IN THE SUPREME COURT OF IOWA 

No. 92 / 04-1949 

Filed October 6, 2006 

STATE OF IOWA, 

Appellee, 

vs. 

MICHAEL JOHN ALBERTS, 

Appellant. 

________________________________________________________________________ 

 On review from the Iowa Court of Appeals. 

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

Robinson, Judge. 

Convicted sex abuser seeks further review of court of appeals 

decision affirming his conviction. DECISION OF COURT OF APPEALS 

PARTIALLY VACATED; CASE REMANDED. 

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

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

Attorney General, J. Patrick White, County Attorney, and Victoria Cole, 

Assistant County Attorney, for appellee. 
2

STREIT, Justice.

Is skinny-dipping a form of sexual behavior? Michael John Alberts 

allegedly sexually assaulted R.M., his nephew’s twenty-two-year-old 

girlfriend. Alberts was convicted of third-degree sexual abuse following a 

jury trial in Johnson County, Iowa. On appeal, Alberts alleged the 

prosecutor engaged in prosecutorial misconduct and complained 

numerous errors were made by the district court. Because we find the 

district court erred by failing to determine whether R.M. made a prior 

false allegation of sexual misconduct relating to a skinny-dipping 

incident, we reverse the district court judgment on this error and remand 

for further proceedings. 

I. Facts and Prior Proceedings 

On the night of October 19, 2003, R.M. attended a bachelorette 

party at a Cedar Rapids bar named Borrowed Bucks. Alberts was also at 

the bar, and the two struck up a conversation. Alberts and R.M. knew 

each other through R.M.’s boyfriend, Jesse Goeller. Alberts is Jesse’s 

forty-two-year-old uncle. R.M. attended a half dozen or so family 

gatherings with Jesse where Alberts was present. 

Additionally, a few weeks prior to the bachelorette party, Jesse, 

R.M., and a friend of R.M. ran into Alberts at Borrowed Bucks. There, 

the four of them danced as a group and at times Alberts and R.M. 

danced together in a provocative manner. When the bar closed, R.M. 

and Jesse sat with Alberts in the cab of Alberts’ semi-truck. R.M.’s 

friend waited in the car. R.M. and Alberts smoked marijuana. Before 

leaving, R.M. unhooked her bra under her shirt and hung it on Alberts’ 

rearview mirror. R.M. left the cab and Jesse followed a couple minutes 

later after Alberts handed Jesse R.M.’s bra. 
3

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

a shot of tequila. At closing time, R.M. went with Alberts to his family’s 

lake house instead of remaining with the bachelorette group. When they 

arrived at the lake house, R.M. ate some food, headed for the bathroom, 

and vomited. She then told Alberts she felt “like crap” and needed to 

“sleep this off.” Alberts followed R.M. into one of the bedrooms and sat 

next to her on the bed. With Alberts still in the room, R.M. took off her 

skirt and climbed into bed. 

Sometime later, R.M. woke to find Alberts sucking her breasts. 

According to R.M., she did not respond to his actions. Alberts then 

performed oral sex on her and had intercourse with her. R.M. claims she 

pretended to be asleep during the entire episode. Alberts thereafter left 

to sleep in another bedroom. 

The next morning, Alberts drove R.M. to her home. R.M. showered 

as soon as she got there. Jesse, the boyfriend, who had been visiting 

friends in Ames, returned home early in the afternoon. After speaking 

with R.M. about the previous night’s events, Jesse took R.M. to the 

hospital. 

At the hospital, R.M. told the nurse she needed to report a rape. A 

sexual assault examination ensued. The nurse found semen inside her 

vagina, but did not observe any evidence of trauma or injury. Police 

officers spoke with R.M. at the hospital and told her she had the option 

to press charges, which she did three days later. 

Before trial, the district court granted the State’s motion in limine 

which prevented Alberts from presenting testimony about R.M.’s sexual 

history or a recent skinny-dipping episode with another man. 

At trial, Alberts testified R.M. consented to the sexual encounter by 

kissing him and moving her hips during intercourse. His attorney 
4

argued R.M. only claimed it was non-consensual because she did 

not want to lose her relationship with Jesse. This argument was 

unsuccessful, and the jury convicted Alberts of third-degree sexual 

abuse. 

Alberts argued a voluminous number of issues on appeal. He 

argued: (1) the district court erred by ruling that R.M.’s mental health 

records were not relevant or discoverable; (2) the district court 

improperly excluded expert testimony regarding the possible effect of 

R.M.’s mental health on her credibility; (3) the district court erred by 

excluding certain evidence regarding R.M.’s alleged prior false claim of 

sexual assault and flirtatious nature when drinking; (4) his trial counsel 

was ineffective when he did not attempt to introduce evidence of R.M.’s 

infidelity and promiscuity as impeachment evidence; (5) his trial counsel 

erred by failing to object to R.M.’s testimony that she feared for her life 

during the sexual assault; (6) his trial counsel failed to object to three 

instances of questioning by the prosecution and comments made during 

closing arguments which involved possible Graves violations; (7) his trial 

counsel failed to object to alleged prosecutorial misconduct; and (8) the 

district court erred in overruling the motion for new trial based on 

alleged misconduct by the prosecutor during direct examination of R.M. 

The court of appeals addressed all issues and affirmed the decision 

of the district court. We granted further review. 

II. Merits 

A. False-Claim Exception to the Rape-Shield Law 

Because Alberts had elicited statements from witnesses during 

depositions regarding R.M’s flirtatious nature, her past sexual 

comments, and prior allegation of being trapped by a man during a 

skinny-dipping incident, the State filed a motion in limine asking the 
5

court to determine whether such evidence was admissible. The State 

contended such testimony was either inadmissible under the Iowa rapeshield law or irrelevant to the case at hand. 

In the unreported pretrial hearing, the State pointed to several 

incidents involving R.M. it considered inadmissible and irrelevant. One 

specific instance was a Fourth of July party where Jesse’s brother Josh 

discovered R.M. skinny-dipping with Chris Slach. In his deposition, Josh 

described how he saw R.M. with her arms around Slach in the Cedar 

River.1 Josh said he “busted them” because R.M. was supposed to be 

dating his brother. According to Josh, R.M. came out of the water 

crying. She told Josh “[t]hank God you saw me. I didn’t know what to 

do out there. . . . I couldn’t get away from him. I didn’t know what to 

do.” R.M. later explained that nothing sexual had happened between the 

two. Slach was also prepared to testify it was R.M.’s idea to go skinnydipping and there was no sexual contact between the two. 

During argument on the motion in limine, Alberts contended this 

evidence was relevant because R.M.’s statement to Josh immediately 

after the skinny-dipping incident was similar to her response about her 

sexual encounter with Alberts. He claimed this evidence was important 

to his case because it supported his theory that R.M. accused men of 

improper sexual conduct in order to shift blame away from her supposed 

infidelity. He also claimed this incident was particularly relevant 

because it reflected on the credibility of the only other witness to the 

alleged rape—R.M. 

________________________ 1There is some debate on whether R.M. was wearing any clothing while skinnydipping. Josh said R.M. “might” have been wearing her bra and underwear, while the 

male skinny-dipper stated in his deposition “I was completely naked, and I believe 

[R.M.] was too.” 
6

Alberts argued the rape- shield law was not applicable to 

this situation because there was no sexual contact and therefore no 

“past sexual behavior.” Alternatively, he argued that if this was sexual 

activity or sexual behavior, then it was admissible under the false-claim 

exception to the rape-shield law. 

The district court sustained most of the State’s motion in limine 

and specifically excluded any evidence pertaining to the skinny-dipping 

incident. The court also excluded any testimony which described R.M.’s 

character as flirtatious or promiscuous. However, the court allowed the 

jury to hear evidence that R.M. had engaged in “dirty dancing” with 

Alberts a few weeks before the alleged sexual abuse, smoked marijuana 

with him in the cab of his semi-truck, and removed her bra and hung it 

on his rear-view mirror. 

1. Preservation of Error 

The State does not contend Alberts failed to preserve this matter 

for our review. In its appellate brief, the State conceded the error was 

preserved “by motions and an offer of proof.” However, because the issue 

was only addressed during the motion in limine, we find it proper to 

analyze whether it was properly preserved for our review. 

The general rule regarding the preservation of alleged errors in 

rulings on motions in limine was stated in State v. Tangie, 616 N.W.2d 

564, 568-69 (Iowa 2000): 

Ordinarily, error claimed in a court’s ruling on a motion in 

limine is waived unless a timely objection is made when the 

evidence is offered at trial. However, “where a motion in 

limine is resolved in such a way it is beyond question 

whether or not the challenged evidence will be admitted 

during trial, there is no reason to voice objection at such 

time during trial. In such a situation, the decision on the 

motion has the effect of a ruling.” 
7

(Citations omitted.) 

The key to our analysis is to determine what the trial court ruling 

purported to do. State v. O’Connell, 275 N.W.2d 197, 202 (Iowa 1979). 

“A ruling only granting or denying protection from prejudicial references 

to challenged evidence cannot preserve the inadmissibility issue for 

appellate review.” Id. However, “if the ruling reaches the ultimate issue 

and declares the evidence admissible or inadmissible, it is ordinarily a 

final ruling and need not be questioned again during trial.” Id. 

Before we analyze whether the court’s ruling resolved the matter in 

such a way that it was beyond question that the challenged evidence 

would not be admitted during trial, we must consider the context of the 

court’s ruling. The State filed a motion in limine asking for “a hearing 

outside the presence of the jury, accompanied by an offer of proof . . . to 

determine whether such testimony would be admissible.” Alberts filed a 

response to the State’s motion in limine. His response contained offers of 

proof in the form of deposition testimony from R.M., Chris Slach (the 

male skinny-dipper), Josh Goeller, and other witnesses related to other 

items in the motion. Alberts also filed three separate briefs outlining the 

law surrounding the admissibility of such evidence. 

The district court conducted a hearing on the admissibility of such 

evidence. Although the hearing was unreported, we can glean from the 

court’s oral ruling that both parties had a full opportunity to argue the 

merits of their respective positions. After this hearing, the court made an 

oral ruling on the motion. The district court sustained the State’s motion 

in limine to keep the defense from presenting evidence on the skinnydipping incident. In so ruling, the district court judge stated: 

I’m not going to permit testimony or evidence concerning 

[R.M.’s] mental health or past sexual comments or activities, 
8

with the exception of [the event where she danced with 

Alberts a few weeks prior to the alleged sexual assault]. 

After the district court sustained the State’s motion, the court 

made the following additional comments regarding its ruling: 

if R.M. gets into her virtue, if that’s the right term - - I’m 

referring now to the potential testimony that she had never 

cheated on her boyfriend - - that could open the door to 

some of these other matters that have been raised. 

When asked whether testimony that R.M. told Alberts she would never 

“cheat” on Jesse would open the door to this excluded evidence, the 

court stated “Not necessarily. I can’t tell you right now. It depends on 

the context that comes in.” 

Even though the district court stated the evidence may become 

admissible if R.M. opened the door to her virtue, this does not change the 

fact that the court’s ruling was controlling so long as this door was not 

opened. The State specifically asked for a ruling on the admissibility of 

such evidence, and the plain language of the court’s ruling——“I’m not 

going to permit testimony or evidence concerning [R.M.’s] mental health 

or past sexual comments or activities”—rings of a final ruling. Although 

the district court did not specifically state the evidence was 

“inadmissible,” the State specifically asked that the court determine its 

admissibility and the court did so. In addition, both parties treated the 

court’s ruling on the motion as a final decision. 

We find the district court did rule on the admissibility of the 

testimony regarding the skinny-dipping incident. See O’Connell, 275 

N.W.2d at 202 (“[I]f the ruling reaches the ultimate issue and declares 

the evidence admissible or inadmissible, it is ordinarily a final ruling and 

need not be questioned again during trial.”). The ruling was definitive 

and Alberts was not further required to object at trial. See Tangie, 616 
9

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

motion in limine, objection need not be renewed at trial); State v. Mark,

286 N.W.2d 396, 410 (Iowa 1979) (same); O'Connell, 275 N.W.2d at 202 

(same). Therefore, Alberts preserved error on this issue. 

2. Abuse of Discretion 

Alberts claimed the district court erred when it ruled he could not 

present evidence about the skinny-dipping incident or question R.M. 

about the incident during cross-examination. 

We review trial court rulings on admissibility of evidence under 

rule 5.412 in criminal prosecutions for abuse of discretion. State v. 

Mitchell, 568 N.W.2d 493, 497 (Iowa 1997). Reversal is warranted only 

upon showing the “court exercise[d] its discretion on grounds or for 

reasons clearly untenable or to an extent clearly unreasonable.” Id. 

The trial court did not elaborate on why it sustained the State’s 

motion in limine. Therefore, we analyze whether the court abused its 

discretion in excluding the evidence under the reasons proffered by the 

State—the evidence was protected “past sexual behavior” of the 

complaining witness or, in the alternative, the evidence was irrelevant 

and prejudicial. 

a. Rape-Shield Law 

Rule 5.412 prohibits introduction of reputation or opinion evidence 

of a complainant’s “past sexual behavior” and substantially limits 

admissibility of evidence of specific instances of a complainant’s past 

sexual behavior. Rule 5.412(d) defines “past sexual behavior” as “sexual 

behavior other than the sexual behavior with respect to which sexual 

abuse is alleged.” We recently clarified this definition: 

“past sexual behavior” means a volitional or non-volitional 

physical act that the victim has performed for the purpose of 
10

the sexual stimulation or gratification of either the 

victim or another person or an act that is sexual intercourse, 

deviate sexual intercourse or sexual contact, or an attempt 

to engage in such an act, between the victim and another 

person. 

State v. Baker, 679 N.W.2d 7, 10 (Iowa 2004) (quoting State v. Wright,

776 P.2d 1294, 1297-98 (Or. Ct. App. 1989)). 

In his brief to the district court, Alberts argued the skinny-dipping 

incident was not “past sexual behavior” and “not a claim of prior sexual 

activity because no actual sexual contact occurred.” In support of this 

argument, Alberts offered the deposition testimony of both skinnydippers. 

When questioned at her deposition about the incident, R.M. denied 

any sexual activity occurred: 

We were skinny dipping in the river together, and he got 

close to me and asked me if he could kiss me, and I said, 

“No, I have a boyfriend.” 

Slach corroborated R.M.’s testimony that she declined his request for a 

kiss. Both parties expressly denied any sexual activity occurred. 

Nonetheless, based on all of the circumstances, we find the incident to be 

past sexual behavior. 

At the outset, we concede the difficulty in determining what sexual 

behavior is for purposes of our rape-shield law. In State v. Zaehringer, 

280 N.W.2d 416 (Iowa 1979), we were asked to determine the 

applicability of the rape-shield law as it then existed to nude posing. 

There, we stated: 

We are unable to conclude that posing nude is per se, sexual 

conduct which the legislature intended to exclude. . . . 

[P]osing nude does not in and of itself infer or connote sexual 

activity or conduct. Absent a showing or implication of 

sexual activity of some sort accompanying the posing, § 

782.4 does not come into play. While there may be those to 

whom nude posing is sexually suggestive, to find nude 
11

posing to be “sexual conduct” within the meaning 

of § 782.4 would be to place a strained and unreasonable 

construction on that statute. 

Zaehringer, 280 N.W.2d at 420. Just like nudity alone is not sexual, 

skinny-dipping in and of itself is not sexual behavior. But in this case, 

the skinny-dipping incident should be deemed sexual behavior based on 

the circumstances described. Slach testified he was at a Fourth of July 

party drawing a beer from the keg when R.M. approached him and asked 

him if he would like to go swimming. It was approximately midnight and 

the two of them had never previously spoken. At his deposition, Slach 

said: 

I didn’t see any reason to decline her. I wasn’t seeing 

anybody at the time, and I just assumed from the way that 

she come up to me that she was somewhat interested, and it 

didn’t appear to be at the time that she was attached to 

anybody either. 

According to Slach, R.M. took her clothes off first and encouraged him to 

do the same. He recalls both of them being completely naked. While 

they were in the river, R.M. put her arms around Slach’s shoulders, 

which prompted him to ask for permission to kiss her. Slach stated “it 

kind of seemed to me like she was coming on to me.” After R.M. declined 

the kiss, the two of them continued to have their arms around each other 

for another five minutes until Josh interrupted them, causing them to 

get out of the water. 

 Based on these facts, the skinny-dipping was likely a precursor to 

sexual activity. This is evidenced by Slach asking for a kiss. To say it 

was not sexual behavior would be to say a circumstance where the 

complaining witness was thwarted in her attempt to meet someone for an 

amorous rendezvous was not sexual behavior. Such a result would be 

contrary to the purpose of the rape-shield law, which is to protect the 
12

victim’s privacy, encourage the reporting and prosecution of sex 

offenses, and prevent the parties from delving into distractive, irrelevant 

matters. Mitchell, 568 N.W.2d at 497. Thus, this particular episode of 

skinny-dipping is covered by the rape-shield law unless R.M. made a 

related false allegation of sexual misconduct.2 

 In Baker, we held prior false claims of sexual activity do not fall 

within the coverage of our rape-shield law. Baker, 679 N.W.2d at 10 

(“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.”). There, we assumed the claim was false and consequently found it 

unnecessary to address the procedures and standards to be applied in 

making that threshold determination. Id. at 9 n.1. That issue is now 

before us. 

 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 admissible at trial. 

Allowing the jury to make the initial determination 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 evidence about an 

alleged victim’s sexual conduct, unless a judge first determines that such 

evidence is manifestly necessary to achieve a fair trial.” State v. Quinn, 

490 S.E.2d 34, 40 (W. Va. 1997). Thus, we hold a criminal defendant 

wishing to admit such evidence must first make a threshold showing to 

the trial judge outside the presence of the jury that (1) the complaining 

witness made the statements and (2) the statements are false, based on a 

________________________ 2If we found this incident was not “sexual behavior” then, assuming relevance, it 

would be admissible irrespective of the falsity of R.M.’s alleged statements to Josh. 

R.M.’s supposed statements make the incident sexual if it was not already. 
13

preponderance of the evidence.3 We agree with the Supreme Court 

of New Jersey that this “standard strikes the right balance, placing an 

initial burden on the defendant to justify the use of such evidence while 

not setting an exceedingly high threshold for its admission.” State v. 

Guenther, 854 A.2d 308, 324 (N.J. 2004); see also State v. West, 24 P.3d 

648, 656 (Haw. 2001) (adopting preponderance of the evidence as the 

standard of proof a defendant must meet when seeking to prove the 

complaining witness made a prior false accusation of sexual assault);

Miller v. State, 779 P.2d 87, 90 (Nev. 1989) (same); Morgan v. State, 54 

P.3d 332, 339 (Alaska Ct. App. 2002) (same). 

As we said in Baker, a falsity determination simply means the 

statements are not “past sexual behavior” within the meaning of our 

rape-shield law. Baker, 679 N.W.2d at 10. We note “[t]he evidence 

remains subject to all other applicable evidentiary requirements and 

considerations.”4 Quinn, 490 S.E.2d at 40. If the trial judge ultimately 

________________________ 3

Under our rape-shield law, a defendant intending to offer evidence of specific 

instances 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). 

4

Notwithstanding rules similar to our rule 5.608, some jurisdictions carve out a 

special exception and allow the use of extrinsic evidence to contradict the complaining 

witness’s answer with respect to a prior false accusation. Compare State v. Long, 140 

S.W.3d 27, 31 (Mo. 2004) (allowing a criminal defendant to introduce extrinsic evidence 

of prior false allegations “in some cases”) and Morgan v. State, 54 P.3d 332, 336 (Alaska 

Ct. App. 2002) (allowing a criminal defendant to both cross-examine the complaining 

witness and present extrinsic evidence regarding a prior false accusation of sexual 

assault), with State v. Almurshidy, 732 A.2d 280, 287 n.4 (Me. 1999) (noting extrinsic 

evidence to prove the falsity of the accusation is not admissible). See also Denise R. 

Johnson, Prior False Allegations of Rape: Falsus in Uno, Falsus in Ominibus, 7 Yale J.L. 

& Feminism 243, 250 (1995) (making a distinction between a false allegation that 

demonstrates a “motive to fabricate” with a false allegation that merely shows the 

witness’s “character for untruthfulness,” and challenging the rationale behind allowing 

extrinsic evidence to prove the latter). 
14

determines such evidence is admissible, the State may 

nevertheless rebut or impeach such evidence before the ultimate trier of 

fact. Id. 

In the present case, the trial court sustained the State’s motion in 

limine without explanation. Presumably, the court found the skinnydipping incident to be “past sexual behavior.” However, the court failed 

to take the additional step of determining whether R.M. made a false 

claim of sexual misconduct relating to the incident, which would make 

the rape-shield law not applicable. 

b. Relevancy 

In its appellate brief, the State concedes that “[w]hile the skinnydipping incident may not be covered under Iowa Rule of Evidence 5.412, 

it was properly excluded under general considerations of relevancy.” 

Evidence is properly excluded from trial if it is not relevant to the 

trial. Iowa R. Evid. 5.402. Relevant evidence is “evidence having any 

tendency to make the existence of any fact . . . more probable or less 

probable than it would be without the evidence.” Iowa R. Evid. 5.401. 

The test to determine if evidence is relevant is “‘whether a 

reasonable [person] might believe the probability of the truth of the 

consequential fact to be different if [such person] knew of the proffered 

evidence.’” State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988) (citation 

omitted) (first alteration in original); accord State v. Sullivan, 679 N.W.2d 

19, 25 (Iowa 2004). The State contends the skinny-dipping incident was 

irrelevant because it has nothing to do with whether R.M. consented to 

the sexual encounter with Alberts. 

We disagree. In her deposition, R.M. stated Slach never “forced 

himself” on her while they were skinny-dipping. However, at the time of 

the incident, R.M. allegedly came out of the water crying. According to 
15

Josh, the person who discovered R.M. and Slach skinny-dipping, 

R.M. said: “Thank God you saw me. I didn’t know what to do out 

there. . . . I couldn’t get away from him. I didn’t know what to do.” 

R.M.’s statements to Josh, if she did say them, are relevant for two 

reasons. First, they reflect on her credibility as a witness. Second, the 

alleged statements may reveal a motive to lie. If a fact finder were to 

conclude she made untruthful statements to preserve her boyfriend’s 

perception of her virtue when she was discovered skinny-dipping with 

another man, the fact finder might reasonably conclude she’s also 

untruthful with respect to her allegations that Alberts raped her for the 

same reason. 

c. Rule 5.403 Balancing 

Even if the evidence was relevant, it may still “be excluded if its 

probative value is substantially outweighed by danger of unfair prejudice, 

confusion of the issues, or misleading the jury, or by considerations of 

undue delay, waste of time, or needless presentation of cumulative 

evidence.” Iowa R. Evid. 5.403. 

In Baker, after we concluded the false claim of past sexual 

behavior was not excludable under rule 5.412 because the false claim 

was not in fact “sexual behavior,” we analyzed whether the district court 

abused its discretion in concluding the unfair prejudice inherent in the 

evidence of the prior false claim outweighed its probative value. Baker,

679 N.W.2d at 10-11. We noted rule 5.412 suggests the complaining 

witness’s reputation and privacy are the primary interests in the 

balancing process. Id. at 11. However, when the conduct is not covered 

by the rape-shield law, it is instead evaluated under the traditional rule 

5.403 prejudice analysis. Id. at 11-12. Under rule 5.403, the primary 
16

focus is not upon the witness, but the interests of the defendant and 

the right of the defendant to present a defense. Id. at 12. 

Based on the record before us, we do not find any of the 

aforementioned dangers potentially outweighed the probative value of 

this evidence. This evidence would not have been confusing to the jury, 

nor would it have been cumulative or a waste of time. Moreover, the 

evidence would not have been misleading to the jury because R.M. would 

have had ample opportunity to deny or explain her allegedly untruthful 

statements. Finally, while it may have been embarrassing for R.M. to 

testify about going skinny-dipping, this is not the kind of unfair prejudice 

that will outweigh the probative value of clearly relevant evidence. This 

is especially true when the countervailing right of a defendant to present 

a defense to a criminal charge is at stake. Id. 

Therefore, if on remand R.M.’s alleged statements to Josh satisfy 

the threshold showing of falsity we adopt today, we see no reason to 

exclude the evidence as irrelevant or unfairly prejudicial. 

3. Resulting Prejudice

The facts of this case indicate Alberts was entitled to a hearing in 

order to prove R.M. made a prior false claim of sexual misconduct 

relating to a skinny-dipping incident with another man.5 As we have 

already said, a showing of falsity merely makes the rape-shield law 

inapplicable with respect to the false claim. We must now decide 

whether the trial court’s failure to conduct such a hearing requires us to 

reverse and remand for a new trial. State v. Henderson, 696 N.W.2d 5, 

12 (Iowa 2005). 

________________________ 5

At her deposition, R.M. stated Slach never “forced himself” on her while they were skinnydipping. However, she was never given the opportunity to admit or deny making statements to that effect 

to Josh as she came out of the water. 
17

The verdict was primarily ground on the conflicting 

testimony of R.M. and Alberts R.M. testified Alberts sexually assaulted 

her. Alberts admits having sex with her, but claims the sex was 

consensual. There was no physical evidence of an assault. No other 

witnesses testified Alberts sexually assaulted the victim. The jury’s 

assessment of the relative credibility of R.M. and Alberts was the key to 

the conviction, thereby enhancing the relevance of the allegedly false 

prior allegation. By denying Alberts the opportunity to prove to the court 

R.M. made a prior false claim of sexual misconduct, the court hampered 

Alberts' ability to argue R.M. accused another man of improper conduct 

to disguise her own questionable behavior. This error may have unduly 

prejudiced Alberts’ defense and therefore requires us to remand the case 

so the trial court may determine whether R.M. made false statements to 

Josh. 

B. Other Matters Raised on Appeal 

With respect to the remaining issues raised by Alberts, we agree 

with the court of appeals they have no merit and affirm. 

III. Conclusion 

We find the trial court abused its discretion by excluding evidence 

of the skinny-dipping incident without first giving Alberts the opportunity 

to prove at a 5.412(c) hearing that R.M. made a prior false claim of sexual 

misconduct involving the man with whom she went skinny-dipping. For 

the sake of judicial economy, we remand for a hearing to determine 

whether R.M. made these statements and if so, whether they are false. If 

the trial court finds Alberts meets the threshold showing set forth in this 

opinion, then a new trial shall be granted. If Alberts fails to make such a 
18

showing, then his conviction stands. This matter is remanded 

to the trial court for proceedings consistent with this opinion. 

DECISION OF COURT OF APPEALS PARTIALLY VACATED; 

CASE REMANDED.