State of Iowa v. Zacarias

S
              IN THE SUPREME COURT OF IOWA
                              No. 19–0838

          Submitted February 17, 2021—Filed April 23, 2021


STATE OF IOWA,

      Appellee,

vs.

ZACHARY TYLER ZACARIAS,

      Appellant.



      Appeal from the Iowa District Court for Polk County, Robert B.

Hanson, Judge.



      The defendant appeals his conviction for penetrative assault,

challenging certain district court rulings and the effectiveness of trial

counsel. AFFIRMED.



      Christensen, C.J., delivered the opinion of the court, in which

Waterman, Mansfield, and McDermott, JJ., joined. McDonald, J., filed a
special concurrence in which Appel and Oxley, JJ., joined.


      Andrew Dunn and Jessica Donels of Parrish Kruidenier Dunn

Gentry Brown Bergmann & Messamer L.L.P., for appellant.



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

Attorney General, John P. Sarcone, County Attorney, and Nan Horvat and

Michael Salvner, Assistant County Attorneys, for appellee.
                                     2

CHRISTENSEN, Chief Justice.

      The defendant appeals his conviction by a jury for assault “us[ing]

any object to penetrate the genitalia or anus of another person” in violation

of Iowa Code section 708.2(5) (2017) after he penetrated the victim’s vagina

with his finger while the victim was unconscious.          On appeal, the

defendant argues there was insufficient evidence to support his conviction

because his finger did not constitute an “object” under section 708.2(5).

He also argues the district court impermissibly restricted his ability to

impeach the victim about prior inconsistent statements and maintains his

trial counsel was ineffective in failing to impeach the victim on cross-

examination and failing to object to alleged instances of prosecutorial

misconduct. On our review, we affirm the defendant’s conviction.

      I. Background Facts and Proceedings.

      On the evening of May 28, 2017, C.G., then seventeen years old, was

watching a movie with friends in Ankeny when she realized she did not

have a ride to her parents’ house in Urbandale in time to meet her 10:00

p.m. curfew. C.G. began texting and snapchatting people to arrange a

ride. Zachary Zacarias, then twenty-one years old, was the only person

who responded that he could give her a ride home, but he told C.G. that
he needed to “sober up before he could take [her] home.”

      A friend dropped C.G. off at Zacarias’s home, where a mutual friend

greeted C.G. and led her to Zacarias’s bedroom in the basement to interact

with other guests who were present as part of a party Zacarias was hosting.

By the time she arrived at the home, C.G. had already taken her Trazodone

sleeping pill with the assumption that she was going to go home and go to

bed shortly thereafter. When she arrived in the bedroom, C.G. smoked

marijuana wax out of a bong. Zacarias gave C.G. a drink in a red Solo cup
                                     3

that he claimed contained vodka and orange juice, though C.G. thought

the consistency had an unusual “chalky taste to it.”

      C.G. soon became drowsy, so she laid down on the couch in the

bedroom and told her friend to wake her if she fell asleep. She awoke “a

little foggy” to find herself naked from the waist down with Zacarias on top

of her wearing only his shirt. Zacarias held C.G.’s legs apart by placing

his knees on her thighs and pressed one hand on her shoulder while he

used his other hand to masturbate with his penis close to C.G.’s vagina.

      C.G. hit Zacarias, causing him to roll off the couch. C.G. jumped off

the couch and began screaming for help, and Zacarias kept repeating

“nothing had happened yet.”      C.G. discovered the rest of her clothes

scattered across the room and a dresser had been moved in front of the

bedroom door. She was able to push the dresser aside and ran out of the

house. As she was leaving, someone C.G. did not know ran after her, but

C.G. told the person to “get away from [her.].” C.G. ran to her boyfriend’s

home about a block away.

      C.G. started banging on the door of her boyfriend’s home, which

awoke him. He let her in, and the boyfriend’s parents called the police.

Two police officers responded and found C.G. “distraught.” C.G. explained
to the police her memory of what happened and that she never consented

to Zacarias touching her body in any way. The police recommended C.G.

go to the hospital for examination and a sexual assault kit, and C.G.

subsequently went to Broadlawns Medical Center for an examination.

Nurse Janie Pering described C.G. as “very sleepy,” noting she “had to keep

waking [C.G.] up multiple times during the exam.” DNA analysis of a

sample taken from C.G.’s underwear “tested positive for an enzyme that is

produced in saliva, but that sample was not strong enough to be tested

against the DNA of Mr. Zacarias,” in addition to C.G.’s DNA profile.
                                      4

       After responding to C.G., the police officers went to Zacarias’s home,

where they found Zacarias waiting for them on his porch. Zacarias told

the officers he asked his friends to leave the bedroom so he could be alone

with C.G. and claimed C.G. “fell asleep or blacked out for a while” as they

were “making out.”     He admitted to removing C.G.’s thong and then

digitally penetrating her vagina with his finger.

       He acknowledged that C.G. did not reciprocate his actions and did

not touch his body in any way, and he claimed C.G. was “in and out of a

state.” When an officer asked Zacarias how C.G. “could have consented if

she was ‘blacked out,’ ” Zacarias told the officer that C.G. had relaxed her

legs. He reiterated to the police that C.G. “never said no” and told them

C.G. “freaked out” when he tried to have sex with her. The officer asked

Zacarias why C.G. “freaked out,” and Zacarias told them C.G. had

consumed drugs and alcohol and was in and out of consciousness. At the

end of the conversation, Zacarias also claimed he performed oral sex on

C.G.

       At some point after Zacarias’s party, Meghan Storlie, another party

attendee, messaged C.G. on Facebook after learning C.G.’s identity from a

mutual friend. Storlie was the person who ran after C.G. when C.G. was
leaving and wanted to check on C.G. C.G. shared the Facebook message

with police, who subsequently contacted Storlie. Storlie told them she was

in an adjacent room in Zacarias’s basement on the night in question and

heard a woman screaming, “What are you doing to me? Why are my pants

off?” She then saw C.G. run out of the bedroom, and Storlie followed C.G.

“to see if she was okay.” C.G. responded, “Ma’am, please don’t touch me.

Get away from me,” and then ran down the street. Storlie told police she

returned to the house to confront Zacarias, asking him if he had raped

C.G. Zacarias responded, “No, we had a thing.”
                                      5

       The State initially charged Zacarias with sexual abuse in the third

degree in violation of Iowa Code sections 709.1 and 709.4(1)(a) or (d) on

August 1, 2017, but the charge was dismissed on August 22, 2018, due to

a speedy trial violation. On October 1, 2018, the State refiled its criminal

complaint, charging Zacarias with one count of assault by penetration of

the genitalia with an object in violation of Iowa Code sections 708.1 and

708.2(5). The case was tried to a jury in April 2019. Zacarias’s counsel

filed proposed jury instructions defining an “object” under section 708.2(5)

as “a material thing other than any portion of the defendant’s body or

organs.” The State opposed this instruction, requesting the district court

use the dictionary definition of “object” to define an “object” as “anything

that is visible or tangible and is relatively stable in form.” Zacarias also

argued for a motion of acquittal based on his proposed definition of

“object.” The district court chose to use the State’s proffered definition of

“object” to instruct the jury and denied Zacarias’s motion of acquittal,

reasoning there was no authority to support Zacarias’s proposition.

       The jury found Zacarias guilty, and the district court sentenced him

to an indeterminate term of ten years imprisonment. Zacarias was also

required to register as a sex offender as part of his sentence. Zacarias filed
a timely notice of appeal. We retained the appeal.

       II. Standard of Review.

       We review jury instruction challenges for the correction of errors at

law to determine whether the challenged instruction correctly states the

law.   State v. Shorter, 

945 N.W.2d 1

, 6 (Iowa 2020).       “Erroneous jury

instructions are prejudicial and require reversal when they ‘mislead the

jury or materially misstate the law.’ ”

Id. (quoting State v.

Benson, 

919

N.W.2d 237

, 241–42 (Iowa 2018)). We generally review evidentiary rulings
                                       6

for an abuse of discretion. State v. Buelow, 

951 N.W.2d 879

, 884 (Iowa

2020).

      We may consider ineffective-assistance claims on direct appeal if

“the appeal was already pending on July 1, 2019, when Senate File 589

eliminating the ability to pursue ineffective-assistance claims on direct

appeal, took effect.” State v. Ross, 

941 N.W.2d 341

, 345 (Iowa 2020). Here,

Zacarias’s challenge is properly before us on direct appeal because he filed

his notice of appeal on May 19, 2019. We review claims of ineffective

assistance de novo.

Id.

III.

Analysis.

      Zacarias presents numerous claims on appeal. First, he argues the

district court erroneously instructed the jury on the definition of “object.”

Second, Zacarias contends the district court violated his due process right

to present a defense and did not follow Iowa Rule of Evidence 5.613 by

restricting his ability to impeach the complaining witness.         Third, he

claims his trial counsel was ineffective in failing to impeach C.G. on cross-

examination. Fourth, Zacarias maintains his trial counsel was ineffective

in failing to object to alleged instances of prosecutorial misconduct during

trial. Finally, Zacarias argues the cumulative effect of trial counsel’s errors
denied him of his right to a fair trial.

      A. Motion to Strike Zacarias’s Reply Brief. In his initial brief,

Zacarias argued the district court erroneously instructed the jury on the

definition of “object,” arguing an “object” under Iowa Code section 708.2(5)

should be defined as “a material thing other than any portion of the

defendant’s body or organs.” Zacarias claims, in relevant part, the district

court’s interpretation of “object” to include a defendant’s hand “would

create substantial and unnecessary overlap between” Iowa Code section

708.2(5) and Iowa Code section 702.17(5), which defines “sex act” or
                                         7

“sexual activity” to include “any sexual contact between two or more

persons by . . . use of artificial sexual organs or substitutes therefor in

contact with the genitalia or anus.” Iowa Code § 702.17(5). In its initial

brief, the State responded to Zacarias’s concern about overlap, asserting,

“a construction that creates an overlap is preferable to one that creates an

obvious gap, especially when it is clear that the legislature intended to

close that specific gap through this particular enactment.” In his reply

brief, Zacarias claimed the State’s proffered “broad interpretation subverts

general due process principles applied to protect a defendant’s rights in a

criminal case.” According to Zacarias, the State only charged him under

section 708.2(5) “to get around its speedy trial violation and refile this

case” after the district court dismissed the charge of third-degree sexual

abuse against Zacarias for a speedy trial violation.

         The State filed a motion to strike Zacarias’s reply brief, arguing

Zacarias failed to raise the due process argument in his initial brief and

was instead presenting it as a new claim for the first time in his reply brief.

Zacarias resisted, explaining he was “not arguing that his conviction

violates due process or double jeopardy principles,” nor did he preserve

that claim for direct appeal.         Instead, he stated he was using the
chronology of his case to show “the dangers of letting the prosecution

define statutes broadly to suit their purposes and cover mistakes.” We

issued an order explaining we would submit the motion to strike with the

appeal.

         We generally do not consider issues raised for the first time in a reply

brief.     State v. Shackford, 

952 N.W.2d 141

, 147–48 (Iowa 2020).

Nevertheless, as Zacarias clarified in his resistance, he was not presenting

a new claim that his conviction violated due process or double jeopardy,

nor will we address such a claim. Rather, he discussed the chronology of
                                      8

Zacarias’s case to provide an example of the potential due process

concerns implicated by the State’s proposed broad statutory interpretation

of section 708.2(5).   In other words, Zacarias is presenting “additional

ammunition for the same argument [he] made below—not a new argument

advanced on appeal.” JBS Swift & Co. v. Ochoa, 

888 N.W.2d 887

, 893

(Iowa 2016). The effect that a broad interpretation of a statute may have

on constitutional rights is a valid consideration in determining the proper

interpretation of a statute. See, e.g., State v. Aschbrenner, 

926 N.W.2d

240

, 253 (Iowa 2019) (applying “the narrower interpretation” of a statute

to avoid constitutional infirmities). Therefore, we deny the State’s motion

to strike Zacarias’s reply brief.

      B. Interpretation of Iowa Code Section 708.2(5).               Zacarias

maintains the district court erroneously instructed the jury on the

meaning of “object” under Iowa Code section 708.2(5) when it instructed

the jury that “[a]n ‘object’ means anything that is visible or tangible and is

relatively stable in form.”    He asserts “object” under section 708.2(5)

should not include a defendant’s body or organs. Applying his desired

interpretation of the statute, Zacarias also argues the district court erred

in denying his motion for judgment of acquittal in which he argued there
was no evidence that he penetrated genitalia using an object other than a

part of his body. Section 708.2(5) provides, “A person who commits an

assault, as defined in section 708.1, and who uses any object to penetrate

the genitalia or anus of another person, is guilty of a class ‘C’ felony.” Iowa

Code § 708.2(5). The meaning of “object” under this statute is an issue of

first impression for our court.

      “The first step in our statutory interpretation analysis is to

determine whether the statute is ambiguous.” 

Ross, 941 N.W.2d at 346

                                        9

(quoting State v. Coleman, 

907 N.W.2d 124

, 135 (Iowa 2018)). Our inquiry

ends with the plain language if the statute is unambiguous. However,

      “if reasonable minds could differ or be uncertain as to the
      meaning of the statute” based on the context of the statute,
      the statute is ambiguous and requires us to rely on principles
      of statutory construction to resolve the ambiguity.

Id. (quoting Coleman, 907

N.W.2d at 135). As discussed above, the parties

present at least two differing yet reasonable interpretations: Zacarias’s

interpretation that an object does not include any portion of the

defendant’s body or organs, and the State’s interpretation that an object
is anything visible or tangible and relatively stable in form—including a

defendant’s body or organs. Consequently, we must rely on our tools of

statutory interpretation to determine the meaning of “object” under section

708.2(5).

      We apply the rule of lenity in criminal cases, but we only do so as a

last resort. In re Prop. Seized from Bo Li, 

911 N.W.2d 423

, 429 n.4 (Iowa

2018); see also Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 197 (2012) [hereinafter Scalia & Garner]

(“[T]he rule of lenity applies only when a reasonable doubt persists after

the traditional canons of interpretation have been considered.”). We still
must interpret criminal statutes “reasonably and in such a way as to not

defeat their plain purpose.” 

Coleman, 907 N.W.2d at 136

(quoting State v.

Hagen, 

840 N.W.2d 140

, 146 (Iowa 2013)). “[O]ur goal ‘is to ascertain

legislative intent in order, if possible, to give it effect.’ ”

Id. (quoting State

v.

Finders, 

743 N.W.2d 546

, 548 (Iowa 2008)). If the legislature has not

defined a word or “use[d] it with an established meaning, we give the words
their ‘ordinary and common meaning by considering the context within

which they are used.’ ” 

Ross, 941 N.W.2d at 347

(quoting Auen v. Alcoholic
                                          10

Beverages Div., 

679 N.W.2d 586

, 590 (Iowa 2004)). It is not our role to

“change the meaning of a statute.”

Id. (quoting Auen, 679

N.W.2d at 590).

       The dictionary defines “object” as “a discrete visible or tangible

thing.” Object, Webster’s Third New International Dictionary (unabr. ed.

2002). The legislature chose to modify the term “object” with the term

“any” to criminalize the use of “any object to penetrate the genitalia or

anus of another person.” Iowa Code § 708.2(5); see also Scalia & Garner,

at 167 (“Perhaps no interpretive fault is more common than the failure to

follow the whole-text cannon, which calls on the judicial interpreter to

consider the entire text, in view of its structure and of the physical and

logical relation of its many parts.”).         “Any” is defined as “one or more

indiscriminately from all those of a kind,” Any, Webster’s Third New

International Dictionary (unabr. ed. 2002), and we have explained that the

legislature’s use of “any” is “commonly understood to have broad

application.” Swiss Colony, Inc. v. Deutmeyer, 

789 N.W.2d 129

, 137 (Iowa

2010).

       As the Court of Appeals of Virginia held in interpreting a similar

statute, a statute that does not distinguish between animate and

inanimate objects and “which proscribes sexual penetration with ‘ “any
object” . . . addresses the universe of objects with which an accused may

not sexually penetrate a complaining witness,’ ” including a defendant’s

finger. Herrel v. Commonwealth, 

507 S.E.2d 633

, 636 (Va. Ct. App. 1998)

(omission in original) (quoting Bell v. Commonwealth, 

468 S.E.2d 114

, 117

(Va. Ct. App. 1996)). Various other state courts have also interpreted the

phrase “an object” or “any object” in similar statutes to include a finger.1


       1See, e.g., State v. Todd, No. 1 CA–CR 11–0842, 

2012 WL 5397999

, at *6–7 (Ariz.
Ct. App. Nov. 6, 2012) (holding the defendant’s penetration of another’s vagina
constituted “sexual conduct” by penetration under a statute that defined “sexual
conduct” to include “actual penetration of the vagina by any object except when done as
                                            11

Like those statutes, section 708.2(5) uses the phrase “any object” to apply

broadly to “the universe of objects with which an accused may not sexually

penetrate a complaining witness” without distinguishing between animate

and inanimate objects.

Id. (quoting Bell, 468

S.E.2d at 117). Zacarias is

asking us to read a distinction into the statute where there is not one. See

Homan v. Branstad, 

887 N.W.2d 153

, 170 (Iowa 2016) (“We cannot read

into the statute what we think it ought to say. What the general assembly

actually said guides our interpretation.” (citation omitted)).




part of a medical procedure”); State v. Grant, 

634 A.2d 1181

, 1185–86, 1185 n.8 (Conn.
App. Ct. 1993) (concluding defendant’s use of his finger to penetrate the victim’s vagina
met the definition of “penetration,” which the statute declared “may be committed by an
object manipulated by the actor into the genital or anal opening of the victim’s body”
(quoting Conn. Gen. Stat. § 53a–65 (1992))); State v. Elias, 

337 P.3d 670

, 674 n.3 (Idaho
2014) (noting “[a] finger is an object for purposes of the statute” criminalizing forcible
sexual penetration “by any object”); Hurley v. State, 

560 N.E.2d 67

, 68–69 (Ind. Ct. App.
1990) (holding defendant’s finger constituted “an object” under a statute criminalizing
sexual penetration “by an object”); State v. Lucas, 

275 S.E.2d 433

, 435–36 (N.C. 1981)
(affirming defendant’s second degree sexual assault conviction for penetrating the victim’s
genital opening with his fingers under a statute that criminalized “the penetration,
however slight, by any object into the genital or anal opening of another person’s body”
(quoting N.C. Gen. Stat. § 14–27.1(4) (1980))); State v. Hoover, 

280 P.3d 1061

, 1063 (Or.
Ct. App. 2012) (affirming defendant’s conviction for unlawful sexual penetration in
violation of a statute criminalizing sexual penetration by “any object” after defendant used
his finger to penetrate the victim’s vagina); State v. Cain, 

624 P.2d 732

, 733–34 (Wash.
Ct. App. 1981) (holding “[a] finger is an object within the meaning and intent of the
statute” criminalizing penetration with “an object”); cf. People v. Keeney, 

29 Cal. Rptr. 2d
451

, 452–53 (Ct. App. 1994) (affirming defendant’s conviction for penetration by a foreign
object under a statute that prohibited penetration “by any foreign object” based on
defendant’s action of directing the victim at gunpoint to lie down and insert the victim’s
own fingers into her vagina and anus); Holmes v. State, 

842 So. 2d 187

, 188 (Fla. Dist.
Ct. App. 2003) (noting a defendant’s finger constituted an “other object” in a sexual
battery statute that prohibited “oral, anal, or vaginal penetration by, or union with, the
sexual organ of another or the anal or vaginal penetration of another by any other object”
(quoting Fla. Stat. § 794.011(1)(h) (1995))); Burke v. State, 

430 S.E.2d 816

, 817 (Ga. Ct.
App. 1993) (concluding a finger was a “foreign object” in a sexual penetration statute that
defined “foreign object” as “any article or instrument other than the sexual organ of a
person” (quoting Ga. Code § 16–6–22.2(a) (1992))); Commonwealth v. Prado, 

113 N.E.3d
365

, 370 (Mass. App. Ct. 2018) (holding defendant’s act of forcing the victim to penetrate
her own genital opening with the victim’s fingers met the statutory definition of rape
under a law that criminalizes “sexual penetration by force and against the [victim’s] will
or by threat of bodily injury” (alteration in original)).
                                            12

       Those states that have concluded a finger does not constitute an

“object” for penetration purposes have generally done so under different

statutory language.2 For example, the Supreme Court of Ohio concluded

a finger did not constitute an “object” in a statute that prohibited the

insertion of “any instrument, apparatus, or [o]ther object into the vaginal

or anal cavity of another” by force or threat of force. State v. Hooper, 

386

N.E.2d 1348

, 1349–50 (Ohio 1979) (quoting Ohio Rev. Code § 2907.12(A)

(1978) (repealed 1996)). It did so because it concluded the statute’s list of

“three nouns[,] two specific and the third, general” with the term “other”

immediately preceding the general term spoke to the “legislative intent to

limit the scope of the general noun to those objects having the

characteristics of those specific nouns.”

Id. at 1350.

The court noted the

terms “instruments and apparatuses” had the common characteristic of

being inanimate.

Id. Thus, it reasoned,

“[s]ince, under the doctrine of

Ejusdem generis, nothing may be construed to fall within the catchall term

‘object’   unless    it   shares     the   characteristics      of   instruments       and

apparatuses, only inanimate objects fall within the” statute’s purview.

Id.

Consequently, a finger

did not meet this definition because it “is not

inanimate.”

Id.
Ohio later amended

its felonious sexual penetration statute to merge

into the offense of rape and added language clarifying that penetration by

a body part falls within that statute, stating penetration involves “the


       2See,  e.g., People v. Maggette, 

747 N.E.2d 339

, 346, 349 (Ill. 2001) (concluding a
finger was not an “object” under a sexual penetration statute that defined such
penetration as “any contact, however slight, between the sex organ or anus of one person
by an object, the sex organ, mouth or anus of another person, or any intrusion, however
slight, of any part of the body of one person or of any animal or object into the sex organ
or anus of another person, including but not limited to cunnilingus, fellatio or anal
penetration,” because the statute’s inclusion of the phrase “any part of the body of one
person or of any animal” limited “object” to inanimate objects only) (quoting 720 Ill. Comp.
Stat. 5/12–12(f) (1998) (repealed 2011)).
                                     13

insertion, however slight, of any part of the body or any instrument,

apparatus, or other object into the vaginal or anal opening of another”

“without privilege to do so.” Ohio Rev. Code Ann. § 2907.01(A) (West,

Westlaw current through Files 1 to 4 and 6 to 8 of the 134th Gen. Assemb.

(2021–2022)). Unlike the Ohio statute, our current penetrative assault

statute does not need amending to clarify that it includes a body part

because our legislature did not use “object” as part of a list of inanimate

objects in restricting what constitutes an “object” or provide any other

indicator limiting the statute to only include inanimate objects.

      Although Zacarias may be correct to note that “[a] person would not

refer to themselves or their body parts as ‘objects’ in ordinary speech,” the

context in which “object” is used in section 708.2(5) further supports our

conclusion that the definition of “object” includes body parts. See 

Ross,

941 N.W.2d at 347

(“we give the words their ‘ordinary and common

meaning by considering the context within which they are used.’ ” (quoting

Auen, 679 N.W.2d at 590

)). In the context of penetrative assault, there are

numerous reasons why a defendant’s body is associated with the term

“object.”   Most notably, it is not uncommon for victims of penetrative

assault to be unaware of the specific object a defendant used to penetrate
them, especially if the assault occurred in the dark or while the victim is

in and out of consciousness. Thus, while people might not refer to their

own body parts as objects in casual conversation, they may very well refer

to another person’s body part as an object when describing his or her

penetrative assault to others.

      Under Zacarias’s interpretation of “object,” all a defendant in

Zacarias’s situation would have to argue to plant a seed of reasonable

doubt under section 708.2(5) is that he penetrated the victim with his

finger instead of an inanimate object in those situations when victims
                                     14

cannot definitively say what the defendant used to penetrate them. When

victims allege someone penetrated them with an unknown object, they are

not foreclosing the possibility that the object was another person’s body

part. Accordingly, in the context of section 708.2(5), “any object” includes

a defendant’s body parts.

      Moreover, we reject Zacarias’s claim that including body parts in the

definition of “object” violates the construction against surplusage and

renders the term “object” meaningless because “[i]t would not be necessary

to use the word ‘object’ if the body was also an object.” He maintains,

“[t]he statute may as well read ‘a person who commits an assault . . . and

who penetrates the genitalia or anus of another person, is guilty of a class

‘C’ felony.” (Omission in original.) (Quoting Iowa Code § 708.2(5).)      If

section 708.2(5) omitted the “object” language and only applied to assaults

in which a person penetrates another’s genitalia, it could be read to only

include body parts. Yet, the legislature opted to criminalize penetration

by “any object,” with no indication that it intended to exclude inanimate

objects.

      As the State aptly explains,

      Penetration with body parts would have been covered by the
      simpler term “penetrates”—but that would arguably exclude
      penetration by inanimate objects.      On the other hand,
      penetrative acts using inanimate objects would be covered
      [with] the phrase “uses an object to penetrate”—but that
      would arguably exclude any penetrative acts that used body
      parts. Only this formulation, which applies to penetrative
      assault using any object, succeeds in making this enhanced
      penalty applicable to both kinds of penetrative assault.

      This interpretation also manifests section 708.2(5)’s purpose to

remedy a gap in coverage that did not criminalize penetration by an object

if the act of penetration was not sexual in nature. This gap was illustrated

in State v. Monk, 

514 N.W.2d 448

, 451 (Iowa 1994) (en banc), when we
                                     15

reversed a defendant’s sexual abuse conviction because there was

“substantial evidence to support a finding that the contact” between the

defendant and victim “was not sexual in nature” when the defendant

wrestled the victim to the ground and inserted a broom handle into the

victim’s anus while they were engaging in “horseplay.” Because the statute

defining “sex act” required the contact to be sexual in nature to constitute

sexual abuse, the type of penetration that occurred as “horseplay” in Monk

was only punishable as general assault and thereby subject to less severe

consequences than the same act of penetration would have been if it was

committed with a sexual purpose. See

id. at 452

(Snell, J., dissenting)

(“The holdings in State v. Pearson and State v. Monk have transformed our

sex abuse statutes into general assault statutes where the assault has

some effect on the reproductive or excretory organs of the victim or

defendant.”). The subsequent enactment of section 708.2(5) criminalizing

penetrative assault regardless of whether it was sexual in nature as a class

“C” felony closed the gap in punishment between sexual and nonsexual

penetrative assault.

      Zacarias’s assertion that section 708.2(5)’s use of the term “object”

does not include a defendant’s body parts because “contact between a
defendant’s body and the victim’s genitalia is already criminalized as a sex

act under § 702.17” overlooks the fact that this contact is only criminalized

as a sex act when it is sexual in nature. 

Monk, 514 N.W.2d at 450

; see

also State v. Pearson, 

514 N.W.2d 452

, 455 (Iowa 1994) (en banc) (“Not all

contact is a ‘sex act.’ The contact must be between the specified body

parts (or substitutes) and must be sexual in nature.”). Although there is

overlap between assault by penetration under section 708.2(5) and sexual

abuse under section 709.1, it is not a complete overlap. Section 708.2(5)

is far from superfluous. The mere existence of overlap is not problematic.
                                     16
      When a single act violates more than one criminal statute, the
      prosecutor may exercise discretion in selecting which charge
      to file. This is permissible even though the two offenses call
      for different punishments. It is common for the same conduct
      to be subject to different criminal statutes.

State v. Alvarado, 

875 N.W.2d 713

, 718 (Iowa 2016) (quoting State v. Perry,

440 N.W.2d 389

, 391–92 (Iowa 1989)). Overlap does not prevent “a single

conviction on one charge based on the prosecutor’s charging discretion.”

Id.

As we previously

acknowledged in concluding a defendant’s

penetration of the victim with his finger fell within the definition of a “sex
act” under section 702.17(5) because the “finger [w]as a substitute for a

sexual organ,”

      It would not be logical to allow a defendant to be convicted of
      sexual abuse for using a plastic penis, or a similar inanimate
      object as a substitute for the plastic penis, but to prohibit his
      conviction if he used his fingers or hand. The emphasis in the
      offense of sexual abuse is on the forcible nature of the assault,
      not on whether defendant used his penis or his finger to carry
      out the sexual abuse.

State v. Whetstine, 

315 N.W.2d 758

, 760–61 (Iowa 1982). Likewise, here,

it would not be logical to allow Zacarias to be convicted of assault by

penetration for penetrating the victim with an inanimate object but to
prohibit his conviction under the same statute because he used his finger

instead. See Gardin v. Long Beach Mortg. Co., 

661 N.W.2d 193

, 197 (Iowa

2003) (“[W]e must read a statute as a whole and give it ‘its plain and

obvious meaning, a sensible and logical construction.’ ” (quoting Hamilton

v. City of Urbandale, 

291 N.W.2d 15

, 17 (Iowa 1980))). The emphasis in

the offense under section 708.2(5) is on the penetrative nature of the

assault, not on whether a defendant used his finger or an inanimate object

to carry out the assault.
                                    17

      Here, the State seemingly did believe Zacarias’s conduct was subject

to different criminal statutes because it initially charged Zacarias with

sexual abuse in the third degree—not assault by penetration—and only

charged Zacarias with assault by penetration after the sexual abuse

charge was dismissed due to a speedy trial violation.         But Zacarias

concedes he “is not arguing that his conviction violates due process or

double jeopardy principles because he was retried in violation of a speedy

trial ruling.” On its face, section 708.2(5), as interpreted to include body

parts, does not raise any constitutional concerns, and there is nothing

prohibiting the State from charging Zacarias under section 708.2(5) just

because the act may have been sexual in nature.

      The district court properly instructed the jury that an “object” is

“anything that is visible or tangible and is relatively stable in form.” The

evidence is sufficient to prove Zacarias committed assault by penetration

with an object. Therefore, we affirm the district court’s use of these jury

instructions and its denial of Zacarias’s motion for judgment of acquittal.

      C. The Scope of Impeachment. Zacarias maintains the district

court impermissibly restricted him from impeaching C.G. on inconsistent

statements in violation of his due process right to present a defense and
Iowa Rule of Evidence 5.613(b).      He also contends the district court

incorrectly applied our holding in State v. Turecek, 

456 N.W.2d 219

(Iowa

1990), to prevent him from calling C.G. himself to present impeachment

evidence. Zacarias failed to preserve most of these arguments.

      Rule 5.613(b) provides in relevant part:

      Extrinsic evidence of a witness’s prior inconsistent statement
      is admissible only if the witness is given an opportunity to
      explain or deny the statement and an adverse party is given
      an opportunity to examine the witness about it, or if justice
      so requires.
                                    18

Iowa R. Evid. 5.613(b). During trial, the State argued Zacarias could not

impeach C.G. on her prior statements because C.G. did not have the

opportunity to explain those statements in violation of rule 5.613(b).

Zacarias’s trial counsel responded by arguing Turecek only “limited the

ability of the prosecution to call a witness specifically for purposes of

impeaching their statement,” and he “believe[d] [he] would still be able to

call [C.G.] and to confront her with those statements.” He never claimed

the evidence of C.G.’s prior statements was admissible because “justice so

requires,” and the district court never discussed whether justice required

the statements’ admission in its ruling. Zacarias admits in a different

portion of his brief that he did not argue “justice required the impeachment

proceed without [the necessary] foundation.” Thus, Zacarias’s claim that

the district court improperly excluded the statements under rule 5.613(b)

because “justice so require[d]” their admission is not properly before us on

appeal. See Meier v. Senecaut, 

641 N.W.2d 532

, 537 (Iowa 2002) (“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.”). Likewise, Zacarias failed to present a due process argument in

district court, so we will not address this constitutional claim on appeal.
See

id.

The State challenges

error preservation on Zacarias’s Turecek

argument, claiming the district court’s “ruling was limited to enforcing

Rule 5.613(b) and its foundational requirement for impeachment by prior

unsworn statements” and the district court “did not rule on any request

by Zacarias to recall C.G.” We disagree. During trial, both sides engaged

in extensive discussion before the district court about the meaning of

Turecek, including whether it allowed Zacarias to “call a witness for the

sole purpose of impeachment.” The district court subsequently stated it
                                           19

found no authority suggesting Turecek applied only to the prosecution and

declared, “I’m going to adopt the State’s position and rule that the Rule

5.613, specifically subsection (b), applies equally to both sides” so that

neither party could call a witness solely for impeachment. Thus, Zacarias

preserved error on his Turecek argument because it is clear the district

court considered the scope and applicability of Turecek in reaching its

ruling. See Lamasters v. State, 

821 N.W.2d 856

, 864 (Iowa 2012) (“If the

court’s ruling indicates that the court considered the issue and necessarily

ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’ the issue

has been preserved.”).3

       Zacarias contends the district court incorrectly interpreted our

ruling in Turecek to prohibit him from recalling C.G. for impeachment. In

Turecek, a case involving sexual assault, the State called the defendant’s

six-year-old son to testify with the knowledge that he would testify

unfavorably to the State so that the State could offer otherwise

inadmissible evidence “in the guise of impeachment.”                      

Turecek, 456

N.W.2d at 224

–25. We held the evidence was inadmissible for purposes of

impeachment, reasoning,

       The right given to the State to impeach its own witnesses . . .
       is to be used as a shield and not as a sword. The State is not
       entitled under rule [5.]607 to place a witness on the stand who
       is expected to give unfavorable testimony and then, in the


       3The    State relies solely on its error preservation arguments in response to
Zacarias’s arguments in this section and did not brief the actual merits beyond claiming,
“The trial court did not err in applying Rule 5.613(b) to prohibit Zacarias from impeaching
C.G. with prior unsworn statements, without offering her a chance to confirm, deny, or
explain them” in its brief heading. This is the second case in as many months in which
the State has relied on procedural arguments without responding to the merits of a
defendant’s claim. We caution against this approach. While the State’s failure to brief
the merits of an issue does not entitle the defendant “to a reversal as a matter of right,
. . . the court may, within its discretion, handle the matter in a manner most consonant
with justice and its own convenience.” Bowen v. Kaplan, 

237 N.W.2d 799

, 801 (Iowa
1976).
                                           20
       guise of impeachment, offer evidence which is otherwise
       inadmissible.

Id. at 225.

       As we have reiterated in subsequent cases, “[t]he Turecek rule is a

shield designed to prevent the introduction of otherwise inadmissible

evidence.” State v. Russell, 

893 N.W.2d 307

, 316 (Iowa 2017). Although

we were dealing with a situation involving the State’s actions, our ruling

in Turecek limiting the scope of rule 5.6074 applies to all parties, not just

the State as Zacarias maintains. See State v. Kone, 

557 N.W.2d 97

, 102

(Iowa Ct. App. 1996) (“The rule established in Turecek is that a party may
not place a witness on the stand who is expected to give unfavorable

testimony and then, in the guise of impeachment, offer evidence that is

otherwise inadmissible.” (emphasis added)). We were interpreting general

legal principles, and Zacarias offers no justification for why our ruling in

Turecek would give a defendant the ability to place “a witness on the stand

who is expected to give unfavorable testimony and then, in the guise of

impeachment, offer evidence which is otherwise inadmissible” but not the

State. Accordingly, we cannot say the district court abused its discretion

when it declined to allow Zacarias to call C.G. to the stand for the sole
purpose of impeaching her with otherwise inadmissible evidence.

       D. Zacarias’s Ineffective-Assistance Claims. Zacarias argues his

trial counsel was ineffective in two regards.              First, he challenges trial

counsel’s failure to impeach C.G. on cross-examination.                     Second, he

contends trial counsel was ineffective in failing to object to instances of

alleged prosecutorial misconduct. Additionally, Zacarias declares, “[t]he

guarantee of ‘assistance of counsel’ under article I, section 10 is stronger



       4“Any   party, including the party that called the witness, may attack the witness’s
credibility.” Iowa R. Evid. 5.607.
                                             21

than the Sixth Amendment’s guarantee.” He asks us to depart from federal

jurisprudence to reject the prejudice prong of the Strickland5 test and

instead adopt a harmless error standard.

        “Generally, claims of ineffective assistance of counsel are preserved

for postconviction relief proceedings.” State v. Harrison, 

914 N.W.2d 178

,

206 (Iowa 2018) (quoting State v. Soboroff, 

798 N.W.2d 1

, 8 (Iowa 2011)).

The postconviction-relief process “allows the parties to develop an

adequate record of the claims and provides the attorney charged with

ineffective assistance with the ‘opportunity to respond to defendant’s

claims.’ ”

Id. (quoting Soboroff, 798

N.W.2d at 8). We have previously

preserved comparable claims that “trial counsel was ineffective in failing

to challenge certain testimony and evidence presented at trial,”

id. at 208,

and we believe preserving Zacarias’s claims are also the appropriate course

of action in this case “so an adequate record of the claim can be developed

and the attorney charged with providing ineffective assistance may have

an opportunity to respond to defendant’s claims.”

Id. at 209

(quoting

Soboroff, 798 N.W.2d at 8

).

        IV. Conclusion.

        For the aforementioned reasons, we affirm Zacarias’s conviction and
preserve the additional claims of ineffective assistance of counsel for

postconviction-relief proceedings.

        AFFIRMED.

        Waterman, Mansfield, and McDermott, JJ., join this opinion.

McDonald, J., files a special concurrence in which Appel and Oxley, JJ.,

join.




        5Strickland   v. Washington, 

466 U.S. 668

, 687, 

104 S. Ct. 2052

, 2064 (1984).
                                          22

                                                       #19–0838, State v. Zacarias

McDONALD, Justice (concurring specially).

       I concur in all parts of the majority opinion except division III.C. In

my view, the defendant did not preserve error on the Turecek issue. The

majority confuses two separate issues. The district court made a ruling

on whether the defense would be allowed to call witnesses to offer extrinsic

evidence of C.G.’s prior inconsistent statements under Iowa Rule of

Evidence 5.613.        The district court ruled the defense could not call

witnesses to offer extrinsic evidence of C.G.’s prior inconsistent statements

because there was insufficient foundation established under rule 5.613(b).

The majority concludes that ruling was the Turecek ruling. I disagree.

Rule 5.613 governs the use of extrinsic evidence to prove a prior

inconsistent statement. Turecek is a substantive exception to the general

rule set forth in 5.607 that a party may impeach its own witness. The

issues are separate and distinct. The district court never ruled on the

Turecek issue because the defense never actually attempted to call C.G. as

a witness. Indeed, the defense had already released the witness on the

record. The issue is not preserved.

       To the extent the claim is preserved, I disagree with the majority’s
conclusion that the Turecek rule applies equally to the prosecution and

the defense.6      The Turecek rule, as originally stated, was uniquely a

limitation on the government’s ability to use impeachment as a subterfuge

to offer otherwise inadmissible evidence:




       6I have already expressed my view—not shared by Justices Appel and Oxley—that
our Turecek jurisprudence is fundamentally flawed and should be reconsidered. See
State v. Swift, 

955 N.W.2d 876

, 885 (Iowa 2021) (McDonald, J., concurring specially). To
the extent this court continues to adhere to Turecek, I conclude the rule applies only to
the prosecution and not the defense.
                                    23
      The State is not entitled under rule [5.]607 to place a witness
      on the stand who is expected to give unfavorable testimony
      and then, in the guise of impeachment, offer evidence which
      is otherwise inadmissible. To permit such bootstrapping
      frustrates the intended application of the exclusionary rules
      which rendered such evidence inadmissible on the State’s case
      in chief.

State v. Turecek, 

456 N.W.2d 219

, 225 (Iowa 1990) (emphasis added). In

State v. Tracy, we “condemned this sort of prosecutorial maneuvering in

which the State places a witness on the stand who it expects to give

unfavorable testimony solely for the purpose of introducing otherwise

inadmissible evidence.”    

482 N.W.2d 675

, 679 (Iowa 1992) (en banc)

(emphasis added). Tracy explained that Turecek “qualified the State’s right

to impeach its own witnesses.”

Id. (emphasis added). Recently,

in State

v. Swift, this court unanimously reaffirmed that the Turecek rule, as

presently understood, is a limitation on the government’s ability to call

and impeach witnesses.      

955 N.W.2d 876

, 880 (Iowa 2021) (“But in

Turecek, we held the prosecution may not ‘place a witness on the stand

who is expected to give unfavorable testimony and then, in the guise of

impeachment, offer evidence which is otherwise inadmissible.’ ” (emphasis

added) (quoting 

Turecek, 456 N.W.2d at 225

));

id. (“We observed in

Turecek

that the State’s right to impeach its own witness under rule 5.607 ‘is to be
used as a shield and not as a sword’ . . . .” (emphasis added) (quoting

Turecek, 456 N.W.2d at 225

)).

      The rationale for applying this special limitation on the government

and not the defendant is that, under our current doctrine, Turecek is more

a substantive rule of law that prevents a particular form of prosecutorial

overreach and less a rule of evidence. The “prosecutor’s use of a prior

inconsistent statement to impeach a witness on mere subterfuge or for the

primary purpose of placing before the jury substantive evidence which is
                                     24

otherwise inadmissible may trigger Due Process and Confrontation Clause

concerns.” 27 Charles Alan Wright & Victor James Gold, Federal Practice

and Procedure: Evidence § 6093, at 48 (2d ed. Supp. 2020). Presumably,

this is why our current doctrine does not look to the rules of evidence to

resolve a Turecek issue but instead looks to the prosecutor’s subjective

primary purpose in offering the evidence. When the prosecutor’s primary

purpose in calling the witness is a mere subterfuge to get otherwise

inadmissible evidence in front of the jury, we conclude there was a

“Turecek violation.” This implies a violation of a substantive rule of law of

potential constitutional dimension.       The substantive and potential

constitutional concerns underlying the Turecek doctrine are not implicated

by the defense’s similar offer of impeachment evidence.

      I acknowledge some of our precedents state the Turecek rule

prohibits a party from impeaching its own witness for the primary purpose

of offering otherwise inadmissible evidence.        These statements are

inconsistent with the rationale underlying the Turecek rule, as presently

understood. Further, to the best of my knowledge, while we have at times

stated the rule broadly, we have never applied the Turecek rule against a

criminal defendant or a party in a civil proceeding.      See, e.g., State v.
Russell, 

893 N.W.2d 307

, 316 (Iowa 2017) (discussing the Turecek rule as

applied against the State); State v. Tompkins, 

859 N.W.2d 631

, 639 (Iowa

2015) (applying the rule to the government); State v. Werts, 

677 N.W.2d

734

, 737 (Iowa 2004) (discussing Turecek as a limitation on the “the

State”); State v. Nance, 

533 N.W.2d 557

, 562 (Iowa 1995) (“However, where

the State calls a witness expecting the witness will give unfavorable

testimony, and then in the guise of impeachment, offers evidence

otherwise inadmissible, the court should exclude the evidence.”); State v.

Rojas, 

524 N.W.2d 659

, 662 (Iowa 1994) (discussing “the State”
                                     25

committing an alleged “Turecek violation”); 

Tracy, 482 N.W.2d at 679

(explaining the rule prevents the State’s “prosecutorial maneuvering”);

Turecek, 456 N.W.2d at 225

(explaining the rule as a limitation on “the

prosecutor” (quoting United States v. Miller, 

664 F.2d 94

, 97 (5th Cir. 1981)

(per curiam))); State v. Sowder, 

394 N.W.2d 368

, 371 (Iowa 1986)

(reviewing the purposes of the prosecutor). We have never applied Turecek

to any party other than the government in a criminal proceeding, which is

further evidence that the Turecek doctrine, as presently understood, is

more a substantive rule of law that prevents a particular form of

prosecutorial overreach and less a pure rule of evidence. If we continue to

follow Turecek, we should limit its application to the government in

criminal cases and simply apply the rules of evidence in all other

circumstances.

      For these reasons, I concur in all parts of the majority opinion

except division III.C. Because I conclude error was not preserved on the

Turecek issue, I concur in the judgment.

      Appel and Oxley JJ., join this special concurrence.

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