IN THE SUPREME COURT OF IOWA

No. 05–1344

Filed May 1, 2009

STATE OF IOWA,

Appellee,

vs.

KYLE MICHAEL CROMER,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Muscatine County, Patrick J. 

Madden, Judge.

Defendant seeks further review of court of appeals decision affirming 

judgment of conviction for sexual abuse in the third degree. DECISION OF 

COURT OF APPEALS VACATED; JUDGMENT OF CONVICTION 

REVERSED; SENTENCE VACATED AND CASE REMANDED FOR NEW 

TRIAL.

Kent A. Simmons, Davenport, for appellant.

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

Attorney General, Gary R. Allison, County Attorney, and Dana Christiansen, 

Assistant County Attorney, for appellee.
2

CADY, Justice.

In this direct appeal from a judgment of conviction for sexual abuse in 

the third degree entered by the district court following remand from an 

earlier appeal after a jury trial, we must decide whether the defendant is 

entitled to a new trial based on several claims of error, including ineffective 

assistance of trial counsel. On our review, we reverse the judgment and 

sentence of the district court and remand the case for a new trial.

I. Background Facts and Proceedings.

The relevant facts and circumstances of this case began when Kyle 

Cromer went to the “Wooden Nickel” tavern in Wilton, Iowa, on a Saturday 

night in March 2003. He had been drinking alcoholic beverages earlier in 

the day. As the evening progressed, the tavern became densely populated 

with patrons, who had come to enjoy the live music of a band and the 

merriment of the occasion. A woman whom we identify as N.S.1

Like many of the other patrons, Cromer, Schultheis, and N.S. 

consumed copious amounts of alcoholic beverages during the evening, 

including shots of liquor. They became extremely intoxicated. N.S. danced 

in a provocative manner with Cromer and Schultheis at various times during 

the evening, which included some touching and fondling below the waist. 

was among 

the group of patrons that evening. She attended a wedding earlier in the day 

and had consumed numerous beers prior to arriving at the tavern. She was 

accompanied by several friends. Many of the patrons were friends or 

acquaintances, including Cromer and N.S. Cromer was with Donnie 

Schultheis, who was a distant relative of N.S. 

 1We have in the past protected the identity of the complaining witness in our written 

opinions involving crimes of sexual abuse, and we choose to do so under the circumstances 

of this case as well. See State v. Knox, 536 N.W.2d 735, 736 (Iowa 1995) (identifying 

complaining witness in sex-abuse case only as “complainant”); State v. Plaster, 424 N.W.2d 

226, 227 (Iowa 1988) (identifying complaining witness in sex-abuse case by first name only). 
3

Sometime after midnight, N.S. left the tavern with Cromer and 

Schultheis after telling a girlfriend the two men were going to give her a ride 

home. They left in Schultheis’ car. At this point, N.S. lost the ability to 

recall the remaining events of the evening. However, she awoke the next 

morning in a room at the Muskie Motel in Muscatine. She was naked and 

lying on a bed between Cromer and Schultheis. She located most of her 

clothing in the bathroom of the motel room and discovered her underwear 

and shoes in Schultheis’ car. After arriving home, numerous fingerprintsized bruises could be observed on her arms and inner thighs. She had a 

lump on her forehead and a bruise on her jaw. She was upset and crying. 

A week later, N.S. reported the incident to the police. At the 

suggestion of police, N.S. called Cromer on the telephone. She had not 

talked to him since the incident. The police prepared N.S. for the call by 

suggesting topics of conversation, and two detectives were present and 

coached her at times during the conversation. They also suggested many of 

the questions propounded by N.S. and prodded her to keep talking when the 

conversation ebbed. The entire fifty-minute conversation was recorded onto 

a police computer. 

N.S. began the conversation by calmly telling Cromer she could not 

remember the events of the evening and asked Cromer to tell her what 

happened. Cromer mentioned he was extremely intoxicated and could not 

precisely remember the evening’s events, but he did allude to sexual activity 

between them. As the conversation progressed, N.S. began to alternate 

between periods of composure and periods of intense anger and sadness. 

She repeatedly told Cromer he took “advantage of” her. N.S. also emotionally 

related that she was plagued by painful thoughts about the incident and felt 

“dirty.” She lamented that she would be required to live with her feelings the 

remainder of her life. She also told Cromer she could not sleep at night and 
4

had nightmares of resisting an attack by two men. He searched for words of 

consolation, but was unsuccessful.

Eventually, N.S. told Cromer she would never have consented to 

engaging in sexual intercourse with two men at the same time and 

demanded to know exactly what happened at the motel. In response, 

Cromer described in more detail how he and N.S. engaged in oral sex and 

sexual intercourse at the motel. N.S. repeatedly expressed her belief that 

she must have been unconscious and unable to make any decision to engage 

in sexual intercourse that evening. Midway through the conversation she 

began to accuse Cromer of rape and date rape. 

Cromer repeatedly replied to her accusations of rape and date rape by 

saying, “It wasn’t like that.” Thirty minutes into the conversation, N.S. 

emotionally demanded to know what Cromer would call the incident if it had 

happened to his sister. At first, Cromer refused to call such an incident date 

rape. A few minutes later, however, N.S. again demanded to know how 

Cromer would describe their sexual encounter. After Cromer admitted he 

“took advantage of a drunk girl,” N.S. pressed for him to acknowledge he 

engaged in date rape. She pleaded with him to acknowledge his conduct for 

her benefit and well-being. Minutes later, approximately forty minutes into 

the conversation, Cromer agreed he would call the encounter “date rape” if it 

had happened to his sister. He also told N.S. he should not have taken 

advantage of her. 

Throughout the conversation, N.S. told Cromer she trusted him and 

Schultheis because she had known them for many years. She also 

repeatedly told him any decent person would have taken her home. Near the 

end of the conversation, she began to cry and told Cromer that she “should 

have been safe with you guys.” Overall, the conversation was emotionally 

charged, and N.S. doggedly pressured Cromer to acknowledge culpability. 
5

Seven months later, Cromer was charged with the sexual abuse of N.S. 

The case proceeded to trial where various witnesses, including N.S. and 

Cromer, testified to the events of March 29. Numerous patrons at the tavern 

testified to the level of intoxication N.S. exhibited before she left the Wooden 

Nickel that evening. Some witnesses said she was having difficulty walking 

and, at times, even standing, while other witnesses said she was inebriated 

but coherent and generally under control. All witnesses agreed N.S. was 

engaged and enjoying herself. Yet, she testified she had no memory of the 

evening from the time she left the bar with Cromer and Schultheis until 

awakening the next morning. A certified substance abuse counselor testified 

about a condition commonly known as “blackout.” The expert described 

blackout as a loss of memory caused by rapid intoxication where an 

intoxicated person is awake and functioning during the blackout period.

Cromer admitted he and Schultheis engaged in various sex acts with 

N.S., but denied she was unconscious, mentally incapacitated, or physically 

helpless. Cromer testified N.S. initiated the sex acts and was at all times a 

willing participant. He said the sex acts began in the car and continued 

after the three checked into the motel. He also said they took a group 

shower before retiring to bed. However, an acquaintance of Cromer’s who 

was in the jail for a brief period of time with Cromer after his arrest testified 

Cromer admitted to him that N.S. was unconscious when Cromer and 

Schultheis performed sex acts on her at the motel. This acquaintance of 

Cromer’s received a reduced sentence in a case involving unrelated criminal 

charges in exchange for his testimony. 

The recording of the telephone conversation between Cromer and N.S. 

was admitted into evidence and played in its entirety to the jury. Trial 

counsel made no objection to the admission of the recorded conversation. 
6

The district court submitted the case to the jury on three separate 

counts. Count I required the State to prove sexual abuse in the second 

degree, a class “B” felony under Iowa Code section 709.3(3) (2003).2 Count II 

required the State to prove sexual abuse in the third degree, a class “C” 

felony under section 709.4. The only theories of sexual abuse submitted to 

the jury under this count were based on mental incapacitation or physical 

helplessness of the other person.3

The jury convicted Cromer of count II—sexual abuse in the third 

degree based on the mental incapacitation or physical helplessness of the 

other person—and acquitted him on counts I and III. Cromer then moved for 

a new trial. He contended, in part, the district court erred in failing to 

instruct the jury that he could not be convicted unless it was shown he knew 

N.S. was incapacitated due to intoxication. He also argued insufficient 

evidence to support the verdict. 

 Count III required the State to prove 

Cromer committed assault with the intent to commit sexual abuse and 

causing bodily injury, a class “D” felony under section 709.11. 

The district court granted the motion for new trial on the ground that 

it had failed to properly instruct the jury. The district court did not address 

the sufficiency-of-the-evidence claim. 

The State sought discretionary review from the district court decision 

to grant a new trial, and we transferred the case to the court of appeals. The 

court of appeals held Cromer did not need to have knowledge N.S. was 

incapacitated for the jury to convict him of sexual abuse under the mentalincapacitation and physical-helplessness alternatives. Consequently, it 

 2Unless noted otherwise, all statutory references are to the 2003 Iowa Code.

3Iowa Code section 709.4 provides, “A person commits sexual abuse in the third 

degree when the person performs a sex act . . . while the other person is mentally 

incapacitated, physically incapacitated, or physically helpless.”
7

determined the district court did not err in instructing the jury. 

Additionally, the court of appeals found Cromer waived review of his claim of 

insufficient evidence by failing to request a ruling on the claim by the district 

court after it granted a new trial. The court of appeals remanded the case to 

the district court “for entry of judgment of conviction.” 

On remand, Cromer filed a new motion for new trial. He again asked 

the district court to grant a new trial based on insufficient evidence and 

sought additional review on other grounds. The district court determined 

the claim of insufficiency of the evidence could not be considered nor 

decided. It found it had no authority to decide the question in light of the 

mandate issued by the court of appeals to enter a judgment of conviction. 

Consequently, the district court entered judgment and imposed sentence. 

Cromer was sentenced to an indeterminate term of incarceration not to 

exceed ten years.

Cromer again filed an appeal, which is the appeal presently before us. 

He claims the district court should have granted his motion for a new trial 

based on the insufficiency of the evidence. He also claims his counsel was 

ineffective for failing to obtain a ruling on the sufficiency of the evidence and 

in failing to object to the admission into evidence at trial of the recorded 

telephone conversation between Cromer and N.S. 

We transferred the case to the court of appeals. It found the 

sufficiency-of-the-evidence claim was not before the district court on remand 

and affirmed the ruling entered by the district court. In addition, the court 

of appeals found the record was inadequate to decide the claims of ineffective 

assistance of counsel. We granted further review.

II. Standard of Review. 

We review the postremand actions of the district court in carrying out 

a mandate of an appellate court for legal error. Winnebago Indus. v. Smith, 
8

548 N.W.2d 582, 584 (Iowa 1996). We review ineffective-assistance-ofcounsel claims de novo. State v. Horness, 600 N.W.2d 294, 297 (Iowa 1999).

III. Sufficiency of Evidence. 

The only claim of trial court error raised on direct appeal in this case 

is whether the district court properly refused to decide Cromer’s challenge, 

on remand, to the sufficiency of the evidence to support the conviction. The 

other claims of error raised by Cromer pertain to ineffective assistance of 

trial counsel. While defendants in criminal cases are not required to raise 

claims of ineffective assistance of counsel on direct appeal to preserve the 

claims for postconviction relief, such claims may nevertheless be raised on 

direct appeal. Iowa Code § 814.7(2) (2009). When raised in a direct appeal, 

we can proceed to decide them if the record is adequate for our review. Id.

§ 814.7(3).

Because we ultimately conclude Cromer is entitled to a new trial based 

on the failure of his trial counsel to object to the admission of the recorded 

telephone conversation, we do not need to decide the claim of trial error 

raised by Cromer on direct appeal.4

 4We agree with Cromer that his claim to a new trial based on insufficient evidence 

was not waived by failing to request a ruling from the district court. After the district court 

granted a new trial based on legal error in the jury instructions, Cromer was not required to 

request an additional ruling prior to the first appeal in order to preserve the claim to a new 

trial based on the alternative ground of insufficient evidence. A successful party in district 

court is not required to request the district court to rule on alternative grounds raised, but 

not relied upon by the district court in making its ruling, in order to assert those grounds in 

support of affirming the ruling of the district court when appealed by the opposing party. 

Jasper v. H. Nizam, Inc., 764 N.W.2d 751, 774 n.3 (Iowa 2009) (citing Moyer v. City of 

Des Moines, 505 N.W.2d 191, 193 (Iowa 1993)). Thus, the court of appeals erred in 

concluding otherwise in the first appeal. Nevertheless, this ruling became the law of the 

case on remand, whether the ruling was right or wrong. See State ex rel. Goettsch v. Diacide 

Distrib., Inc., 596 N.W.2d 532, 537 (Iowa 1999) (“Pursuant to this rule, ‘legal principles 

announced and the views expressed by a reviewing court in an opinion, right or wrong, are 

binding throughout further progress of the case upon the litigants, the trial court and this 

court in later appeals.’ ” (quoting State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987))). 

Consequently, while the district court had authority to consider a motion for new trial prior 

 Accordingly, we proceed to consider the 

ineffective-assistance-of-counsel claim. 
9

IV. Ineffective Assistance of Counsel.

First, Cromer argues trial counsel was ineffective in failing to object to 

the introduction of the recorded telephone conversation into evidence at 

trial. He asserts many of the statements made during the conversation were 

inadmissible for four independent reasons, and his counsel failed to fulfill an 

essential duty to object to admission of the recording. He points to various 

statements on the tape and argues (1) the probative value of some of the 

statements was substantially outweighed by their unfairly prejudicial effect 

on the jury, (2) other statements constituted improper lay opinions or 

opinions on legal standards, (3) some statements were coerced, and (4) other 

statements constituted inadmissible hearsay. The State argues defense 

counsel could have refrained from objecting to the offer of the recorded 

conversation based on reasonable trial strategy, and in any event, any error 

did not result in prejudice. 

A. Elements of Ineffective Assistance of Counsel. Generally, 

claims of ineffective assistance of counsel made on direct appeal will be 

preserved for postconviction relief actions. Horness, 600 N.W.2d at 297. 

However, “we will consider such claims on direct appeal where the record is 

adequate.” Id.; see also Iowa Code § 814.7(3) (2009) (“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 under chapter 822 [postconviction 

proceedings].”).

In addressing ineffective-assistance-of-counsel claims, we recognize 

the “[d]efendant has the burden of proof to establish by a preponderance of 

the evidence that counsel rendered ineffective assistance.” State v. Aldape, 

 

to entering its judgment on remand, see Iowa R. Crim. P. 2.24(4), it could only consider 

those grounds for new trial collateral to the appeal.
10

307 N.W.2d 32, 42 (Iowa 1981). The successful ineffective-assistance-ofcounsel claim requires proof by a preponderance of the evidence that (1) 

counsel failed to perform an essential duty, and (2) prejudice resulted. 

Horness, 600 N.W.2d at 298. 

B. Trial Counsel’s Failure to Perform an Essential Duty. In 

analyzing the first prong of the test, we presume counsel acted competently. 

Id. We also require more than mere “[i]mprovident trial strategy, 

miscalculated tactics, mistake, carelessness or inexperience,” as viewed with 

the clarity of hindsight. Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972). 

Instead, we ask whether “counsel’s performance fell below the normal range 

of competency.” Horness, 600 N.W.2d at 298. “[D]efense counsel has not 

failed to perform an essential duty when counsel fails to raise a claim or 

make an objection that has no merit.” Id. Consequently, to determine 

whether counsel failed to perform an essential duty in failing to object to 

introduction of the audio-recorded telephone conversation, we can first 

analyze whether the conversation was admissible under our rules of 

evidence. 

Cromer does not argue the entire audio-recorded conversation was 

inadmissible. For example, he concedes some statements were relevant and 

acknowledges his statements constituted admissions, or nonhearsay 

statements. See Iowa R. Evid. 5.801(d)(2) (“Admission by party-opponent”). 

Likewise, he does not argue all of the statements made by the complaining 

witness were inadmissible. Cromer also does not make a statement-bystatement attack on the admissibility of the recording, delineating exactly 

which statements were admissible and which were inadmissible. Instead, he 

provides examples of those statements he claims were inadmissible under 

various rules of evidence and that presented the greatest opportunity for the 

trial to result in injustice. 
11

1. Rule 5.403 balancing. Cromer first argues certain statements were 

inadmissible because their probative value was substantially outweighed by 

their unfairly prejudicial effects. “Although relevant, evidence may be 

excluded if its probative value is substantially outweighed by the danger of 

unfair prejudice [or] confusion of the issues . . . .” Iowa R. Evid. 5.403. In 

determining whether evidence should be excluded from a trial under rule

5.403, we first consider the probative value of the evidence. See State v. 

Harmon, 238 N.W.2d 139, 145 (Iowa 1976) (explaining courts’ duty to “ ‘first, 

[decide] whether the offered evidence has some probative force, and second, 

to balance the value of that evidence . . . against the danger of its prejudicial 

or wrongful effect upon the triers of fact’ ” (quoting State v. Wallace, 259 

Iowa 765, 770, 145 N.W.2d 615, 619 (1966))).

The probative value of evidence is different than the “relevancy” of 

evidence. Relevancy relates to the tendency of evidence “to make a 

consequential fact more or less probable.” State v. Plaster, 424 N.W.2d 226, 

231 (Iowa 1988). On the other hand, the “probative value” of evidence 

“gauges the strength and force of that tendency.” Id. 

The crux of this case dealt with whether N.S. was a willing participant 

in the sex acts or was mentally incapacitated at the time, or physically 

helpless, due to her intoxication. Several statements made by Cromer and 

N.S. during the telephone conversation clearly tended to strengthen the 

probability that N.S. was mentally incapacitated or physically helpless. Yet, 

the statements by Cromer that add to the probative value of the evidence 

were made in response to an emotional plea by N.S. to make the statements. 

In State v. Quintero, 480 N.W.2d 50, 52 (Iowa 1992), we pointed out 

that coercion used to obtain an admission from an accused is not only 

relevant to a constitutional analysis of the admission of evidence, but is also 

relevant to the balancing of the probative value and the prejudicial effect 
12

under Iowa Rule of Evidence 5.403. Coercion diminishes the reliability of an 

admission because “the law has no way of measuring the improper influence 

or determining its effect on the mind of the accused.” Quintero, 480 N.W.2d 

at 52. Of course, coercion can come in many forms. 

In this case, the conversation between Cromer and N.S. was very 

emotional. The two were longtime friends, and N.S. was distraught. She 

looked to Cromer to help piece together the events of the evening and to help 

her deal with her personal suffering. The effect of this emotion on Cromer 

was apparent over the course of the conversation. N.S. repeatedly appealed 

to their friendship, recounted her feelings of shame, and told of her 

nightmares and inability to sleep. She also forcefully exclaimed she would 

never have consented to intercourse with two men, declared she must have 

been unconscious, and continuously told Cromer he took advantage of her 

and raped her. In the face of her intense emotion and anger, Cromer 

gradually began to agree with the accusations leveled by N.S. 

At the same time, police officers were present and coaching N.S. 

throughout the phone call. The police officers prepared N.S. for the call by 

suggesting many of the questions she asked Cromer, including the question 

about what Cromer would call the situation if it happened to his sister. They 

also used hand motions to prod N.S. to keep talking when the conversation 

subsided. 

Consequently, the probative value of the statements made during the 

conversation was ultimately diminished by the coercive environment. Under 

a rule 5.403 analysis, this environment tended to make the statements less 

probative of the ultimate issue.5

 5We are not deciding whether the actions by the police officers in orchestrating the 

telephone conversation rendered the entire statement inadmissible as coercive under dueprocess standards. Cf. State v. Morgan, 559 N.W.2d 603, 608–09 (Iowa 1997) (addressing 

voluntariness of confession claimed to be coerced in violation of constitutional due process); 

 
13

We next turn to balancing the probative value of the challenged 

evidence against any unfair prejudice that may accompany the evidence. 

Harmon, 238 N.W.2d at 145. The admission of the recorded conversation 

without objection, or a request for a limiting instruction, carried at least two 

pieces of harmful baggage—risk of unfair prejudice and risk of confusion of 

issues. “ ‘ “Unfair prejudice” within its context means an undue tendency to 

suggest decision on an improper basis, commonly, though not necessarily, 

an emotional one.’ ” Old Chief v. United States, 519 U.S. 172, 180, 117 

S. Ct. 644, 650, 136 L. Ed. 2d 574, 588 (1997) (quoting Fed. R. Evid. 403 

advisory committee’s note6

Here, N.S. repeatedly and emotionally stated her opinion that Cromer 

took advantage of her. N.S. presented herself as a sympathetic, suffering 

victim, as shown by such comments as decent guys would have taken her 

home and that “little pieces” of her had been “taken away.” Conversely, 

these statements suggested Cromer was not a “decent guy” and implied he 

was deserving of punishment on that ground. Overall, there was an 

abundance of comments that likely appealed to the jury’s emotion and 

created a danger for the jury to convict Cromer based on the contents of the 

emotional conversation. 

). In the context of a criminal case, unfair 

prejudice “speaks to the capacity of some concededly relevant evidence to 

lure the factfinder into declaring guilt on a ground different from proof 

specific to the offense charged.” Id. at 180, 117 S. Ct. at 650, 136 L. Ed. 2d 

at 587–88. 

The second piece of unwanted baggage weighing against admission of 

the evidence was the risk of confusion of the issues. A substantial part of 

 

Jensen v. Schreck, 275 N.W.2d 374, 384 (Iowa 1979) (requiring state action as element of 

due-process claim). 

6Federal Rule of Evidence 403 is identical to our rule 5.403. 
14

the recorded conversation dealt with whether “rape” or “date rape” occurred 

during the evening. As a part of the conversation, the parties discussed 

their respective definitions of date rape. Neither definition resembled the 

legal elements necessary to prove the crimes charged in this case. For 

example, N.S. opined that date rape was “taking advantage” of an intoxicated 

person. Yet, that view blurs the line between mere intoxication and the 

mental or physical incapacitation required by Iowa Code section 709.4(4). 

Additionally, Cromer finally acquiesced that he had “taken advantage” and 

that he would label his conduct as date rape if it had happened to his sister. 

No limiting instruction was requested nor given to the jury to explain that 

Cromer’s admissions were not admissions to any of the crimes charged. 

Based on the limited probative value and the potential for unfair 

prejudice, and considering the availability of the parties to testify as to their 

recollections of the evening independent of the telephone conversation, 

significant parts of the recording should not have been introduced to the 

jury. The State argues defense counsel strategically decided to admit the 

tape because it demonstrated Cromer’s compassion, and even if this was 

poor strategy in hindsight, trial counsel did not fail in an essential duty. We 

disagree. Considering the critical issue presented to the jury, reasonably 

competent counsel would have objected to at least some of the statements in 

the recording and would have requested limiting instructions for many 

others. 

2. Improper opinions and arguments on legal standards. Cromer next 

argues the tape recording contained inadmissible opinions expressed by N.S. 

Specifically, Cromer takes issue with the repeated and forceful declarations 

by N.S. that she was raped. 

The State acknowledges N.S. has no memory of the events that took 

place at the motel, including the sex acts. Thus, her declarations that rape 
15

occurred, even if sincere, were not based on personal knowledge. Such 

declarations of fact implicate our rule that testimony be “rationally based on 

the perception of the witness”—i.e., on personal knowledge. Iowa R. Evid. 

5.701. Thus, N.S.’s belief she was raped should not have been admitted or, 

at the very least, was subject to a limiting instruction indicating those 

statements not based on personal knowledge are not proof of the element of 

incapacitation. 

Further, under the circumstances, the recorded declarations by N.S. 

that she was raped could have been construed by the jury as an opinion 

Cromer was guilty. “[A] witness cannot opine on a legal conclusion or 

whether the facts of the case meet a given legal standard.” In re Det. of 

Palmer, 691 N.W.2d 413, 419 (Iowa 2005). This rule is based on the belief 

that normally “jurors are fully capable of applying the facts of the case to the 

law provided to them by the trial judge.” Id. Consequently, any opinion 

testimony that the facts meet the applicable legal standard fails the 

requirement that all opinion testimony be helpful to the trier of fact. Id.

(citing Iowa Rs. Evid. 701, 702).

Although N.S. did not opine that Cromer was guilty of sexual abuse in 

the third degree, she did say “you guys raped me.” In the absence of limiting 

instructions regarding the use of such evidence, assuming it is admissible, a 

foreseeable danger existed the jury would evaluate the statement as an 

opinion of Cromer’s guilt of the crime charged. The danger of harm was 

enhanced because N.S. had no personal knowledge of what transpired at the 

motel due to her inability to recall. Such opinion testimony is not permitted 

by the rules of evidence, and consequently trial counsel had a duty to object, 

at a minimum, to the unlimited admission of such evidence. 

C. Prejudice. Our determination that trial counsel failed to perform 

competently when the State offered the recorded conversation into evidence 
16

does not completely resolve Cromer’s ineffective-assistance-of-counsel 

claim.7

Overall, our confidence that the verdict represents the type of justice 

demanded in criminal prosecutions is seriously shaken by the recorded 

conversation the jury was permitted to hear and consider in reaching its 

verdict. The recorded conversation contained a dramatic and emotional 

appeal for justice by the complaining witness, which the rules of evidence 

would not permit her to make as a witness at trial. This appeal had to 

influence the jury, just as it eventually influenced Cromer to respond. The 

jury must not be permitted to employ such an emotional approach when 

weighing the guilt or innocence of an accused. Without the inadmissible 

portions of the recorded conversation, the evidence of Cromer’s guilt was far 

from compelling. Stripped to its core, the fighting issue at trial was one of 

the mental or physical capacity to consent, and the complaining witness was 

unable to explain her state of mind or describe the facts and circumstances 

that could help explain her state of mind at the critical times during the 

evening. The State was left to make its best case for guilt with key portions 

 Cromer must also show he was prejudiced by his counsel’s failure to 

object to the recorded conversation. Specifically, Cromer must show a 

reasonable probability the result of the proceeding would have been different 

had his counsel objected. Millam v. State, 745 N.W.2d 719, 722 (Iowa 2008). 

“ ‘A reasonable probability is one that is “sufficient to undermine confidence 

in the outcome.” ’ ” Id. (quoting State v. Bayles, 551 N.W.2d 600, 610 (Iowa 

1996)).

 7Cromer also argues many statements by N.S. constituted hearsay. He specifically 

points to statements when she quotes acquaintances’ and friends’ accounts of her level of 

intoxication and incapacitation while at the tavern on the night in question. The State 

responds that the record was replete with similar testimony and argues any error by trial 

counsel in this regard would have been harmless. Based on our resolution of the other 

grounds for Cromer’s ineffective-assistance-of-counsel claim, we need not address this 

subissue. 
17

of the emotionally charged appeal by the complaining witness, which clearly 

should have been excluded from consideration by the jury.

The only direct evidence of the incapacitation of the complaining 

witness outside of the recorded conversation came from a jailhouse 

informant. Yet, the informant was compensated for his testimony with a 

reduced sentence for crimes he had committed. Under all the facts and 

circumstances, a reasonable probability exists that the result would have 

been different had trial counsel objected to the inadmissible evidence, and 

our confidence in the verdict is sufficiently undermined so as to require 

reversal of the conviction. This conclusion is fully supported by the record 

before us on direct appeal, and a more developed postconviction record 

would not be helpful.8

V. Conclusion.

 

We conclude Cromer received ineffective assistance of counsel, which 

resulted in prejudice. Consequently, we are required to grant a new trial. 

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF 

CONVICTION REVERSED; SENTENCE VACATED AND CASE REMANDED 

FOR NEW TRIAL.

All justices concur except Baker, J., who takes no part.

 8Our determination trial counsel was ineffective in failing to object to admission of 

the audio recording renders Cromer’s other ineffective-assistance claim moot.