State of Iowa v. Robert Conway, III

IN THE COURT OF APPEALS OF IOWA

No. 21-0206
Filed August 17, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ROBERT CONWAY, III,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Grundy County, Bradley J. Harris,

Judge.

A defendant appeals his conviction for lascivious acts with a minor.

AFFIRMED.

Jennifer Frese of Kaplan & Frese, LLP, Marshalltown, for appellant.

Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., Chicchelly, J., and Gamble, S.J.*

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

(2022).
2

GAMBLE, Senior Judge.

Robert Conway appeals his convictions for lascivious conduct with a minor.

He claims the district court abused its discretion by excluding evidence under the

rape-shield law and admitting evidence of his silence. He also claims the court

should have granted his motion for new trial based on the inconsistency in the

verdicts.1 We affirm.

I. Background Facts and Prior Proceedings

In March 2018, law enforcement became aware of allegations that Conway

sexually abused H.W. in 2017. Kirk Dolleslager, the chief deputy of the Grundy

County Sheriff’s department, contacted Conway as part of the investigation. He

informed Conway of the sexual abuse allegations, and Conway said he would “get

back ahold of” Dolleslager. Dolleslager called Conway three times in an attempt

to speak with him, but was not successful in contacting Conway again.

The State eventually charged Conway with sexual abuse in the third degree

(count I); sexual exploitation of a minor (count II); telephone dissemination of

obscene material to a minor (count III); and lascivious acts with a minor (count IV).

1Conway also makes passing reference to a proposed instruction the district court
declined to submit to the jury. It stated,
[I]n this case you heard evidence that the defendant did not return
calls from law enforcement. The defendant is under no obligation to
cooperate with law enforcement, and no inference of guilty shall be
drawn from that fact. The burden of proof remains upon the State to
prove the guilt of the defendant.
However, Conway does not develop an argument as to how the court erred in
denying this instruction. So this claim is waived. See State v. Louwrens, 792
N.W.2d 649, 651 n.1 (Iowa 2010) (“[P]assing reference to an issue, unsupported
by authority or argument, is insufficient to raise the issue on appeal.”).
3

In anticipation of trial, Conway filed a “notice of intent to proffer evidence

pursuant to Iowa Rule of Evidence 5.412,” Iowa’s rape-shield law. He claimed

H.W. had made prior false “allegations of sexual abuse against several people.”

The district court held a pre-trial hearing on the matter and issued a written order.

In its ruling, the court determined that Rule 5.412 was inapplicable to some of the

proposed evidence because it did not relate to the sexual conduct of H.W. and it

prohibited introduction of the remaining proposed evidence because Conway

failed to show by a preponderance of the evidence that H.W.’s prior allegations

were false.

The morning of trial, Conway argued2 (outside the presence of the jury) that

any references to him telling Chief Deputy Dolleslager that he would speak to a

lawyer or that he did not call Dolleslager back would implicate his right to counsel

and right to remain silent so those statements should be prohibited. He also

claimed the statements were not relevant and even if they were, they could not

pass a Rule 5.403 balancing test. The State clarified that it did not intend to offer

the fact that Conway referenced an attorney—only “that he had stated that he

would get back to [Dolleslager] and did not.” The court determined it would allow

testimony that Conway was aware of the investigation and that he did not return

phone calls but prohibited references to Conway wanting to contact an attorney.

With that, the jury trial commenced, and Conway testified in his own

defense. Following submission of the case to the jury, it returned not guilty verdicts

2From the transcript, we understand defense counsel sent an email containing a
corresponding written argument to the trial judge and the prosecutor. However, it
appears counsel never filed anything through EDMS, so we do not have access to
counsel’s written arguments.
4

on counts I, II, and III. However, the jury found Conway guilty of count IV. In

response, Conway filed a motion for new trial claiming, among other things, that

the jury’s verdicts were inconsistent. The court denied the motion, finding that the

verdicts were not inconsistent.

Conway appeals.

II. Standard of Review

When reviewing Conway’s various claims, we employ varying standards of

review. “We review trial court rulings on admissibility of evidence under rule 5.412

in criminal prosecutions for abuse of discretion.” State v. Alberts, 722 N.W.2d 402,

407 (Iowa 2006). So “[r]eversal is warranted only upon showing the ‘court

exercise[d] its discretion on grounds or for reasons clearly untenable or to an

extent clearly unreasonable.’” Id. at 408 (alteration in original) (citation omitted).

To the extent a claim takes on a constitutional dimension, our review is de novo.

State v. Cox, 781 N.W.2d 757, 760 (Iowa 2010). “The consequence of a potentially

inconsistent jury verdict is a question of law, and accordingly, our review is de

novo.”3 State v. Montgomery, 966 N.W.2d 641, 649 (Iowa 2021) (citation omitted).

3Normally, our review of questions of law is for errors of law. See State v. Allen,
965 N.W.2d 909, 911 (Iowa 2021). However, the supreme court has stated, “[T]he
question of the validity of an inconsistent verdict . . . can be approached only with
due regard to important constitutional concepts including double jeopardy, guilt
beyond a reasonable doubt, and the right to a unanimous jury verdict.” State v.
Halstead, 791 N.W.2d 805, 808 (Iowa 2010). “To the extent constitutional issues
are raised, review is de novo.” Id. at 807.
5

III. Discussion

A. The Rape-Shield Law

First, Conway claims the district court abused its discretion when it

prevented him from presenting evidence that H.W. made prior false allegations of

sexual activity.

Generally, the rape-shield law prevents a defendant from introducing

evidence of a complaining witness’s prior sexual activity. See Iowa R.

Evid. 5.412(a). But see Iowa R. Evid. 5.412(b) (providing limited exceptions to the

prohibition). However, the “false claims of sexual activity do not fall within the

coverage of our rape-shield law.” Alberts, 722 N.W.2d at 409. So for a defendant

to be able to introduce a complaining witness’s false allegations of sexual activity,

they “must first make a threshold showing to the trial judge outside the presence

of the jury that (1) the complaining witness made the statements and (2) the

statements are false, based on a preponderance of the evidence.” Id.

Here, Conway argues he established by a preponderance of the evidence

that H.W. made false allegations of sexual activity involving three people (Kain

Redix, Chris Conway, and Tim Hampton) that should have been permitted.4 We

disagree.

First, as the district court pointed out, the rape-shield law is inapplicable to

the evidence Conway wished to present regarding Kain. Conway wanted to

introduce evidence H.W. claimed Kain made sexually explicit statements to her

4 Of course even if the proposed evidence was not prohibited by the rape-shield
law, it would still “remain subject to all other applicable evidentiary requirements
and considerations.” Alberts, 722 N.W.2d at 410 (citation omitted).
6

and she ran away but Kain denied the exchange ever occurred. This does not

involve any allegations of H.W.’s sexual activity, so the rape-shield law is not

applicable and would not prohibit this evidence, which the district court made clear

in its ruling. Specifically, the court “determine[d] that Rule 5.412 is not applicable

to this evidence. The evidence may therefore be admissible if it meets all other

applicable evidentiary requirements and considerations.” So the district court’s

ruling did not prevent Conway from introducing this evidence. Yet Conway never

attempted to introduce the evidence at trial. So there is nothing for Conway to

appeal.

Second, as to Chris and Tim, Conway failed to establish H.W. made false

statements about sexual activity involving either person by a preponderance of the

evidence. With respect to Tim, Conway claimed H.W. made false claims that she

and Tim touched each other’s genitals. But Conway only offered Tim’s denial in

an attempt to show H.W.’s claims were false. And Tim sent H.W. sexually

suggestive text messages., casting doubt on his denial. With respect to Chris,

Conway offered H.W.’s mother’s testimony wherein she stated the Iowa

Department of Human Services (DHS) investigated the claims against Chris and

determined the claims were unfounded. However, H.W. explained that her mother

talked to DHS before she did and told them a different story than she shared, so

DHS determined there was not enough consistency between them to determine

the incident was founded. H.W. stated the issue was that her mother just didn’t

really listen to her. And at the preliminary hearing, H.W.’s recounting of her sexual

contact with Chris remained consistent with her prior allegations. So Conway

failed to establish that H.W.’s claims against Tim and Chris were false by a
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preponderance of the evidence, and the district court did not abuse its discretion

in determining Rule 5.412(1) prevented introduction of this evidence.

B. Conway’s Lack of Cooperation

Next Conway argues the district court should have prohibited the State from

presenting evidence that he did not return Dolleslager’s phone calls because it

infringed on his constitutional right to remain silent.5 He likens his prearrest

avoidance of law enforcement to a person’s silence following arrest or refusal to

testify at trial. But he presents no authority explicitly supporting his contention that

a defendant’s prearrest avoidance of law enforcement is off limits at trial.6

Rather in Jenkins v. Anderson, the Supreme Court determined “the Fifth

Amendment is not violated by the use of prearrest silence to impeach a criminal

defendant’s credibility.” 447 U.S. 231, 238 (1980). It also held “impeachment by

use of prearrest silence does not violate the Fourteenth Amendment.” Id. at 240.

This dispels Conway’s notion that there is an absolute bar on evidence of his

prearrest silence. See State v. Goodrich, No. 00-1644, 2002 WL 984477, at *4

5 Conway does not make clear whether he is bringing his claim under the state or
federal constitution. Likewise he does not ask us to apply a differing standard than
that applied under the Fifth Amendment to the United States Constitution, so we
apply federal standards. See State v. Dewitt, 811 N.W.2d 460, 467 (Iowa 2012).
6 The State suggests Conway’s claim is most akin to alleging a Doyle v. Ohio

violation. 426 U.S. 610 (1976). In Doyle the defendant was pressed at trial about
why he didn’t tell the arresting investigator that he was innocent or explain what
happened. Id. at 614. The prosecution argued that the defendant’s silence could
be discussed to show the defendant’s explanation at trial was fabricated at some
point because he did not disclose it right away. Id. at 616–17. The Supreme Court
rejected that contention and instead held that a defendant’s silence at the time of
arrest and post Miranda warning, even for impeachment purposes, violates the
Due Process Clause of the Fourteenth Amendment. Id. at 619. The present case
differs significantly in that Conway’s avoidance of law enforcement occurred prior
to any arrest or Miranda warning.
8

(Iowa Ct. App. May 15, 2002) (citing Jenkins, 447 U.S. at 235–38). And we have

previously held testimony about an investigator’s inability to complete a prearrest

interview with a defendant was permissible “when viewed in the context of the

defense’s trial strategy” because “[t]he primary strategy was to impeach the quality

of the police’s investigation.” State v. Werner, No. 16-1315, 2017 WL 2684348, at

*2 (Iowa Ct. App. June 17, 2017). That is what happened here—the defense

strategy was to attack the thoroughness of the investigation. For example, in

opening statements, defense counsel told the jury, “[Y]ou heard the prosecutor talk

about what they didn’t do. This case went from allegation to jury.” Conway

criticized the investigation throughout the trial. And in closing argument defense

counsel asserted, “Now, the investigation in this case is absolutely deplorable.” So

given “the context of the defense’s trial strategy,” evidence of Conway’s prearrest

avoidance of law enforcement preventing them from interviewing him was

permissible to meet Conway’s attack on the investigation. See id.

C. Inconsistent Verdicts

Finally we address Conway’s contention that the verdicts were inconsistent.

“A jury verdict may be deemed inconsistent based upon inconsistent application of

facts or inconsistent application of the law.” Halstead, 791 N.W.2d at 807. A

verdict is factually inconsistent when “[t]here is no legal flaw in the jury’s verdict,

but the verdicts seem inconsistent with the facts.” Id. A verdict is legally

inconsistent when a defendant is convicted of a compound crime but acquitted on

all predicate offenses. Id.

Here, it appears Conway is claiming the verdict is factually inconsistent

rather than legally inconsistent. But “our case law prohibits only legally
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inconsistent verdicts,” so Conway’s conviction for lascivious acts with a minor is

not invalid. See State v. Huffman, No.13-1058, 2014 WL 3931416, at *4 (Iowa Ct.

App. Aug. 13, 2014). To the extent Conway claims legal inconsistency, he is not

successful. None of the counts he was acquitted of (third-degree sexual abuse,

sexual exploitation of a minor, and telephone dissemination of obscene material to

a minor) are predicate offenses of lascivious acts with a minor (the offense for

which he was convicted). Compare Iowa Code §§ 709.4(1)(b)(3)(a) (third-degree

sexual abuse), 728.12(3) (sexual exploitation for a minor), .15(1)(b) (telephone

dissemination of obscene material to a minor), with Iowa Code § 709.14 (lascivious

conduct with a minor). And for good measure, our review of the marshalling

instructions confirms Conway could commit lascivious acts with a minor as

instructed without committing the remaining three charged offenses. Halstead,

791 N.W.2d at 815. The verdicts are not factually or legally inconsistent.

Therefore, Conway is entitled to no relief.

IV. Conclusion

We affirm Conway’s conviction for lascivious acts with a minor.

AFFIRMED.