IN THE COURT OF APPEALS OF IOWA

No. 18-0303

Filed July 3, 2019

STATE OF IOWA,

Plaintiff-Appellee,

vs.

JOHN MATTHEW OSBORN,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Susan K. 

Christensen, Judge.

John Osborn appeals from judgment and sentences imposed upon his 

convictions for four counts of sexual abuse in the third degree. AFFIRMED.

Mark C. Smith, State Appellate Defender, (until withdrawal) and Vidhya K. 

Reddy, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney 

General, for appellee.

Considered by Mullins, P.J., Danilson, S.J.,* and Vogel, S.J.*

*Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2019).
2

DANILSON, Senior Judge.

John Osborn appeals from judgment and sentences imposed upon his 

convictions for four counts of sexual abuse in the third degree, in violation of Iowa 

Code sections 709.1 and 709.4(2)(c)(4) (2014). Osborn contends his trial counsel 

was ineffective in failing to object to a witness’s testimony as beyond the scope of 

the minutes of testimony; the district court abused its discretion in admitting as an

exhibit the criminal complaint and attached affidavit, which was offered to refute 

Osborn’s inference investigators rushed to judgment; and the court imposed an 

illegal sentence (four concurrent terms of imprisonment), arguing multiple 

convictions on four counts of sexual abuse where the marshalling instructions are 

identical must be merged. 

I. Background Facts and Proceedings.

On September 3, 2014, the State filed a trial information charging Osborn 

with four counts of sexual abuse in the third degree, class “C” felonies, in violation 

of Iowa Code section 709.4(2)(c)(4) (2013). The State alleged that, on or about 

July 16–17, 2014, Osborn perpetrated sexual abuse on M.V., a fourteen-year-old 

child.

A jury trial commenced on December 19, 2017.1In its opening statement, 

the defense asserted Osborn’s daughter T. would testify that during a sleepover 

 

1 This appeal arises following a retrial. See State v. Osborn, No. 15-0899, 2016 WL 

3273104, at *1 (Iowa Ct. App. June 15, 2016) (affirming the grant of new trial based on 

newly-discovered evidence). Osborn’s wife, Michaela testified at the first trial and for a 

deposition. In her earlier testimony, Michaela stated that after going to bed at about 10:30 

p.m. on July 16, she woke up at midnight to let her dog out and to get a drink of water. 

When Michaela woke up at midnight, Osborn was asleep in bed, and T. and M.V. were no 

longer in the living room. Michaela then went back to bed and woke up at 3:00 a.m. to 

again let the dog out and get another drink. Again, she saw Osborn was in bed with her, 
3

with M.V. on July 16–17, between about 11:45 p.m. and 3:30 a.m., she and M.V. 

were in her bedroom and neither one of them left. The defense also asserted 

Michaela was expected to testify she got out of bed at midnight and 3:00 a.m. to 

get a drink of water and to let her dog out and on both occasions Osborn was in 

bed with her, and the girls were not in the living room. 

At trial, the evidence demonstrated Osborn started communicating through 

instant messages and phone calls with M.V. in June 2014. The communications 

started as small talk about sports and T., but intensified and became sexual in 

nature. M.V.’s parents became aware of the communications and M.V. admitted 

there had been sexual conduct during the July 2014 sleepover. 

Michaela testified she went to bed at about 10:30 p.m. and the next thing

she remembered was getting up the following morning at around 9 a.m. She also 

testified,

That when being intimate, if [Osborn] was I guess kissed on his ears 

or neck that he couldn’t—wouldn’t be able to stop. Also, that he 

would leave the room to check on [T.] during being intimate to make 

sure that she was still asleep if she had fallen asleep in the living 

room.

The defense moved for a mistrial, asserting the State had elicited false 

testimony. The State responded that while Michaela’s testimony was different than 

on previous occasions, she had contacted the prosecution and stated she no 

longer wanted to testify for Osborn, and after considering the information from the 

previous trial, she was no longer certain she woke up during the night of the 

sleepover. The court denied the mistrial motion.

 

and the living room was empty. Michaela was “one-hundred percent” certain in her 

knowledge and memory that she awoke at those particular times.
4

On cross-examination, Michaela acknowledged she had twice before 

provided testimony she woke up at midnight and 3:00 a.m. and she saw Osborn in 

bed at those times and that she did not see the girls in the living room at midnight. 

The following exchange then occurred between the defense attorney and 

Michaela:

Q. Showing you page 16 of your sworn testimony from 

January 27, 2015. Were you asked this question? I’m going to read 

it for you. “Okay. How about at midnight when you woke up, did you 

see anybody?” Did you provide this answer? And I’ll read it for you. 

“No. Nobody was in living room, so I only saw John because he was 

in bed.” Did I read that right? A. Yes.

Q. Do you recall giving that testimony now? A. I do recall that 

testimony. However, you e-mailed me and asked me to reconsider 

my timeline. And upon reconsideration, I cannot recall for 100 

percent if I was up that night or if it was only because I was getting 

up every night with my dog.

The cross-examination continued to explore Michaela’s prior timeline testimony. 

In another exchange, the defense asked: 

Q. Showing you page 255 of the transcript from the second 

occasion you gave sworn testimony. I just want to make sure I get 

this right, so hold me accountable if I don’t read this right. Line 4, 

this is me asking the question. I say, “How sure are you that this was 

around midnight?” Answer, “I am a hundred percent positive. [The 

dog] Bella tends to go in cycles, and, once she develops a habit, 

she’s like clockwork. It’s like she has an internal alarm clock, and 

she gets up at the same time every night for weeks. And, actually, 

she had continued to get up at the same time through now. She’s 

still doing it, getting up at those same times.” Did I read that right? 

A. Yes.

Michaela acknowledged that since the prior testimony, she and Osborn divorced.

On redirect, Michaela testified she had considered her prior testimony after 

reviewing other’s testimony, which raised concerns. She stated:

There were things that were testified to by other people that 

were things that I knew my husband to do when he was being 

intimate. And I felt extremely uncomfortable with that because for 
5

someone else to testify to that, I can only imagine they must have

experienced it. How else would they know that he has specific 

habits.

Following additional questioning, the defense renewed its motion for 

mistrial, alleging prosecutorial misconduct. The defense argued the prosecution 

knew Michaela was going to change her prior testimony and because “[m]y 

defense is a timeline defense” Michaela’s prior testimony was “crucial.” 

The prosecutor asserted Michaela had contacted her and stated she would 

rather testify for the State than the defense. The prosecutor noted: “I said, ‘Okay,

I can make that happen. I have you listed as a witness.’” The trial court found no 

prosecutorial misconduct or perjury had occurred, noted the witness’s credibility 

was for the jury to determine, and denied the motion for mistrial.

M.V. testified that on July 16, she stayed overnight at Osborn’s home as 

T.’s guest. During a sleepover, Osborn, Michaela, T., and M.V. all watched 

television. M.V. testified Osborn took M.V. aside under the pretense of showing 

her vacation photos, but “he would make [M.V.] lean across him to see them” so 

he could touch her breasts. At about 10:30 p.m., Michaela went to bed. M.V., 

Osborn, and T. started to watch The Avengers (a two-and-one-half-hour movie) 

and T. fell asleep during the movie. M.V. testified:

Then [Osborn] started like touching my stomach and talking to me. 

And then he just said, “We should go make your bed in [T.]’s room.” 

I closed the recliner loudly and it woke up [T.], and he kind of looked 

at me. He was mad. I told her that I was just going to the bathroom 

and went in and sat there for a few minutes. I came back out and 

got back into my seat. We kept watching the movie. Then [T.] fell 

asleep again. And [Osborn] said, “Let’s go make your bed in [T.]’s 

room but quietly this time.” Then we went into [T.]’s room. And I 

walked in first, and I turned on the light. He walked in behind me and 

turned it back off and shoved me up against the wall. He put his 

tongue in my mouth kissing me, my neck, touching my stomach.
6

M.V. testified, “He liked me to kiss his neck and lick his ear.” M.V. testified 

further that Osborn “asked [M.V.] if he could do oral sex on [her]” and “told [her] to 

take off [her] pants and lay on the couch.” Before he did anything else, Osborn 

“went and checked on [T.] to make sure she was still asleep.” Then, Osborn came 

back in and “performed oral sex on [M.V.]” for “[a] few minutes maybe,” before he 

went to “check on [T.] again.” When he returned, Osborn asked M.V. to perform 

oral sex on him. 

He asked me to do that to him. So he pulled his penis out and 

had me get on my knees, put it in my mouth. I couldn’t do it. I kept 

gagging because I had never done it. It was gross, and I didn’t like 

it. He wanted to come in my mouth. I couldn’t do it.

Osborn told M.V. that “it was okay” and they would “try again when [she] was old 

enough.” Osborn went out to check on T. again. When he came back, he 

performed oral sex on M.V. again—but this time, Osborn also used his fingers to 

penetrate M.V.’s vagina. Then, Osborn made M.V. “take all [her] clothes off, and 

on, and made [her] spin so he could look at [her] entire naked body.”

Detective Mike Roberts testified about the police investigation that occurred 

after M.V.’s parents reported Osborn had had sexual contact with M.V. He testified 

he interviewed M.V., Osborn, T., and Michaela. He stated another detective 

interviewed M.V.’s aunt. Detective Roberts testified Osborn acknowledged texting 

M.V. frequently and that when he was driving with T. and M.V., M.V. “would give 

him some looks and flash him while she was in the car. When I say, ‘flash,’ flash 

her breasts.” Osborn told the detective M.V.’s actions in the last several weeks 

made him uncomfortable. Osborn told the detective M.V. had once put her hands 

down his pants but he pushed here away. When asked about the night of June 
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17-18, Osborn told the detective “[M.V.] made advances towards me. . . . She 

flashed her breasts at me and google-eyed me.” Detective Roberts also testified 

he obtained call logs from M.V.’s cellphone and computer software to recover 

deleted text messages on T.’s electronics and M.V. and Osborn’s cellphones. 

On cross-examination, the defense questioned the detective about the 

thoroughness of the investigation and the brevity of his interview with Osborn’s 

daughter on July 31. The defense asked if the detective had already made up his 

mind concerning the investigation by July 24. 

On redirect, the detective stated the investigation corroborated what M.V. 

had told him and acknowledged he had “author[ed] a five-page complaint as to all 

the reasons why you believed that this crime had been committed.” The following 

exchange then occurred. 

Q. In that complaint do you go through and list like line by line 

all the reasons why you believe this crime has been committed? A. 

Yes.

Q. And do you go through both statements that you received 

from Mr. Osborn and [M.V.] and explain why you think these 

allegations are true? A. Yes.

Q. This Complaint doesn’t even include all the other 

additional information that you received; is that true?

[Defense attorney] MR. GLASER: Object. It’s leading.

THE COURT: Overruled.

A. Yes. There’s quite a bit more with transcript, data 

information from cell phones, etcetera. 

[Prosecutor] MS. SUDMANN: I would offer the complaint as 

an exhibit, but I’m not sure what exhibit I’m on, Your Honor.

THE COURT: You are on 131.

MS. SUDMANN: I would offer Exhibit 131.

THE COURT: How would you like to describe it?

MS. SUDMANN: Complaint.

MR. GLASER: Object to relevance. I believe it’s cumulative.

THE COURT: Let me see it, please. Counsel, approach.

(Sidebar.)

THE COURT: Is this the exhibit we were talking about he 

earlier, 131, the one you’re going to redact? This is just the police 
8

report. You were talking about a statement, okay, because we don’t 

have that on the record. Mr. Glaser, you were speaking earlier about

redacting needing to be made on statements of the defendant’s?

MR. GLASER: Yes.

THE COURT: It doesn’t have any statements attached.

MS. SUDMANN: This is a response to this cross.

THE COURT: I understand, but I wanted to make sure if it 

included any actual statements.

MR. GLASER: Redact that after we’re done today.

THE COURT: Ms. Sudmann, are you sure there’s nothing in 

here that needs to be redacted? Or look at it before you download 

it.

MS. SUDMANN: I will look at it.

THE COURT: Okay. Just makes me nervous, okay. 

(End of sidebar.)

THE COURT: Your objection to Exhibit 131 is overruled. 

Exhibit 131 is admitted into evidence.

Osborn testified and acknowledged inappropriately calling and texting M.V. 

However, he denied any sexual contact had occurred. He testified that after M.V.

made a sexual advance toward him on the night of the sleepover he left the living 

room and went to sleep in the bedroom he shared with his wife. 

Osborn’s daughter also denied Osborn had the opportunity to sexually 

abuse M.V. because T. remained awake in the living room with M.V. until after her 

father had gone to bed, and then she and M.V. went to her bedroom where T. 

spent time on her electronics and texting.

Without objection by the defense, the jury was instructed identically on all 

four counts: 

In Count [I, II, III, or IV] Defendant is charged with Sexual 

Abuse in the Third Degree. The State must prove all of the following 

elements of Sexual Abuse in the Third Degree:

1. On or about July 16, 2014 through July 17, 2014, the 

Defendant performed a sex act with Mackenzie Vrana.

2. The defendant performed the sex act while [M.V.] was 14 

years old and the Defendant was 4 or more years older than [M.V.]

3. The Defendant and [M.V.] were not then living together as 

husband and wife.
9

If the State has proved all of the elements, the Defendant is 

guilty of Sexual Abuse in the Third Degree. If the State has failed to 

prove any one of the elements, the Defendant is not guilty of Sexual 

Abuse in the Third Degree in Count [I, II, III, or IV].

In closing argument, the prosecution asked the jury to consider whether 

Osborn was guilty of four sexual acts: “Did [Osborn] put his mouth on the victim’s 

vagina? Did [Osborn]’s hand touch the victim’s vagina? Did the victim’s mouth 

touch [Osborn]’s penis? Did the victim’s hand touch [Osborn]’s penis? Those are 

the four sex acts at issue before you.” 

The jury found Osborn guilty on each count and the district court sentenced 

Osborn to an indeterminate ten-year term of incarceration on each count, with the 

terms to be served concurrently. 

Osborn appeals, contending trial counsel was ineffective in failing to object 

to Michaela’s testimony on grounds it was beyond the scope of the minutes of 

testimony and in failing to object to the admission of the criminal complaint and 

attached affidavit on hearsay grounds. Osborn also contends the district court 

abused its discretion in admitting the criminal complaint because it was irrelevant 

and cumulative. Finally, Osborn maintains the court imposed an illegal sentence.

II. Scope and Standard of Review. 

“The United States Constitution and the Iowa Constitution both entitle 

criminal defendants to effective assistance of counsel. U.S. Const. amend. VI; 

Iowa Const. art. I, § 10.” State v. Coleman, 907 N.W.2d 124, 141 (Iowa 2018). 

Because an ineffective-assistance claims are constitutional in nature, our review 

is de novo. State v. Schlitter, 881 N.W.2d 380, 388 (Iowa 2016). 
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“We review evidentiary rulings for abuse of discretion.” State v. Huston, 825 

N.W.2d 531, 536 (Iowa 2013). “We reverse a ruling that the district court makes 

in the balancing process under rule [5.403] only if the district court has abused its 

discretion.” Id. (citing McClure v. Walgreen Co., 613 N.W.2d 225, 235 (Iowa 

2000)). 

“A district court’s failure to merge convictions as required by statute results 

in an illegal sentence.” State v. Love, 858 N.W.2d 721, 723 (Iowa 2015). We 

review of an illegal sentence for lack of merger for correction of errors at law.” 

State v. West, 924 N.W.2d 502, 504 (Iowa 2019). 

III. Discussion.

A. Ineffective assistance of counsel. Osborn acknowledges his 

complaints of Michaela’s testimony going beyond the scope of the minutes of 

testimony and an exhibit admitted into evidence should have been objected to on 

hearsay grounds must be analyzed under the rubric of ineffective assistance of 

counsel. See Coleman, 907 N.W.2d at 138. We agree. “Ineffective-assistanceof-counsel claims require a showing by a preponderance of the evidence both that 

counsel failed an essential duty and that the failure resulted in prejudice.” Schlitter, 

881 N.W.2d at 388. Generally, we preserve ineffectiveness claims for possible 

postconviction relief proceedings to allow the record to be developed. See State 

v. Gomez Garcia, 904 N.W.2d 172, 186 (Iowa 2017). 

The record here is inadequate to resolve Osborn’s ineffective-assistanceof-counsel claims as defense counsel should have the opportunity to refute the 

claims. See State v. Coleman, 907 N.W.2d 124, 142 (Iowa 2018) (noting 

ineffectiveness claims should generally “be reserved for postconviction relief, 
11

where counsel can have his or her day in court to respond to the defendant’s 

charges”). Therefore, we “must preserve it for a postconviction-relief proceeding, 

regardless of the court’s view of the potential viability of the claim.” State v. 

Johnson, 784 N.W.2d 192, 198 (Iowa 2010). 

B. Admission of charging document. Osborn contends the court abused 

its discretion in admitting the charging document, i.e., the criminal complaint, over 

his objections that it was not relevant and was cumulative. Osborn argues 

admitting the complaint as an exhibit was not a proper method to rebut the 

contention the State rushed to judgment in concluding Osborn had committed the 

offenses. We agree there may have been other more effective methods to rebut 

the contention but we find no abuse of discretion in the district court overruling 

Osborn’s objections. The exhibit was clearly introduced to rebut Osborn’s claim of 

a rush to judgment by reciting all the investigative facts supporting the complaint. 

Thus, the court’s reasons were neither clearly untenable nor clearly unreasonable. 

See State v. Putman, 848 N.W.2d 1, 8 (Iowa 2014) (“A court abuses its discretion 

when its ‘discretion was exercised on grounds or for reasons clearly untenable or 

to an extent clearly unreasonable.’” (citations omitted)). And, although prejudicial 

to Osborn, the exhibit was not more prejudicial than probative. See Iowa R. Evid. 

5.403.

C. Illegal sentence. Osborn asserts the four sentences imposed upon the 

guilty verdicts merge and, thus, his concurrent terms of imprisonment constitute 

an illegal sentence. “An illegal sentence is a sentence that is not permitted by 

statute. If the legislature criminalizes two separate and distinct acts, separate 

sentences on each act are not illegal.” State v. Copenhaver, 844 N.W.2d 442, 447 
12

(Iowa 2014) (citations omitted); see also, State v. Velez, 829 N.W.2d 572, 584 

(Iowa 2013) (“It is well established in Iowa law that a single course of conduct can 

give rise to multiple charges and convictions.”). 

Osborn concedes there is substantial evidence from which a jury could find 

M.V. testified to “at least four sex acts, each of which could support a separate 

count.” With respect to his claim of an illegal sentence, citing Love, 858 N.W.2d 

at 724, Osborn asserts his “position is that the offenses were not marshalled in 

such a way as to require the jury to find a separate sex act for each count as is 

necessary to prevent merger or combination of the convictions into a single count.” 

He contends the marshalling instructions given resulted in a circumstance akin to 

those in Love. 

As acknowledged by Osborn, Love involved two assaultive crimes where 

willful injury was a lesser-included offense of the other offense charged—

attempted murder. There, the supreme court held:

Under the instructions in this case, the jury was only asked to 

proceed serially through a list of crimes and determine which crime 

was supported by the totality of the record. Under the unique 

circumstances of the instructions given in this case, and after 

comparing the marshaling instructions and statutory elements of 

willful injury and assault with intent, we conclude the offenses should 

merge.

Love, 858 N.W.2d at 725.

Here, the jury was instructed on four separate counts of sexual abuse in the 

third degree. The jury was also instructed:

The Defendant has been charged with four counts in the Trial 

Information. This is just a method of bring each of the charges to 

trial. If you find the Defendant guilty or not guilty on any one of the 

four counts, you are not to conclude the Defendant is guilty or not 
13

guilty on the other(s). You must determine whether the Defendant is 

guilty or not guilty separately on each count.

Thus, the circumstances here are not like the “unique circumstances of the 

instructions” given in Love. Id. 

We conclude the district court did not impose an illegal sentence because 

the record supports a determination that Osborn committed four acts of sexual 

abuse in violation of Iowa Code section 709.4. See State v. Ross, 845 N.W.2d 

692, 705–06 (Iowa 2014) (“Our merger doctrine is limited to double jeopardy claims 

involving lesser-included offenses. Ross’s argument does not involve lesserincluded offenses, but rather the same statute charged multiple times.”).2 We add, 

although the better practice is to provide some discernable distinction in each 

marshalling instruction for each count for the benefit of the jury and our review, we 

find no error where the State clearly identified the four separate acts in closing 

arguments and Osborn agrees there is substantial evidence to support the four 

counts.

We affirm the sentences imposed and preserve any ineffectiveness claims 

for possible postconviction relief proceedings.

AFFIRMED.

 

2

Iowa Code 701.9, Iowa’s merger statute, provides: 

No person shall be convicted of a public offense which is 

necessarily included in another public offense of which the person is 

convicted. If the jury returns a verdict of guilty of more than one offense 

and such verdict conflicts with this section, the court shall enter judgment 

of guilty of the greater of the offenses only.

The circumstances presented here do not constitute a conviction for “necessarily included” 

offenses as used in section 701.9.