Full Opinion (html_with_citations)

                    IN THE COURT OF APPEALS OF IOWA

                                      No. 22-0115
                               Filed December 21, 2022


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANDREW JAMES SWAILES,
     Defendant-Appellant.
________________________________________________________________

      Appeal    from     the    Iowa   District   Court   for   Washington   County,

Shawn R. Showers, Judge.




      Andrew Swailes appeals his conviction for third-degree sexual abuse.

AFFIRMED.



      Denise M. Gonyea of McKelvie Law Office, Grinnell, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ.
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CHICCHELLY, Judge.

       Andrew Swailes appeals his conviction of third-degree sexual abuse. He

contends the trial court erred by denying his motion for mistrial and precluding

evidence of prior false accusations allegedly made by the child. Because Swailes

did not preserve error on the issue of mistrial and is unable to show the trial court

abused its discretion in denying the evidence, we affirm.

       A jury convicted Andrew Swailes of third-degree sexual abuse for engaging

in a sex act with a fifteen-year-old child when he was thirty-one years old. See
Iowa Code § 709.4
(1)(b)(3)(d) (2020).        During jury deliberations, one juror

informed the trial court that another juror had looked up the definition of sexual

abuse. Because he did not know “what the person looked up, how much they have

told the rest of the jurors, [or] . . . if any other curative method would prevent

prejudice,”1 Swailes’s attorney moved for mistrial. But Swailes’s attorney also

suggested that “it might be possible to excuse that juror and bring in an alternate.”

The trial court excused the juror who engaged in the misconduct and replaced her

with an alternate. It also asked the jury if they discussed the definition, and the

foreperson said they did not. The court then denied the motion for mistrial.

       Swailes now claims the court should have granted a mistrial because

“switching an empaneled juror for an alternate juror disrupts the jury proceedings

in a highly prejudicial manner.” Because the claim he raises on appeal differs from

the concern he raised in moving for mistrial, the State challenges error

preservation. See State v. Rutledge,
600 N.W.2d 324, 325
 (Iowa 1999) (“Nothing


1In response to a question from the court, the foreperson said that the definition
was not discussed among the jurors.
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is more basic in the law of appeal and error than the axiom that a party cannot sing

a song to us that was not first sung in trial court.”). Swailes also raised the idea of

replacing the juror with an alternate, further hindering his claim on appeal. See

State v. Sage,
162 N.W.2d 502, 504
 (Iowa 1968) (stating that, generally, a criminal

defendant cannot take a position on appeal inconsistent with a position taken at

trial or complain of error to which the defendant consented or invited); see also

State v. Escobedo,
573 N.W.2d 271, 276
 (Iowa Ct. App. 1997) (noting that

although a defendant would ordinarily be entitled to a mistrial based on dismissal

of a juror during deliberations, the defendant waived error by agreeing to juror’s

replacement with an alternate). Error is not preserved.

       Turning to the trial court’s decision to prohibit evidence of prior false

allegations allegedly made by the child, our review is for an abuse of discretion.

See State v. Fontenot,
958 N.W.2d 549
, 555 (Iowa 2021). The issue of false

allegations arose during testimony by the child’s father. When asked about how

the child was harassed after she reported the sexual abuse, he answered: “Victim

blaming, telling [her] that pretty much she’s lying, none of this is true, that she’s

crying wolf again. I don’t know what that means, but being followed around town.”

Outside the presence of the jury, Swailes’s attorney argued that the reference to

the child “crying wolf again” opened the door for the defense “to ask questions

regarding if [the child] has made any prior accusations of sexual assault.” His

attorney also claimed that the response from the child’s father was “disingenuous”

and mislead the jury, speculating that he “probably has knowledge of prior

accusations.” The court denied Swailes the opportunity to ask about prior false

accusations.
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       Iowa Rule of Evidence 5.412 prohibits the introduction of evidence of a

victim’s past sexual behavior in criminal proceedings involving alleged sexual

abuse. Although “prior false claims of sexual activity do not fall within the coverage

of [rule 5.412],” a defendant who wishes to introduce such evidence “must first

make a threshold showing to the trial judge outside the presence of the jury.”

State v. Alberts,
722 N.W.2d 402, 409
 (Iowa 2006). But to introduce evidence of

false claims, a defendant “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 preponderance of the

evidence.”
Id.
 Although it is not “an exceedingly high threshold” for the defendant

to meet,
id.,
 Swailes fails to meet it. It is unclear if there were prior accusations of

sexual abuse, if any allegations were made by the child, or if the allegations were

false. The child’s father only made a vague reference to statements of other

people who purportedly claim the child had “cried wolf” or lied in the past. Even if

we assume those claims concern (1) allegations of sexual abuse made by the child

and (2) those allegations were false, the father denied knowing about it. Because

Swailes has mere speculation to show the child made prior false claims of sexual

abuse, the district court did not abuse its discretion in refusing to allow him to

question the child’s father about it.

       AFFIRMED.