967 N.W.2d 191
Iowa Ct. App.2021Background
- A minor reported sexual abuse by her step‑father, James Boehmer; the Child Protection Center interviewed the child and sent a report to the Floyd County Sheriff’s Office.
- Deputy Jeremy Iriarte coordinated with the DHS worker (Tracy Smed) and the county attorney and attempted to arrange a joint interview with Boehmer.
- DHS and the deputy received correspondence from a law firm representing Boehmer; the deputy left messages and spoke with the firm’s assistant but never obtained an interview before charges were filed.
- Boehmer was charged with lascivious acts with a child, indecent contact with a child, and lascivious conduct with a minor; a jury acquitted on one count and convicted on the other two.
- On appeal Boehmer argued (1) the court erred by admitting testimony that law enforcement contacted his lawyer (and implying he relied on counsel/remained silent) and (2) the court erred by ordering a one‑year county jail term to run consecutively to a two‑year prison term.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of testimony that police attempted to contact defendant through counsel (pre‑charging) | Evidence was relevant to rebut defense claim the State rushed to judgment and to show investigative efforts | Admission penalized defendant for seeking counsel and suggested consciousness of guilt or exercise of Fifth Amendment rights | Court upheld admission: relevant to show investigative steps; not like Nelson because purpose was to show investigation, not to imply guilt; any error was harmless |
| Use of defendant's prearrest silence or counsel contact as evidence of invoking Fifth Amendment | State did not use it to argue an adverse inference of guilt; testimony was limited to efforts to contact | Admission improperly penalized prearrest silence and counsel invocation (Fifth Amendment) | Court held no Fifth Amendment violation: no express invocation of the privilege; Salinas controls; prosecution did not argue adverse inference; admission not reversible error |
| Sentencing: consecutive county jail term ordered to run after DOC term | State concedes sentences should have merged into single DOC term | Defendant seeks vacatur and resentencing | Court vacated only the portion naming county jail and remanded for corrected sentencing order so combined sentence is in DOC custody (no full resentencing required) |
Key Cases Cited
- State v. Nelson, 234 N.W.2d 368 (Iowa 1975) (disallowed evidence of attorneys’ presence when offered only to suggest defendant’s guilt)
- Salinas v. Texas, 570 U.S. 178 (2013) (prearrest silence without an express invocation of the Fifth Amendment can be used against a defendant)
- Jenkins v. Anderson, 447 U.S. 231 (1980) (use of prearrest silence to impeach credibility does not violate the Fifth Amendment)
- Doyle v. Ohio, 426 U.S. 610 (1976) (post‑Miranda silence cannot be used for impeachment)
- State v. Kapell, 510 N.W.2d 878 (Iowa 1994) (multiple sentences should be merged into a single DOC term when required by statute)