see also State v.

Schuessler, 561 N.W.2d 40, 41 (Iowa 1997).

“The rules are intended to relieve an accused person of the anxiety

created by a suspended prosecution and afford reasonably prompt administration

of justice.” State v. Miller, 818 N.W.2d 267, 271 (Iowa Ct. App. 2012). The rule

also aims “to prevent the harm that arises from the possible impairment of the

accused’s defense due to diminished memories and loss of exculpatory

evidence.” Wing, 791 N.W.2d at 247.

However, the application of the rule is not without restrictions. The speedy

indictment mandate is restricted “to the offense or offenses for which the

defendant was arrested, and does not extend to a different offense not charged

in the complaint related to the arrest.” State v. Edwards, 571 N.W.2d 497, 499

(Iowa Ct. App. 1997). “There is nothing to suggest it extends to the commission

of an offense which has not resulted in an arrest.” Id. at 499–500. Additionally,

“our existing speedy-indictment precedents do not require law enforcement to

make an arrest based on every crime for which they possess probable cause.”

State v. Miller, 818 N.W.2d 267, 277 (Iowa Ct. App. 2012).

We find it necessary to first address the district court’s order denying

Hoose’s motion to dismiss related to the speedy indictment rule. The district

court relied upon Wing, 791 N.W.2d at 249, and Miller, 818 N.W.2d at 271–74.

We conclude the test announced in those cases is inapplicable to the facts at

hand. Both Wing and Miller involve defendants who were arrested but never

informed they were under arrest, as required by Iowa Code section 804.14. In

Wing, our supreme court stated:
9

When an arresting officer does not follow the protocol for arrest
outlined in section 804.14 and does not provide any explicit
statements indicating that he or she is or is not attempting to effect
an arrest, we think the soundest approach is to determine whether
a reasonable person in the defendant’s position would have
believed an arrest occurred, including whether the arresting officer
manifested a purpose to arrest.

791 N.W.2d at 249. In Miller, the defendant was not informed he was under

arrest, or what charge was being filed against him. 818 N.W.2d at 269–70. Our

court was required to consider how Wing applied to a situation where the law

enforcement officer “arguably had probable cause to place the defendant under

arrest for more than one offense.” Miller, 818 N.W.2d at 268. Because Miller

was not informed why he was arrested, we extended the Wing analysis by stating

the court should look at what a reasonable person would think they are being

arrested for to determine if a speedy indictment violation occurred. Id. at 272–73.

Here, the officer did inform Hoose of the arrest and even read the

complaint and affidavit to him. Accordingly, the “reasonable person in the

defendant’s position” test is not properly applied to these facts.

On appeal, Hoose contends the facts in State v. White, No. 09-1099, 2003

WL 1786543 (Iowa Ct. App. April 4, 2003), are more akin to the facts at hand. In

White, the defendant was charged by trial information with attempted murder for

firing a gun on August 17, 1998. 2003 WL 1786543 at *2. After the speedy-

indictment time period had expired, the State filed a second trial information

alleging two counts arising out of the same incident—a second count of

attempted murder and willful injury. Id. The second count of attempted murder

was premised upon a second shot fired, which had been recited in the minutes of

testimony to the first trial information. Id. Our court concluded the second trial
10

information was not based upon any new facts not existing in the minutes of

testimony of the first trial information and concluded White’s right to speedy

indictment was violated. Id. at *5. Hoose relies on White because the facts set

forth in his complaint state, in part, “Juvenile female stated the sex abuse had

been going on for five years and has included vaginal, anal and oral sex.

Juvenile female has also been forced to perform oral sex on Mr. Hoose.” Hoose

argues, similar to White, that the second trial information was not based on any

new facts as the complaint set forth facts that could have supported the later-filed

charges.

Before White, our supreme court concluded that although the speedy

indictment time period begins when the defendant is arrested, it does not extend

to different offenses that have not resulted in arrest. See State v. Dennison, 571

N.W.2d 492, 497 (Iowa 1997) (where defendant was properly arrested for driving

while revoked and open container and subsequent filing of OWI charge beyond

the forty-five-day time period did not violate the speedy indictment rule). After

White was decided, our supreme court has also clarified that “the State may still

bring charges involving other offenses, which arise from the same incident or

episode as the previously charged offense.” State v. Utter, 803 N.W.2d 647, 654

(Iowa 2011). The State may not, however, charge two offenses if they are the

same offense for purposes of the speedy indictment rule. Id. In Utter, the court

stated, “For purposes of the speedy indictment rule, two offenses are the same if

they are in substance the same, or of the same nature, or same species, so that

the evidence which proves one would prove the other.” Id. (internal quotation
11

omitted). Accordingly, because the law has evolved since White, the principles

espoused in White do not aid Hoose.

Here, it is undisputed that Hoose was formally arrested on May 12, 2010,

for sex abuse in the third degree, lascivious acts with a child, and incest. Each of

the three complaints clearly limits the charges to an event occurring “on or about

the 4th day of May, 2010.” The State formally charged Hoose in the first trial

information with each of the three crimes on May 24, 2010, well within the forty-

five-day requirement. The first trial information (FECR045719) charged the same

three offenses listed in the complaints all to have occurred “on or about May 4,

2010.” The second trial information (FECR046498) filed July 9, 2012, charged

four counts: three counts of sexual abuse in the second degree and one count of

sexual abuse in the third degree. The three counts of sexual abuse in the degree

were all alleged to have occurred between October 2004 and September 2008.

The charge of sexual abuse in the third degree was alleged to have occurred

between October 3, 2008 and May 3, 2010. Because the second trial information

alleges offenses occurring on different dates than the original charges levied,

they are not the same. The evidence to prove one offense does not prove any

other offense, particularly as it relates to sexual abuse where the age of the

victim is consequential to the degree of sexual abuse. See Iowa Code §§ 709.3,

709.4. Accordingly, we conclude there was no speedy trial violation.3

3
In the consolidated trial information filed October 31, 2012, two of the original charges
were dropped—lascivious acts with a child and incest.
12

B. Ineffective Assistance.

Hoose also contends he received ineffective assistance from trial counsel.

He maintains counsel breached an essential duty by failing to object to expert

testimony as inadmissible hearsay and, as a result, he suffered prejudice.

We generally preserve ineffective-assistance-of-counsel claims for

postconviction relief proceedings. Utter, 803 N.W.2d at 651.4 “Only in rare cases

will the trial record alone be sufficient to resolve the claim on direct appeal.” State

v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). We prefer to reserve such claims for

development of the record and to allow trial counsel to defend against the

charge. Id. If the record is inadequate to address the claim on direct appeal, we

must preserve the claim for a postconviction-relief proceeding, regardless of the

potential viability of the claim. State v. Johnson, 784 N.W.2d 192, 198 (Iowa

2010).

Hoose contends some of Dr. Salter’s expert testimony was inadmissible

hearsay and lacked a sufficient foundation. He contends it was similar to the

expert testimony that was challenged in State v. Neiderbach, 837 N.W.2d 180,

205-207 (Iowa 2013), as improperly admitted. Specifically, Hoose contends his

attorney was ineffective for failing to object to journal facts and data recited by

Dr. Salter because Dr. Salter did not testify that such facts and data were

typically relied upon in the field of her expertise. Further, Hoose argues that his

attorney should have objected to Dr. Salter’s testimony about statements from

4
See also Iowa Code § 814.7(3), which provides, “If an ineffective assistance of counsel
claim is raised on direct appeal from the criminal proceedings, the court may decide the
record is adequate to decide the claim or may choose to preserve the claim for
determination under chapter 822.”
13

other victims and additionally, to what the supreme court in Neiderbach

described as “case histories with anecdotal confessions.” 837 N.W.2d at 206.

We acknowledge the similarity in the expert testimony in Hoose’s trial and

in Neiderbach. Ultimately, the court in Neiderbach concluded there was no

prejudice relative to the lack of foundation as the evidence was also admitted

through another expert. 837 N.W.2d at 205–207. The court also found any error

in admitting the case histories and anecdotal confessions was harmless. Id.

We also acknowledge the principle espoused in Neiderbach, “[R]ule 5.703

is intended to give experts appropriate latitude to conduct their work, not to

enable parties to shoehorn otherwise admissible evidence into the case.” 837

N.W.2d at 205. However, unlike Neiderbach, no objections were levied at trial,

and the issue presents itself in this action as a ground for ineffective assistance

of counsel.

The record on this appeal is inadequate to address Hoose’s claims. We

do not know the reasons counsel may have had for not objecting to the testimony

of Dr. Salter. Defense counsel may have reached an agreement prior to trial

regarding the extent of Dr. Salter’s testimony as suggested by the State.

Defense counsel may have also made a strategic decision to simply discredit

Dr. Salter’s testimony by vigorous cross-examination, and thereby discredit the

State’s entire case. Defense counsel should be allowed to respond to the charge

of ineffective assistance of counsel. State v. Brubaker, 805 N.W.2d 164, 170

(Iowa 2013). “Even a lawyer is entitled to his day in court, especially when his

professional reputation is impugned.” State v. Bentley, 757 N.W. 2d 257, 264

(Iowa 2008). Because the record here is inadequate, the issue of whether trial
14

counsel was ineffective is preserved for possible postconviction-relief

proceedings.

C. Medical and Mental Health Records.

Hoose maintains the district court erred in failing to conduct a second in

camera review of D.H.’s medical and mental health records, pursuant to Iowa

Code section 622.10.5

The confidentiality privilege in a person’s medical and mental health

records is absolute with regard to a criminal action. Iowa Code § 622.10(4)(a).

Hoose had the right to seek access to the information by filing a motion

“demonstrating in good faith a reasonable probability that the information sought

is likely to contain exculpatory information that is not available from any other

source.” Id. § 622.10(4)(a)(2)(a). If he made a “showing of a reasonable

probability that the privileged records sought may likely contain exculpatory

information that is not available from any other source, the court shall conduct an

in camera review of such records.” Id. § 622.10(4)(a)(2)(b). The term

“reasonable probability” means “a substantial, not just conceivable, likelihood.”

State v. Thompson, 836 N.W.2d 470, 484 (Iowa 2013) (citations and internal

quotation marks omitted). And the term “likely” means “probable or reasonably to

be expected.” Id. (citations and internal quotation marks omitted).

5
Hoose originally requested access to D.H.’s records in 2011. On April 28, 2011, the
district court determined Hoose had shown there was a reasonable probability D.H.’s
mental health records contained exculpatory evidence. Following an in camera review in
June 2011, the court found there was no exculpatory evidence in the records.
At a pre-trial hearing on January 13, 2013, Hoose requested access to any
medical and mental health records produced after the June 2011 in camera review by
the court. It is the denial of this request that Hoose appeals.
15

Here, the district court found that Hoose failed to demonstrate in good

faith a reasonable probability that information in D.H.’s medical and mental health

records contained exculpatory information that was not available from another

source. At the hearing on the motion, Hoose indicated he believed continued

access to D.H.’s medical and mental health records would allow him to impeach

D.H.’s credibility because she may have made false accusations “against several

new people.” In response, the State conceded that D.H. had made additional

allegations of sexual abuse since the arrest of Hoose. However, the State also

confirmed that one of the persons D.H. accused was serving time in prison for

the crime and a second individual was part of an ongoing investigation by police

officers. Hoose also stated he “wanted the mental health records” to see

“whether [D.H.] may have told her counselor something different than she told

the officers.” Hoose maintains these facts are similar to those in State v.

Neiderbach, 837 N.W.2d 180, 197 (Iowa 2013), where our supreme court held

that the district court erred in failing to conduct an in camera inspection of the co-

defendant’s mental health records. As is true here, in Neiderbach, a “central

issue in the case” was the credibility of the person whose records were at issue.

Id. However, we believe that is where the similarities end. In Neiderbach, the

defendant was able to provide examples of previous “concocted” stories,

inconsistent statements, and strange behavior of his co-defendant who had

reached a plea agreement with the State in exchange for her testimony. Id.

Upon our de novo review, we conclude Hoose’s claims that D.H. had

made allegations of sexual abuse against others, at least one of which resulted in

incarceration, and “may have told her counselor something different than she told
16

the officers,” does not meet the threshold requirement of a “reasonable

probability that the information sought is likely to contain exculpatory information.

(Emphasis added). In Neiderbach, the court found admissions to a mental health

counselor were not substantially equivalent to an adversarial interrogation during

a deposition, and thus there was no other source for the information. 837

N.W.2d at 197. Here, Hoose already had the information from law enforcement

officers who spoke with D.H., and Hoose simply sought to find any

inconsistencies. Further, nothing was found during the first in-camera inspection,

and we are doubtful the last two or three years of records would be fruitful to

Hoose. Moreover, we are unable to reach the same conclusion under these

facts as in Neiderbach as we would expect D.H.’s reports to law enforcement

officers to be substantially equivalent to anything she may have expressed to a

mental health counselor. Unlike a deposition, both a law enforcement officer and

mental health counselor are trying to provide aid to the individual. We find no

error in the trial court’s refusal to conduct a second in camera review of D.H.’s

mental health and medical records.

D. Previous Allegations.

Hoose contends the district court abused its discretion in determining that

other sexual abuse allegations made by D.H. were not admissible at trial. The

district court found that Hoose failed to meet the threshold requirement of

showing the statements were false, based on a preponderance of the evidence.

Iowa Rule of Evidence 5.412 is the “rape shield law” and it provides, “[I]n a

criminal case in which a person is accused of sexual abuse, reputation or opinion

evidence of the past sexual behavior of an alleged victim of such sexual abuse is
17

not admissible.” The rule’s purpose is “to protect the victim’s privacy, encourage

the reporting and prosecution of sex offenses, and prevent parties from delving

into distracting, irrelevant matters.” State v. Alberts, 722 N.W.2d 402, 409 (Iowa

2006). Prior false claims of sexual abuse are not protected by rape-shield laws.

State v. Baker, 679 N.W.2d 7, 10 (Iowa 2004) (“Because a false allegation of

sexual activity is not sexual behavior, such statements fall outside both the letter

and the spirit of the rape-shield law.”). A criminal defendant wishing to admit

such claims “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.”

Alberts, 722 N.W.2d at 409.

Here, Hoose filed a motion to determine the admissibility of four

allegations of sexual abuse made by D.H. To meet his burden of showing the

statements were false based on a preponderance of the evidence, Hoose offered

D.H.’s deposition testimony when she was asked, “Besides what you’re alleging

that your father did to you, have you been sexually active with anyone else?”

D.H. admitted to being sexually active with her boyfriend, but denied any other

sexual activity. Hoose characterized this as a direct contradiction of D.H.’s four

allegations of sexual abuse. Hoose also relied on the fact that one of D.H.’s

allegations involved a “step-uncle” who molested her when she was “four or five

years old.” D.H.’s mother testified that she did not know who D.H. was referring

to when she said step-uncle and further clarified that although D.H. has step-

uncles, “nobody that would have been around when she was that age.” The

State countered that the mother had several men in and out of the house when
18

D.H. was around the ages four or five and it was possible she had referred to one

of the men as a step-uncle even though the man was not technically a step-

uncle. In other words, although D.H. may have misapplied the title of the person

who abused her, there was no evidence the allegation itself was false.

In ruling Hoose had not met the threshold burden, the court stated:

[S]exual activity, sort of suggests like a joint activity versus
molestation. I’m not sure that everyone would understand the
question or the phrase “sexual activity” to refer to being raped or
molested or assaulted or those kind of things. I think that’s kind of
a vague question.
....
My ruling is that the defense has not established by a
preponderance of the evidence that the four statements in
paragraph 5 of the motion to determine the admissibility of false
allegations of sexual abuse were, in fact, false. And because the
defense has not established by a preponderance of the evidence
that those statements are false, then examining [D.H.] about those
topics during her testimony would be a violation of the rape shield
rule and therefore, my ruling is that these are not admissible.

We find the district court did not abuse its discretion. It is undisputed D.H. made

prior allegations, but Hoose failed to show by a preponderance of the evidence

that the allegations were false. Thus, the claims were protected by the rape

shield law and were inadmissible at trial.

IV. Conclusion.

It is undisputed that Hoose was formally arrested on May 12, 2010, and he

was aware of the charges he was being arrested for, so the reasonable person