IN THE COURT OF APPEALS OF IOWA

No. 19-0680

Filed December 16, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

GERALD W. MILLER,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Heather Lauber, Judge.

The defendant appeals from his convictions of sexual abuse in the second 

degree and assault with intent to commit sexual abuse causing bodily injury. 

AFFIRMED.

Peter M. Sand, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney 

General, for appellee.

Considered by Doyle, P.J., and Mullins and Greer, JJ.
2

GREER, Judge.

Gerald Miller was convicted of second-degree sexual abuse in violation of 

Iowa Code section 709.3(1)(a) (2018), and assault with intent to commit sexual 

abuse causing bodily injury in violation of section 709.11(2), following a jury trial in 

March 2019. The court sentenced Miller to consecutive prison terms, twenty-five 

years for the sexual-abuse charge and five years for the assault charge. On 

appeal, Miller contends (1) he did not receive a fair trial because of an improper 

jury pool, and he is owed a Lilly hearing1; (2) he cannot be convicted of committing 

sexual abuse because of a lack of a qualifying “sex act;” so his crime, if any, is 

attempted sexual abuse; (3) alternatively, if the State submitted sufficient evidence 

of a sex act, then the degree of abuse he can be convicted of is less than second

degree—due to either a defect in the evidence or, if the subjective evidence was 

sufficient to establish guilt, then the standard of guilt is overly vague; and (4) even 

if sufficient evidence supports his conviction for second-degree sexual abuse, he

should not have been given the maximum sentence.

Facts and Earlier Proceedings.

Miller admits he attacked S.S. during her work shift at a Des Moines 

QuikTrip, around 3:30 in the morning. S.S. was the only employee working at the 

store. Describing the attack, S.S. testified: 

[H]e came at me from the side. I . . . wasn’t able to see him, and all 

of a sudden someone bangs into me on my right side. . . . He 

attempted to grope me. I shoved him away. Said, Hey, back off. 

And he came after me again. 

 

1 State v. Lilly, 930 N.W.2d 293 (Iowa 2019). 
3

According to Miller, after spending the day drinking alcohol and smoking 

marijuana, he remembers being at the convenience store but claims to not 

remember the attack. Surveillance cameras at the QuikTrip captured audio and 

video footage of Miller in the store and the attack. First, the video stream shows 

Miller meandering around the store in no apparent distress. Then, after waiting for 

customers to leave, the video shows Miller grabbing S.S., forcing her to the ground, 

and ripping her pants and underwear down around her knees as she screamed 

and resisted. Miller demanded S.S. flip over or he would “beat her ass” and that it 

would be “over quick” if she complied. An enlarged photograph of a frame of the 

video footage captured Miller on top of S.S. with his hand between her legs while 

her pants and undergarments were down around her knees. S.S. testified Miller 

forced his hand into her vagina during the attack. S.S. believed the attack ended 

abruptly when she saw what she thought were car headlights shining through the 

door. Miller stood up, grabbed his glasses that had fallen off, and left the QuikTrip. 

Outdoor video footage shows him driving away in his vehicle. 

After Miller left the QuikTrip, S.S. immediately called the police. The Des 

Moines Police Department commenced an investigation. The police published still 

images of Miller from the QuikTrip surveillance system. Family members alerted 

Miller that the police were looking for him, and he voluntarily went to speak with 

police investigators. In the interview with Detective Michael DeMoss, Miller 

eventually admitted he was at the QuikTrip the night of the attack, but he denied 

having any memory of attacking S.S. 

Soon after, the State charged Miller with second-degree sexual abuse and 

assault with intent to commit sexual abuse causing bodily injury. A jury trial, which
4

included testimony by Miller, ensued. Before the jury selection, Miller orally 

objected to the jury panel on the basis it was not representative of the local African 

American community and would not be a jury of Miller’s peers. After noting that 

Miller produced “no evidence in the record that the court could conclude that any 

underrepresentation of African Americans on this jury pool was due to a systematic 

exclusion,” the district court denied the motion. After the State’s case, Miller 

moved for judgment of acquittal on the charge of second-degree sexual abuse, 

citing the State’s alleged failure to prove he committed a sex act. That motion was 

also denied. Ultimately, the jury found Miller guilty of both charges. After 

sentencing, Miller moved for a new trial, raising grounds of insufficient evidence of 

a sexual act, among other issues not part of this appeal. Miller also filed a motion 

in arrest of judgment but raised no specific sentencing issues. The district court 

denied the new trial motion, and Miller appealed. 

Analysis.

A. Fair Trial/Composition of Jury Pool.

Miller contends he did not receive a fair trial given the composition of the 

jury pool. Under the Sixth Amendment to the United States Constitution, “The right 

to an impartial jury entitles the criminally accused to a jury drawn from a fair-crosssection of the community.” State v. Plain, 898 N.W.2d 801, 821 (Iowa 2017) 

(citation omitted). To establish a prima facie violation of the fair cross-section 

requirement, the defendant must present sufficient evidence supporting a three 

part test:

(1) that the group alleged to be excluded is a ‘distinctive’ group in the 

community; (2) that the representation of this group in venires from 

which juries are selected is not fair and reasonable in relation to the 
5

number of such persons in the community; and (3) that this 

underrepresentation is due to systematic exclusion of the group in 

the jury-selection process. 

Duren v. Missouri, 439 U.S. 357, 364 (1979). “We review constitutional issues de 

novo.” Plain, 898 N.W.2d at 810. 

Miller asserts the jury pool contained no African Americans.2 Prior to jury 

selection, Miller objected to the makeup of the jury panel: “Looking through the 

venire that has been randomly selected for this trial, Judge, there are no Blacks on 

here period. Nowhere. I think there’s one Hispanic, one Asian, one unknown, and 

we would object to this panel.” The State resisted, arguing the defense failed to 

establish systematic exclusion of African Americans in the jury selection process, 

which is required in order to show a prime facie violation of the fair-cross-section 

requirement. See Duren, 439 U.S. at 364. In response, Miller argued

There’s no way for me to make a—prove up systematic exclusion. 

This is the panel that came out. The Iowa Supreme Court has 

recently expressed concern on more than one occasion with respect 

to the make-up of jury panels. And under Batson[

3

] we object to the 

venire that were looking at right now, Judge. This is not a cross 

section of the Polk County community by any stretch so we would 

object.

The State first urges that error was not preserved on this issue because Miller 

objected to the jury panel rather than the pool.

4

 The record shows that Miller used 

 

2 While Miller’s initial challenge was to the lack of Black potential jurors in the 

venire, he uses the term African-Americans throughout his appellate brief, so we 

do the same.

3 Batson v. Kentucky, 476 U.S. 79, 87 (1986) (forbidding “[s]tates to strike [B]lack 

veniremen on the assumption that they will be biased in a particular case simply 

because the defendant is [B]lack”).

4

“The Plain/Duren right applies to the jury pool.” State v. Wilson, 941 N.W.2d 579, 

593 (Iowa 2020) (citing Plain, 898 N.W.2d at 822). “‘[P]ool’” refers to the jurors 

summoned to the courthouse for a particular time period; ‘panel’ refers to the jurors 
6

both “venire” and “panel” interchangeably in his objection. First he stated he was 

objecting to the panel, but after the State resisted, he said he was objecting to the 

venire. Despite the imprecise wording of the objection, it is clear that the district 

court ultimately addressed Miller’s objection to the jury pool. In its ruling, the court 

stated:

In this case there was a challenge made to the panel. But even 

assuming that that was extended to the jury pool, the court finds that 

based on the record presented that there is no evidence in the record 

that the court could conclude that any underrepresentation of African 

Americans on this jury pool was due to systematic exclusion. And 

as such, because the third prong is not met, the court does deny the 

motion to—or the challenge to the panel. 

Because the court’s ruling shows it considered Miller’s objection to the jury pool, 

we find error was preserved. See Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 

2002).

With the issue preserved for appeal, the State contends Miller offered no 

evidence of systematic exclusion—the third element of the Duren test. 439 U.S. 

at 364. And the district court agreed. Miller complained he was never given the 

opportunity to make the “systematic exclusion” showing. 

Between Miller’s trial and this appeal, the Iowa Supreme Court clarified the 

second and third prongs of the fair-cross-section analysis in Lilly, 930 N.W.2d at 

308. “For the second prong, the Lilly court determined a standard deviation 

analysis was the best of three suggested statistical methods to determine 

underrepresentation.” State v. Gibson, No. 19-0779, 2020 WL 3569566, at *2 

 

summoned to a particular courtroom to serve, potentially, on a jury for a specific 

trial.” Lilly, 930 N.W.2d at 298 n.2. 
7

(Iowa Ct. App. July 1, 2020) (citing Lilly, N.W.2d at 302). As to the third prong, the 

court said:

Litigants alleging a violation of the fair cross section requirement 

would still have to demonstrate that the underrepresentation was the 

result of the court’s failure to practice effective jury system 

management. This would almost always require expert testimony 

concerning the precise point of the juror summoning and qualification 

process in which members of distinctive groups were excluded from 

the jury pool and a plausible explanation how the operation of the 

jury system resulted in their exclusion. Mere speculation about the 

possible causes of underrepresentation will not substitute for a 

credible showing of evidence supporting these allegations. 

Lilly, 930 N.W.2d at 308 (citing Paula Hannaford-Agor, Systematic Negligence in 

Jury Operations: Why the Definition of Systematic Exclusion in Fair Cross Section 

Claims Must be Expanded, 59 Drake L. Rev. 761, 790–91 (2011)). 

On appeal, Miller addresses the second prong by applying the Lilly analysis. 

He asserts that “he faced a venire of [twenty-seven] persons, none of whom were 

African-American” and cites 2010 census figures for Polk County, Iowa. While 

Miller makes this claim in his appellate brief, these “facts” are not part of the record 

on appeal and, perhaps more significantly, they appear to be false. The district 

court’s list of the “panel selection report” contains the names of forty-five 

individuals who were sent as panel members to the courtroom.5 We have no 

information regarding the pool of jurors. But the venire, which is another name for 

the pool, could not be smaller than the panel sent to the courtroom. See Plain, 

898 N.W.2d at 821 n.5 (noting a jury pool is also known as a venire). As we pointed 

out above, “The Plain/Duren right applies to the jury pool.” Wilson, 941 N.W.2d at

 

5 This list is devoid of information regarding race or ethnicity of these prospective 

jurors. 
8

593 (emphasis added). Failure to make a record as to the racial makeup of the 

jurors in the entire juror pool that day is a sufficient, proper reason for denying 

Miller’s fair cross-section claim. See id. (noting that while the defendant made a 

record as the ethnic and racial makeup of the 100 potential jurors assigned for his 

trial, he failed to make a record as the jury pool, so denial was proper). 

As for the third prong, Miller argues he had no opportunity to inquire about 

systematic exclusion at trial, and with the recent supreme court guidance, he 

should be afforded the opportunity on remand to develop his arguments that his 

right to an impartial jury was violated. Guided by the trilogy of Lilly, State v. Veal

and State v. Williams,

6 we consider Miller’s request for a hearing on remand to 

allow the district court to weigh in on the alleged violation of a right to a fair trial. 

In all three of these cases, remand was granted so, with the benefit of the case

law, the defendant could develop a fair-cross-section claim. But in each of those 

cases and under the guidance of Plain, the defendant provided the district court 

extensive detail of the census count for the county, the tallies of jurors selfidentifying as African-American in pools over several months or years, and specific 

detail about the potential juror pool available from whom to select jurors in each 

respective trial. Here, Miller failed to establish a prima facie showing on the lack 

of fair representation in the jury pool and on any systematic exclusion. And his

failure to develop his claim was not due to inability to access information about the 

jury pool on the day of his trial, see Plain, 898 N.W.2d at 828, or unanswered 

 

6 On the same day, the Supreme Court decided these three cases to clarify the 

process to challenge a fair-cross-section claim. See Lilly, 930 N.W.2d at 308, 

State v. Veal, 930 N.W.2d 319, 328–30 (Iowa 2019) and State v. Williams, 929 

N.W.2d 621, 629–30 (Iowa 2019).
9

questions regarding how to prove systematic exclusion, see Lilly, 930 N.W.2d at 

307–08. Miller simply failed to make anything but the most generic claim without 

attempting to create the necessary record to support it. His lack of a serious 

attempt to develop his claim below cannot be rewarded with another bite at the 

apple. We have no choice but to deny Miller’s invitation to remand for a Lilly

hearing.

B. Sufficiency of the Evidence.

We review sufficiency of evidence claims for errors at law. State v. Sanford, 814 

N.W.2d 611, 615 (Iowa 2012). “In reviewing challenges to the sufficiency of 

evidence supporting a guilty verdict, courts consider all of the record evidence 

viewed ‘in the light most favorable to the State, including all reasonable inferences 

that may be fairly drawn from the evidence.’” Id. (quoting State v. Keopasaeuth, 

645 N.W.2d 637, 640 (Iowa 2002)). “[W]e will uphold a verdict if substantial record 

evidence supports it.” State v. Nichter, 720 N.W.2d 547, 556 (Iowa 2006) 

(alteration in original) (citation omitted). “Evidence is substantial if it would 

convince a rational fact finder that the defendant is guilty beyond a reasonable 

doubt.” State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005). “Inherent in our 

standard of review of jury verdicts in criminal cases is the recognition that the jury 

[is] free to reject certain evidence, and credit other evidence.” Nichter, 720 N.W.2d 

at 556 (citation omitted).

1. Evidence of a “sex act.” 

Miller disputes his conviction for sexual abuse in the second degree. The 

State concedes that Miller preserved error on this claim when he moved for 

judgment of acquittal on this basis. To establish Miller’s guilt under Iowa Code 
10

section 709.3(1)(a), the State had to prove that, “[d]uring the commission of sexual 

abuse[

7

] the person displays in a threatening manner a dangerous weapon, or 

uses or threatens to use force creating a substantial risk of death or serious injury 

to any person.” Miller argues he cannot be convicted of sexual abuse in the second 

degree if the State failed to prove he committed a “sex act.” The jury was 

instructed that a “sex act” was any sexual contact:

1. By penetration of the penis into the vagina or anus.

2. Between the mouth of one person and the genitals of 

another.

3. Between the genitals of one person and the genitals or anus 

of another.

4. Between the finger or hand of one person and the genitals 

or anus of another person. 

5. By a person’s use of an artificial sex organ or a substitute 

for a sexual organ in contact with the genitals or anus of another. 

Yet even with the testimony of S.S., along with the video and photographic 

evidence, Miller “asserts that there is a lack of sufficient evidence of contact 

between his hand or finger(s) and the victim’s vagina to sustain his conviction 

under [section] 709.3.” Instead, Miller characterizes the video evidence as 

discrediting S.S.’s testimony that he put his entire hand inside her vagina. He 

admits he “came close . . . in what he did to S.S.,” but claims that the video of the 

attack and still photograph from the video “just isn’t evidence of reasonable 

certainty . . . .” The video shows Miller forcing S.S. to the ground and violently 

 

7 Sexual abuse is defined as any sex act 

done by force or against the will of the other. If the consent or 

acquiescence of the other is procured by threats of violence toward 

any person or if the act is done while the other is under the influence 

of a drug inducing sleep or is otherwise in a state of 

unconsciousness, the act is done against the will of the other. 

Iowa Code § 709.1(1).
11

pulling her pants and underwear down around her knees. The still image shows 

Miller’s hand buried between the legs of S.S. 

The testimony of S.S., the photograph, and the video footage is 

overwhelming evidence showing Miller committing a sex act. See State v. Hildreth, 

582 N.W.2d 167, 170 (Iowa 1998) (“We find that the alleged victim’s testimony is 

by itself sufficient to constitute substantial evidence of defendant’s guilt.”). A 

reasonable juror could conclude that, even if contact was not exactly as S.S. 

testified, Miller’s hand contacted her vagina. When considering all the evidence in 

the light most favorable to the State, we find substantial evidence that Miller 

committed a sex act upon S.S. 

2. Other claims not preserved for appeal.

On appeal, Miller argues the State failed to produce sufficient evidence that 

during the commission of sexual abuse, Miller used or threatened “to use force 

creating a substantial risk of death or serious injury to any person.” Iowa Code 

§ 709.3(1). He also argues that section 709.3(1) is constitutionally vague and that 

there was no proof of serious injury. But, as to these other claims, we agree with 

the State that error was not preserved. See State v. Albright, 925 N.W.2d 144, 

150 (Iowa 2019) (“Counsel does not preserve error on a sufficiency-of-evidence 

issue when counsel makes a general motion for judgment of acquittal but fails to 

identify specific elements of the charge not supported by the evidence.”). Miller 

never argued there was insufficient evidence of use or threatened use of force 

when he moved for acquittal. Likewise, Miller made no argument before the district 

court related to the serious injury complaint. Similarly, Miller’s constitutional 
12

claims8 were not preserved because he raises these claims for the first time on 

appeal. “It is a fundamental doctrine of appellate review that issues must ordinarily 

be both raised and decided by the district court before we will decide them on 

appeal.” Meier, 641 N.W.2d at 537. Thus, we do not address these issues on 

appeal. 

C. Sentencing.

Miller does not allege his sentence was illegal. Instead, he argues that 

rather than imposing consecutive terms of imprisonment, a more compassionate 

punishment would be a lesser term or the option of allowing the terms to run 

concurrently. He simply contends his sentence fell “at the worst end of the 

spectrum.” If the sentence imposed is within the statutory limits, it “is cloaked with 

a strong presumption in its favor, and will only be overturned for an abuse of 

discretion or the consideration of inappropriate matters.” State v. Formaro, 638 

N.W.2d 720, 724 (Iowa 2002). Because Miller does not claim the court lacked 

statutory authority to order consecutive sentences, see Iowa Code § 901.8, or that 

the district court failed to adequately state its reasons for doing so, see State v. 

Hill, 878 N.W.2d 269, 273 (Iowa 2016), we find no abuse of discretion. We affirm 

the consecutive sentences.

Conclusion.

Miller failed to provide an adequate basis to challenge whether the jury pool 

represented a fair cross-section of persons in the community. As such, we decline 

 

8 Miller argues the “disabling mental illness” standard in Iowa Code 

section 702.18(1)(a) is unconstitutionally vague as applied in this case, and that “it 

creates indistinguishable overlap between all degrees of sexual abuse.”
13

to grant Miller a hearing under Lilly. Substantial evidence established Miller’s 

commission of sexual abuse in the second degree, so we affirm his conviction. 

The district court did not abuse its discretion with the sentence imposed. For the 

reasons provided, we affirm Miller’s convictions and sentences. 

AFFIRMED.