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IN THE SUPREME COURT OF IOWA
No. 92 / 04-1949 Filed October 6, 2006 STATE OF IOWA, Appellee, vs. MICHAEL JOHN ALBERTS, Appellant. ________________________________________________________________________ On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Johnson County, L. Vern Robinson, Judge.

Convicted sex abuser seeks further review of court of appeals decision affirming his conviction. DECISION OF COURT OF APPEALS PARTIALLY VACATED; CASE REMANDED.

Paul D. Miller of Miller Law Office, Iowa City, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, J. Patrick White, County Attorney, and Victoria Cole, Assistant County Attorney, for appellee.

2 STREIT, Justice. Is skinny-dipping a form of sexual behavior? Michael John Alberts allegedly sexually assaulted R.M., his nephew's twenty-two-year-old girlfriend. Alberts was convicted of third-degree sexual abuse following a jury trial in Johnson County, Iowa. prosecutor engaged in prosecutorial On appeal, Alberts alleged the misconduct and complained

numerous errors were made by the district court. Because we find the district court erred by failing to determine whether R.M. made a prior false allegation of sexual misconduct relating to a skinny-dipping incident, we reverse the district court judgment on this error and remand for further proceedings. I. Facts and Prior Proceedings On the night of October 19, 2003, R.M. attended a bachelorette party at a Cedar Rapids bar named Borrowed Bucks. Alberts was also at the bar, and the two struck up a conversation. Alberts and R.M. knew each other through R.M.'s boyfriend, Jesse Goeller. forty-two-year-old uncle. Alberts is Jesse's

R.M. attended a half dozen or so family

gatherings with Jesse where Alberts was present. Additionally, a few weeks prior to the bachelorette party, Jesse, R.M., and a friend of R.M. ran into Alberts at Borrowed Bucks. There, the four of them danced as a group and at times Alberts and R.M. danced together in a provocative manner. When the bar closed, R.M. R.M.'s

and Jesse sat with Alberts in the cab of Alberts' semi-truck.

friend waited in the car. R.M. and Alberts smoked marijuana. Before leaving, R.M. unhooked her bra under her shirt and hung it on Alberts' rearview mirror. R.M. left the cab and Jesse followed a couple minutes later after Alberts handed Jesse R.M.'s bra.

3 During the bachelorette party, R.M. drank several beers and

a shot of tequila. At closing time, R.M. went with Alberts to his family's lake house instead of remaining with the bachelorette group. When they arrived at the lake house, R.M. ate some food, headed for the bathroom, and vomited. She then told Alberts she felt "like crap" and needed to "sleep this off." Alberts followed R.M. into one of the bedrooms and sat next to her on the bed. With Alberts still in the room, R.M. took off her skirt and climbed into bed. Sometime later, R.M. woke to find Alberts sucking her breasts. According to R.M., she did not respond to his actions. Alberts then

performed oral sex on her and had intercourse with her. R.M. claims she pretended to be asleep during the entire episode. Alberts thereafter left to sleep in another bedroom. The next morning, Alberts drove R.M. to her home. R.M. showered as soon as she got there. Jesse, the boyfriend, who had been visiting friends in Ames, returned home early in the afternoon. After speaking with R.M. about the previous night's events, Jesse took R.M. to the hospital. At the hospital, R.M. told the nurse she needed to report a rape. A sexual assault examination ensued. The nurse found semen inside her vagina, but did not observe any evidence of trauma or injury. Police

officers spoke with R.M. at the hospital and told her she had the option to press charges, which she did three days later. Before trial, the district court granted the State's motion in limine which prevented Alberts from presenting testimony about R.M.'s sexual history or a recent skinny-dipping episode with another man. At trial, Alberts testified R.M. consented to the sexual encounter by kissing him and moving her hips during intercourse. His attorney

4 argued R.M. only claimed it was non-consensual because she did not want to lose her relationship with Jesse. This argument was

unsuccessful, and the jury convicted Alberts of third-degree sexual abuse. Alberts argued a voluminous number of issues on appeal. He

argued: (1) the district court erred by ruling that R.M.'s mental health records were not relevant or discoverable; (2) the district court improperly excluded expert testimony regarding the possible effect of R.M.'s mental health on her credibility; (3) the district court erred by excluding certain evidence regarding R.M.'s alleged prior false claim of sexual assault and flirtatious nature when drinking; (4) his trial counsel was ineffective when he did not attempt to introduce evidence of R.M.'s infidelity and promiscuity as impeachment evidence; (5) his trial counsel erred by failing to object to R.M.'s testimony that she feared for her life during the sexual assault; (6) his trial counsel failed to object to three instances of questioning by the prosecution and comments made during closing arguments which involved possible Graves violations; (7) his trial counsel failed to object to alleged prosecutorial misconduct; and (8) the district court erred in overruling the motion for new trial based on alleged misconduct by the prosecutor during direct examination of R.M. The court of appeals addressed all issues and affirmed the decision of the district court. We granted further review. II. Merits A. False-Claim Exception to the Rape-Shield Law Because Alberts had elicited statements from witnesses during depositions regarding R.M's flirtatious nature, her past sexual

comments, and prior allegation of being trapped by a man during a skinny-dipping incident, the State filed a motion in limine asking the

5 court to determine whether such evidence was admissible. The State contended such testimony was either inadmissible under the Iowa rapeshield law or irrelevant to the case at hand. In the unreported pretrial hearing, the State pointed to several incidents involving R.M. it considered inadmissible and irrelevant. One specific instance was a Fourth of July party where Jesse's brother Josh discovered R.M. skinny-dipping with Chris Slach. In his deposition, Josh described how he saw R.M. with her arms around Slach in the Cedar River. 1 Josh said he "busted them" because R.M. was supposed to be dating his brother. According to Josh, R.M. came out of the water

crying. She told Josh "[t]hank God you saw me. I didn't know what to do out there. . . . I couldn't get away from him. I didn't know what to do." R.M. later explained that nothing sexual had happened between the two. Slach was also prepared to testify it was R.M.'s idea to go skinnydipping and there was no sexual contact between the two. During argument on the motion in limine, Alberts contended this evidence was relevant because R.M.'s statement to Josh immediately after the skinny-dipping incident was similar to her response about her sexual encounter with Alberts. He claimed this evidence was important to his case because it supported his theory that R.M. accused men of improper sexual conduct in order to shift blame away from her supposed infidelity. He also claimed this incident was particularly relevant

because it reflected on the credibility of the only other witness to the alleged rape--R.M.

________________________
is some debate on whether R.M. was wearing any clothing while skinnydipping. Josh said R.M. "might" have been wearing her bra and underwear, while the male skinny-dipper stated in his deposition "I was completely naked, and I believe [R.M.] was too."
1There

6 Alberts argued the rape- shield law was not applicable to

this situation because there was no sexual contact and therefore no "past sexual behavior." Alternatively, he argued that if this was sexual activity or sexual behavior, then it was admissible under the false-claim exception to the rape-shield law. The district court sustained most of the State's motion in limine and specifically excluded any evidence pertaining to the skinny-dipping incident. The court also excluded any testimony which described R.M.'s character as flirtatious or promiscuous. However, the court allowed the jury to hear evidence that R.M. had engaged in "dirty dancing" with Alberts a few weeks before the alleged sexual abuse, smoked marijuana with him in the cab of his semi-truck, and removed her bra and hung it on his rear-view mirror. 1. Preservation of Error The State does not contend Alberts failed to preserve this matter for our review. In its appellate brief, the State conceded the error was preserved "by motions and an offer of proof." However, because the issue was only addressed during the motion in limine, we find it proper to analyze whether it was properly preserved for our review. The general rule regarding the preservation of alleged errors in rulings on motions in limine was stated in State v. Tangie, 616 N.W.2d 564, 568-69 (Iowa 2000): Ordinarily, error claimed in a court's ruling on a motion in limine is waived unless a timely objection is made when the evidence is offered at trial. However, "where a motion in limine is resolved in such a way it is beyond question whether or not the challenged evidence will be admitted during trial, there is no reason to voice objection at such time during trial. In such a situation, the decision on the motion has the effect of a ruling."

7 (Citations omitted.) The key to our analysis is to determine what the trial court ruling purported to do. State v. O'Connell, 275 N.W.2d 197, 202 (Iowa 1979). "A ruling only granting or denying protection from prejudicial references to challenged evidence cannot preserve the inadmissibility issue for appellate review." Id. However, "if the ruling reaches the ultimate issue and declares the evidence admissible or inadmissible, it is ordinarily a final ruling and need not be questioned again during trial." Id. Before we analyze whether the court's ruling resolved the matter in such a way that it was beyond question that the challenged evidence would not be admitted during trial, we must consider the context of the court's ruling. The State filed a motion in limine asking for "a hearing outside the presence of the jury, accompanied by an offer of proof . . . to determine whether such testimony would be admissible." Alberts filed a response to the State's motion in limine. His response contained offers of proof in the form of deposition testimony from R.M., Chris Slach (the male skinny-dipper), Josh Goeller, and other witnesses related to other items in the motion. Alberts also filed three separate briefs outlining the law surrounding the admissibility of such evidence. The district court conducted a hearing on the admissibility of such evidence. Although the hearing was unreported, we can glean from the court's oral ruling that both parties had a full opportunity to argue the merits of their respective positions. After this hearing, the court made an oral ruling on the motion. The district court sustained the State's motion in limine to keep the defense from presenting evidence on the skinnydipping incident. In so ruling, the district court judge stated: I'm not going to permit testimony or evidence concerning [R.M.'s] mental health or past sexual comments or activities,

8 with the exception of [the event where she danced with Alberts a few weeks prior to the alleged sexual assault]. After the district court sustained the State's motion, the court made the following additional comments regarding its ruling: if R.M. gets into her virtue, if that's the right term - - I'm referring now to the potential testimony that she had never cheated on her boyfriend - - that could open the door to some of these other matters that have been raised. When asked whether testimony that R.M. told Alberts she would never "cheat" on Jesse would open the door to this excluded evidence, the court stated "Not necessarily. I can't tell you right now. It depends on the context that comes in." Even though the district court stated the evidence may become admissible if R.M. opened the door to her virtue, this does not change the fact that the court's ruling was controlling so long as this door was not opened. The State specifically asked for a ruling on the admissibility of such evidence, and the plain language of the court's ruling----"I'm not going to permit testimony or evidence concerning [R.M.'s] mental health or past sexual comments or activities"--rings of a final ruling. Although the district court did not specifically state the evidence was

"inadmissible," the State specifically asked that the court determine its admissibility and the court did so. In addition, both parties treated the court's ruling on the motion as a final decision. We find the district court did rule on the admissibility of the testimony regarding the skinny-dipping incident. See O'Connell, 275

N.W.2d at 202 ("[I]f the ruling reaches the ultimate issue and declares the evidence admissible or inadmissible, it is ordinarily a final ruling and need not be questioned again during trial."). The ruling was definitive and Alberts was not further required to object at trial. See Tangie, 616

9 N.W.2d at 569 (when court rules on admissibility of evidence in a

motion in limine, objection need not be renewed at trial); State v. Mark, 286 N.W.2d 396, 410 (Iowa 1979) (same); O'Connell, 275 N.W.2d at 202 (same). Therefore, Alberts preserved error on this issue. 2. Abuse of Discretion Alberts claimed the district court erred when it ruled he could not present evidence about the skinny-dipping incident or question R.M. about the incident during cross-examination. We review trial court rulings on admissibility of evidence under rule 5.412 in criminal prosecutions for abuse of discretion. State v.

Mitchell, 568 N.W.2d 493, 497 (Iowa 1997). Reversal 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. The trial court did not elaborate on why it sustained the State's motion in limine. Therefore, we analyze whether the court abused its

discretion in excluding the evidence under the reasons proffered by the State--the evidence was protected "past sexual behavior" of the complaining witness or, in the alternative, the evidence was irrelevant and prejudicial. a. Rape-Shield Law Rule 5.412 prohibits introduction of reputation or opinion evidence of a complainant's "past sexual behavior" and substantially limits admissibility of evidence of specific instances of a complainant's past sexual behavior. Rule 5.412(d) defines "past sexual behavior" as "sexual behavior other than the sexual behavior with respect to which sexual abuse is alleged." We recently clarified this definition: "past sexual behavior" means a volitional or non-volitional physical act that the victim has performed for the purpose of

10 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) (quoting State v. Wright, 776 P.2d 1294, 1297-98 (Or. Ct. App. 1989)). In his brief to the district court, Alberts argued the skinny-dipping incident was not "past sexual behavior" and "not a claim of prior sexual activity because no actual sexual contact occurred." In support of this argument, Alberts offered the deposition testimony of both skinnydippers. When questioned at her deposition about the incident, R.M. denied any sexual activity occurred: We were skinny dipping in the river together, and he got close to me and asked me if he could kiss me, and I said, "No, I have a boyfriend." Slach corroborated R.M.'s testimony that she declined his request for a kiss. Both parties expressly denied any sexual activity occurred.

Nonetheless, based on all of the circumstances, we find the incident to be past sexual behavior. At the outset, we concede the difficulty in determining what sexual behavior is for purposes of our rape-shield law. In State v. Zaehringer, 280 N.W.2d 416 (Iowa 1979), we were asked to determine the applicability of the rape-shield law as it then existed to nude posing. There, we stated: We are unable to conclude that posing nude is per se, sexual conduct which the legislature intended to exclude. . . . [P]osing nude does not in and of itself infer or connote sexual activity or conduct. Absent a showing or implication of sexual activity of some sort accompanying the posing,

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