State of Iowa, Plaintiff–Appellee, v. Timothy James Smith, Defendant–Appellant. (2026)

A jury found Timothy Smith guilty of sexual abuse in the third degree. The primary question at trial was one of consent. At trial, Smith testified that each of his encounters with J.K. in the months before the charged incident were consensual. J.K. testified that each of those encounters were against her will. Smith raises one issue on appeal. He argues the district court should have permitted Darrie Rowe to inform the jury what J.K. said to him at his shop in the fall of 2021: that she was biding her time until she could get Smith “put in jail,” and that “DNA does not lie.” We agree with Smith that the court's stated ground for excluding that testimony was mistaken. A prior inconsistent statement offered to impeach is not hearsay, and it does not become inadmissible because it touches a contested element.

But the statement's exclusion here was nonetheless correct—for a reason that does not depend on the court's hearsay ruling. Impeachment by a prior inconsistent statement requires an inconsistency, and the defense never made a record of any such inconsistency. J.K. was not asked whether she made the statements Rowe attributed to her. She was not recalled, and no offer of proof established what she would have said if asked. On that record, there was nothing for Rowe's testimony to impeach. We thus affirm.

BACKGROUND FACTS AND PROCEEDINGS

Smith and J.K. met in 2016, when J.K. brought her car to the mechanic shop Smith operated in Robins. They began dating soon after. Smith was married at the time.

The couple's daughter was born in August 2017. J.K. ended the relationship in October 2019, and a no-contact order protecting her was entered that year. She moved to the Des Moines area, where she lived until December 2021.

Smith established paternity and sought visitation. In the fall of 2021, the district court entered a visitation order giving J.K. primary care and Smith parenting time every other weekend. The no-contact order was modified to allow third-party exchanges of the child in Grinnell, roughly midway between the parties’ homes.

J.K. moved back to the Cedar Rapids area in December 2021. Exchanges then shifted to locations near both parties, most often Smith's shop, which had moved from Robins to Marion. Both J.K. and Smith acknowledged at trial that their contact during this period went beyond what the no-contact order permitted.

What happened between December 2021 and April 2022 was the central dispute at trial. J.K. and Smith each described five or six sexual encounters over those months, most at the shop and two during overnight family trips to hotels in Dubuque and Davenport. J.K. testified that each encounter, whether fondling or intercourse, was nonconsensual. Smith testified that each was consensual. On cross-examination, J.K. acknowledged that she kept returning to the shop for exchanges after the earlier encounters and agreed to both hotel trips. She also acknowledged that she did not want Smith to have visitation with their daughter.

J.K. testified that beginning in late December 2021, she secretly recorded roughly ninety percent of her interactions with Smith on her phone. She produced one such recording, made on March 23, 2022, which the State offered and the court admitted. On that recording, Smith seeks physical intimacy while the parties’ daughter plays in an adjoining room, and J.K. is heard telling him “no” and “stop” a number of times. She can also be heard laughing at points. J.K. testified that the laughter reflected stress and an effort to keep her daughter from hearing, denied that any of her refusals were playful, and testified that the encounter was typical of the period. Smith testified that the recording was accurate and that the encounter was consensual.

The charged conduct occurred on Sunday, April 10, 2022, at Smith's shop. J.K. testified that she came to pick up their daughter at the end of Smith's weekend visitation, that the child fell asleep at the front of the shop, and that Smith said he wanted to “mess around.” She told him no; he walked her to her car, away from where the child was sleeping; he unfastened and pulled down her pants as she repeatedly refastened them; and he bent her over the car and penetrated her vaginally. She testified that she said no several times but did not physically push him away, and that the encounter resembled the recorded March incident. She denied fabricating the allegation and denied that there had ever been any understanding between them that “no” meant “yes.”

Smith gave a different account. He testified that J.K. picked him and their daughter up that morning, that the three spent the day together, and that they returned to the shop in the afternoon, where the two had consensual intercourse while their daughter watched television in another room. He testified that J.K. often said “no, no, no, no” playfully during intimacy and enjoyed role playing, which he estimated occurred about sixty percent of the time, but that she did not do so on April 10.

Two days later, on April 12, J.K. underwent a sexual assault examination at a Cedar Rapids hospital. No injuries were observed. She reported the assault to the Marion Police Department, was interviewed, and provided officers with text messages from April 2022. Those messages, admitted at trial, include friendly exchanges on April 11, the day after the charged incident, and an April 15 message referencing having said “no” to messing around.

Officers interviewed Smith on May 2 at an attorney's office, and the interview was recorded on a body-worn camera and admitted at trial. Smith denied having contact with J.K. outside of custody exchanges. He denied that any sexual contact, consensual or otherwise, had occurred on April 10, and officers collected a DNA sample. At trial, Smith acknowledged that he had lied to the officers, explaining that he feared admitting contact would expose him to a violation of the no-contact order.

The State submitted the sexual assault kit and the clothing collected from J.K. to the Iowa Division of Criminal Investigation Criminalistics Laboratory. A report issued September 13, 2022, identified seminal fluid on a portion of J.K.’s underwear, and the DNA profile developed from that sample matched Smith's known profile. The State then charged Smith with sexual abuse in the third degree.

The case was tried before a jury in April 2025. After the State rested, Smith called four witnesses who had known both him and J.K., and he testified in his own defense.

Darrie Rowe had operated a business next to Smith's shop in Robins and came to know J.K. when she began spending time there in 2017. He and his wife stayed in touch with J.K. after she and Smith separated, and Rowe later moved his business to Urbana. He testified that his view of J.K.’s truthfulness had changed over time and that he no longer trusted her. He was permitted to testify that he had a conversation with J.K. when she came to his Urbana shop to pick up tires, but the district court excluded the substance of that conversation.

Kyle Cave, a relative of Smith's, who worked at the Marion shop during the winter of 2021 and 2022, testified that he saw J.K. there a number of times, sometimes late at night and again the next morning, and that he once saw her sitting on Smith's lap in the office. Sam Nemer, a longtime customer and close friend of Smith's, testified that he saw J.K. at the Marion shop two or three times a week after she returned to the area and that she and Smith were affectionate. He was at the shop on April 10, 2022, spoke with J.K. for a couple of hours, and observed nothing concerning. He also testified that he did not consider J.K. honest.

Alexandrea Thompson had known Smith since childhood and considered him a father figure. She met J.K. through her own father in 2021. She testified that in the fall of 2021, at her father's house, she was complaining about the father of her own children when J.K. said she could relate. J.K. said she did not want the father of her child to have any rights to or anything to do with the child. J.K. went on to state she was not too worried about it, had a plan, and planned to set the father up on a rape charge or some similar charge. Thompson testified that she then asked who the father was and that J.K. named Smith, apparently unaware that Thompson knew him. Thompson said she brushed the remark off at the time and did not take it seriously.

The evidentiary ruling at issue developed over the course of the trial. Before trial, Smith told the court that he intended to offer prior inconsistent statements J.K. had made to third parties as non-hearsay impeachment if she denied making them. The court responded that the question would have to be addressed in light of the evidence as offered. During Smith's cross-examination of J.K., the State objected on hearsay grounds to a question about what J.K. had told Nemer, and the court sustained the objection following an unreported bench conference. Smith then asked J.K. whether she knew Thompson and Rowe and whether she had discussed the allegations or this case with either of them. She said she had not. As to Rowe, she said she had spoken with him and his wife when she picked up tires at his Urbana shop, that the conversation had not concerned this case, and that she believed it took place in October 2021, before the charged incident. Smith did not ask J.K. whether she had made the particular statements the defense attributed to her, and no offer of proof was made during her testimony.

Later in the trial, defense counsel made a record of his understanding of the bench ruling. He explained that his questions had been aimed at satisfying Iowa Rule of Evidence 5.613(b), which he understood to require confronting a witness with a prior statement before extrinsic evidence of it could be offered, and that the court's ruling had limited him to asking whether a conversation had occurred at all. He said he still intended to call witnesses who would testify that J.K. had told them her allegations were false. The court, at that stage of the trial, took the view that a prior statement offered as impeachment had to independently satisfy a hearsay exception and could not bear on an element of the offense.

When Rowe testified and was questioned about conversations with J.K., the State again objected on hearsay grounds. The court allowed Smith to establish that a conversation had taken place but not its contents. Smith made an offer of proof outside the jury's presence. Rowe testified that when he asked J.K. who would mount the tires she had picked up, she answered that Smith would; when he asked whether she and Smith were seeing each other again, she said she was “biding [her] time for now”; when he asked what she meant, she said she was “biding [her] time until [she could] get his ass put in jail”; and when he asked how she would do that, she said, “DNA does not lie,” laughed, and changed the subject. Rowe added that the exchange struck him as odd but that he had taken it as an empty threat. The court reaffirmed its ruling that Rowe could say a conversation had occurred but could not describe it.

Smith later made an offer of proof as to Thompson. During the discussion that followed, the court revisited Rowe's proffered testimony. Defense counsel argued that the inconsistency lay in J.K.’s testimony that the encounter was against her will and without her consent, and that the accounts of both Thompson and Rowe described a plan to have sex with Smith and then report it. The court ruled that Thompson could testify to what J.K. had told her, but adhered to its exclusion of Rowe's testimony, explaining that Rowe's account was open to more than one reading, one inconsistent with J.K.’s trial testimony and one not. Counsel responded that any ambiguity went to the weight the jury might give the statements rather than to their admissibility. Thompson then testified before the jury to the statements described above.

In rebuttal, the State recalled J.K., who testified that she had never playfully said “no” at any point during the relationship. The State introduced text messages from 2019 in which J.K. told Smith that they had more than trust issues because she had once ended up having sex after saying “no,” and told him that he needed to speak with a counselor about his sexual desire because “no” means “no.”

The court instructed the jury on witness credibility and on the limited use of prior inconsistent statements. On April 8, 2025, the jury found Smith guilty of sexual abuse in the third degree, a class “C” felony, in violation of Iowa Code sections 709.1 and 709.4(1)(a) (2022).

Smith moved for a new trial, renewing his challenge to the exclusion of Rowe's testimony. The State resisted. The district court denied the motion on June 26, observing that it had made detailed findings on the record concerning the evidentiary rulings and declining to revisit them.

In a separate case, Smith pleaded guilty to stalking in violation of a protective order, a class “D” felony, in violation of Iowa Code section 708.11(3)(b)(1). A second count was dismissed under the plea agreement.

The district court sentenced Smith in both cases at a joint hearing and entered judgment on July 3. It imposed an indeterminate term not to exceed ten years on the sexual-abuse conviction, together with the special sentence required by Iowa Code section 903B.1 and sex offender registration, and an indeterminate term not to exceed five years on the stalking conviction, along with the financial obligations accompanying each. The court ordered the two sentences to run consecutively. Smith appealed in each case. On January 16, 2026, the supreme court granted his motion to consolidate and merged the appeals. Smith raises a single issue: whether the district court erred in excluding, as impeachment evidence, Rowe's testimony concerning prior statements by J.K.

STANDARD OF REVIEW

Whether a statement is hearsay, and whether a prior inconsistent statement offered to impeach falls outside the definition of hearsay, are questions of law we review for correction of errors at law. See State v. Long, 628 N.W.2d 440, 447 (Iowa 2001).

We review rulings applying rule 5.613—including whether a prior statement is inconsistent enough with trial testimony to be received for impeachment—for an abuse of discretion. See Bauer v. Cole, 467 N.W.2d 221, 225 (Iowa 1991); State v. Berry, 549 N.W.2d 316, 319 (Iowa Ct. App. 1996).

DISCUSSION

Iowa law does not permit a party to spring a third party's account of a witness's out-of-court statement onto the jury without first confronting the witness with it. See Iowa R. Evid. 5.613(b). Rule 5.613(b) is explicit: extrinsic evidence of a prior inconsistent statement “is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.” The rule presupposes that the impeaching statement has been put to the witness so she can address it. Just as fundamentally, there must be something to impeach. As our supreme court has held, for “an out-of-court statement to be admissible as impeachment, there must be a contradictory statement by the witness.” State v. Swift, 955 N.W.2d 876, 882 (Iowa 2021). Thus, impeachment operates on testimony the witness actually gave; it is not a vehicle for introducing a third party's version of events the witness was never asked about.

Smith never confronted J.K. with Rowe's specific statements to her. So she was never locked-in to any statements which contradicted Rowe's account. When she testified on cross-examination, J.K. acknowledged her contacts with Rowe: she knew him because his shop had been next to Smith's in Robins; she “contacted him for like car parts and such” and communicated “[m]ost[ly by] texts”; and she went to his Urbana shop “to pick up tires” and talked “[a] little bit” with “[h]im and his wife.” When asked whether she had “ever discussed with him anything involving this case there at the shop,” she answered, “No,” placing her conversation with him “prior to this incident,” in “October of ‘21.” She was never asked about—and never denied—the specific statements Rowe attributes to her: “biding [her] time” until she could put Smith in jail, or that “DNA does not lie.” We appreciate the importance of this evidence to Smith's case.

That omission is dispositive. Because J.K. was never confronted with the specific statements, the record contains no denial of them for Rowe's account to contradict. There is no “contradictory statement by the witness” as to the very words the defense wants to prove. Swift, 955 N.W.2d at 882. Where a witness has not been confronted and locked-in, “the only subject to be impeached is the witness's memory,” and counsel is “not free to read into evidence the prior statement.” Id. at 882–83 (citations omitted).

In fairness, defense counsel attempted to lock-in and confront J.K. with specific statements Rowe would later attempt to testify to for impeachment purposes. The district court told counsel it had forbidden the questions about the specific comments J.K. made and counsel could only ask if there was any conversation about the case. Responding to counsel's objection that the ruling created a “catch twenty-two,” the court said it had limited counsel to asking whether a conversation occurred “because the substance of the conversation is by definition hearsay. So that is why I didn't let you ask about that.”

Impeachment evidence, the court explained, “is not to substantively determine whether or not the elements of the offense have been met,” and “the statements need to be admissible in the first place.” But that premise is contrary to settled law. “A prior, inconsistent, out-of-court statement, offered for impeachment purposes, does not come within the definition of hearsay.” State v. Hill, 243 N.W.2d 567, 570 (Iowa 1976); accord Brooks v. Holtz, 661 N.W.2d 526, 530–31 (Iowa 2003). No exception is required because the statement is not offered to prove what it asserts; it is offered to show that the witness “is not reliable because what he says now is contrary to what he said at some previous time.” Hill, 243 N.W.2d at 570 (citation omitted). Counsel cannot be faulted for not doing what the court told him he had been forbidden to do. However, the only offer of proof in the record concerned Rowe—what he would say—not J.K. The defense never recalled J.K. and never made an offer of proof establishing that, if confronted with the specific statements, she would deny making them. The foundation that rule 5.613(b) requires—the witness's opportunity to explain or deny the specific statement—was never created, and the defense made no record to supply it.¹ A party that wishes to impeach with a prior inconsistent statement bears the burden of laying that foundation; the defense did not carry it.

AFFIRMED.

Defense counsel called it a catch twenty-two while the trial was still underway. He had been told he could not ask J.K. what she said to Darrie Rowe because the substance of that conversation was, in the district court's words, “by definition hearsay. So that is why I didn't let you ask about that.” Counsel objected that the ruling left him nowhere to stand. He was right, though not in the way he then understood. We affirm today because he never asked J.K. about the specific statements Rowe attributed to her in an offer of proof after getting cut off. That is, the very question the court forbade him to ask has become the reason his client loses.

I wrote separately in State v. Roberts to explain why I believe Iowa should adopt plain error review. See State v. Roberts, No. 25-0412, 2026 WL 1970502, at *3–13 (Iowa Ct. App. July 8, 2026) (Sandy, J., specially concurring). I will not repeat that argument here. But if Roberts made the case for plain error review in the abstract, this record makes it in practice.

Timothy Smith now has no way to raise the error because the very ruling he would challenge is what kept him from building the record our rules require. Whether today's holding is better described as a failure of preservation or a failure of foundation, the consequence is the same. A plain legal error stands uncorrected, and the only road left to Smith runs through an attack on the one participant in this trial—defense counsel—who did exactly as he was told.

I. The Error Was Plain

Since 1976, the rule in Iowa has been that a prior inconsistent out-of-court statement, offered to impeach, does not come within the definition of hearsay. State v. Hill, 243 N.W.2d 567, 570 (Iowa 1976); Brooks v. Holtz, 661 N.W.2d 526, 531 (Iowa 2003). The reason is elementary. The statement was offered to show that “the witness is not reliable because what he says now is contrary to what he said at some previous time.” Hill, 243 N.W.2d at 570 (citation omitted).

The district court held the opposite. It concluded that a prior statement offered for impeachment must independently satisfy a hearsay exception—the statements, it said, “need to be admissible in the first place”—and that a statement bearing on an element of the offense is not impeachment at all because impeachment evidence “is not to substantively determine whether or not the elements of the offense have been met.” That is wrong, and the district court inverted the governing test. Impeachment by prior inconsistent statement is confined to material and non-collateral matters. Id. at 571. Consent was the sole contested element at this trial. That the proffered statements bore on consent is what made them non-collateral. It is not what disqualified them. And the risk that a jury might take them as substantive proof is answered by a limiting instruction, see Iowa R. Evid. 5.105, which counsel expressly invited.

That is what plain error means. The first Olano prong asks whether the court deviated from a legal rule. See United States v. Olano, 507 U.S. 725, 732–33 (1993). The second asks whether the deviation was clear under law settled at the time of appellate consideration. Id. at 734; Johnson v. United States, 520 U.S. 461, 466–67 (1997). Here, the law was settled in 1976 and has not moved since. The district court itself came to see it. Presented with Alexandrea Thompson's proffer later in the trial, the court abandoned the hearsay rationale and admitted her account of the same declarant's statements to the same effect. But by then, the cross-examination its earlier ruling had truncated was over and the record our rules require had not been made.

II. The Error Affected Substantial Rights

This was a credibility case and little else. Smith admitted the sex act and the State's forensic evidence confirmed it. The single contested question was consent, and the only direct evidence on it was the competing testimony of J.K. and Smith. The jury was instructed that in deciding what testimony to believe, it could consider whether a witness had made inconsistent statements, and it could weigh a witness's interest in the trial, motive, candor, bias, and prejudice. In a case tried on those terms, evidence that the complaining witness had announced months earlier that she was “biding [her] time until [she could] get his ass put in jail,” and that when asked how she would manage that, she answered, “DNA does not lie,” is not marginal.

Neither was it cumulative of Thompson's testimony. Thompson was herself impeached. The State drew out that she had placed the conversation in a different year when deposed, and the jury was instructed that she had admitted a criminal conviction bearing on her credibility. She had known Smith since childhood and regarded him as a father figure. Rowe stood differently. By his own account, he had been closer to J.K. than to Smith, described himself as a grandfather figure to the parties’ daughter, kept in contact with J.K. after the separation, and it was he who sent her Smith's booking photograph. Corroboration of an impeached witness by an independent and differently aligned one is not cumulative. Rowe supplied what Thompson could not. Thompson described a plan. Rowe described the means—months before the charged encounter—and named the very category of evidence on which the State's case came to rest. As it was, the jury learned that Rowe and J.K. had spoken about her relationship with Smith and was left to speculate about what was said. Rowe's general opinion that he did not trust J.K. is no substitute for a specific statement of intent attributed to the witness herself.

On a preserved evidentiary claim, the State bears the burden of affirmatively establishing the absence of prejudice. State v. Sullivan, 679 N.W.2d 19, 30 (Iowa 2004); State v. Kepner, 27 N.W.3d 545, 558 (Iowa 2025). Under the third Olano prong, the burden runs the other way, and the defendant must show the error affected the outcome. Olano, 507 U.S. at 734. The fourth prong asks whether leaving the error uncorrected would seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id. at 736; see Rosales-Mireles v. United States, 585 U.S. 129, 137 (2018). On this record, I believe Smith would carry that burden.

III. The Mistake Was the Court's, Not Counsel's

Iowa Code section 814.7 leaves Smith a single route. He must file for postconviction relief and prove that his lawyer was constitutionally ineffective. See Iowa Code § 814.7. What would the deficiency be? Counsel gave notice on the first day of trial that he intended to offer statements of this kind through third parties. He attempted to ask J.K. about the conversation. The court told him he could not and informed him why. He accepted the ruling. After all, a party may take the district court at its word about the scope of its own ruling. He made an offer of proof through Rowe which the State cross-examined. He made a separate record of his understanding of the bench ruling. He supplied authority and obtained a second ruling the next court day. He renewed the challenge in a motion for new trial.

The Michigan Supreme Court has explained the difficulty this creates. An obvious judicial error does not, without more, carry a defendant's burden of proving an ineffective-assistance-of-counsel claim under Strickland “because Strickland’s two prongs ask different questions.” People v. Randolph, 917 N.W.2d 249, 254 (Mich. 2018); see Strickland v. Washington, 466 U.S. 668, 687 (1984). Because counsel may decline to press a point for strategic reasons, a plausible strategy defeats the deficiency prong no matter how plain the underlying error. See Randolph, 917 N.W.2d at 254. Here, we need not hypothesize why counsel stopped short. The transcript shows he tried and was told “no.” So Smith will wait—through the years of collateral litigation Chief Judge Tabor catalogued in State v. Young, No. 23-1924, 2025 WL 1452559, at *8–9 (Iowa Ct. App. May 21, 2025) (Tabor, C.J., specially concurring)—to raise a question we could answer now.

CONCLUSION

We hold the claim unavailable because counsel did not ask a question the district court forbade him to ask. Error preservation exists so that district courts have a genuine opportunity to correct their own mistakes before we intervene. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). This district court had that opportunity at the bench conference, again during the offer of proof, again the next court day, and again on the motion for new trial. It was asked each time. Whatever else may be said for the rule we apply today, it is not vindicating the purpose that justifies it. This case illustrates why my concerns outlined in Roberts are not hypothetical. But I am bound by State v. Treptow, 960 N.W.2d 98, 109 (Iowa 2021), which squarely rejected plain error review, and I am not at liberty to overturn it. See State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990). I therefore concur in the judgment.

FOOTNOTES

1.   Rule 5.613(b) imposes no sequencing requirement. It conditions admissibility of extrinsic evidence only on the witness's being afforded, at some point during trial, an opportunity to explain or deny—an opportunity the witness's availability for recall may itself supply—and it permits admission even without that opportunity “if justice so requires.” Iowa R. Evid. 5.613(b); see 7 Laurie Kratky Doré, Iowa Practice Series: Evidence § 5.613:1 (2025). Neither provision aids Smith. The proponent bears the burden of laying the foundation or of asking the court to invoke that discretion, and Smith neither recalled J.K. nor asked that Rowe's account be received “if justice so requires.” Regardless, both provisions govern only the timing and manner of the opportunity to explain or deny; each presupposes an inconsistency to impeach. Because J.K. was never confronted with the specific statements and no offer of proof showed she would deny them, no inconsistency was established, and the court's discretion over the timing of the opportunity had nothing on which to operate. Iowa has not adopted the 2024 amendment to Federal Rule of Evidence 613(b), which now requires that the opportunity precede the extrinsic evidence.

Opinion Per Curiam.

Sandy, J., specially concurs.