State of Iowa v. John Charles Donahue ( 2021 )

IN THE SUPREME COURT OF IOWA
No. 18–2239
Submitted January 20, 2021—Filed March 26, 2021
STATE OF IOWA,
Appellee,
vs.
JOHN CHARLES DONAHUE,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Audubon County, Jeffrey L.
Larson, Judge.
Defendant seeks further review from court of appeals decision
affirming his conviction of sexual abuse in the third degree. DECISION
OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT
AFFIRMED.
Appel, J., delivered the opinion of the court, in which all
participating justices joined. Christensen, C.J., took no part in the
consideration or the decision of the case.
Nathan A. Olson (argued) and Christine E. Branstad of Branstad &
Olson Law Office, Des Moines, for appellant.
2
Thomas J. Miller, Attorney General, Richard Bennett (argued) and
Douglas Hammerand, Assistant Attorneys General, and Sarah Jennings,
County Attorney, for appellee.
3
APPEL, Justice.
In this case, defendant John Donahue appeals his conviction of
sexual abuse in the third degree in violation of Iowa Code sections
709.1(1), 709.4(1)(a), and 702.17 (2014). On appeal, Donahue argues that
the district court abused its discretion when it prohibited him from cross-
examining the victim about a prior sexual incident between Donahue and
the victim at a different time and place from the crime that gave rise to the
charges. Donahue also challenges a jury instruction, which deviated from
the model instructions and made reference to “sexual offenses” in a
fashion that Donahue claims prejudiced him as he was only charged with
one sexual offense. Finally, Donahue claims that the evidence offered by
the victim was too vague and insufficient to amount to substantial
evidence to support the jury’s guilty verdict.
We transferred the case to the court of appeals. The court of appeals
affirmed Donahue’s conviction. We granted further review. For the
following reasons, we affirm Donahue’s conviction.
I. Background Facts and Proceedings.
A. Introduction. T.G. lived with her biological mother in
Estherville, Iowa. T.G. moved to Audubon, Iowa, to live with her father
and his wife after the Iowa Department of Human Services removed T.G.
and her siblings from her biological mother’s house due to what T.G.
described as physical and mental abuse. T.G.’s grandfather, John
Donahue, lived two blocks away from the home where T.G. resided in
Audubon. T.G. and her other siblings would often visit Donahue in his
home. T.G. claimed that Donahue sexually abused her in his home.
After amending its original charges, the State alleged that Donahue
committed third-degree sexual abuse against T.G. According to the
charge, Donahue “during the time period of July 31, 2014 through
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August 26, 2016, in Audubon County, Iowa, did commit sexual abuse by
performing a sex act by force or against the will of a person.”
B. Proceedings in District Court.
1. First trial proceedings. The first trial resulted in a mistrial as the
jury could not reach a verdict. Prior to the first trial, Donahue filed a
motion in limine. Paragraph 2 of the motion sought an order from the
court “[t]hat the jury not be told at any time by the State or the State’s
witnesses about any alleged prior bad acts by the Defendant.” The State
resisted, asserting that under State v. Spaulding, prior acts with the victim
are admissible “to show a passion or propensity for illicit sexual relations
with the particular person concerned in the crime on trial.” 313 N.W.2d
878, 880 (Iowa 1981) (en banc) (quoting McCormick’s Handbook on the Law
of Evidence § 190, at 449 (Edward W. Cleary ed., 2d ed. 1972)).
At a May 14, 2018 hearing on the motions in limine, the defense
counsel stated that “I think the State may be right as far as that the State’s
allowed to bring up allegations that include this certain victim and this
certain Defendant.” But the defense reiterated its objection to other prior
act evidence involving the defendant. After hearing from counsel, the
district court stated that the defense motion is “overruled as to the
propensity of any acts between the alleged victim and the Defendant” and
that “in all other aspects of bad acts will be sustained.”
Just before the first trial on June 26, however, the State raised the
question of whether the parties would explore “a prior incident . . . alleged
by the victim with the defendant in Carroll, Iowa.” The State represented
that although it could bring the issue up under Spaulding, it did not plan
to do so. The State argued that the defendant could not bring up the
incident consistent with Iowa’s rape shield rule, noting that the defendant
had not filed any affidavits in connection with the proposed evidence.
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When the district court asked the defendant if he “intend[ed] to get into
[the] Carroll issue,” the defense stated: “No, Your Honor. We did have
some discussion about that, but we don’t intend to.” The district court
entered an oral order granting paragraph 2 and other paragraphs of
Donahue’s motion in limine.
The first trial ended in a mistrial after the jury became deadlocked
during deliberations.
2. Second trial proceedings. A second jury trial commenced on
October 30. Before evidence was received, the district court asked the
parties if anyone wanted to be heard on the motions in limine, noting that
the court had previously ruled that paragraphs 1 through 7 of defendant’s
motion would be sustained. No party wanted to be heard and the court
stated, “Then that’s going to be the Court’s order . . . .”
During the State’s opening statement at the second trial, the State
described a pattern of sexual abuse by Donahue of T.G.:
After years of turmoil and instability in this little girl’s
life, it finally looked like she had found a safe haven. But as
the facts will show, the Donahue home was anything but safe
for [T.G.]. Because this man, Papa, sexually abused her
repeatedly during the time that she lived with her dad.
[T.G.] will tell you that once the abuse started, it
happened virtually every single time that she was alone with
him. It started with grooming behavior: Gifts, expensive gifts
that he only bought for her; he would give her money, just her;
he would spend extra time with her.
This happened so many times over such a long period
of time that only a few occasions stand out in [T.G.]’s mind.
But one of those occasions, she’ll describe it to you.
The State called T.G. as a witness. T.G. provided detailed testimony
of the alleged incident in Audubon for which Donahue was on trial. During
the State’s questioning of T.G. about the Audubon incident, the State
asked T.G. during the time period when the alleged incident occurred
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whether Donahue showed her affection in any way. T.G. responded “Yes.”
The State asked specifically what kind of affection. T.G. replied, “Hugs us
and kiss us.” The State asked T.G. to specify where she was kissed, to
which she replied, “On the lips.” The State asked T.G. how that made her
feel, and T.G. responded, “Uncomfortable.”
The State continued by asking T.G. whether Donahue did anything
else in the house which made T.G. feel uncomfortable and asked her to
describe what occurred. T.G. replied yes, but before describing the event,
the State said: “Let me back up. Did this happen -- when you’re thinking
of, did it happened more than one time?” To which T.G. replied yes. The
State asked no further questions related to any instance aside from the
Audubon incident. T.G. provided specific detailed testimony about the
Audubon incident, saying that Donahue digitally penetrated her vaginal
area.
In proceedings outside the presence of the jury, Donahue’s lawyer
told the court that the defense sought to cross-examine T.G. about a
specific incident from “the deposition that [T.G] had given November of
2017, [where] she spoke at length about an incident in Carroll, Iowa of the
defendant inappropriately touching her there, and we were attempting to
explore that here today, Your Honor.” The State objected. According to
counsel for the state:
[M]y recollection was from the last trial that we weren’t
going to get into the incident in Carroll, and I guess I made
the assumption -- because no one said otherwise -- that that
was going to be the same in this situation, so I did not ask her
about the Carroll incident. . . .
....
. . . [W]e just assumed everything was carrying over --
the same agreements, the same motions in limine that were
carrying over.
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The State further contended that while the State could use the
incident at Carroll to show motive or fabrication, it could not be used by
the defense as impeachment evidence since T.G. did not testify about it on
direct examination.
In response, Donahue argued that the State had opened the door by
suggesting that T.G. had been assaulted by Donahue multiple times.
While the defense recognized that at the morning of the first trial, an
agreement had been reached not to explore the Carroll incident, there was
no such agreement at the second trial. When asked by the court if the
defense wanted to explore the Carroll incident in detail, the defense replied
“Yes.”
The district court took the matter under advisement and adjourned
for the day. Prior to trial the following day, the district court took up the
matter again.
The State elaborated on its position at the reconvened hearing. The
State asserted there were two reasons to decline Donahue’s request. First,
the State asserted that the district court’s order on the motion in limine
covered the matter and that the defense was bound by it. Second, the
State contended that the evidence would be inadmissible under the rape
shield rule.
Donahue did not contest the State’s assertion that the Carroll
incident was within the scope of the motion in limine but claimed that the
event occurred after the alleged crime and therefore was not covered by it.
The defense conceded that it did not comply with the ordinary notice
requirements of the rape shield rule but declared without elaboration that
“it’s our position that the Rape Shield Law is not applicable.” Finally,
Donahue claimed that the State had opened the door through T.G.’s
testimony.
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After hearing from the parties, the district court ruled that it would
not allow Donahue to cross-examine T.G. about the Carroll incident. The
district court adopted both grounds advanced by the state: the ruling on
the motion in limine prohibited admission and admission of the evidence
by the defense would violate the rape shield rule. The district court added
that it would not have made the ruling if there had been a clear discussion
of the Carroll incident in the testimony at trial. The district court further
refused to permit Donahue to recall T.G. as a witness to elicit testimony
about the Carroll incident. The district court stated that if such testimony
were permitted, “the State would be allowed to bring in testimony and
witnesses with regard to something that happened in Carroll.” After the
district court’s ruling on the Carroll matter, trial reconvened.
After the close of evidence, the parties reviewed the district court’s
proposed jury instructions. Donahue objected to the court’s proposed
Instruction No. 20 which stated that “[t]here is no requirement that the
testimony of a victim of sexual offenses be corroborated, and her testimony
standing alone, if believed beyond a reasonable doubt, is sufficient to
sustain a verdict of guilty.” Donahue requested that the court use the
model jury instructions for reasonable doubt. The court overruled
Donahue’s objection, leaving Instruction No. 20 as originally written and
stating that the instruction was proper based on State v. Barnhardt,
No. 17–0496, 2018 WL 2230938 (Iowa Ct. App. May 16, 2018).
After trial, the jury convicted Donahue of third-degree sexual abuse.
C. Court of Appeals Decision. Donahue appealed his conviction.
On appeal, Donahue argued that the district court erred when it denied
Donahue the opportunity to explore the Carroll incident through the
testimony of T.G. Donahue further argued that the district court
committed error by utilizing Instruction No. 20 over the defense objection.
9
Finally, Donahue argued there was insufficient evidence to support the
verdict. The court of appeals affirmed the district court. We granted
further review.
II. Standard of Review.
We review evidentiary rulings by the district court for abuse of
discretion. State v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013).
Specifically, we review the inadmissibility of evidence under Iowa Rule of
Evidence 5.412 (the rape shield rule) for abuse of discretion. State v.
Alberts, 722 N.W.2d 402, 407–08 (Iowa 2006). We reverse the district
court’s admission as an abuse of discretion when the grounds for
admission were “clearly untenable or clearly unreasonable.” State v. Plain,
898 N.W.2d 801, 811 (Iowa 2017).
To the extent Confrontation Clause claims are raised, we review
them de novo. State v. Rogerson, 855 N.W.2d 495, 498 (Iowa 2014).
“[W]e review challenges to jury instructions for correction of errors
at law.” Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016)
(quoting Anderson v. State, 692 N.W.2d 360, 363 (Iowa 2005)). Errors in
jury instructions require reversal if prejudice results. State v. Coleman,
907 N.W.2d 124, 138 (Iowa 2018). And, “unless the record affirmatively
establishes there was no prejudice,” we presume errors in jury instructions
are prejudicial. State v. Hanes, 790 N.W.2d 545, 551 (Iowa 2010).
“We review the sufficiency of the evidence for correction of errors at
law.” State v. Kelso-Christy, 911 N.W.2d 663, 666 (Iowa 2018). “We view
the evidence in the light most favorable to the State, ‘including legitimate
inferences and presumptions that may fairly and reasonably be deduced
from the record evidence.’ ” State v. Tipton, 897 N.W.2d 653, 692
(Iowa 2017) (quoting State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005)).
We determine evidence is sufficient when the record contains substantial
10
evidence to support conviction. Kelso-Christy, 911 N.W.2d at 666.
“Substantial evidence exists when the evidence ‘would convince a rational
fact finder the defendant is guilty beyond a reasonable doubt.’ ” Id.
(quoting State v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011)).
III. Discussion.
A. Admissibility of Prior Acts Evidence.
1. Positions of the parties. On appeal, Donahue contends that the
district court abused its discretion when it precluded him from cross-
examining or offering direct evidence through T.G. about the Carroll
incident. Donahue argues that the State opened the door to cross-
examination of the prior incident in Carroll through its opening argument
and direct examination of T.G—both of which alluded to multiple instances
of sexual abuse. Donahue argues that cross-examination was necessary
to impeach T.G. for the allegedly false Carroll accusation. Donahue claims
that because the Carroll accusation was false, Iowa’s rape shield rule does
not bar cross-examination of prior sexual behavior of T.G. Donahue also
claims that the procedural requirements of the rape shield rule do not
apply because the evidence concerned an issue that had newly arisen
since the State opened the door.
The State contends that it did not open the door to questioning
about the Carroll incident. The State claims that any talk of other
incidents involved only other incidents of abuse that occurred in the
Audubon home, not in Carroll. The State also argues that the rape shield
rule applies because Donahue never demonstrated that the Carroll
allegations were false. The State further argues that if Donahue wanted
to claim that the allegation was false, he needed to comply with the
procedural requirements of the rape shield rule which require a hearing
outside of the presence of the jury to determine admissibility.
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2. Error preservation. The State argues that many of Donahue’s
claims are not preserved on appeal. The State claims that Donahue offered
no reason to the trial judge for why cross-examination was necessary to
develop information about the Carroll incident. In other words, the State
claims that Donahue failed to make a sufficient offer of proof on exactly
how the Carroll incident related to the case. Donahue made no offer of
proof, for instance, showing that the Carroll statements were false and
thus admissible under the rape shield rule.
The State also argues that at trial, Donahue did not contest the
proposition that the district court’s rulings on the motion in limine were
binding on the parties. The State notes that Donahue only argued that
the ruling did not apply to prior acts that occurred after the crime but prior
to trial.
Donahue counters that he preserved error when, after the State
objected to his cross-examination of T.G., he argued that the motion in
limine was not applicable to the second trial and that the rape shield rule
did not apply, which both put the district court on notice that Donahue’s
implied argument was that the Carroll allegation was false and that the
district court was aware of Donahue’s argument that the State opened the
door to the cross-examination through its opening statement and direct
examination of T.G. Donahue argues that the district court erroneously
ruled on each of those arguments and, when considered in combination
with the notice to appeal, preserved error on the issues.
3. Discussion. We begin with reviewing the posture of the case at
the second trial. The district court had definitively ruled on paragraph 2
of the motion in limine at the second trial, namely, that evidence of prior
acts was not coming in at trial. We have our doubts whether the district
court’s ruling on the motion in limine was sufficiently broad to cover the
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Carroll incident. Yet, we note that the record suggests that the parties
may have assumed that the Carroll incident was within the scope of the
court’s ruling on the motion in limine. Indeed, at trial, Donahue did not
argue that the motion in limine ruling was inapplicable but instead
claimed that the prosecution opened the door on the testimony.
We now turn to the question of the applicability of our rape shield
rule. Iowa Rule of Evidence 5.412(a)(1) prohibits the use of evidence “in a
criminal proceeding involving alleged sexual abuse” if the evidence is
“offered to prove that a victim engaged in other sexual behavior.” The rule
is meant to “(1) protect the privacy of victims, (2) encourage reporting, and
(3) prevent time-consuming and distracting inquiry into collateral
matters.” State v. Mitchell, 568 N.W.2d 493, 497 (Iowa 1997). There are
several exceptions to the general prohibition in the rule. For example,
prior sexual behavior may be offered to show that a person other than the
defendant was the perpetrator, the sexual encounter was consensual, or,
if excluded, the constitutional rights of the defendant would be violated.
Iowa R. Evid. 5.412(b)(1)(A)–(C). In addition, a false accusation of a sexual
encounter is not protected by the rule. See State v. Baker, 679 N.W.2d 7,
10–11 (Iowa 2004).
While Donahue is right that a false accusation of a sexual encounter
is not protected by the rape shield rule, a defendant who wishes to argue
that a witness is making a false claim must first comply with a set of
procedural hurdles. See Iowa R. Evid. 5.412(c); State v. Trane, 934 N.W.2d
447, 457 (Iowa 2019). Under the rule, the defendant must first “file a
motion to offer the evidence at least 14 days before trial” and include with
the motion an offer of proof “specifically describ[ing] the evidence and
stat[ing] the purpose for which the evidence is to be offered.” Iowa R. Evid.
5.412(c)(1)(A), (C). If the offer of proof demonstrates that the evidence may
13
be admissible under one of the rape shield exceptions, an in camera
hearing is conducted to determine whether the evidence is admissible. Id.r. 5.412(c)(2). The evidence is admissible when it is relevant and the
probative value outweighs any danger of unfair prejudice. Id.r. 5.412(c)(2)(C); see also Trane, 934 N.W.2d at 457; Alberts, 722 N.W.2d
at 409 (“[The defendant] 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.”). The procedural hurdles may be
overcome if “the court determines that the evidence is newly discovered
and could not have been obtained earlier through the exercise of due
diligence, or that the evidence relates to an issue that has newly arisen in
the case.” Iowa R. Evid. 5.412(c)(1)(A).
It is clear that Donahue did not comply with the procedural
requirements and thus has not established a basis to escape the
prohibitions of our rape shield rule.1 Nonetheless, Donahue argues that
the evidence related to a newly arisen issue in the case because the State
opened the door to the Carroll incident. See Stringer v. State, 522 N.W.2d
797, 800–01 (Iowa 1994) (discussing the difference between opening the
door and an improper question). So, a key question becomes whether the
State’s opening statement and direct examination referred to or discussed
an incident in Carroll in a fashion sufficient to permit the defense to
develop the issue further.
1The lack of an offer of proof makes it impossible for us to determine if the evidence
is admissible and, as a result, could give rise to a Confrontation Clause claim under the
United States or Iowa Constitutions. See Thompson v. State, 492 N.W.2d 410, 414 (Iowa
1992) (“[The rape shield rule] is an exception to the general rule that relevant evidence is
admissible. . . . [E]ven relevant evidence is not constitutionally required to be admitted
if the prejudicial effect outweighs the probative value.” (citations omitted)); State v.
Parsons, 401 N.W.2d 205, 208 (Iowa Ct. App. 1986) (“The Constitution . . . requires only
the introduction of relevant and admissible evidence.”).
14
Based on our review of the trial record, Donahue’s argument that
the State opened the door is not persuasive. There was a brief mention of
multiple incidents in the opening statement, but the statement was made
in the context of Donahue’s home in Audubon being “anything but safe”
for T.G. We note there was no defense objection to the statement. Further,
in the State’s direct examination of T.G., T.G. responded “Yes” to the
State’s question about whether abuse had occurred multiple times. But
again, the question about multiple instances of abuse was linked to events
that occurred in Donahue’s home. We agree with the district court’s
conclusion that this brief testimony did not open the door to exploration
of an incident in Carroll.
Assuming that the State did open the door in a fashion that excuses
compliance with the fourteen-day notice provision, Donahue still cannot
prevail on his effort to avoid the prohibition of Iowa Rule of Evidence 5.412.
As noted in State v. Trane and State v. Alberts, if a defendant wishes to
introduce evidence of a false prior accusation, it has the obligation of
making a satisfactory offer of proof before the district court. Trane,
934 N.W.2d at 457–58; Alberts, 722 N.W.2d at 409. Under the approach
endorsed in Alberts, the defendant must show by a preponderance of the
evidence “that (1) the complaining witness made the statements and (2) the
statements are false.” Alberts, 722 N.W.2d at 409. In this case, Donahue
made no such showing. Instead, the defense simply stated that it wished
to explore an incident in Carroll, Iowa.
For the forgoing reasons, we determine that the district court did
not abuse its discretion when it prohibited Donahue from questioning T.G.
about the Carroll incident.
B. Jury Instruction No. 20. The district court submitted
Instruction No. 20 to the jury which stated, “There is no requirement that
15
the testimony of a victim of sexual offenses be corroborated, and her
testimony standing alone, if believed beyond a reasonable doubt, is
sufficient to sustain a verdict of guilty.” Donahue argues that the
instruction was in error because it deviated from the model instructions
and those approved of by Barnhardt, 2018 WL 2230938, at *4. Donahue
specifically attacks the instruction because it includes the plural phrase
“sexual offenses” when Donahue was only charged with one crime.
Donahue argues that the instructions prompted the jury to ponder the
multiple acts and therefore prejudiced his conviction.
The State argues that an instruction which states that there is no
requirement for corroboration of the testimony of sexual abuse victims is
an accurate statement of the law. See, e.g., State v. Knox, 536 N.W.2d 735,
742 (Iowa 1995) (en banc). The State argues that Donahue did not
preserve the specific claim regarding the use of the plural term “sexual
offenses” in the instruction because Donahue only generally objected to
the failure of the district court to follow the wording of the model jury
instruction.
In any event, the State maintains that the use of the plural term
“sexual offenses” could not have confused the jury. The State notes that
in closing argument, the prosecutor clearly stated that only one act of
sexual abuse had been proved. Further, the jury instructions as a whole
clearly advised the jury that one crime had been charged.
Even assuming Donahue’s general objection to the jury instruction
preserves error as to his specific claim that the word “sexual offenses” was
erroneous and prejudicial, we find his claim of instructional error fails on
the merits. We read jury instructions as a whole to determine their
accuracy. See, e.g., State v. Benson, 919 N.W.2d 237, 241–42 (Iowa 2018);
State v. Martin, 383 N.W.2d 556, 560–61 (Iowa 1986). Clearly, the
16
instructions read as a whole do not imply that Donahue was being charged
with multiple offenses.
Indeed, the first sentence of the instructions reads: “The State has
charged John Charles Donahue with the crime of Sexual Abuse in the
Third Degree.” No ambiguity here. And, the marshalling instruction,
Instruction No. 14, stated that “[t]he State must prove all of the following
elements of Sexual Abuse in the Third Degree: 1. During the time period
of July 31, 2014, through August 26, 2016, the Defendant performed a
sex act with T.G.” (Emphasis added.) The marshalling instruction uses
the singular “a sex act.” Given the complete context of the instructions,
we think the jury would not have been misled by the use of the plural term
“sexual offenses” in Instruction No. 20. Further, because the crime of
sexual abuse in the third degree has lesser included offenses, the plural
term would simply apply to each of the lesser included offenses as well as
the greater crime.
C. Sufficiency of Evidence. Finally, Donahue claims that the
evidence of T.G.’s testimony was insufficient to support conviction because
it was not credible. Donahue argues that there was no physical evidence,
T.G. could not articulate specific dates of abuse, T.G. changed her story
depending on with whom she spoke, and the sex act was not committed
with force or against T.G.’s will because she voluntarily continued to be in
Donahue’s presence after the alleged incident.
The State argues that evidence was sufficient because corroborating
evidence of a defendant’s testimony is not necessary to support conviction.
The State notes that its expert at the trial presented evidence
demonstrating that child victims often have trouble recalling details of
attacks and fail to report sex abuse crimes in a timely fashion. The State
also argues that T.G.’s testimony demonstrated that her reason for a
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delayed report of the abuse was because Kimberly was present during the
police questioning of the incident, and since Kimberly is Donahue’s
biological granddaughter, T.G. felt that her report might not be believed.
Finally, the State argues that to demonstrate that a sex act was against
the victim’s will, physical or verbal protests are not necessarily required.
We agree with the State. A sexual abuse victim’s testimony alone
may be sufficient evidence for conviction. See State v. Hildreth,
582 N.W.2d 167, 170 (Iowa 1998); Knox, 536 N.W.2d at 742. As a result,
Donahue’s argument that T.G.’s testimony is not credible enough to
convince a rational fact finder of his guilt beyond a reasonable doubt is
unavailing for sufficiency of the evidence purposes. Inconsistencies and
lack of detail are common in sexual abuse cases and do not compel a jury
to conclude that the victim is not credible or that there is insufficient
evidence to support a guilty verdict. See, e.g., State v. Walker, 935 N.W.2d
874, 881–82 (Iowa 2019); Hildreth, 582 N.W.2d at 170; State v. Rankin,
181 N.W.2d 169, 172 (Iowa 1970).
Donahue’s argument that the evidence was insufficient to establish
a sex act was perpetrated by force or against T.G.’s will is also
unpersuasive. Iowa Code section 709.1 provides that sexual abuse occurs
when an act is committed “against the will of the [victim].” We have
determined that “the focal point of the crime of sexual abuse is consent.”
Kelso-Christy, 911 N.W.2d at 666. And the element of consent “turns on
the intentions and mental state of the victim.” Id.
Donahue argues that there was no evidence that T.G. told him “to
stop, said no, pushed his hand away, or otherwise provided any indication
that the alleged interaction was against the will of T.G.” While verbal and
physical resistance may demonstrate a lack of consent, they are not
required. See, e.g., Meyers, 799 N.W.2d at 146 (“[W]e conclude
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psychological force or inability to consent based on the relationship and
circumstance of the participants may give rise to a conviction under the
‘against the will’ element of section 709.4(1). This statutory element
considers all circumstances that establish actual nonconsent, including
any psychological circumstances particular to the participants.”); State v.
Bauer, 324 N.W.2d 320, 322 (Iowa 1982) (“We believe, however, that the
jury could—and obviously did—believe complainant when she testified to
fear which rendered her incapable of protest or resistance. This is all our
statute demands.”).
And, there is sufficient evidence from T.G.’s testimony that the
action was against her will. T.G. testified that the sex act made her feel
very uncomfortable and that she was confused, did not know why
Donahue was doing it, and was scared. When asked about what she was
thinking during the act, T.G. testified that she wondered “[w]hen is he
going to stop, or what am I supposed to do afterwards.” When asked why
she did not tell Donahue to stop, she replied: “Well, I was really scared.
Never had this happen to me before, and I didn’t know what to do.”
Finally, when asked whether the act was against her will, she replied
“Yes.” T.G. actually testified that the action was against her will and her
testimony demonstrated fear and confusion about the action. Taking the
evidence in the light most favorable to the State, a rational fact finder could
be convinced beyond a reasonable doubt that Donahue’s action was
against T.G.’s will.
Because a rational fact finder could determine beyond a reasonable
doubt that Donahue committed a sex act on T.G. and that the act was
against T.G.’s will, substantial evidence supports the conviction.
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IV. Conclusion.
For the above reasons, we conclude that the district court did not
abuse its discretion when it prohibited Donahue from questioning T.G.
about the Carroll incident. Nor did the district court error when it
submitted Instruction No. 20 to the jury. Finally, based upon our review
of the record, we conclude there is sufficient evidence to support
Donahue’s conviction of sexual abuse in the third degree. As a result, we
see no basis to disturb Donahue’s conviction.
DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.
All justices concur except Christensen, C.J., who takes no part.