### IN THE SUPREME COURT OF IOWA

No. 18

– 0825
Filed October 11 , 20 19

STATE OF IOWA , Appellee,

vs.
BENJAMIN G. TRANE , Appellant.
Appeal from the Iowa District Court for Lee County, Mark Kruse, Judge.

The former owner of a school for troubled youth appeals his convictions for assault with intent to commit sexual abuse, pattern or practice of sexual exploitation by a counselor or therapist , and child endangerment. AFFIRMED ON CONDITION AND REMANDED WITH
DIRECTIONS.

Alfredo Parrish and Adam Witosky of Parrish Kruidenier Dunn Boles Gribble Gentry Brown & Bergmann, L.L.P., Des Moines , for appellant.

Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney Genera l, for appellee.2

MANSFIELD , Justice.
I. Introduction.
The former owner of a now

- shuttered school for troubled youth was
convicted of three criminal charges

— (1) assault with intent to commit sexual abuse, (2) pattern , practice , or scheme to engage in se xual exploitation by a co unselor or therapist , and (3) child endangerment

. The
first two convictions involved acts of sexual misconduct against a former
female student. The third conviction related to the school’s physical
mistreatment of two former male students when each was confined for long
pe riods of time in an isolation room . The defendant appeals. On appeal, the d efendant raises the following claims of error : (1) t he
district court abused its dis cretion in excluding evidence the female
student mad e false allegations of sexual abuse against her adoptive and
foster parents without conducting a rule 5.412 hearing ; (2) the district
court erred in refusing to consider allegations of ineffective assistance of
counsel at the motion

- for

- new

- tri al stage and before appeal; (3) t he district
court should have severed the two counts involving the female student
from the count involving the male student s for trial purposes ; (4) the
district court should not have permitted testimony by a state expert
witness that purportedly vouched for the credibility of the female student ; (5) the district court erred in instructing the jury that they could find child endangerment by determining that either of the male students had been
victimized , without requiring the jur y to agree on a single victim

- student ; and (6) there was insufficient e vidence to support the d efendant ’s
convictions.
On our review , we find the evidence su fficient to su stain the
defendant ’s convictions. We also hold the district court did not err in
de clining to consider ine ffective

- assistance cl aims as part of the motion

-3

for

- new

- trial proceedings

. However, we hold the district court should have
conducted a rule 5.412 hearing before or during trial to determine, by a preponderance of the evidence, whether the female student made f alse accusations of sexual abuse against her adoptive or foster parents. We therefore conditionally affirm the defendant’s convictions but remand with directions for the court to conduct such a hearing

. The defendant’s

re maining arguments are before us only as ineffec tive

- assistance

- of

counsel claims ; we conclude they should be addressed (if necessary) in a postconviction

- relief proceeding.
II. Facts and Procedural History.
In the f all of 200 2, Benjamin Trane and his wife moved from Utah to Iowa with hopes of establishing a private, therapeutic boarding school for
troubled teens. Their efforts paid off, and Midwest Academy opened its
doors in June 2003 in Keokuk. Eventually, Trane became the sole owner
of the school. Midwest Academy offered programming unique from that of other private, military, or residential schools, rendering it appealing to parents of teens with a variety of behavioral and disciplinary struggles. Midwest Academy purported to offer a combination o f character

- building, therapeut ic, and educational programming, al though it operated outside the purview of the Iowa Board of Education and its licensing requirements. Midwest Academy functioned under a rules

- and

- consequences

based levels system , providing structure for its cognitive behavioral therapy program

. There we re six levels that students could ascend (or descend) through as part of the program . A ll students began at Level 1,
the most restrictive level. Examp les of restrictions at Level 1 include d not being permitt ed to use condiments with food, not being allowed to look in
a mirror or out of windows , and being allowed to speak with students at higher levels only at specified times

. S tudents could earn greater freedom4

through a points

- based reward system while working up through the
program. F or example, Level 2 came with the ability to get second helpings
at mealtime , Level 3 offered the ability to speak with family members by telephone , and Level 4 permitted off

- campus trips.
A number of students , however, were unable to progress past
Le vel 1, and their inability to do so sometimes resulted in harsh
consequences. Relevant to the child endangerment charge was the use of
Out

- of

- School Suspension (OSS) rooms
. OSS rooms w ere designed for a single student to occupy for up to twenty

- four hours at a time, with constant supervision. T he OSS rooms were employed as a “last ditch effort” to curb undesirable behaviors ; for instance, constant distraction s in the classroom or physical attacks on an instructor would land a s tudent
in OS S. While in OSS , the student was expected to sit in structure except for bedtime , meaning he or she could choose from one of three positions
in which to sit without moving. 1 The lights in the OSS room were always

on. Should the student break structure without permission or oth erwise act out, the twenty

- four

- hour clock wou ld reset

. A.H. and B.V. were each confined in an OSS room for significant periods of time. A.H. arrived at Midwest Academy in May 2014 when he was twelve years old. A.H. had been diagnosed with anxiety, depression, and oppositional defiant disorder, and had been unsuccessfully treated at a psychiatric hospital. A.H.’s psychiatrist recommended Midwest Academy to A.H.’s parents

. At Midwest Academy , A.H. continued his pattern of defiance, and as a result , he spent approximately half of his time
in OSS. While in OSS, A.H. engaged in behavior such as urinating on the walls, punching his own nose to make it bleed , and throwing his chewed

-

1 Breaks were allowed for bathroom use and meals.5

up food at the surveillance camera. When A.H.’s parents removed him
from Midwest Academy after approximately a year, A.H.’s weight had declined from 120 to 90 pounds.
B.V. was admitted to Midwest Academy a few months after A.H

. , when he too was twelve years old. B.V. came to the school with a diagnosis of attention deficit hyperactivity disorder and bipolar disorder , as well as

a past history of assaultive behavior

. While at Midwest Academy , B.V. spent at least 133 of his 210 da ys in OSS

— sixty

- three percent of his time
at Midwest Academy

. While in OSS, B.V. defe cated and urinated in the
room and often refused to eat. By the time B.V. left Midwest Academy in March 2015 , his weight had gone down from 115 pounds to 89 pounds

. In March 2015, the Iowa D epartment of H uman S ervices (DHS) received a hotline tip that students were being held at Midwest Academy
in isolation to the detriment of their health

. Accordingly, DHS opened an inquiry

. The Federal Bureau of Investigation (FBI) , having already received similar information, contacted DHS to coordinate investigations into the alleged abuse at Midwest Academy

. Meanwhile, i n December 2015, the Iowa D ivision of C riminal
I nvestigation (DCI) was asked to look into a possible sexual abuse c ase at Midwest Academy involving K.S. , a seventeen

- year

- old female student

. At Midwest Academy , each student was assigned a “family representative.” Trane, the owner, was also the family representative for four students,
includi ng K.S. As K.S.’s family representative, Trane controlled what level K.S. was on, whether K.S. could call home, and whether K.S. could go on outings. Like other students at Midwest Academy, K.S. had undergone a
troubled childhood befo re entering the schoo l. She had been adopted by
her aunt and uncle when she was eight years old. (Her adoptive mother6

was the sister of her biol ogical father.) Before that , K.S. had lived in foster care and with her grandparents. In January 2015, after K.S. ran away
from h er adoptive home, K.S.’s adoptive parents arranged for her to be
sent to M idwest Academy

. In late 2015, K.S. disclosed to a night

- time staff member named Cheyenne Jerred that Tran e had been sexually abusing her, and Jerred reported the allegations to DHS. K.S.’s disclosure to Jerred apparently

came the day after Trane delivered to K.S. the ill

- received news that she would not be permitted to travel off campus with anyone for Thanksgiving. The allegations were later investigated by DCI.
Over the cour se of several interviews with D CI, K.S. disclosed the following incidents of sexual contact with Trane: (1) Trane p u lled K.S.’s pants down enough to expose her underwear under the guise of looking
for and photographing distinctive birthmarks for the Child Protecti on Center (CPC) ; 2 (2) a fter lights out, Trane knelt next to K.S.’s bed while she
faced away from him and slid his hand under the covers, under her shorts, and into her vagina ; 3 (3) Trane placed K.S.’s hand over the groin area of his pants while he developed an erection ; (4) Trane unbuttoned K.S.’s uniform pants and put his finger into her vagina while she visited his home
with other students ; (5) Trane videotaped himself engaging in sexual
intercourse with K.S. and ordered K.S. to clean the floor where the act occurred so that K.S. would be permitted to call her sister ; (6) Trane h a d
sexual intercourse with K.S. on at least one other occasion ; (7) Trane had K.S. perform an act of oral sex on him; (8) Trane had K .S. perform a

2 The CPC was involved with K.S. because of events that had occurred prior to her admission to Midwest Academy.

3 The beds were lined up against the wall, and students were required to face the wall while sleeping or else they would lose points in the levels system.7

manual masturbatory act on him while he guided her hands with his ; and (9) Trane moved his groin against K.S. while laying fully clothed on top of
K.S. Shortly after DHS was notified , K.S. was removed from Midwest Academy

. Trane consistently denied having any sexual contact with K.S. None of the incidents were directly corroborated by any witnesses other
than K.S. However, i n addition to K.S.’s allegations of sexual abuse, K.S. and
others testified that Trane would conduct a “body image” exe rcise. During this exercise, each female student was instructed t o go off alone in a private room , disrobe, look at herself in a full

- length mirror, and determine what shape her body was, such as “pear

- shaped” or “apple

- shaped.” Trane and the girls would then discuss their body shapes as a group. The body image exercise was supposed ly intended to provi de guidance on diet and
exercise habits. At trial, Trane testified that “in hindsight” he would not
have conducted this exercise because “it sounds bad.”
Also , Trane instructed students, including K.S. , to complete a n
anonymous written survey
. The survey included questions on sexual subjects such as when the student first learned about sex, when the student had her first sexual experience, when the student lost her virginity, and when the student first masturbated

. At trial, Trane and his
wife te stified that there were surveys taken on various subjects , not just sexual subjects

. Tra ne also brought upper

- level female students to Victoria’s Secret
for their birthdays. One witness explained that this was to allow a student the privilege of getting t he kind of bras and underwear she was not normally allowed to have in the school, where the dress code was strictly regimented. For K.S.’s seventeenth birthday, Trane took K.S. and another8

female student out for sushi and shopping. This included a stop at Victoria’s Secret, where K.S. testified she “didn’t let him buy [her] anything.” On January 28, 201 6, law enforcement executed a se arch warrant
at Midwest Academy , interviewed every student enrolled, shut down the facility, and sent all of the children home. Two further searches were performe d on February 1 and February 11, generating a vast amount of paper and electronic evidence th at was subsequently digitized. Digitization of the evidence was completed over a year later in April 2017

. The files amounted to betwe en five and six terabytes of data

. On September 18 , 2017, Trane was charged by trial information in
the Iowa District Co urt for Lee (South) County with one count of sexual abuse in the third degree in violation of Iowa Code sections 709.1 and 709.4(1)( a

) (2015) ; one count of sexual exploitation by a counselor or therapist in violation of Iowa Code sections 709.15(1), 709.15(2)( a )(1), and 709.15(4)( a

) ; and one count of child endangerment in violation of Iowa
Code sections 726.6(1)( a ) and 726.6(7). Trane ple d not guilty and asserted his right to a speedy trial, which was then set for December 12. As previously noted , th e discovery materials were voluminous. Moreover, the discovery contained the identifying informat ion of hundreds of persons that would have been unwieldy to redact. As a result, t he parties entered a nondisclosure discove ry agreement on October 27

. On November 16 , Trane , who was represented by appointed counsel , moved for approval of a $200

– $250 purchase expense of an external hard drive on which the State could provide a copy of the se voluminous discovery materials . In his motion, Trane asserted the S tate would only provide discovery on a new ly purchased hard drive

. The trial court granted9

Trane’s motion, and he obtained this discovery on November 28

— fourteen days before trial and on the first day of depositions. K.S., who now resided out of state , wa s deposed on December 11,
the afternoon before trial was to begin

. In her deposition, she testified that
she had previously made allegations of sexual abuse against her foster parents and her adoptive parents

. Upon conferring with K.S.’s adoptive
mother following the deposition , Trane ’s counsel filed a r ule 5.412 motion that evening . The motion asserted that K.S. had made prior fa lse allegations of sexual abuse against both sets of parents and sought to “introduce testimony through both cross

- examinatio n and through the complaining witness’ adoptive mother as to the falsity of those allegations.” The motion elaborated that “prior false allegations are not considered ‘prior sexual behavior’ and therefore do not fall within the protections of Rule 5.412.” The motion was time

- stamped 5:39 p.m. on December 11

. The State r esisted Trane’s motion. The State maintained that the
motion was untim ely, since it was being filed on the eve of trial. See Iowa
R. Evid. 5.412( c

)(1)(A) (gener ally requiring motions base d on an exception to rule 5.412 to be filed at least fourteen days before trial). 4 The State
further maintained that the motion was deficient because it was not accompanied by an offer of proof. Lastly, the State urged that the motion
should be denied on the merits because “K.S. has never recanted her prior abuse allegations.”

4 The State had filed a motion in limine on De cember 7 that asked for the exclusion, inter alia , of [a] ny testimony or evidence of sexual history or other reports of sexual abuse made by the victim in Count I. Such evidence is inadmissible pursuant to Iowa Rule of Evidence 5.412, is irrelevant, and i ts prejudicial effect is not outweighed by its probative value. Furthermore, defendant has not provided notice of intent or a written offer of proof to submit such evidence in accordance with 5.412( c )(1) and (2) and is therefore precluded from eliciting s uch testimony.10

On December 12 , following jury selection, the court allowed the parties to make a further record on the motion. Trane’s counsel recounted
her conversation with K.S.’s adoptive moth er:

I explained to her what it was specifically that [K.S.] was accusing her specifically of as far as sexual abuse, and she made it clear that that was not true, and this was a pattern of behavior that [K.S.] would engage in of making false allegations ag ainst her and her husband, both of a physical abuse nature and a sexual abuse nature. She would also testify that my advising her was the first she knew of

-- she knew that there had been sexual abuse allegations, but she did not know exactly what they entai led. And she would further testify that they simply weren’t true.
The district court expressed concern about permitting a telephonic deposition of K.S.’s adop tive mother for purposes of a rule 5.412 hearing

. However, the district court also asked Trane’s counsel, “[W]ould [the statements you have made] be substantially what [the adoptive mother] would say if she was called as a witness, if you were to make an offer of proof? ” Trane’s counsel agreed they would be.
Trane’ s counsel added further detail as to what she had learned from K.S.’s deposition . Apparently, t he allegations of physical abuse had arisen
before K.S. arrived at Midwest Academy. They had been investigated and
determined to be unsubstantiated. Upon K.S.’s arrival at Mi dwest Academy, she had also made allegations of sexual abuse against both her adoptive parents and her foster parents. The State responded that Trane’s motion should not be heard
because it was too late: “The Defendant wanted a speedy trial, and this is
of his making.”
The district court denied Trane’s motion. It concluded that the
motion was untimely . Turning to the merits, it also found :11 The information before the court requires the court speculate to a degree that is in consistent with a finding that there was a false claim of sexual abuse as set forth in the Motion filed by the defendant by a preponderance of the ev idence. At trial, K.S. and B.V. (but not A.H.) testified for the State. Additionally, t he State of fered expert testimony from Dr. Anna Salter, a forensic psychologist. During her testimony, Dr. Salter spoke of a “double
standard” as between how the public res ponded to the “Boston Strong” phenomenon following the Boston Marathon bombing and how the public

re sponds generally to survivors of sexual abuse who do not complain about the abuse and continue to interact with their abusers. Less directly,
Dr. Salter referred to the then

- ongoing and high

- profile case of the physician

- trainer who had sexually abused ma ny athletes on the Unit ed
States W omen’s Olympic G ymnastics T eam. Dr. Salter also testified that
sexual abuse allegations a re false “roughly 2 to 8 percent ” of the time. Trane did not object to this testimony.
Both Trane and Trane’s wife testified for the defense. T he State and
the defense called other witnesses as well , including former students and
staff

. The district court’s marsha ling instruction on c ount III, child endangerment, did not require the jury to agree that a specific child

— either A.H. o r B.V.

— had been endangered. Rather, it stated as follows:

Under Count III of the Trial Information, the State must prove all of the following elements of Child Endangerment:
1. On or between September 18, 2014, and January 31, 2016 [,] the defendant was t he person having custody or control of [ B.V. ] and/or [ A.H. ]
2. [ B.V. ] and/or [ A.H. ] were under the age of fourteen years.
3. The defendant knowingly acted in a manner that he was creating a substantial risk to [ B.V. ] and/or [ A.H. ] ’s physical or mental or emotional health or safety.12
If the State has proved all of the elements, the defendant is guilty of Child Endangerment. If the State has failed to prove any one of the elements, the defendant is not guilty of Child Endangerment. ( E mphasis added .)
On December 22, 2017, the jury returned its verdicts . On c ount I,
which involved K.S., it f ound Trane guilty of the lesser included offense of assault with intent to commit sexual abuse, rather than the charged
offense of sexual abuse. 5 On c ount II, also in volving K.S., the jury found Trane guilty of a pattern, practice, or scheme to engage in sexual exploitation by a counselor or therapist . Finally, on c ount III, involving B.V. “and/or” A.H., the jury found Trane guilty of c hild endangerment.
Before the im position of sentence, Trane retained new c ounsel who
filed a motion for a new trial. This motio n asserted the trial court erred in denying Trane the opportunity to present proof of K.S.’s false allegations of prior sexual abuse by her adoptive and foster parents . Further, the motion sought to raise ineffective assistance of trial counsel in various forms, including trial counsel’s failure to make a more timely rule 5.412 motion, failure to move for severance of c ounts I and II from c ount III , failure to o bj ect to improper vouching by Dr. Salter, and failure to object to the “and/or” jury instruction regarding child endangerment. The State
resisted the motion and , in the course of its resistance , also objected to consideration of any ineffective

- assistance

- of

- counsel arguments at the
motion

- for

- new

- trial phase. On May 11, 2018, the case came on for sentencing. The district
court overruled Trane’s motion for a new trial. It then sentenced Trane

5 Confronted with K.S.’s graphic descriptions of repeated sexual abuse, and Trane’s denials of any sexual contact, the jury reached what was arguably a compromise verdict.13

consecutively to two years on the assault with inten t to commi t sexual abuse charge; five years on the pattern, practice, or scheme to engage in sexual exploitation by a counselor or therapist char g e; and two years on the child endangerment charge. See Iowa Code § 902.9(1)( e ); id. § 903.1(2)

. Trane timely appealed, and we retained the appeal.
III. Standard of Review.
We review district court rulings on the admissibility of evidence , including admissibility under Iowa Rule of Evidence 5.412 in criminal prosecutions , for abuse of discretion. State v. Alber ts , 722 N.W.2d 402, 407 (Iowa 2006)

. “ Reversal is w arranted only upon showing the ‘ court
exercise [ d ] its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. ’ ” Id. at 408 (alteration in original) (quoting
State v. Mitchell , 568 N.W.2d 493, 497 (Iowa 1997) ). In evaluating sufficiency

- of

- evidence claims, we will uphold a verdict if substantial evidence supports it. State v. Ramirez , 895 N.W.2d 884, 890 (Iowa 2017). “Evidence is considered substantial if, wh en viewed in the light most favorable to the State, it can convince a rational jury that the defendant is guilty beyond a reasonable doubt.” Id. (quoting State v. Reed , 875 N.W.2d 693, 704

– 05 (Iowa 2016) ). The jury is entitled to reject a party’s evidenc e and credit the evidence against it. See State v. Sanford , 814 N.W.2d 611, 615 (Iowa 2012).

IV
. Was There Sufficient Evidence to Sustain Trane’s Convictions ? Trane has raised a number of arguments on appeal. We will begin
with the claim that the evidence was insufficient to sustain Trane’s
convictions. If the trial record would not support a conviction on a given count, Trane is entitled to an acquittal on that count , and further proceedings on that count must come to an end.14

A. Assault with Intent to Commit Sexual Abuse. A person commits assault with intent to commit sexual abuse when the person assaults another with the specific intent to commit a sex act by force or against the other’s will. See Iowa Code § § 70 9.1 , .11 . An assault is “ [ a ] ny
act .

. . intended to place another [person] in fear of immediate physical
contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.” Id. § 708.1(2)( b ). Here, the jury heard K.S. t estify that Trane repeatedly and forcibly
in serted his finger in her vagina and repeatedly grabbed her hand and put it over his groin area. K.S.’s testimony, standing alone, is sufficient to support Trane’s conviction on this count.
B. P attern, Practice, or Scheme of Conduct to Engage in Sexual Exploitation by a Counselor or Therapist. The elements re quired to be shown are that (1) the defendant was a counselor or a therapist providing mental health services to the victim, (2) the victim was emotionally dependent on the defendant, (3) the victim w as a client or patient, and (4) the defendant committed a pattern, practice, or scheme of conduct to engage in sexual conduct with the victim for the purpose of arousing or satisfying the sexual desires of the de fendant or victim. Iowa Code
Id. § 709.15 (1)

– (2). The pattern or practice need not involve multiple victims or an extended period of time; it merely requires “an ongoing pattern, practice or scheme of conduct to sexually exploit” at least one protected p erson. See State v. Wickes , 91 0 N.W.2d 554, 569 (Iowa 2018). The jury heard evidence that Trane was K.S.’s family representative and provided counseling services to her. The jury also heard K.S. testify as to her vulnerability, her reliance o n Trane , and his repeated sex acts with her. Sufficient evidence was presented to sustain this charge.15

C. Child Endangerment. Child endangerment occurs when a person having custody or control over a child “[ k ] nowingly acts in a
manner that creates a substantial ris k to [ the ] child’s

. . . physical,
mental [ , ] or emotional health or safety. ” Iowa Code § 726.6(1). A.H. and
B.V. were both under fourteen years old when they entered Midwest Academy. Trane wa s the owner and the de facto director of the school.
Trane put into place policies that allowed A.H. and B.V. to be held in OSS for days on end even if they were not eating and were engaging in acts of
self

- harm. Further, the State presented evidence that Trane was personally aware of A.H.’s and B.V.’s confinemen t and its effects. He testified that he stopped by OSS “every single day.” Both children left Midwest Academy having lost large amounts of weight. Trane knew that B.V. was losing weight. After leaving Midwest Academy, B.V. was hospitalized for malnutri tion. There was sufficient evidence to sustain this
conviction as well. In sum, although conflicting evidence was pr esented on all three counts, a reasonable jury could have found Trane guilty taking the
evidence as a whole.

V. Did the District Court Abu se Its Discretion in Not Holding a Rule 5.412 Hearing?

A. Iowa’s Rape Shield Law and the Exception for False Allegations of Sexual Activity. Iowa Rule of Evidence 5.412 , Iowa’s rape shield law, prohibits introduction of reputation or opinion evidence of a complaining witness’s other sexual behavior and substantially limits the
admission of evidence of specific instances of a complaining witness’s
other sexual behavior. 6 Its purpose “is to protect the victim’s privacy,

6 Iowa Rule of Evidence 5.412 reads, in part,16

encourage the reporting and prosecut ion of sex offenses, and prevent the parties from delving into distractive, irrelevant matters.” State v. Edouard , 854 N.W.2d 421, 448

– 49 (Iowa 2014) (quoting Alberts , 722 N.W.2d at 409) , overruled in part on other grounds by Alcala v. Marriott Int’l, Inc

. , 880 N.W.2d 699 , 708 & n.3 (Iowa 2016). As a result, “[t]he rule presupposes that much evidence which the accused wishes to place before a jury will be excluded.” State v. Alvey , 458 N.W.2d 850, 853 (Iowa 1990) , abrogated in part on other grounds by State v. Baker , 679 N.W.2d 7 , 11 (Iowa 2004)

. A question we had to answ er earlier was whether the rape shield statute applied to evidence that a victim had made a false alleg ation of
sexual behavior. In Baker , we held that the defendant should have been
p ermitted to introduce this type of evidence. See 679 N.W.2d at 12 . We stated, “Because a false allegation of sexual activity is not sexual behavior, such statements fall outside both the letter and the spirit of the rape

- shield
law.” Id. at 10.
In Alber ts , however, we refined this holding. While we reiterated that a false allegation of sexual conduct is not barred from admissibility by
rule 5.412, we acknowledged t he risk of undermining the rape shield law
itself. Alberts , 722 N.W.2d at 409. Thus, we stated,

In keeping with the policy behind our rape

- shield law, it is imperative that a claim of sexual conduct (or misconduct) by the complaining witness be shown to be false before it is
The following evidence is not admissible in a criminal proceeding involving alleged sexual abuse: (1) Reputation or opinion evidence offered to prove that a victim engaged in other sexual behavior (2) Evidence of a victim’s other sexual behavior other th an reputation or opinion evidence. The rule previously restricted evidence of “past” sexual behavior. See Iowa R. Evid. 5.412( a

)

– ( b ) (July 2009). Effective January 1, 2017, it was amended to cover evidence of “other” sexual behavior, whether the behavior preceded the alleged sexual abuse or not. See id. r. 5.412( a )(1)

– (2) (Dec. 2016, eff. Jan. 1, 2017).17 admissible at trial. Allowing the jury to make the initial determin ation of the truth or falsity of the alleged statement “would contradict the purpose of rape

- shield laws

— which is to prohibit a jury from considering e vidence about an alleged victim’ s sexual conduct, unless a judge first determines that such evidence is m anifestly necessary to achieve a fair trial.” Thus, we hold a criminal defendant wishing to admit such evidence must first make a threshold showing to the trial judge outside th e presence of the jury that (1) the complaining witn ess made the statements and (2) the statements are false, based on a preponderance of the evidence.
Id. ( quoting State v. Quinn , 490 S.E.2d 34, 40 (W. Va. 1997) ). More specifically, we added,

Under our rape

- shield law, a defendant intending to offer evidence of specific instance s of the complaining witness’s past sexual behavior must first make a written motion to offer such evidence not later than 15 days before the trial date. Iowa R. Evid. 5.412( c )(1). This procedural requirement would also apply to allegedly false claims of sexual conduct because they are covered by the rape

- shield law unless proven to be false. The motion must be accompanied by a written offer of proof and the trial court must order a hearing in chambers to determine the admissibility of such evidence. Id

. [§] 5.412( c )(2). 7
Id. at 409 n.3.
In other words , our court made it clear in Alberts that allegedly false allegations of past (now other) sexual behavior may be admitted only through the rule 5.412 exceptions framework, which involves pretrial notice, a written offer of proof, and an in camera hearing. Id. Further, even if the threshold of proof by a preponderance of evidence is met, the
district court must still determine that the evidence is relevant and that the probative value of the proposed fals e allegations outweighs the danger of unfair prejudice. See id. at 411; see also Iowa R. Evid. 5.412( c )(2)(C) (Dec. 2016)

.

7 The fifteen

- day timeline was amended, effective January 1, 2017, to fourteen days. Compare Iowa R. Evid. 5.412( c )(1) (July 2009), with id. r. 5.412 ( c ) (1)(A) (Dec. 2016, eff. Jan. 1. 2017)

.18

B. Merits. We must determine whether the district court abused
its discretion when it denied Trane’s motion for a rule 5.412 heari ng, which was filed the day before trial. As noted, the district court denied the motion on grounds of untimeliness and failure of proof. We have grappled with these issues to some extent before. In Baker , in the district court, the defendant filed a notice to present evidence of prior false allegations made b y the complaining witness; the s tate filed a motion in limine to prevent the introduction of such evidence; and the court held a hearing to resolve the i ssue, ultimately granting the s tate’s
motion in limine. 679 N.W.2d at 9. On appeal, we granted a new trial after balancing probative value against unfair prejudice. See id. at 12. Two years later, in Alberts , the defendant argued he should have
been abl e to present proof of an incid ent in the recent past where the complaining witness allegedly falsely blamed a man for having “trapped” her while she was skinny dipping. 722 N.W.2d at 405, 407. The defendant argued that this incident supported his defense that he and the complaining witness had engaged in consensual sex, but she had then falsely accused him of rape. Id. at 406. We held that the incident was
pr esumptively covered by the rape shield law and inadmissible. Id. at 409. However, if the defen dant could establish in a rule 5 .412( c ) in camera hearing that the complaining witness’s description of the nonconsensual nature of the skinny dipping incident was false, the event w ould not be covered by the rape shield law and would be potentially admiss ible. Id.
As in Baker

, the defendant had not followed the procedure of
rule 5.412 ( c

)

. Id. at 405; see Baker , 679 N.W.2d at 9 n.1. He had not filed

a motion for a rule 5.412 hearing; this issue came before the court on the

s tate’s motion in limine. Alberts , 722 N.W.2d at 405 . But we held a19

rule 5.412 hearing would be the required course of action on remand and
in future cases. Id. at 409, 412. Two years after that, in Millam v. State , we decided that the failure of the defendant’s trial counsel to offer evidence that the complaining witness had made similar accusations of sexual abuse against another boyfriend of her mother prejudiced the defendant and undermined confidence in the trial’s outcome. 745 N.W.2d 719, 724 (Iowa 2008). The charges invol ved sexual abuse of a seven

- year

- old girl. Id. at 721. The defendant was the boyfriend of the girl’s mother at the time of the alleged
abuse. Id. In his application for postconviction relief, the defendant
asserted his trial counsel had discovered the girl had made similar accusations of sexual abuse against one of her mother’s other boyfriends
and had later recanted. Id. at 722. The defendant’s trial counsel, however, did not attempt to introduce the evidence by way of a rule 5.412 motion or
at trial , incorrectly believing that it was ex cluded by Iowa’s rape shield law.
Id. This error led us to find ineffective assistance of counsel and reverse
and remand. Id. at 724. For present purposes, w e first consider whether Trane’s rule 5.412
motion was tim ely. Rule 5.412( c )(1)(A) requires the defendant to [f]ile a motion to offer the evidence at least 14 days before trial unless the court determines that the evidence is newly discovered and could not have been obtained earlier through the exercise of due d iligence, or that the evidence relates to an issue that has newly arisen in the case, and the court sets a different time. 8

8 Rule 5.412 was modeled after Federal Rule of Evidence 412, which became effective in 1973. As of January 1, 2017, a number of amendments were made to rule 5.412 to bring it into conformity with later amendments to t he federal rule. For example, the fifteen

- day timeline referenced in Alberts was changed to fourteen days in the new rule 5.412( c

). Compare Iowa R. Evid. 5.412( c )(1) (July 2009), with id. r. 5.412( c )(1)(A) (Dec. 2016, eff. Jan. 1, 2017). See generally Iowa Supreme Ct. Order, In re Adoption of the Nonsubstantive Restyling of the Iowa Rules of Evidence , https://www.iowacourts.gov/iowa

- courts/supreme

- court/orders/archive/2016/ (Iowa20

Iowa R. Evid. 5.412( c )(1)(A). Obviously, Trane did not file his motion at least fourteen days before trial. Trane counters that he did not learn of the allegedly false sexual abuse allegations until he deposed K.S. the day before trial. Moreover, he points out that the State scheduled the deposition of K.S. (who by then lived some distance
from Iowa ) to occur the day before trial and that depositions generally were delayed because the State did not make its document trove available until fourteen days before trial. In its appellate briefing, the State does not disput e these points. In other words, the State appears to concede that the evidence was “ newly discovered and could not have been obtained earlier through the exercise of due diligence . . . .” Id. Instead the State faults Trane for standing on his speedy tr ial rights. See Appellee’s Br. 55 (“It was Trane’s insistence on invoking his speedy trial right despite has lawyer’s pleas for more time that created the rape shield timeliness issue.”). Notably, the trial transcript
indicates that Trane’s counsel tried to persuade him to waive speedy trial.
Trane refused. Yet Trane’s refusal to waive speedy trial should not have been fatal
to the success of his rule 5.412 motion if the motion was based on newly
discovered evidence that could not have been obtained earl ier. The
fourteen

- day deadline is excused in these circumstances. The district court’s decision failed to take into account the rule’s own exception to the
fourteen

- day deadline.

Sept. 28, 2016). However, when we updated rule 5.412 in 2017 we did not incorporate
one of the federal changes, which replaced “ unless 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 newl y arisen in the case, and the court sets a different time,” with “ unless the court, for good cause, sets a different time.” Compare Iowa R. Evid. 5.412( c )(1)(A), with Fed R. Evid. 412(c)(1)(B).21
It is true that without a continuance, there would have been practical diff

iculties in holding a rule 5.412 hearing. Trial was already beginning. Certainly, the complaining witness had rights to be protected. Any prior incident had to get through the screening process described in
Alberts before it could be admitted. And the State was entitled not to be prejud iced by last

- minute surprises. We have said that “good cause for pretrial delay under the speedy

trial rule can result from the need to complete pretrial discovery.” State v.
Winters , 690 N.W.2d 903, 909 (Iowa 2005) (“ [D ]efendants do not forfeit their speedy

- trial rights by pursuing discovery of the State’ s evidence. ”). Recently, in State v. Veal , we reviewed a case where the defendant had made incompatible demands for last

- minute discovery on a fair

- cross

section jury p ool claim and for a speedy trial. 930 N.W.2d 319, 331

– 32 (Iowa 2019). The district court resolved the conflict by granting a brief
continuance. Id. Yet before doing so, it had a candid on

- the

- record discussion with defense counsel in the presence of th e defendant where it explained that granting the requested discovery would result in going slightly beyond the speedy trial deadline. Id. On appeal, we approved the district court’s decision to grant this limited trial delay, finding that the
defendant’s discovery request constituted good cause. Id. at 332. We believe the district court’s approach in Veal is a good one to follow when a defendant justifiably raises an important motion at the eleventh hour, having demonstrated that the motion cou ld not hav e been raised earlier, but granting the motion could push the trial past a speedy trial deadline that the defendant is declining to waive. If the dilemma is not the defendant’s fault, the defendant should not be hoisted on its horns. Rather, to the exten t necessary, the court should make clear to the defendant that granting the motion will push the trial past the speedy trial22

and, if the defendant insists on pursuing the motion, find good cause
under Iowa Rule of Criminal Procedure 2.3 3 (2)( b ) for extendin g the speedy
trial deadline. The district co urt here took a different path and decided that the defendant’s speedy trial demand trumped the defendant’s
rule 5.412 motion. We think the Veal approach is sound er , under which
the court itself balances the two rights instead of forcing the defendant to pick and choose. The State relies on a number of distinguishable out

- of

- state cases in arguing that Trane’s motion was untimely . In Mayo v. Commonwealth , the Kentucky Supreme Court noted that a “trial court h a[s] the discretion to rely upon the lack of notice alone to exclude testimony about the victim’s sexual history [under the rape shield law].” 322 S.W.3d 41, 49 (Ky. 2010). There, the defendant sought to introduce evidence of his own past
consensual inter course with the vic tim, his spouse, under the rape

- shield exception in Kentucky. Id. at 48. Clearly the defendant knew of the past sexual conduct at the time of the motion deadline, and the defendant did not require the aid of the discovery process to un cover this information.
See id.
In Roberson v. State , the Mississippi Court of Appeals likewise affirmed the denial of an untimely attempt to admit evidence of a victim’s prior sexual conduct. 61 So. 3d 204, 221 (Miss Ct. App. 2010) (en banc)

. But again , the case is distinguishable. The day before trial (as is the case here), the defendant “sought permission . . . to inquire into prior sexual accusations that had been made by [the victim].” Id. at 208. However, his motion only stated that “[i]t ha[d] recently been discovered by the defense that . . . when questioned about the source of a perceived pregnancy, the alleged victim admitted to her mother that she had engaged in sexual intercourse with [a third party].” Id. at 212. The defendant made no23

wr itten offer of proof as to a prior false sexual allegation. Id. The district court ruled that Roberson failed to show in his untimely motion that the evidence he wished to introduce was newly discovered, failed to show the allegation was false, and faile d to submit a proper written offer of proof.
Id. at 221

– 22. Also, importantly, the timeline in Roberson was distinct
from that before this court. In Roberson , the defendant was arrested and indicted in July 2007, and the ruling on the motion occurred ne arly two years later in May 2009

— nothing like the accelerated timeline in this case coupled with the discovery issues

. Id. at 207, 21 1

. In State v. Poitra , the North Dakota Supreme Court affirmed the
exclusion of evidence because the defendant had not fil ed a timely motion or provided notice to the victim. 7 85 N.W.2d 225, 234 (N.D. 2010). In
Poitra , the State waited until the case was within fourteen days of trial, at which point it filed a motion to exclude any evidence of the victim’s past
sexual behav ior based on the defendant not having filed a motion. Id. at 234. The defendant resisted, but did not claim the victim had made false allegations of sexual misconduct in the past. Id. Additionally, approximately a year had passed from the defendant’s i ndictment until the
defendant resisted the exclusion of evidence. Id. at 229 , 234

. Poitra does not present the same temporal and discovery restraints as this case.
In United States v. Seymour , the United States Court of Appeals for
the Sixth Circuit foun d that the failure of the defendant to provide notice
under Federal Rule of Evidence 412(c)(1) rendered the evidence inadmissible. 468 F.3d 378, 387

– 88 (6th Cir. 2006). There, the defendant had attempted unsuccessfully to admit the testimony of an indivi dual who had seen the defendant and the adult female victim at a party, hugging and kissing and acting as if they were a couple two years after the alleged
sexual assault. Id. at 386. On appeal, for the first time, the defendant24

asserted that the testimo ny should have been admitted under a rule 412 exception as evidence of consensual sexual behavior between him and the
adult female victim. Id. The court reviewed the contention under plain error review, and it ruled that the failure to move for introduction of such evidence prior to trial was a ground for denial. Id. Again, no prior false allegations of sexual misconduct were involved , and as in Mayo , the
defendant would have known about the evi dence because it involved his
own behavior. See id. ; Mayo , 322 S.W.3d at 48

. In United States v. Ramone , the Tenth Circuit held that the failure to timely serve notice provided a sufficient basis for a trial court to exclude proffered Rule 412 evidence. 218 F.3d 1229, 1235 (10th Cir. 2000). In that case, the defendant attempted to introduce evidence of a prior consensual relationship with the victim. Id. at 1232, 1234

– 35. He timely
filed his initial R ule 412 motion. Id. at 1234

– 35. However, after the motion deadline, he supplemented his motion by offering evidence of his entire sexual relationship with the victim. Id. a t 1235. Because the supplementation was untimely and the district court found no good cause to excuse the delay, it excluded the untimely supplemental proffer. Id. at 1235

– 36 (“The advisory committee notes indicate that good cause for late filing may be shown through newly discovered evidence that could not
have been obtained at an earlier time through due diligence.” )

. These facts simply do not line up to the case before this court presently. The defendant there clearly knew all along about his own conduct.
In United States v. Eagle Thunder , the Eighth Circuit held that the
failu re of the defendant to timely serve notice was sufficient to warrant exclusion of Rule 412 evidence. 893 F.2d 950, 954 (8th Cir. 1990). That case is, again, distinguishable. The defendant attempted to introduce
evidence of a non recent tear in the eleven

- year

- old victim’s hymenal ring25

under the injury exception to Federal Rule of Evidence 412. Id. The
district court in Eagle Thunder , while noting that the defendant failed to follow the procedure of submitting a written offer of proof, ruled on relevancy grounds that the “non

- recent tear was not relevant to the source of the tears that were hours old.” Id.
Pertinent to our review of the no tice requirement in Iowa’s rape shield law is the United States Supreme Court’s decision in Michigan v.
Lucas , 500 U. S. 145, 111 S. Ct. 1743 (1991). In that case, the Court reviewed the timeliness requirement in Mich igan’s rape shield statute, which required a written motion and an offer of proof within ten days of arraignment, i.e., much earlier than in Iowa. Id. at 1 47, 111 S. Ct. at 1745. The Michigan Court of Appeals had found the notice

- and

- hearing requirement violative of the Sixth Amendment “in all cases where it is used to preclude evidence of past sexual conduct between a rape victim and a criminal defendant.” Id

. at 148, 111 S. Ct. at 1746.
The S upreme Court reversed. It held, [T] he Michigan Court of Appeals erred in adopting a per se rule that Michigan’ s notice

- and

- hearing requirement violates the Sixth Amendment in all cases where it is used to preclude evidence of past sexual conduct between a rape victim and a defendant. The Sixth Amendment is not so rigid. The notice

and

- hearing requirement serves legitimate state interests in protecting against surprise, harassment, and undue delay. Failure to comp ly with this requirement may in some cases justify even the severe sanction of preclusion.
Id. at 152

– 53, 111 S. Ct. at 1748. Yet the Supreme Court cautioned,

This does not mean, of course, that all notice requirements pass constitutional muster. Restr ictions on a criminal defendant’ s rights to confront adverse witnesses an d to present evidence “ may not be arbitrary or disproportionate to the purpo ses they are designed to serve.”
Id. at 151, 111 S. Ct. at 1747 (quoting Rock v. Arkansas , 483 U.S. 44, 56,
107 S. Ct. 2704, 2711 (1987)).26 Later, the Supreme Court clarified that Lucas “ did not even suggest, much less hold, that it is unconstitutional to enforce such a rule unless a

case

- by

- case balancing of interests weig hs in favor of enforcement.”
Nevada v. Jackson , 569 U.S. 505, 511, 133 S. Ct. 1990, 1993 (2013) (per curiam). In Jackson , the Supreme Court reversed the Ninth Circuit for upholding federal habeas relief for a state prisoner who had failed to give
ti mely notice under Nevada’s rape shield law. Id. at 506, 510, 133 S. Ct.
at 1990

– 91, 1993.
We read Lucas and Jackson together as standing for the proposition that states may impose and enforce reasonable notice requirements for
rape shield exceptions. But what makes rule 5.412 reasonable is the escape valve for newly discovered evidence that could not have been obtained earlier with reasonable diligence. Defense counsel here demonstrated without rebuttal that they did not have access to the
information needed to file a rule 5.412 motion until the eve of trial. Under these circumstances the escape valve applied. This would of course be a different case if, for example, K.S. had been dep osed three weeks before
trial. We now turn to the district court’s alternat ive gr ound for excluding
the evidence

— namely, that Trane had failed to prove the allegations of sexual abuse were false by a preponderance of the evidence. However, the
district court reached this conclusion on the basis of insufficient
information and wi thout holding an in camera rule 5.412 hearing. See
Order 4 , Dec. 17, 2017) (“The information before the court requires the court speculate . . . .”). The very purpose of the hearing is to enable the court to assess whether the allegations were false or n ot by a preponderance of evidence after hearing directly from relevant witnesses,
which would include , in this case , K.S. and her adoptive mother. We share27

the district court’s view that allegations cannot be deemed true or false simply based on defense c ounsel’s verbal offer of proof as to what the
mother would say if called to testify. That is the func tion of the in camera hearing. Having said all this, we would not find that the district court abused
its discretion in failing to hold a proper rule 5.41 2 hearing unless the
evidence concerni ng the prior false allegations

— if indeed they were false

—

was relevant and important , and its probative value outweighed the danger of unfair prejudice. We went through this step in the analysis in Alberts

. See 722 N. W.2d at 411

– 12. Likewise, we will do so here. We believe the evidence could have been valuable to Trane’s defense. Apparently there were no third

- party witnesses to any of the alleged incidents of sexual contact. Thus, the State’s case rested on the relative credibility of K.S. and Trane. 9 Also, the allegedly false report of sexual abuse by the adoptive parents occurred fairly close in time to the report of sexual abuse by Trane. Additionally, both reports related to authority figures. Trane’s defe nse theory was that K.S. had leveled sexual abuse charges against him in retaliation for being forced to stay at the school over the Thanksgiving holiday . K.S.’s allegations concerning her adoptive

9 As the State said in closing argument (while perhaps oversim plifying the State’s burden of proof),

If you can’t reconcile the conflict

-- because in this case you can’t reconcile the conflict. [K.S.] said it happened. He said it didn’t. So if you can’t reconcile that conflict, accept the evidence you find more beli evable. What do you find more believable? Who do you find more believable? What do you find more credible? Who do you find more credible? Don’t throw up your hands. Make a decision.

. . . . Her testimony is believable, and it is proof beyond a reasona ble doubt. Her testimony alone, if you believe it and you find it to be consistent with what else you know, her testimony alone is beyond a reasonable doubt. Because you do have to decide who to believe.28

parents

— if false

—

would have supported that defense theory , since K.S. made them after the adoptive parents had caused her to be brought to the
school.
One court has observed that “ [t]he ability to cross

- examine a witness about prior false accusations is at the core of the fundamental right to
confront because su ch evidence goes to the witness’s motive .” Perry v.
Commonwealth , 390 S.W.3d 122, 131 , 134 (Ky. 2012) (reversing the trial court’s ruling excluding evidence of prior false allegations under the rape shield law and remanding because the trial court did not hold a proper hearing). This observation needs to be tempered with a recognition of the important policies serv ed by the rape shield statute

— protection of victims and their privacy, avoiding trials of victims rather than perpetrators, and ensuring that v ictims of sexual abuse are encouraged to report. 10 We therefore conclude the court abused its discretion in not holding
an in camera rule 5.412 hearing on Trane’s motion and, if necessary, delaying briefly the trial. The remedy that we order is the same as in
Alberts

. That is, “we remand for a hearing to determine whether [K.S.] made these statements and if so, whether they are false.” Alberts , 722 N.W.2d at 412. If the district court finds after such a hearing that Trane has made the required showing by a preponderance of the evidence, “then a new trial shall be granted.” Id. If Trane fails to make such a showing,

“ then his conviction stands, ” i d. , unless reversal is warranted on some other ground.

10 As we said in State v. Ogilvie , One purpose of rape shield laws is to protect the privacy of victims. Another is to encourage the reporting and prosecuting of sex offenses. A third reason is to prevent time

- consuming and distracting inquiry into collateral matters. 310 N.W.2d 192, 195 (Iowa 1981) (citation omitted); see also Mitchell , 568 N.W.2d at 497.29 VI. Did the District Court Err in Refusing to Consider Ineffective

- Assistance

- of

- Counsel Claims That Were Raised in Trane’s Motion for New Trial? As we have noted, Trane’s motion for new trial departed from customary practice by raising a number of ineffective

- assistance

- of

counsel claims. The distri ct court indicated it would not consider those claims, but it allowed Trane’s new counsel to make an offer of proof by calling trial counsel to the stand. Following that testimony , the court reiterated that Trane’s ineffective

- assistance claims were not p roperly before it, but the court seemingly went on to reject some of those claims on the merits. In its written order, the court stated, “[T] o the extent it was heard, or should have been heard in a motion for new trial, any allegation
of ineffective assi stance of counsel was unproven or there was insufficient record to prove it. ” On our review of the record, it is not clear which claims if any the district court rejected on the merits as “unproven.” On appeal, both Trane and the State agree that Trane w as not permitted to fully litigate his ineffective

- assistance claims, and neither side identifies a specific claim as having been considered and turned down on the merits. Trane argues that ineffective assistance of counsel may be raised in
a motion for ne w trial and that the district court should have fully considered his claims. As he points out, Iowa Rule of Criminal
Procedure 2.24( b )(9) authorizes the district court to grant a new trial “[w]hen from any other cause the defendant has not received a fair and impartial trial.” However, that rule wording was already in place in 2004, when the general assembly passed the following legislation:

1. An ineffective assistance of counsel claim in a criminal case shall be determined by filing an application for postconviction relief pursuant to chapter 822, except as otherwise provided in this section

. The claim need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconviction relief purposes.30 2. A party may, bu t is not required to, raise an ineffective assistance claim on direct appeal from the criminal proceedings if the party has reasonable grounds to believe that the record is adequate to address the claim on direct appeal.
3. 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 for determination under chapter 822.
2004 Iowa Acts ch. 1017 , § 2 (codified at Iowa Code § 81 4.7 ) (emphasis added). We believe the 2004 legislation made clear that the only avenues for raising ineffective assistance were postconviction relief and direct appeal. The district court did not err in refusing to consider Trane’s
ineffective

- ass istance

- of

- counsel claims. Not only statutory language but also practical considerations

su pport this ruling. Ineffective

- assistance claims typically require additional record development. Allowing them to be litigated in posttrial
motions would likely delay judgment and sentencing in many cases. That occurred here, as judgment and sentencing did not occur until May 2018 even though the jury verdicts had been returned in December 2017.

VII. Should We Find on Appeal t hat Ineffective Assistance O ccurred? Trane argues alternatively that we should resolve his ineffective
assistance claims now on direct appeal. In State v. Macke , _

_ _ N.W.2d _

_ _,

_ _ _ (Iowa 2019), we held that claims of ineffective assistance may be decided on direct appeal if the ap peal was already pending on July 1, 2019,
when Senate File 589 became effective. Here Trane filed and served his notice of appeal on May 10, 2018. Accordingly, under the version of Iowa
Code section 814.7 that was in effect before July 1, 2019, those claims may be raised before us. We “may decide the record is adequate to decide31

the claim or may choose to preserve the claim for determination u nder chapter 822.” Iowa Code § 814.7(3) (2018). Trane’s burden of proof is well

- established:
I n order to succeed on an ine ffective

- assistance

- of

counsel claim, a defendant must prove each of the following two elements by a pre ponderance of the evidence: (1) trial counsel failed to per form an essential duty, and (2) this failure resulted in prejudic e.
State v. Webster

, 865 N.W.2d 223, 231 (Iowa 2015) (quoting State v. Dalton , 674 N.W.2d 111, 119 (Iowa 2004) ). Trane asserts that his counsel was ineffective in failing to move for
severance of c ounts I and II from c ou nt III, in no t objecting to testimony by Dr. Salter that vouched for K.S.’s credibility , and in not challenging a marsha ling instruction on child endangerment that lumped A.H. “and/or” B.V. together. 11 All claims are raised as ineffective assistance because Trane’s counsel did not preserve these points with a pretrial motion or contemporaneous objections.
“W e normally preserve ineffective

- assistance

- of

- counsel claims for postconviction

- relief proceedings.” State v. Brown , 930 N.W.2d 844, 844 (Iowa 2019). For a couple of reasons, w e thin k that is the prudent course
here. This will give Trane’s trial counsel a full opportunity to explain her
actions . In addition, it will facilitate consideration of “the cumulative effect of the prejudice arising from all the claims.” State v. Clay , 824 N.W.2d 488, 501 (Iowa 2012). Ordinarily one might have expected a motion for severance in a case
like this. The sexual abuse and sex ual exploitation charges involved a different kind of misconduct, carried out in a different way, against a

11 As part of his improper vouching argument, Trane also asserts that A.H.’s mother was allowed to bolster the credibility of A.H., who did not testify at trial.32

different victim than the child endangerment charge. But Trane’s trial counsel should get a chance to explain why she did not move for severance. Indeed, Trane’ s present counsel wanted to go into this subject durin g the new trial hearing and was not allowed to do so. See Trial Tr. 115 (“ I also
would have wanted to know why she didn’t ask for severance in this

case. ”). It is possible that, as with the decision to insist on a speedy trial , this was a client call. Trial counsel also may have had tactical reasons for not objecting to questioning of Dr. Salter. In any event , i t appears that some of Trane’s salvos on appea l relate to alleged lack of relevance or unfair prejudice, not vouching. See Appellant’ s Br. 61 (“Salter ‘educated’ the jury by likening Trane to: (1) widely known acts of terrorism, (2) a headline

- gr abbing sexual predator, and (3) other high

- status offen ders

. . . .”). Lastly, f rom our vantage point, w e have concerns about the “and/or”
marshal ing instruction on child endangerment

. We think an identifiable
victim

— i.e., “a child”

— is an element of the offense. See Iowa Code § 726.6(1). 12 T he instruction here could have allow ed the jury to find that the defendant had custody or control of B.V . while knowingly acting in a
manner that created a substantial risk to A

. H .’s physical, mental or emotional health or safety. Or it could have allowed different juro rs to reach a guilty verdict as to different victims

. As Trane’s present counsel pointed out below , the idea for this instruction appears to have originated

12 This point is illustrated by Iowa Co de section 726.6A, which under some circumstances punishes “a course of conduct including three or more acts of child endangerment as defined in section 726.6 within a period of twelve months involving the same child” as a class “B” penalty. This language highlights that the crime of child endangerment involves a particular child. Accordingly, we have held that the section 726.6 crime is a lesser included offense of the section 726.6A crime. See State v. Neiderbach , 837 N.W.2d 180, 192

– 93 (Iowa 2013).33

with the State. Its proposed instructions used the terminology “ [ B.V. ] or [ A.H. ]

. ” The district court changed this to “ [ B.V. ] and/or [ A.H

. ] ” Trane’s present counsel made a partial record on this issue, getting
Trane’s trial cou nsel to acknowledge that she had not propose d any instructions herself. Trane’s trial counsel also acknowledged she did not review the court’s instructions to see if any error in the State’s instructions had crept into those instructions. Still, the district court cut off questioning on ineffective assistance during the hearing on the motion for
new trial. 13 A full exploration of this ineffective

- assistance claim in a potential postconviction

- relief proceeding would be appropriate.
V II I. Conclusion. For the foregoing reasons, we conditionally remand. The district
court should conduct an in camera rule 5.412 hearing to determine whether, by a preponderance of the evidence, K.S. made false allegations of sexual abuse against her adoptive or foster parents. If false allegations

were made , then Trane is entitled to a new trial . The new trial would
extend to all counts, including the child endangerment count, because of
the risk that all three verdict s could have been affected by the limits on Trane’s ability to present a d efense on the sex

- related counts . If Trane does not make this showing, then his conv ictions and sentence should be
affirmed.
AFFIRMED ON CONDITION AND REMANDED WITH
DIRECTIONS.

13 A s we discuss above, the district court did so appropriately, because a motion

for

- new

- trial hearing is not a permissible a venue for the resolution of ineffective

assistance

- of

- counsel claims. See Iowa Code § 814.7.