State of Iowa v. Tommy Gene Collins

IN THE COURT OF APPEALS OF IOWA

No. 22-1593
Filed April 10, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

TOMMY GENE COLLINS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Boone County,

Christopher C. Polking, Judge.

Tommy Gene Collins appeals his criminal convictions. AFFIRMED.

Katherine N. Flickinger of Hastings & Gartin Law Group, LLC, Ames, for

appellant.

Brenna Bird, Attorney General, and Anagha Dixit, Assistant Attorney

General, for appellee.

Considered by Greer, P.J., and Ahlers and Buller, JJ.
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AHLERS, Judge.

Based on claims of sexual contact with children, the State charged Tommy

Collins with one count of continuous sexual abuse of a child, two counts of sexual

abuse in the second degree, two counts of sexual abuse in the third degree, one

count of lascivious acts with a child, and one count of indecent contact with a child.

Following a trial, the jury found Collins guilty of all charges except the charges of

lascivious acts with a child and indecent contact with a child.

Collins appeals. He raises two issues. First, he contends the district court

erred by refusing to admit his testimony that he offered to speak with law

enforcement officers during their investigation of the charges. Second, he

contends his state and federal due process rights were violated when the district

court did not require the State to specify which actions formed the basis for each

count with which he was charged. We address each issue in turn.

I. Exclusion of Evidence

The first issue stems from the details of law enforcement’s investigation of

the charges. After Collins was interviewed once, but before charges were filed, a

detective sought to interview Collins a second time. Collins agreed, but only if the

interview was not recorded and could take place in the courthouse law library with

his attorney present. Upon hearing those conditions, the detective declined to

conduct the second interview. At trial, Collins sought to introduce evidence that

he had agreed to be interviewed again, but the detective decided not to conduct

the second interview. The State objected. Collins asserted the evidence was

probative of his innocent state of mind and the “shoddy” police investigation.
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The district court excluded the evidence. It expressed concerns that such

evidence opened the door to responsive evidence and arguments by the

prosecution as to why the detective declined to conduct the second interview and

such responsive evidence and argument would inevitably and inappropriately

comment on Collins’s exercise of his rights and would lead to confusion. Collins

challenges this evidentiary ruling.

We review evidentiary rulings for abuse of discretion. State v. Thoren, 970

N.W.2d 611, 620 (Iowa 2022). A court’s ruling is an abuse of discretion if it is

based on reasons that are clearly unreasonable or clearly untenable. Id. We give

evidentiary decisions wide latitude “so long as the district court did not ignore the

established rules of evidence.” State v. Thompson, 954 N.W.2d 402, 406 (Iowa

2021).

As a general rule, “[t]he State cannot comment on a defendant’s invocation

of constitutional rights.” State v. Craney, 347 N.W.2d 668, 679 (Iowa 1984). Of

course, Collins presents us with the unusual situation in which a defendant wanted

to introduce evidence inviting the State to comment on his right to counsel. Collins

argues the evidence should have been admitted because it was relevant. But

relevant evidence may still be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice. Iowa R. Evid. 5.403.

We agree with the district court that such evidence would have opened the

door to questions from the prosecution that would comment on Collins’s right to

counsel.

“[O]pening the door” . . . pertains to the ability of a party to rebut
inadmissible evidence offered by an adversary and provides that
“one who induces a trial court to let down the bars to a field of inquiry
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that is not competent or relevant to the issues cannot complain if his
adversary is also allowed to avail himself of the opening.”

State v. Parker, 747 N.W.2d 196, 206 (Iowa 2008) (quoting State v. Mitchell, 670

N.W.2d 416, 420 (Iowa 2003)). “[I]t is not applicable until one party injects an

incompetent, irrelevant, or inadmissible matter into trial.” Id. Even then, the door

is opened only insofar as necessary for the instigating evidence to be rebutted.

See id. at 207‒08.

Collins sought to introduce evidence that would normally be inadmissible

because it implicated his right to have an attorney present. If Collins had been

permitted to introduce such evidence, it would have opened the door for rebuttal

by the prosecution. While Collins desired to introduce the evidence to show the

jury he was cooperative and forthcoming and the investigation was incomplete, the

State would have been entitled to respond by presenting evidence explaining why

the detective did not wish to speak to Collins with his attorney present, even if such

questions would ordinarily be prohibited. See id.

We find no abuse of discretion in the decision to prevent the defense from

introducing evidence about Collins’s agreement to be interviewed. The evidence

was marginally relevant, and the State would have been entitled to counter with

responsive evidence and argument that would have risked significant prejudice.

Neither party contests that the State cannot use a defendant’s choice to utilize

counsel to suggest guilt because it leads the jury into an unfair inference. State v.

Nelson, 234 N.W.2d 368, 373 (Iowa 1975) (“[T]he court should not penalize [the

defendant] by allowing the State to show the presence of the lawyers when such

evidence could have no purpose other than to raise an inference of guilt in the
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jurors’ minds.”). But that is the corner into which the State would have been

painted had Collins been permitted to introduce the challenged evidence. The

detective testified during the offer of proof on this topic that he finds it hard to get

at the truth in interviews with attorneys present and agreed that it’s a suspect’s

“way of testifying” without actually getting on the stand. Given this expected

response to the evidence Collins sought to introduce, the court did not abuse its

discretion in concluding that Collins’s proposed evidence and the State’s proposed

response would have confused the issues and the prejudice caused by the

competing evidence would substantially outweigh any probative value.

II. Specificity of Charges

As for Collins’s complaint that the district court erred by not requiring the

State to specify which actions formed the basis for each count with which he was

charged, we find no procedural issue available for our review. About a week before

trial, Collins filed a motion in limine based on Iowa Rule of Evidence 5.404(b)

seeking to exclude evidence about any alleged sex abuse for which Collins was

not charged. At the hearing on the motion, Collins added to his rule 5.404(b)

objection requesting the State elect what specific acts it was trying to prove for

each charge. The State responded by contending that the proper procedural tool

for raising this issue was a motion for a bill of particulars—a motion Collins never

filed—and the time available for filing such a motion had long passed. See Iowa

R. Crim. P. 2.11(5) (“When an indictment or information charges an offense in

accordance with this rule, but fails to specify the particulars of the offense

sufficiently to fairly enable the defendant to prepare a defense, the court may, on

written motion of the defendant, require the prosecuting attorney to furnish the
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defendant with a bill of particulars containing such particulars as may be necessary

for the preparation of the defense.”). The court declined to require any additional

specifics from the State.

At the district court, Collins raised this issue as an evidentiary objection. But

in substance, he was objecting to the lack of specifics in the trial information, not

raising an evidentiary objection. See Twyford v. Weber, 220 N.W.2d 919, 922‒23

(Iowa 1974) (explaining that motions in limine function to point out “certain

evidentiary rulings the court may be called upon to make during the course of trial”

before trial takes place). Collins has abandoned his rule 5.404(b) objection on

appeal. Instead, he frames his challenge as a due process claim, asserting that

he was denied a fair trial because the State did not provide adequate notice of the

details of the charges against him. But this is a challenge to the contents of the

trial information, which must be raised by filing a motion for bill of particulars. See

Iowa R. Crim. P. 2.11(5). Collins filed no such motion. See State v. Rankin, 181

N.W.2d 169, 171‒72 (Iowa 1970) (choosing not to examine whether the court

should have required the state to elect a specific incident when “[n]owhere in any

of defendant’s motions or objections is there even an intimation of such request”

until after the defendant had testified). And even if we considered the discussion

of the issue at the hearing on the motion in limine to practically function as a motion

challenging the trial information, it was made about six months after Collins was

arraigned, which was too late. See Iowa R. Crim. P. 2.11(5) (“A motion for a bill of

particulars may be made any time prior to or within ten days after

arraignment . . . .”). By failing to file a timely motion for bill of particulars or other
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challenge to the trial information, he has not preserved error on this challenge from

a procedural standpoint.

As to Collins’s overarching claim that he was denied a fair trial based on the

failure to provide specifics, evidence need not be exact as to how many sex acts

occurred and precisely when, and the State may present “all available evidence of

sexual abuse during a specified period of time” without charging for every single

act described. See State v. Bowers, 661 N.W.2d 536, 543 (Iowa 2003). The trial

information charged Collins with either one or two counts for each alleged victim,

with each count for each alleged victim specifying the alleged victim’s name, the

date range during which the alleged crime occurred, and the Code sections alleged

to be violated. The minutes of testimony describe the sexual contact alleged—for

example that Collins rubbed his penis on one of the victim’s genitals, touched her

vagina, and inserted his penis in her vagina. We consider the minutes of testimony

alongside the trial information. State v. Dalton, 674 N.W.2d 111, 120 (Iowa 2004).

The minutes explain when the alleged abuse started and describe specific

incidents. Taken together, the minutes and trial information are sufficient to have

put Collins on notice of the allegations against him. See State v. Bowers, 656

N.W.2d 349, 354 (Iowa 2002) (finding enough specificity when minutes state

defendant performed intercourse and oral sex on the victim, and defendant was

informed of the name of the crime, the Code sections defining the offense, the

name of the victims, and the location where the acts were alleged to have

occurred); State v. Griffin, 386 N.W.2d 529, 531‒32, 533 (Iowa 1986) (finding

enough specificity where trial information named the crime, the Code section, the

victim, and provided a date range, and the minutes of testimony described the
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specific acts, when the abuse began, and provided a specific event). Collins was

not denied a fair trial, so his due process rights were not violated.

III. Conclusion

The district court did not abuse its discretion in excluding evidence that

Collins offered to be interviewed by law enforcement. Collins failed to preserve

error on his challenge to the specificity of the charges in the trial information, and

Collins was not deprived of a fair trial by any alleged imprecision in the charges.

Accordingly, we affirm.

AFFIRMED.