State of Iowa v. Nelson Carlos Flores

IN THE COURT OF APPEALS OF IOWA

No. 21-1676
Filed May 10, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

NELSON CARLOS FLORES,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Crawford County, Zachary Hindman,

Judge.

Nelson Flores appeals his convictions for crimes relating to sexual abuse of

a child. AFFIRMED.

Tyler D. McIntosh and Christopher J. Roth of Roth Weinstein, LLC, Omaha,

Nebraska, for appellant.

Brenna Bird, Attorney General, and Benjamin Parrott, Assistant Attorney

General, for appellee.

Heard by Vaitheswaran, P.J., Badding, J., and Doyle, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
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VAITHESWARAN, Presiding Judge.

A jury found Nelson Flores guilty of several crimes relating to sexual abuse

of a child. On appeal, Flores challenges (I) a claimed violation of his speedy trial

right; (II) the sufficiency of the evidence supporting the jury’s findings of guilt;

(III) the admission of a recorded interview of the child; (IV) the admission of co-

conspirator statements concerning a plan to leave the state; (V) the denial of his

motion for new trial; and (VI) his attorney’s performance.

I. Speedy Trial

Iowa Rule of Civil Procedure 2.33(2)(b) states: “If a defendant indicted for a

public offense has not waived the defendant’s right to a speedy trial the defendant

must be brought to trial within 90 days after indictment is found or the court must

order the indictment to be dismissed unless good cause to the contrary be shown.”

The State charged Flores with crimes in two separate cases. The trial

information in the first case was filed on July 14, 2016. Two-and-a-half weeks

later, Flores waived his ninety-day speedy trial right. The trial information in the

second case was filed on April 12, 2021. Flores demanded his right to a speedy

trial in the second case. Both cases were consolidated for trial. The State moved

to postpone the trial date beyond the speedy trial deadline, citing the need to obtain

Flores’ release from federal custody. The district court granted the motion. Trial

was held after the deadline.

Flores acknowledges he waived his speedy-trial right in the first case but

argues his demand in the second case and the consolidation of both cases militate

in favor of finding a violation. He also asserts the waiver in the first case was

invalid because there was no evidence that it “was explained to [him] in his native
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language.” Finally, Flores contends the State could have sought his release from

federal custody at an earlier date, undermining its claim of good cause for the

violation.

Our review of a claimed denial of a speedy trial right is for corrections of

errors of law. See State v. Abrahamson, 746 N.W.2d 270, 273 (Iowa 2008) (citing

State v. Miller, 637 N.W.2d 201, 204 (Iowa 2001)). We review a good cause

determination for an abuse of discretion. State v. Watson, 970 N.W.2d 302, 307

(Iowa 2022).

There was no speedy trial violation in the first case. First, Flores waived his

right. Second, the document containing his waiver stated Flores could “read and

understand the English language with the help of an interpreter,” leading to an

inference that he had an interpreter. Third, Flores’ attorney could have waived the

right for him. See State v. LeFlore, 308 N.W.2d 39, 41 (Iowa 1981) (stating “the

statutory right to a speedy trial under [the former version of rule 2.33(2)(b)] is not

a personal right that can be waived only by the defendant” and “[d]efense counsel

acting within the scope of his or her authority may waive this right on the

defendant's behalf without the defendant’s express consent”). Fourth, Flores

essentially reaffirmed his waiver by seeking sixteen postponements of trial in the

first case. Finally, the first case was not consolidated with the second case until

after Flores demanded speedy trial in the second.

We turn to whether the State established good cause for seeking a delay of

the consolidated trial. In granting the State’s motion, the district court cited Flores’

potential unavailability, twelve pending motions in the case, and the court’s need

to preside over another jury trial with a speedy trial deadline. On appeal, the State
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points to Flores’ own request to postpone trial due his attorney’s planned vacation.

The State also notes that its request for a seven-day postponement was based in

part on “the relatively rare occurrence” of having to file a petition for writ of habeas

corpus to obtain Flores’ release from federal custody.

“The decisive inquiry in these matters” is “whether events that impeded the

progress of the case and were attributable to the defendant or to some other good

cause for delay served as a matter of practical necessity to move the trial date

beyond the initial ninety-day period required by the rule.” State v. Campbell, 714

N.W.2d 622, 628 (Iowa 2006). Although the State acknowledges it “could have

perhaps requested custody [of Flores] earlier,” whether and when Flores would be

released was entirely up to the federal government. As the prosecutor stated at a

hearing on the State’s motion, “unless and until . . . the feds release [Flores] to [the

State] . . . we can’t get him here.” The prosecutor also pointed to “a number of

unplanned roadblocks” associated with witness depositions. Again, those

depositions could have been taken earlier, but logistical issues resulted in delays.

Flores’ attorney conceded as much, stating “[t]he State has—has set forth I guess

accurately as far as the problems that we’re running into.” Finally, both sides filed

numerous pretrial motions in the weeks before and after the good cause motion

was filed. It is true “the mere existence of the motions or the request for discovery”

may not excuse a failure to comply with the speedy-trial rule. See State v. Winters,

696 N.W.2d 903, 909 (Iowa 2006). At the same time, “the time required for the

court to rule on motions filed by a defendant can amount to delay attributable to

the defendant and constitute good cause for the failure to comply with the speedy

trial deadline.” Id. at 908. In the same vein, “good cause for pretrial delay under
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the speedy-trial rule can result from the need to complete pretrial discovery.” Id.

at 909.

We conclude a confluence of circumstances, some outside the State’s

control, caused the delay in bringing Flores to trial within the ninety-day speedy

trial deadline. We discern no abuse of discretion in the district court’s decision to

grant a short continuance to facilitate resolution of pretrial matters and Flores’

presence at trial.

II. Sufficiency of the Evidence

The jury found Flores guilty of one count of second-degree sexual abuse,

one count of lascivious acts with a child, one count of assault with intent to commit

sexual abuse, three counts of third-degree sexual abuse, one count of conspiracy

to commit a felony (suborning perjury), one count of conspiracy to commit an

aggravated misdemeanor (obstruction of prosecution), one count of lascivious

conduct with a minor, one count of tampering with a witness (threatening the child

believing the child “had been or may be summoned as a witness in a judicial

proceeding”), and one count of dissemination and exhibition of obscene materials

to a minor.1 Flores asserts “there was insufficient evidence to convict [him] of any

of the charges.” In his view, “the State’s entire case was based upon the credibility

of one witness.”

That witness, a child who was sixteen years old at the time of trial, testified

that Flores sexually abused her from the ages of nine to fifteen. She provided a

detailed, anatomically-specific description of multiple sex acts. She said that

1The jury also found Flores guilty of three counts of violating a no-contact order.
The jury found Flores not guilty of two counts of extortion.
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Flores also touched her inappropriately “[w]henever [her] mom would turn around

or leave to use the rest room.” And he showed her pornography on his phone.

The child recounted Flores’ efforts to have her remain silent about the

abuse. While he was sexually assaulting her, he told her, “Don’t tell your mom,”

and “you’re going to get in trouble if you tell somebody that I did this to you.” When

he learned she intended to report details to authorities, he said, “Don’t tell them

what I did.” Notwithstanding Flores’ orders, the child disclosed the abuse to health

professionals and law enforcement authorities. She was later interviewed by child

protective personnel.

Flores pressured her to take back her statements. He threatened her with

having “to go to foster care,” where people would hurt her and she would never

“see the family again.” He told her he knew a cop, a disclosure that made her feel

“[a]nxious” because she thought she “might get in trouble.”

The child’s mother was present when Flores made some of these

comments. She and the child’s grandmother supported Flores. According to the

child, the mother’s response was, “this all depends on you. Whatever you say

could affect us majorly.” They would “[o]ften” tell her “that it’s all made up,

everything that you’re saying is just a dream.” Their comments made her feel

“[n]ervous, scared” and “regretful.” She “feared that something would happen to

[her] mom or [her] grandma” and “something bad was going to happen if [she]

didn’t say what they wanted [her] to say.”

The child recanted statements she made during an initial interview with a

child abuse professional. She testified to doing so “because [she] was being
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pressured.” Flores continued to sexually abuse her following her disclosures and

following entry of a no-contact order.

Flores and the child’s mother crafted a plan to abscond with the child. When

the child was fifteen, Flores told her he would take her “[s]omewhere far away.”

They would say, “Let’s just go somewhere where we could be a family again, where

we wouldn’t have court.”

The child’s testimony, together with other evidence, amounted to

substantial evidence in support of the findings of guilt. See State v. Sanford, 814

N.W.2d 611, 615 (Iowa 2012) (citation omitted). The assessment of her credibility

was within the jury’s purview. See State v. Mathis, 971 N.W.2d 514, 519 (Iowa

2022) (stating in considering a challenge to the sufficiency of the evidence

supporting a jury verdict, “it is not the province of the court . . . to resolve conflicts

in the evidence, to pass upon the credibility of witnesses, to determine the

plausibility of explanations, or to weigh the evidence; such matters are for the jury.”

(quoting State v. Musser, 721 N.W.2d 758, 761 (Iowa 2006))).

III. Forensic Interview

The State filed a motion to admit recorded forensic interviews of the child

under the residual exception to the hearsay rule. See Iowa R. Evid. 5.807. The

district court initially granted the motion, reasoning that “the issue of credibility

[was] so inherently questioned by the witness’s change in testimony” that the

recording was “necessary” within the meaning of that exception. The court also

found the interview was “essentially . . . a prior consistent statement necessary to

rebut any claim of newly fabricated evidence.”
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Notwithstanding the ruling, Flores filed a motion in limine to exclude the

recordings. The trial judge concluded the earlier ruling was “not necessarily final.”

The court stated (1) the recorded interviews, “if offered for the truth of the

statements made during those interviews, plainly constitute[d] hearsay”; (2) the

State failed to proffer “any reason why the alleged victim [was] unable to testify”;

and, indeed, expressed an intent “to present” her testimony at trial; (3) the “in-

person testimony would be more probative on any relevant issue than would be

the recorded interviews, and (4) the availability of such testimony mean[t] that the

admission of the recorded interviews [was] not necessary.” The court further

concluded that the child’s “prior recantation and un-recantation did not change the

necessity analysis. The court reasoned that the recordings would simply “bolster

the credibility of the alleged victim’s testimony on these matters, which is not an

exception to the hearsay rule.” Although finding the recordings inadmissible “under

the residual hearsay exception,” the court deferred ruling on whether the

recordings would be admissible to rebut a recent fabrication under Iowa Rule of

Evidence 5.801(d)(1)(B).

The defense raised the issue again at the beginning of trial. The court again

deferred ruling on the issue. Later, the court informed the parties that the court

would focus on whether the recordings were admissible under the rule of

completeness set forth in rule 5.106, if the defense used portions of the child’s

recorded statements to impeach Flores. The court stated he would “have to wait

to see what the cross-examination show[ed]” before ruling on the issues.

The State called the child to the stand. The State raised the child’s initial

recorded interview on direct examination. The prosecutor asked her about the
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nature of the conversations, whether Flores tried to influence her statement, and

whether she was truthful with the interviewer. On cross-examination, Flores’

attorney pointed out inconsistencies between her prior statements and her trial

testimony. At the conclusion of her testimony, the district court ruled the recordings

would not be admissible “as substantive evidence” under rule 5.801(d)(1)(B). The

court further ruled the 2016 recordings would be admissible under rule 5.106 “only

for purposes of assessing the witness’s credibility” and the jury would be so

instructed.

Flores takes issue with the court’s ruling. He notes that he did not delve

into minutiae contained in the prior recordings and “the State essentially goaded

the [d]efense into cross-examining [the child] regarding the tape.”

Iowa Rule of Evidence 5.106 states:

(a) If a party introduces all or part of an act, declaration,
conversation, writing, or recorded statement, an adverse party may
require the introduction, at that time, of any other part or any other
act, declaration, conversation, writing, or recorded statement that in
fairness ought to be considered at the same time.
(b) Upon an adverse party’s request, the court may require
the offering party to introduce at the same time with all or part of the
act, declaration, conversation, writing, or recorded statement, any
other part or any other act, declaration, conversation, writing, or
recorded statement that is admissible under rule 5.106(a). Rule
5.106(b), however, does not limit the right of any party to develop
further on cross-examination or in the party’s case in chief matters
admissible under rule 5.106(a).

“Fundamentally, rule 5.106’s purpose is to prevent a party—particularly the

party that presents evidence first—from misleading juries with partial or incomplete

evidence.” State v. Tucker, 982 N.W.2d 645, 658 (Iowa 2022). “Our prior cases

recognize an ‘opening the door’ principle of evidence.” State v. Parker, 747

N.W.2d 196, 206 (Iowa 2008). “This rule . . . provides that ‘one who induces a trial
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court to let down the bars to a field of inquiry that is not competent or relevant to

the issues cannot complain if his adversary is also allowed to avail himself of the

opening.’” Id. (internal quotations and citation omitted).

As applied, “rule 5.106 allows a second litigant to introduce alongside

supposedly partial or incomplete evidence some additional evidence “that in

fairness ought to be considered at the same time.” Tucker, 982 N.W.2d at 659

(internal quotations and citations omitted). For example, in State v. Austin, 585

N.W.2d 241, 243–44 (Iowa 1998), “[t]he criminal defendant—the first litigant—had

used a summary of [a recorded child] interview . . . to cross-examine and impeach

the victim” and “the state—the second litigant—successfully invoked rule 5.106 to

demand the entire interview recording be admitted into evidence for the sake of

fairness.” Id. (summarizing Austin).

The posture was reversed here. The State presented the evidence first and

the defense cross-examined without using or seeking the admission of the

recordings. Because the State rather than the defense opened the door, we

question its reliance on Austin for admission of the recordings. We elect to bypass

that issue and proceed to a harmless-error analysis. See Parker, 747 N.W.2d at

209 ([E]rror in an evidentiary ruling that is harmless may not be a basis for relief

on appeal.”).

“The State overcomes the presumption of prejudice if it can establish that

there was overwhelming evidence of the defendant’s guilt.” State v. Montgomery,

966 N.W.2d 641, 661 (Iowa 2021) (internal quotations and citation omitted). As

noted, the child provided detailed trial testimony. Her testimony together with other
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record evidence was overwhelming. Accordingly, any error in admitting the

recordings was harmless.

IV. Co-Conspirator Statements

Iowa Rule of Evidence 5.801(d)(2)(E) states statements made by a party’s

coconspirator “during and in furtherance of [a] conspiracy” and offered against the

opposing party are not hearsay. The State expressed an intent to offer a witness

who would testify that the child’s mother conspired with Flores to leave the state

with him and with her children. Flores objected. The district court ruled the

testimony admissible.

The witness testified she had a conversation with the child’s mother about

taking the child away. The mother told the witness the only way she, Flores, and

the children could be together so that Flores “wouldn’t get in trouble was to leave

the state and that they were planning on going to Tennessee with his family.” The

witness had four to five conversations with the mother on the topic.

Flores contends the mother’s statements as recounted by the witness did

not satisfy rule 5.801(d)(2)(E) because they were not “in furtherance of” the

conspiracy. On this element, the Iowa Supreme Court has stated:

It is not the purpose of the rule to exclude statements relating to the
conspiracy uttered during the active [life] of the conspiracy under
circumstances indicating reliability. The furtherance requirement is
construed broadly with this in mind. A narrative declaration is in
furtherance of the conspiracy if it has some connection with what is
being done in promotion of the common design.

State v. Kidd, 239 N.W.2d 860, 864 (Iowa 1976) (citations omitted). “The principal

question in the in furtherance issue is whether the statement promoted, or was

intended to promote, the goals of the conspiracy.” State v. Dayton, No. 10-1161,
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2011 WL 4578505, at *5 (Iowa Ct. App. Oct. 11, 2011) (internal quotations and

citation omitted). “When a declarant seeks to induce the listener to deal with the

conspirators or in any other way to cooperate or assist in achieving the

conspirators’ common objective, the declaration may be admissible.” Id.

“Statements concerning activities of the conspiracy, including future plans, also

may become admissible when made with such intent.” Id.

The district court concluded the requirement was satisfied. The court

provided the following reasoning:

The statement itself and other evidence as well indicate that both
[Flores] and [the mother] were members of this conspiracy and
obviously the statements were made during the course of the
conspiracy . . . [and] by a preponderance of the evidence that what
we’ve got here, we’ve got circumstances where . . . any move by [the
mother] and by [Flores] involving [the child] is going to have to involve
[the testifying witness] in some way because essentially they’re
going to have to get the kid away from her or take her with—either
without this witness’s knowledge or with this witness's knowledge, so
with that it seems to me like why would [the mother] be telling this
witness that other than essentially to butter her up and get—get her
to a point where this conspiracy can happen. So under the liberal in
furtherance standard I think that has been satisfied.

The court reasonably concluded the statements were a last-ditch effort by the

mother to have the child returned to her custody and to obstruct the prosecution of

Flores. We discern no error in the court’s ruling. See State v. Tangie, 616 N.W.2d

564, 568 (Iowa 2000) (setting forth standard of review).

V. Motion for New Trial

Flores filed a motion for new trial, arguing in part, that the jury’s findings of

guilt were contrary to the evidence. The district court denied the motion, reasoning

as follows:
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The application of the legal standard that applies to these
types of motions differs a little bit from the legal standard which
applies to a motion for judgment of acquittal in that the Court, faced
with a motion like this one, is drawn into the question of credibility.
The weight of the evidence, as raised in a motion like this, refers to
the trier of fact here, the jury’s determination, that a greater amount
of credible evidence support one side of an issue or cause over the
other side.
And so a Court may grant the new trial where a verdict is
contrary to the weight of the evidence. And, again, it's a much
broader inquiry than what the Court conducts in relation to a motion
for judgment of acquittal.
But that said, the standard is not necessarily an easy one, as
is reflected in the case quoted by the State. And so again, this is a
closer call in the Court’s mind than the judgment of acquittal. As
[defense counsel] has already pointed out today, as he pointed out
many times at trial, there were some inconsistencies in the State’s
evidence which the defendant pointed out. Those inconsistencies
obviously undermine the credibility of some of the State’s evidence.
But at the same time, the Court cannot say based on the evidence
before it that what the jury did, the manner in which the jury elected
to resolve those inconsistencies, is clearly against the weight of the
credible evidence.

Flores again argues “the State’s entire case rested upon the credibility of

[the child]” and “[t]here was no corroborating evidence to support [the child’s]

story.” “On a weight-of-the-evidence claim, appellate review is limited to a review

of the exercise of discretion by the trial court, not of the underlying question of

whether the verdict is against the weight of the evidence.” State v. Linderman, 958

N.W.2d 211, 218 (Iowa Ct. App. 2021) (quoting State v. Reeves, 670 N.W.2d 199,

203 (Iowa 2003)). Suffice it to say we discern no abuse of discretion in the court’s

ruling.

VI. Ineffective Assistance of Counsel

Flores contends his trial attorney “was ineffective when he failed to object

to witness vouching by the State’s forensic interviewer.” The court cannot address
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his ineffective-assistance-of-counsel claim on appeal. See Tucker, 982 N.W.2d at

652 (citing Iowa Code § 814.7 (2022)).

We affirm the jury’s findings of guilt and the judgment and sentence.

AFFIRMED.