STATE OF IOWA, Plaintiff-Appellee, vs. DONOVAN ALLEN MABIE-BAHR, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-188 / 06-0143
Filed June 27, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DONOVAN ALLEN MABIE-BAHR,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, William L.
Dowell, Judge.
Donovan Allen Mabie-Bahr appeals his conviction and sentence for
enticing away a minor and third-degree sexual abuse. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney
General, Patrick C. Jackson, County Attorney, and Lisa K. Taylor, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Mahan, JJ.
2
MAHAN, J.
Donovan Allen Mabie-Bahr appeals his conviction and sentence for
enticing away a minor and third-degree sexual abuse in violation of Iowa Code
sections 710.10(1), 709.1, and 709.4(2)(b) (2005). He argues the district court
erred by (1) overruling his motion for judgment of acquittal based on insufficiency
of the evidence and (2) denying his request for a jury instruction on mistake of
fact. He also argues he received ineffective assistance when his counsel failed
to adequately argue the motion for judgment of acquittal and request jury
instructions on inconsistent statements. We affirm.
I. Background Facts and Proceedings
On February 25, 2005, Mabie-Bahr met twelve-year-old J.G. at a hotel in
Burlington.
The day before, J.G.’s mother called Mabie-Bahr to tell him her
daughter was only twelve.
Mabie-Bahr and J.G. had been conversing via
Internet chat rooms and the telephone since late December 2004 or early
January 2005. J.G. had been in Mabie-Bahr’s hotel room for approximately two
hours when she called home to tell her grandfather she was staying with a friend
for the night. Her grandfather told her he knew she was lying and demanded she
come home. J.G.’s grandmother was speaking to authorities when J.G. arrived
home.
Her grandfather stopped her from changing clothes and washing the
clothing she had been wearing at the hotel.
question J.G.
Officers came to the home to
She was examined at the hospital, where a rape kit was
performed. Throughout this time, J.G. denied having sexual intercourse with
Mabie-Bahr. The rape kit yielded no male DNA and no sperm on the vaginal
smears or swabs.
J.G. had no evidence of bruising, lacerations, or vaginal
3
trauma. No foreign pubic hairs were found. There was, however, both malespecific prostate antigen on J.G.’s underwear and a few sperm on the inside of
her jeans.
When officers located Mabie-Bahr in his hotel room, he first denied having
a young female visitor. Later, he admitted J.G. had been to his room. He told
officers J.G.’s online profile stated she was eighteen.
He denied having
intercourse with her that evening. Instead, he told officers the two did not “click,”
he got bored with their conversation and began playing video games, and J.G.
left in less than one hour.
A few weeks later, J.G., fearing she was pregnant, told authorities she had
sex with Mabie-Bahr in his hotel room on February 25, 2005. Mabie-Bahr was
charged with one count of enticing away a minor and one count of third-degree
sexual abuse. At trial J.G. testified that though she had lied about her age on the
Internet, Mabie-Bahr knew her true age. The two had exchanged pictures via
email, talked in three-way conversations with two of J.G.’s friends, and discussed
not telling anyone about their meeting because it was illegal. She stated MabieBahr had “talked dirty” to her on the Internet and on at least one of the three-way
phone conversations. The jury convicted Mabie-Bahr, and he was sentenced to
ten years and fined $1000 for each count. Mabie-Bahr appeals.
II. Standard of Review
We review motions for judgment of acquittal for errors at law. State v.
Hutchison, 721 N.W.2d 776, 780 (Iowa 2006). We review the district court’s
refusal to give a jury instruction for abuse of discretion. State v. Piper, 663
4
N.W.2d 894, 914 (Iowa 2003). We review claims of ineffective assistance of
counsel de novo. State v. Tejeda, 677 N.W.2d 744, 754 (Iowa 2004).
III. Merits
A. Judgment of Acquittal
Our supreme court recently outlined our review of a district court’s denial
of a motion for judgment of acquittal:
In determining the correctness of a ruling on a motion for judgment
of acquittal, we do not resolve conflicts in the evidence, pass upon
the credibility of witnesses, or weigh the evidence. Instead, we
ascertain whether the evidence could convince a rational jury of the
defendant’s guilt beyond a reasonable doubt. Evidence that raises
only a suspicion or generates only speculation is not substantial. In
evaluating the evidence, we consider all the evidence in the record,
and we view it in the light most favorable to the jury’s verdict.
Hutchison, 721 N.W.2d at 780 (citations and quotations omitted).
In order to prove count I, the State had to prove Mabie-Bahr, without
authority and with the intent to commit sexual abuse or sexual exploitation upon
a minor under the age of thirteen, enticed away a minor under the age of thirteen
or reasonably believed to be under the age of thirteen. See Iowa Code § 710.10.
The day before J.G. and Mabie-Bahr met, J.G.’s mother called Mabie-Bahr and
told him her daughter was only twelve. Testimony indicates a copy of J.G.’s
mother’s phone records showing the call was entered into evidence. Though
J.G. admitted that she represented herself as eighteen online, she also said she,
Mabie-Bahr, and her friend spoke together and Mabie-Bahr knew her friend was
fourteen. She and Mabie-Bahr also exchanged pictures. Mabie-Bahr reportedly
told another hotel guest J.G. was “too young for him.” The record indicates
Mabie-Bahr had sexually explicit conversations with J.G. online and on the
5
telephone. He spoke to her about sex when one of her friends was on a threeway call with him and J.G. He asked her to spend the night with him at the hotel.
The two discussed keeping the meeting secret.
We conclude the evidence
presented could convince a rational jury Mabie-Bahr intended to entice J.G.
away.
On count II, Mabie-Bahr challenges the sufficiency of the evidence
showing a sex act occurred. In order to prove a sex act occurred, the State had
to show “penetration of the penis into the vagina or anus; contact between the
genitalia of one person and the genitalia or anus of another person; or contact
between the finger or hand of one person and the genitalia or anus of another
person.” Id. § 702.17. J.G. testified she initially told police she did not have
sexual contact with Mabie-Bahr because she was in love with him and did not
want him to be in trouble. She changed her story weeks later because she
feared she was pregnant. She said Mabie-Bahr touched her breasts and vagina
with his hands and penis. She also testified she had vaginal intercourse with
Mabie-Bahr, but that he ejaculated on her stomach and breasts. He confirmed,
as she told police, that he only wore boxer shorts. She also stated he told her he
had a low sperm count and no sexually transmitted diseases. Further, J.G.’s
grandfather caught her trying to change clothes before being examined, and
trying to wash the clothing she was wearing during the encounter. We conclude
the evidence presented could convince a rational jury a sex act occurred.
B. Mistake of Fact Instruction
Mabie-Bahr alleges the district court erred in rejecting his request for a
mistake of fact jury instruction.
He argues the instruction was necessary
6
because his defense relied partially on the assertion he was unaware of J.G.’s
age. The requested instruction reminded the jury it was the State’s burden to
show Mabie-Bahr was not acting under a mistake of fact as to J.G.’s age.
Mistake of fact as to age is not a defense for third-degree sexual abuse,
count II against Mabie-Bahr.
See id. § 709.4.
Two other jury instructions
adequately informed the jury of the State’s burden in count I, enticing away a
minor. Instruction 25 informed the jury the State had to prove:
4. At the time J.G. was enticed away, the Defendant either:
a) knew J.G. was under 13 years of age; or,
b) reasonably believed J.G. was under the age of 13 years.
If the State has proved all of the numbered elements, the defendant
is guilty of Enticing Away a Minor With the Intent to Commit Sexual
Abuse. If the State has failed to prove any one of the numbered
elements, the defendant is not guilty of Enticing Away a Minor With
the Intent to Commit Sexual Abuse and you will then consider the
charge of Enticing Away a Minor With the Intent to Commit an
Illegal Act. . . .
Further, Instruction 21 informed the jury:
Concerning element No. 4(a) of Instruction No. 25, for the
defendant to know or have knowledge of something means he had
a conscious awareness that J.G. was under 13 years of age.
Because the mistake of fact instruction Mabie-Bahr requested would have only
repeated this information, we conclude the district court did not abuse its
discretion in refusing to give the instruction. See Kiesau v. Bantz, 686 N.W.2d
164, 175 (Iowa 2004) (noting district court is only required to give requested
instruction if the instruction correctly states an applicable rule of law and the
concept is not otherwise contained in other instructions).
7
C. Ineffective Assistance of Counsel
Mabie-Bahr claims he received ineffective assistance of counsel when his
attorney (1) made an inadequate motion for judgment of acquittal and (2) failed to
request jury instructions on prior inconsistent statements.
Generally, we
preserve ineffective assistance of counsel claims for postconviction relief actions.
State v. Tate, 710 N.W.2d 237, 240-41 (Iowa 2006). This practice ensures both
that an adequate record of the claim may be developed and that the attorney
charged with ineffectiveness may have an opportunity to respond.
Biddle, 652 N.W.2d 191, 203 (Iowa 2002).
State v.
We conclude the record here is
inadequate to address Mabie-Bahr’s claims. We therefore preserve the claims
for possible postconviction relief proceedings.
Mabie-Bahr’s conviction and sentence is affirmed.
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
