In State v. Tovar, a three judge panel of the Iowa Court of Appeals held evidence was sufficient to convict a police officer for having sex with a woman he met during a traffic stop when the woman was either mentally incapacitated or physically helpless because of her extreme intoxication—or both. A jury convicted the defendant for Sex Abuse in the Third Degree.

In Tovar, a police officer stopped a driver for suspicion of driving under the influence. The Tovar defendant was called in as a cover officer to support a fellow officer who conducted standardized field sobriety test administrator on the driver.

The defendant then drove a passenger to her hotel and had sex with her in her room. She woke up the next day “confused” with “little memory of the prior evening’s events” and “intoxicated,” according to the Court of Appeals. According to the decision, “she could not confidently say she had intercourse with someone given the poor state of her memory.”

The driver, now reunited with his passenger at the hotel, called the police station to complain that one of the officers may have sexually assaulted his passenger. The defendant’s supervisor confronted the defendant and interviewed the passenger.

The Department of Criminal Investigation was called in to investigate and officers seized hotel bedsheets and the passenger’s clothing which tested positive for the defendant’s DNA.

At trial, the defendant acknowledged that he had driven the passenger to the hotel and had sex but that she was “not intoxicated and was a willing participant,” according to the decision.

The defendant presented expert testimony regarding memory lapses due to intoxication, presumably to distinguish between memory losses after the fact and mental incapacitation at the time of the incident.

The defendant argued in his appeal that his attorney failed to properly distinguish and raise both mental incapacitation and physical helplessness as failures in the evidence in his motion for judgment of acquittal and that the jury should have been required to choose and vote unanimously on one of those theories since they could not both be true.

The court disagreed, stating that mental incapacitation and physical helplessness could both be true—thus not “repugnant” to one another—finding that the members of the jury could disagree on whether the passenger was mentally incapacitated or physically helpless but unanimously agree that she was one or the other thus finding the defendant guilty.

The Court further held that the lawyer had no duty to argue that the evidence was insufficient on physical helplessness and that instructions on purported lesser included offenses for assault with intent to commit sex abuse and simple assault were harmless error because the defendant was convicted of the greater offense of Sex Abuse in the Third Degree.

NOTE: David A. Cmelik Law PLC had no involvement in State v. Tovar.

This case is not completely over. Expect further appeals.

If you or a loved one have been arrested for a crime in Cedar Rapids, Iowa City, or other Iowa community or county, contact David A. Cmelik Law PLC for a free initial consultation.

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