IN THE SUPREME COURT OF IOWA
No. 12–0729
Filed December 5, 2014
STATE OF IOWA,
Appellee,
vs.
PATRICK MICHAEL DUDLEY,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Marion County, Darrell J.
Goodhue, Judge.
The State seeks further review of a court of appeals decision
reversing a defendant’s conviction because the district court allowed
expert testimony vouching for the victim’s credibility. DECISION OF
COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT
REVERSED AND CASE REMANDED WITH INSTRUCTIONS.
Kent Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant
Attorney General, Edward W. Bull, County Attorney, and Nicole L. Olson,
Assistant County Attorney, for appellee.
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WIGGINS, Justice.
This case involves two charges of sexual abuse in the second
degree in violation of Iowa Code section 709.3(2) (2009). A jury convicted
the defendant of these charges. On appeal, defendant contends he is
entitled to have the charges dismissed because the State failed to comply
with a plea bargain agreement. He also contends, if we do not dismiss
the charges, he is entitled to a new trial because certain expert witnesses
vouched for the credibility of the victim, the district court admitted
hearsay statements from the victim into the record, and the district court
did not allow him to use a prior conviction of a witness to impeach that
witness. We transferred the case to our court of appeals. The court of
appeals held the State did not violate the plea bargain agreement, but
the defendant is entitled to a new trial on the ground an expert witness
vouched for the credibility of the victim.
The State sought further review, which we granted. On further
review, we agree with the court of appeals that the State did not violate
the plea bargain agreement, but that the defendant is entitled to a new
trial on the ground an expert witness vouched for the credibility of the
victim. Therefore, we affirm the decision of the court of appeals and
remand the case for a new trial. On retrial, the district court should not
admit the victim’s hearsay statements into the record and should revisit
the use of the prior conviction consistent with this opinion.
I. Background Facts and Proceedings.
Patrick Dudley and his wife Kay lived in Northfield, Minnesota. In
June 2010, Dudley and his wife planned a trip to Knoxville, Iowa, to visit
a friend. The Dudleys took their ten-year-old granddaughter B.O. along
for the trip. When the Dudleys arrived in Knoxville, all three individuals
slept in one bedroom. The Dudleys slept on a mattress on the floor and
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B.O. slept in a sleeping bag on the floor. B.O. alleged on the second
night of the trip, after she and her grandparents went to bed, Dudley
touched her vagina with his hand. B.O. alleged he did the same thing on
the third night of the trip.
Dudley, his wife, and B.O. returned to Minnesota the next day. On
the evening she returned home, B.O. told her mother that her
grandfather had touched her vagina with his hand. B.O.’s parents called
the police in Minnesota to report the abuse. The Minnesota authorities
contacted the police in Knoxville to report the incident.
Later that month the child traveled to the Regional Child Protection
Center at Blank Children’s Hospital in Des Moines. Tammera Bibbins, a
forensic interviewer, conducted an interview of B.O. The purpose of the
interview was to determine if the authorities should continue their
investigation. The interviewer recommended further investigation.
The State eventually charged Dudley with two counts of sexual
abuse in the second degree. In September 2011, Dudley filed seven
motions in limine, including motions to exclude expert testimonies of
Bibbins and B.O.’s treating therapist, Mary Casey, and exclude the
testimony of B.O.’s neighbor, Pat Korinek. On December 27, Dudley also
filed a motion to dismiss the charges and enforce a pretrial plea
agreement. The district court overruled all the motions at issue in this
appeal.
Before trial, the county attorney made a plea offer to Dudley. The
county attorney agreed to dismiss the charges if Dudley passed a
polygraph test given by a certified test administrator. The county
attorney also notified Dudley the offer would expire once the parties took
B.O.’s deposition. Dudley initially refused to take a polygraph test and
did nothing with the offer for more than sixty days. After months had
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passed, the county attorney contacted Dudley to inform him he would be
making a trip to Minnesota to interview B.O., and once he did, all plea
offers were off the table. Dudley decided to take the polygraph test in
Minnesota but did so after the county attorney made the trip to speak
with B.O.
Dudley passed the Minnesota polygraph test and sent the results
to the county attorney. Dudley did not inform the county attorney he
had agreed to go forward with the test prior to the county attorney’s trip
to see the child. The county attorney only found out Dudley took the test
after Dudley sent him the results of the exam. The county attorney
agreed to look at the results but had concerns with the veracity of the
results. Even with these concerns and Dudley’s failure to inform the
county attorney that he decided to take the test, the county attorney
agreed to allow Dudley to take another exam in Iowa. Dudley did not
pass the Iowa test.1
Dudley filed a motion arguing the court should enforce the plea
agreement because he detrimentally relied upon the plea offer by waiving
his Fifth Amendment right against self-incrimination and his Sixth
Amendment right to a speedy trial. The district court denied Dudley’s
motion and the case proceeded to trial.
At trial, Casey, a board certified psychologist, testified she provided
therapeutic treatment to B.O. Casey testified she diagnosed B.O. with
posttraumatic stress disorder and generalized anxiety disorder. The
court permitted Casey to testify regarding typical physical manifestations
and symptoms of an individual suffering from posttraumatic stress
1The results of the Iowa polygraph test were not in the record before this court.
The county attorney indicated Dudley did not pass the exam during the pretrial motion
hearing.
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because of sexual abuse. Her descriptions matched, almost exactly, the
manifestations other witnesses had already testified B.O. was exhibiting.
Casey then testified to the observations she made of B.O.’s symptoms
and physical manifestations while she was treating the child. Casey
testified she observed some “telltale” physical manifestations such as the
child dressing in layers, cutting her hair, dressing “very boyish,” and
reacting to triggers such as seeing her grandfather’s car. Casey
concluded her testimony on direct examination with the following
exchange with the county attorney:
Q: Ma’am, based on your education, training, and
experience, do you have an opinion to a reasonable degree of
certainty in your field as to whether or not [B.O.]’s physical
manifestations were consistent with a child suffering from
sexual abuse trauma? A: Yes, they were consistent.
Q: And do you have an opinion based on your line of
work again, based on your credentials as to whether or not
her symptoms were consistent with a child dealing with
sexual abuse trauma? A: Yes, her symptoms were.
At trial, Bibbins testified to the type of interview she conducts with
children who have made allegations of sexual abuse. Bibbins testified
she conducted her interview with B.O. in the same manner. She also
explained to the jury the concepts of coaching a child and
suggestibility—using leading questions when interviewing the child.
Bibbins testified B.O.’s “statement was consistent throughout the entire
interview process.” The county attorney also asked Bibbins to opine
whether B.O.’s involvement with therapy was “problematic in the realm
of coaching” to which Bibbins answered she “did not see it as
problematic.” Bibbins also testified she made recommendations for B.O.
to receive therapy and cease all contact with Dudley.
Dudley also tried to exclude testimony regarding what B.O. had
told the child’s neighbor, Korinek, about the incident in Iowa. The
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district court stated it would allow the testimony so long as the State
established the statements qualified under the excited utterance
exception to hearsay. At trial, B.O.’s mother testified that after her
daughter told her about the incident the child went to bed. The next
morning the mother called Korinek and told her about B.O.’s accusation.
She asked Korinek to talk with B.O. about the trip with her
grandparents. B.O.’s mother then sent her to the neighbor’s home to
deliver eggs.
Korinek testified B.O. was not her normal bubbly self when she
arrived at the neighbor’s home. Korinek further testified she asked the
child what was wrong. B.O. began to cry and was very upset. Korinek
testified she prompted the child to tell her what was wrong a few times
before the child disclosed the incident to her. The State then asked
Korinek what B.O. told her had happened that caused the child to be so
upset. Over objection, the district court ruled the statements fell under
the excited utterance exception and permitted Korinek to respond.
Korinek testified B.O. told her Dudley had touched her vagina while they
were in Iowa.
Lastly, Dudley filed a notice of his intent to introduce evidence of a
prior criminal conviction of one of the State’s witnesses, Michael
Gannaway. During the course of the case, Dudley’s sister-in-law and her
boyfriend, Gannaway, were living with the Dudleys. Gannaway testified
that while he was living in Dudley’s home, Dudley disclosed to him that
“he [Dudley] was guilty of what he was charged with and that as soon as
it blew over, he was going to seek therapy or something like that.”
Around the same time this statement was made, the Dudleys asked
Gannaway and Kay’s sister to move out of the home. Dudley sought to
introduce evidence to impeach Gannaway’s credibility.
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Gannaway was convicted of theft in Minnesota more than twenty
years prior to the current trial. When asked about his criminal history
during his deposition, Gannaway stated he had never been convicted of a
crime. Dudley wanted to admit the crime of dishonesty and the denial
during deposition to impeach Gannaway. The district court ruled it
would not
sustain the motion in limine on [the] 20-year-old
misdemeanor. It’s kind of like a speeding charge. I suspect
if you got back in that and the record went long enough, he
probably had a speeding charge and that’s shown as a
criminal charge too.
The State argued the statement in his deposition was an innocent
mistake and did not rise to the level of perjury. The district court did not
permit Dudley to impeach Gannaway with either the criminal charge or
the statement in the deposition.
The jury found Dudley guilty on both charges. Dudley filed a
notice of appeal. We transferred the appeal to our court of appeals. The
court of appeals found the district court did not abuse its discretion in
denying Dudley’s motion to enforce the plea agreement because the offer
was no longer valid at the time Dudley took the polygraph test. However,
the court of appeals reversed and remanded the case for a new trial
finding Casey’s testimony amounted to an impermissible comment on
B.O.’s credibility. After reaching that conclusion, the court of appeals
did not address the other issues raised by Dudley’s appeal. The State
then filed this application for further review, which we granted.
II. Issues.
In this appeal, the issues as to whether the district court erred in
failing to require the State to honor the plea agreement and whether the
expert testimony amounted to an impermissible comment on B.O.’s
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credibility are dispositive. However, because some of the issues raised by
Dudley may reoccur on remand, we will address whether the court
abused its discretion in admitting the neighbor’s testimony as an
exception to the hearsay rule and whether the court was correct in not
allowing Dudley to impeach Gannaway’s testimony with Gannaway’s
criminal conviction.
III. Standard of Review.
When faced with a motion to dismiss as a sanction for the State’s
alleged repudiation of a plea agreement, the district court has the same
limited discretion it has “when ruling on a motion to dismiss for failure to
provide a speedy trial under Iowa Rule of Criminal Procedure [2.33(2)].”
State v. Hovind, 431 N.W.2d 366, 368 (Iowa 1988). If the district court
abused its limited discretion by finding the State did not repudiate the
plea agreement, we will reverse its finding. Id.
We review hearsay rulings for correction of errors at law and will
reverse the admission of hearsay evidence as prejudicial unless the
contrary is shown. State v. Elliott, 806 N.W.2d 660, 667 (Iowa 2011). We
review all other evidentiary rulings for an abuse of discretion. Id.
When the district court exercises its discretion on grounds or for
reasons clearly untenable or to an extent clearly unreasonable, an abuse
of discretion occurs. State v. Nelson, 791 N.W.2d 414, 419 (Iowa 2010).
When a ground or reason is based on an erroneous application of the law
or not supported by substantial evidence, it is untenable. Graber v. City
of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).
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IV. Whether the District Court Abused Its Limited Discretion
By Not Dismissing the Case Due to the State’s Alleged Repudiation
of the Plea Agreement.
For a plea bargain agreement to be binding, the performance of the
terms of the plea bargain agreement must be mutual. Hovind, 431
N.W.2d at 368. The State has no obligation to make available the
anticipated benefits of a plea agreement when the defendant fails to
perform his or her end of the bargain. Id. Furthermore, the State has
the ability to withdraw from a plea agreement up until the time a
defendant enters a guilty plea or until the defendant has taken action
that amounts to a detrimental reliance on the agreement. See State v.
King, 576 N.W.2d 369, 370 (Iowa 1998) (per curiam).
The State communicated to Dudley, prior to withdrawing the plea
offer, that the county attorney was making a trip to Minnesota to
interview B.O. and that once he made the trip, the offer would be off the
table. Dudley did not take the test or advise the county attorney he was
arranging to take the test prior to the time the county attorney made the
trip. Accordingly, the State withdrew the plea agreement to dismiss the
charges in exchange for a successful test prior to the time Dudley took
his polygraph test. Additionally, because Dudley had not taken the test
when the State withdrew the plea agreement, Dudley did not
detrimentally rely on the plea agreement when he took the test.
Therefore, the district court did not abuse its limited discretion by
denying Dudley’s motion to enforce the plea agreement.
V. Whether the District Court Abused Its Discretion When It
Found the Expert Witnesses’ Testimony Did Not Amount to an
Impermissible Comment on B.O.’s Credibility.
A. Applicable Legal Principles. Iowa Rule of Evidence 5.702
permits expert opinion testimony “if . . . specialized knowledge will assist
10
the trier of fact to understand the evidence or to determine a fact in
issue.” Expert testimony in child sexual abuse cases can be very
beneficial to assist the jury in understanding some of the seemingly
unusual behavior child victims tend to display. Veronica Serrato, Expert
Testimony in Child Sexual Abuse Prosecutions: A Spectrum of Uses, 68
B.U. L. Rev. 155, 163 (1988). Juries may have misconceptions regarding
how an abused child should behave. Id. at 160–62. A child may appear
frightened on the stand or unwilling to testify. Id. The child’s
recollection of the events may seem inconsistent, or the child may have
delayed reporting the abuse for quite some time. Id. An expert witness,
such as a psychologist or social worker, can help the jury understand
these behaviors and other behaviors common to children who have
suffered sexual abuse trauma. Id. at 163.
In an early Iowa case in this area, the expert witness testified it
was rare for children to lie about sexual abuse. State v. Myers, 382
N.W.2d 91, 91 (Iowa 1986). In Myers, we set forth the legal principles
regarding expert testimony in child sexual abuse cases. We stated
“experts will be allowed to express opinions on matters that explain
relevant mental and psychological symptoms present in sexually abused
children.” Id. at 97. However, we acknowledged, “most courts reject
expert testimony that either directly or indirectly renders an opinion on
the credibility or truthfulness of a witness.” Id.
We have consistently followed Myers in our subsequent case law.
We have permitted an expert witness to testify regarding the “typical
symptoms exhibited by a person after being traumatized.” State v.
Gettier, 438 N.W.2d 1, 6 (Iowa 1989). We held this testimony was
admissible because it did not directly comment on whether the victim at
issue had symptoms consistent with “rape trauma syndrome.” Id. In a
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later case, we allowed expert testimony to explain to a jury why children
victims may delay reporting their sexual abuse. State v. Payton, 481
N.W.2d 325, 327 (Iowa 1992). Again, the expert witness avoided
commenting directly on the child at issue and only testified generally
about victims of sexual abuse. Id.
We have also analyzed expert witness testimony under the hearsay
exception. Under a hearsay analysis, when the child makes statements
for the purposes of diagnosis or treatment, those statements fall under
the hearsay exception contained in Iowa Rule of Evidence 5.803(4). See
State v. Hildreth, 582 N.W.2d 167, 169–70 (Iowa 1998) (holding a social
worker treating the child was permitted to testify to statements the child
made about the abuse, including the victim’s identification of the
perpetrator, because the statements were necessary to the treatment of
ensuring the continued safety of the child). The child must make the
statements to a trained professional for the purposes of diagnosis or
treatment to be admissible under rule 5.803(4). Id. Even under a
hearsay analysis, the experts did not couple their testimony of the
statements made by the child, the identity of the abuser, and the events
of the abuse with a professional opinion as to whether the child was
truthful, had symptoms of sexual abuse trauma, or whether the
symptoms of the child were consistent with child abuse. See id. at 169.
We see no reason to overturn this well-settled Iowa law prohibiting
an expert witness from commenting on the credibility of a victim in a
criminal sex abuse proceeding. Although we are committed to the liberal
view on the admission of psychological evidence, we continue to hold
expert testimony is not admissible merely to bolster credibility. State v.
Hulbert, 481 N.W.2d 329, 332 (Iowa 1992). Our system of justice vests
the jury with the function of evaluating a witness’s credibility. Id. The
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reason for not allowing this testimony is that a witness’s credibility “is
not a ‘fact in issue’ subject to expert opinion.” Id. (quoting Myers, 382
N.W.2d at 97). Such opinions not only replace the jury’s function in
determining credibility, but the jury can employ this type of testimony as
a direct comment on defendant’s guilt or innocence. Id. Moreover, when
an expert comments, directly or indirectly, on a witness’s credibility, the
expert is giving his or her scientific certainty stamp of approval on the
testimony even though an expert cannot accurately opine when a witness
is telling the truth. In our system of justice, it is the jury’s function to
determine the credibility of a witness. An abuse of discretion occurs
when a court allows such testimony. Id.
We again reaffirm that we are committed to the legal principle that
an expert witness cannot give testimony that directly or indirectly
comments on the child’s credibility. We recognize there is a very thin
line between testimony that assists the jury in reaching its verdict and
testimony that conveys to the jury that the child’s out-of-court
statements and testimony are credible. Id. We will now analyze the
testimony in this case to determine whether the line was crossed.
B. Testimony of Treating Therapist, Mary Casey. The
testimony at issue deals with Casey opining B.O.’s physical
manifestations and symptoms were consistent with a child dealing with
and suffering from sexual abuse trauma. We must determine whether
the expert crossed the line by testifying in a manner that indirectly
conveyed to the jury that the child was telling the truth.
One leading expert in the field notes allowing expert testimony that
a child’s symptoms are consistent with sexual abuse trauma is
problematic because the symptoms do not prove someone abused the
child. See Brett C. Trowbridge, The Admissibility of Expert Testimony in
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Washington on Post Traumatic Stress Disorder and Related Trauma
Syndromes: Avoiding the Battle of the Experts by Restoring the Use of
Objective Psychological Testimony in the Courtroom, 27 Seattle U. L. Rev.
453, 474–79 (2003). Psychiatrists formulated a syndrome to describe the
trauma suffered by sexually abused children. Id. at 474–77. This
syndrome is called child sexual abuse accommodation syndrome
(CSAAS) and its proponents urge it is representative of a common
denominator of the most frequently observed behaviors of sexual abuse
victims. Id. The psychiatrists developed the syndrome to give a
diagnosis and provide better treatment to children suffering from these
behaviors. Id. The psychiatrists did not develop the diagnosis of sexual
abuse trauma or CSAAS to prove abuse occurs because the diagnosis
assumes abuse has occurred. Id. at 475. Moreover, the identification of
symptoms or physical manifestations of sexual abuse trauma in children
is not consistent among professionals. See Mary Ellen Reilly, Note,
Expert Testimony on Sexually Abused Child Syndrome in a Child
Protective Proceeding: More Hurtful than Helpful, 3 Cardozo Pub. L. Pol’y
& Ethics J. 419, 442 (2005) (explaining a “study of over 122 appellate
court decisions involving expert testimony of child sexual abuse revealed
sharp contradictions” (internal quotation marks omitted)).
To allow an expert witness to testify a child’s physical
manifestations or symptoms are consistent with sexual abuse trauma or
CSAAS allows the expert witness to indirectly vouch that the victim was
telling the truth because the expert opines the symptoms are consistent
with child abuse. To put it another way, the expert is saying these
symptoms mean the child suffered a sexual abuse trauma; therefore, the
child must be telling the truth when he or she relates his or her story to
the jury. It is the jury’s function to determine if the victim is telling the
14
truth, not the expert witness’s. Accordingly, the expert witness’s
testimony crossed the line when she testified B.O.’s physical
manifestations or symptoms were consistent with sexual abuse trauma
or CSAAS.
C. Testimony of Forensic Interviewer, Tammera Bibbins. The
portion of testimony Dudley finds objectionable in Bibbins’s testimony is
her explanation of coaching and suggestibility. Bibbins stated B.O.’s
“statement was consistent throughout the entire interview process.”
Dudley also finds objectionable Bibbins’s recommendation for B.O. to
receive therapy and cease all contact with Dudley. Finally, he finds
objectionable her opinion that B.O.’s involvement in therapy was not
problematic in the realm of coaching.
Bibbins is a forensic interviewer whose purpose in this matter was
to gather facts for the police. She was not conducting her interview for
purposes of diagnosis or treatment. However, Dudley does not claim the
testimony should have been excluded because the testimony did not fall
under Iowa Rule of Evidence 5.803(4), an exception to the hearsay rule.
The only objection Dudley made was that this testimony vouched for
B.O.’s credibility.
We need to break down each statement Dudley claims as
objectionable to determine whether the State crossed the line. The first
statement by Bibbins was that B.O.’s statements were consistent
throughout the interview. We do not find this statement crossed the line.
Bibbins was merely stating the fact that throughout the interview B.O.
never changed her story as to the events with Dudley. The jury is
entitled to use this information to determine the victim’s credibility. This
information gives the jury an insight into the victim’s memory and
knowledge of the facts. See State v. Frake, 450 N.W.2d 817, 819 (Iowa
15
1990) (stating a jury may consider a witness’s memory and knowledge of
facts in determining the witness’s credibility). With this information as
part of the evidence, the jury still had to decide if B.O.’s complaints
against Dudley were credible.
The second statement by Bibbins was that she recommended B.O.
receive therapy and stay away from Dudley. Bibbins based these
recommendations on her opinion that she believed Dudley sexually
abused B.O. This testimony crossed the line because she testified she
believed B.O. was in fact sexually abused by Dudley; thus, indirectly
vouching for her credibility.
The third statement dealt with her opinion that B.O.’s involvement
in therapy was not problematic in the realm of coaching. We do not find
this statement crossed the line. The gist of the statement is that
participation in therapy, in and of itself, does not mean the therapist is
coaching the victim. If Dudley contends anybody coached B.O., he can
develop this claim through the cross-examination of the witnesses or his
own expert testimony regarding coaching.
D. Harmless Error. “Error may not be predicated upon a ruling
which admits or excludes evidence unless a substantial right of the party
is affected . . . .” Iowa R. Evid. 5.103. In cases of nonconstitutional
error, we start with the presumption that the substantial rights of the
defendant have been affected. State v. Howard, 825 N.W.2d 32, 41 (Iowa
2012). The State has the burden to affirmatively establish the
substantial rights of the defendant were not affected. Id. at 42. The
State does not argue the admissibility of the objectionable statements
constitute harmless error. Therefore, we will not make the arguments for
the State or reach the issue of harmless error. See In re Det. of Blaise,
830 N.W.2d 310, 320–21 (Iowa 2013) (acknowledging generally that the
16
State waives a harmless-error argument if not raised on appeal, but
makes an exception to this rule if the error is based on ineffective
assistance of counsel because in an ineffective-assistance-of-counsel
claim the burden is on the defendant to show prejudice).
Therefore, we affirm the decision of the court of appeals, reverse
Dudley’s conviction, and remand the case for a new trial.
VI. Other Issues Raised on Appeal.
Dudley has raised other issues on appeal that may not be
dispositive. However, these issues may reoccur on the retrial of this case
so we will address them.
A. Testimony of B.O.’s Neighbor. The district court let the
neighbor testify regarding B.O.’s statements to her concerning the abuse.
The district court allowed the statements in as an exception to hearsay
under rule 5.803(2). The rule provides:
The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
....
(2) Excited utterance. A statement relating to a
startling event or condition made while the declarant was
under the stress of excitement caused by the event or
condition.
Iowa R. Evid. 5.803(2).
We have enumerated the factors we consider to determine whether
a statement qualifies as an excited utterance. See State v. Harper, 770
N.W.2d 316, 319 (Iowa 2009). These factors are
“(1) the time lapse between the event and the statement, (2)
the extent to which questioning elicited the statements that
otherwise would not have been volunteered, (3) the age and
condition of the declarant, (4) the characteristics of the event
being described, and (5) the subject matter of the statement.”
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Id. (quoting State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999)). The
court must consider all the factors to determine if the statements are
admissible. State v. Hy, 458 N.W.2d 609, 611 (Iowa Ct. App. 1990). The
neighbor’s testimony regarding B.O.’s statements is problematic because
of the time lapse between the alleged event and the statements and the
extent to which questioning elicited the statements that otherwise would
not have been volunteered.
First, the lapse of time was from Friday evening, when the last
incident occurred, to sometime before Sunday afternoon. This factor is
not determinative and on its own, is not enough to take the statements
out of the exception. See id. (holding a four-year olds’ statements
disclosing sexual abuse to her parents were admissible despite the
passage of time because she disclosed at the first possible opportunity).
Second, the statement must be spontaneous and any questions
asked of the child must not be “ ‘calculated to elicit information which
would otherwise have been withheld.’ ” State v. Brown, 341 N.W.2d 10,
13 (Iowa 1983) (quoting State v. Watson, 242 N.W.2d 702, 704 (Iowa
1976)). Here, the child, upon the family’s return home, told her mother
the story. The following day, the mother sent B.O. over to the neighbor’s
home to have the neighbor talk to B.O. about the disclosure she had
made to her mother the night before. Further, the mother sent B.O. to
Korinek’s home under the pretense of delivering eggs to the neighbor.
Korinek testified B.O. was not her normal bubbly self when she arrived
at the neighbor’s home. Korinek also testified she began the
conversation by asking B.O. about her vacation. The child then started
to cry. Korinek continued to ask B.O. what was wrong. The more she
pressed B.O., the more upset the child became.
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The rationale underlying the “excited utterance” exception is “that
the excitement of the event limits the declarant’s capacity to fabricate a
statement and thereby offers some guarantee of its reliability.” United
States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998); see also United States
v. Brown, 254 F.3d 454, 458 (3d Cir. 2001) (“[E]xcitement suspends the
declarant’s powers of reflection and fabrication, consequently minimizing
the possibility that the utterance will be influenced by self interest and
therefore rendered unreliable.”). Also, “it is possible for someone to be
too excited to volunteer pertinent information . . ., and thus the inherent
‘guarantee of truthfulness’ supporting the admission of excited
utterances applies equally to declarations made in response to an
inquiry.” United States v. Joy, 192 F.3d 761, 767 (7th Cir. 1999).
We review the admissibility of an excited utterance for an abuse of
discretion. The last alleged incident of abuse occurred Friday evening.
The next day, B.O. traveled in a car with the Dudleys from Knoxville,
Iowa, to Fairfield, Minnesota. Upon arriving at the child’s home, the
Dudleys stayed to visit with B.O.’s family for a short time. Once Dudley
left and the child felt safe, she disclosed what happened to her mother.
B.O.’s mother testified that, sometime between 9 p.m. and 10 p.m. on
Saturday evening, B.O. came into the mother’s room and, without any
questioning, told the mother her grandfather had touched her.
District courts should consider the time lapse between the event
and statements to ensure the statements were not the product of
conscious thought or reflection. See State v. Tejeda, 677 N.W.2d 744,
753–54 (Iowa 2004) (finding the district court did not abuse its discretion
omitting statements made thirty minutes after the event, in a different
location, and in response to direct questioning). However, it is
permissible to allow a greater amount of time lapse for children who
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make the statements to a parent or other safe adult, at the soonest
possible time after the abuse occurred. See Hy, 458 N.W.2d at 611.
B.O. made the statements to her mother almost twenty-four hours after
the incident. After B.O. made the statements to her mother, the child
went to bed, and it was not until the next afternoon, approximately
thirty-six hours after the incident, B.O.’s mother sent her to Korinek’s
house. During the time between the disclosure to her mother and the
next day, B.O. had time to reflect upon what had occurred. Further,
unlike the disclosure to her mother, B.O. required more than one
prompting question before she made the statements to Korinek.
The exception for excited utterance “presupposes that the
declarant blurted out a remark while under the influence of the startling
event, so that it is unlikely that the remark was the product of conscious
thought or reflection, but was probably accurate.” Jay M. Zitter,
Annotation, When Is Hearsay Statement “Excited Utterance” Admissible
Under Rule 803(2) of Federal Rules of Evidence, 155 A.L.R. Fed. 583, 583
(1999). B.O.’s statements to Korinek were not spontaneous in reaction to
a startling event, but rather an upset child telling her story to a neighbor
and friend after she no longer felt the urgent need to disclose the
information to someone safe. We find the district court abused its
discretion in admitting this testimony. On retrial, the statements B.O.
made to Korinek are not admissible.
B. Not Allowing Dudley to Use Gannaway’s Criminal
Conviction to Impeach His Testimony. Dudley sought to impeach
Gannaway’s testimony by using Gannaway’s theft conviction that was
more than twenty years old. The district court denied Dudley’s request,
equating the theft charge to a traffic ticket.
20
Iowa Rules of Evidence allow past crimes of dishonesty to be
admitted for the purposes of impeaching a witness. Iowa R. Evid.
5.609(a)–(b). We have held theft is a crime of dishonesty. See State v.
Parker, 747 N.W.2d 196, 208 (Iowa 2008) (distinguishing a previous
conviction of drug possession from convictions “found to be probative of
credibility, like perjury and theft offenses”). Crimes of dishonesty are
admissible unless they fall outside the time limit of rule 5.609(b). Iowa
R. Evid. 5.609(a)(2), (b). When a crime falls outside the time limit of rule
5.609(b), the probative value must substantially outweigh the prejudice
of the evidence. Id.
Here, the district court did not properly weigh the probative value
against the prejudice of the evidence. Because we are ordering a retrial,
we do not have to weigh the probative value against the prejudice of the
evidence and decide this issue. Therefore, on retrial, the court should do
the analysis required under rule 5.609. After the court makes that
analysis, an appellate court, if necessary, will be in a better position to
decide if the evidence is admissible.
VII. Disposition.
We affirm the decision of the court of appeals and reverse the
judgment of the district court because some of the expert testimony
admitted by the district court amounted to impermissible vouching of the
victim’s credibility. We remand the case to the district court in order for
Dudley to have a new trial consistent with our holding in this opinion.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED WITH
INSTRUCTIONS.
All justices concur except Waterman and Zager, JJ., who concur
specially, and Cady, C.J., who dissents.
21
#12–0729, State v. Dudley
WATERMAN, Justice (concurring specially).
I join the majority opinion but write separately because the
majority fails to examine well-reasoned decisions from other jurisdictions
addressing the same question we must confront today—the admissibility
of expert testimony that the specific child victim’s behavior or symptoms
are “consistent with” sexual abuse trauma. As the majority
acknowledges, “there is a very thin line” between expert testimony that
assists the jury and that which impermissibly vouches for the child-
witness’s credibility. Our court has not previously decided whether the
line is crossed by an expert who opines the victim’s behavior or
statements are “consistent with” child abuse trauma. I think it is worth
considering the guidance provided by our sister state supreme courts to
help decide this close and important question. The stakes are high when
the retrial forces the victim to relive the trauma of the abuse.
I also write separately to emphasize the majority opinion should
not be read to foreclose the possible use of such expert testimony in
rebuttal if the defendant opens the door by suggesting the victim’s
behavior is inconsistent with that of an abused child. As noted below,
many other courts have allowed testimony that a child victim’s behavior
or symptoms are “consistent with” child abuse trauma as rebuttal
evidence. That is not what happened in this case.
Just two years ago, in State v. Favoccia, the Supreme Court of
Connecticut thoroughly reviewed the conflicting precedent and policy
considerations in reaching the same conclusion we reach today. 51 A.3d
1002, 1012–22 (Conn. 2012). The Favoccia court overturned its own
precedent to hold that “the trial court abused its discretion in permitting
[the expert] to testify about the complainant’s behaviors being consistent
22
with those generally characteristic of sexual assault victims.” Id. at
1026. Conversely, in People v. Spicola, the New York Court of Appeals
recently held “the trial judge did not abuse his discretion when he
allowed the expert to testify about CSAAS [Child Sexual Abuse
Accommodation Syndrome] to rehabilitate the boy’s credibility.” 947
N.E.2d 620, 635 (N.Y. 2011). Significantly, here, the State offered the
challenged expert testimony in its case in chief against Dudley, not in
rebuttal. Spicola is therefore distinguishable. But, the observation of the
Spicola dissent nonetheless applies: “[T]he expert[] confirm[ed] . . . nearly
every detail of the case and of complainant’s behavior as consistent with
that of a victim of sexual abuse . . . .” Id. at 639 (Lippman, C.J.,
dissenting). These divergent outcomes reflect national jurisprudence on
the issue. Lisa R. Askowitz, Restricting the Admissibility of Expert
Testimony in Child Sexual Abuse Prosecution: Pennsylvania Takes It to the
Extreme, 47 U. Miami. L. Rev. 201, 205–06 nn. 34–35 (Sept. 1992)
(surveying caselaw and recognizing the split in authority).
Many other courts have held opinions that a child victim’s behavior
or symptoms are “consistent with” child abuse are inadmissible. See
Favoccia, 51 A.3d at 1015–16 & n.26 (collecting cases); see also id. at
1009 (holding that “expert testimony linking a specific complainant to
those general characteristics” is “impermissible vouching and ultimate
issue testimony” and therefore inadmissible); Wheat v. State, 527 A.2d
269, 274–75 (Del. 1987) (concluding that allowing an expert to connect
general characteristics to a specific complainant is equivalent to
bolstering the victim’s credibility and is therefore inadmissible); State v.
Foret, 628 So. 2d 1116, 1130 (La. 1993) (holding that an expert testifying
to child sexual abuse symptoms must limit the testimony to general
characteristics that cannot directly concern the particular victims);
23
Commonwealth v. LaCaprucia, 671 N.E.2d 984, 985 (Mass. App. Ct.
1996) (holding that the trial court abused its discretion by allowing
expert testimony that “directly link[ed] the characteristics of sexually
abused children to the complainants in this case”); State v. Chamberlain,
628 A.2d 704, 707 (N.H. 1993) (holding that testimony that a child’s
symptoms were “consistent with” CSAAS could not be offered to prove
the child was abused); State v. Michaels, 625 A.2d 489, 499–502 (N.J.
Super. Ct. App. Div. 1993) (reversing a conviction based on inadmissible
testimony that the victims’ behavior was “consistent with” sexual abuse),
aff’d, 642 A.2d 1372 (N.J. 1994).
Although many other jurisdictions have allowed testimony the
victim’s behavior or symptoms are “consistent with” child abuse trauma
under some circumstances, 2 most limit such testimony to rehabilitation
of the victim 3 whose credibility was attacked by the defense. See People
2See Favoccia, 51 A.3d at 1015 n.26 (surveying cases); see also United States v.
Lukashov, 694 F.3d 1107, 1116 (9th Cir. 2012) (“We conclude that the district court did
not abuse its discretion in allowing [the doctor] to testify about the characteristics that
she looks for when assessing a child victim’s story of sexual abuse, and to opine that
her evaluation of [the child] was consistent with [the child’s] allegations of sexual
abuse.”); Steward v. State, 636 N.E.2d 143, 146 (Ind. Ct. App. 1994) (“Indiana courts
have consistently allowed expert testimony concerning whether a particular victim’s
behavior is consistent with the behavioral patterns of victims of sexual abuse.”), aff’d,
652 N.E.2d 490 (Ind. 1995); State v. McIntosh, 58 P.3d 716, 728–30 (Kan. 2002)
(holding that the testimony of an expert witness is admissible when the witness outlines
the general characteristics of sexually abused children and then states that the victim’s
symptoms are consistent with those characteristics); Spicola, 947 N.E.2d at 635
(holding that the trial judge did not abuse his discretion by admitting expert testimony
on rebuttal which connected generalized sexual abuse symptoms to the individual
victim); State v. Stowers, 690 N.E.2d 881, 883 (Ohio 1998) (holding that “an expert
witness’s testimony that the behavior of an alleged child victim of sexual abuse is
consistent with behavior observed in sexually abused children is admissible under the
Ohio Rules of Evidence”).
3These safeguards can take the form of prohibiting all expert testimony—
including all “consistent with” testimony—except for purposes of rehabilitation on
rebuttal by requiring the testimony to be narrowly tailored to an identifiable symptom
from which the complainant suffers. See, e.g., People v. Nelson, 561 N.E.2d 439, 444
(Ill. App. Ct. 1990) (“At this time, we choose to limit the admissibility of such testimony
24
v. Beckley, 456 N.W.2d 391, 399 (Mich. 1990) (“We find that the rebuttal
limitation as expressed by the majority of jurisdictions is the preferable
approach.” (Emphasis added.)). Such cases are inapplicable here
because the State does not argue Dudley opened the door to such
testimony by arguing the victim’s behavior was inconsistent with child
abuse trauma.
The result we reach today is supported by the decisions of other
courts that recognize testimony the victim’s behavior or symptoms are
“consistent with” child abuse is the “functional equivalent” of vouching
for the victim’s credibility. Spicola, 947 N.E.2d at 639. The Connecticut
Supreme Court aptly concluded:
“[T]here is no material distinction between express testimony
that the child has been sexually abused, and implicit
testimony that outlines the unreliable behavioral reactions
found with sexually abused victims, followed by a list of the
complainant’s own behavioral reactions, that points out that
the two are consistent, and then invites the jury to add up
the points to conclude that the child has been sexually
abused.”
Favoccia, 51 A.3d at 1023 (quoting People v. Peterson, 537 N.W.2d 857,
873 (Mich. 1995) (Cavanagh, J., dissenting)). “[S]uch testimony ‘comes
too close to testifying that the particular child is a victim of sexual
abuse.’ ” Id. at 1017–18 (quoting Peterson, 537 N.W.2d at 868).
The victim’s credibility is often the fighting issue in child abuse
cases. See John E.B. Myers, et. al., Expert Testimony in Child Sexual
____________________
to rebuttal after the victim’s credibility has first been attacked.”); see also People v.
Bowker, 249 Cal. Rptr. 886, 891 (Ct. App. 1988) (requiring that the testimony is
“targeted to a specific ‘myth’ or ‘misconception’ suggested by the evidence”); People v.
Beckley, 456 N.W.2d 391, 399 (Mich. 1990) (holding that “only those aspects of ‘child
sexual abuse accommodation syndrome,’ which specifically relate to the particular
behaviors which become an issue in the case are admissible”).
25
Abuse Litigation, 68 Neb. L. Rev. 1, 89 (1989). I agree with the
Connecticut Supreme Court’s assessment that:
[“Consistent with”] testimony create[s] a significant risk that
the jury w[ill] consider [the expert’s] testimony as an
imprimatur on the complainant’s allegations, particularly
[when] her testimony [is] based directly on observations of
the complainant[] . . . , which renders [the] case distinct from
those wherein the expert disclaims any familiarity with the
specific facts of the case or testifies only in terms of
generalities or hypotheticals.
Favoccia, 51 A.3d at 1025. As another appellate court recognized:
It is one thing to educate the jury to understand that child
abuse victims may act in counterintuitive ways, and that
excessive weight should not be given to factors such as
failure to disclose when the child victim’s credibility is
weighed . . . [and] quite another to suggest to the jury that
the events and feelings expressed by the child witnesses are
the same as those experienced by other victims of abuse.
That this has the effect of buttressing the witnesses’
credibility seems impossible to deny.
Commonwealth v. Deloney, 794 N.E.2d 613, 623 (Mass. App. Ct. 2003)
(citations omitted). The purpose of expert testimony in child sexual
abuse cases
is to give the jury a framework of possible alternatives for the
behaviors of the victim at issue in the case in relation to the
class of abuse victims. In this respect, the expert’s role is to
provide sufficient background information about each
individual behavior at issue which will help the jury to dispel
any popular misconception commonly associated with the
demonstrated reaction.
Beckley, 456 N.W.2d at 406. This purpose can be accomplished through
generalized testimony without vouching for the victim’s truthfulness.
See Favoccia, 51 A.3d at 1018 (“[T]he ‘conduct of a child who has been
sexually abused, and the emotional antecedents underlying this conduct,
can be effectively explained to the jury through testimony relating to the
26
class of victims in general . . . .’ ” (quoting State v. Sims, 608 A.2d 1149,
1154 (Vt. 1991))).
[W]here “the sole reason for questioning the ‘expert’ witness
is to bolster the testimony of [the complainant] by explaining
that his version of the events is more believable than the
defendant’s, the ‘expert’s’ testimony is equivalent to an
opinion that the defendant is guilty, and the receipt of such
testimony may not be condoned.”
Spicola, 947 N.E.2d at 639 (quoting People v. Ciaccio, 391 N.E.2d 1347,
1351 (N.Y. 1979)).
Armed with generalized knowledge, the fact finder can connect the
dots. We should be mindful that “more specific testimony yields returns
that increase in prejudice to the defendant as they diminish in value with
respect to the edification of the jury as to behaviors that might affect the
complainant’s credibility.” Favoccia, 51 A.3d at 1024.
As the foregoing cases demonstrate, expert testimony may be
admissible in rebuttal if the defendant opens the door by challenging the
credibility of the child victim based on behavior or symptoms the expert
can show is consistent with child abuse trauma. But, in this case, the
expert crossed the line by providing such an opinion in the State’s case
in chief.
Zager, J., joins this special concurrence.
27
#12–0729, State v. Dudley
CADY, Chief Justice (dissenting).
I respectfully dissent. I would conclude that any error in this case
in admitting expert testimony at trial concerning behavior exhibited by
the victim that was consistent with sexual abuse trauma was harmless
and does not require a new trial.
There is a very fine line between the admission of expert testimony
that identifies behavior or symptoms typically displayed by victims of
sexual abuse and inadmissible expert testimony about behavior or
symptoms displayed by victims of sexual abuse that vouches for the
credibility of a victim of sexual abuse. Finding that subtle difference is
committed to the sound discretion of the district court to make the
difficult call, ruling on such evidence in light of all the circumstances.
See State v. Frank, 298 N.W.2d 324, 327 (Iowa 1980). Discretion is not
abused unless the ruling is based on “untenable” grounds, is “clearly
unreasonable,” or no support for the decision exists in the record. State
v. Gartin, 271 N.W.2d 902, 910–11 (Iowa 1978). Moreover, although
prejudice is presumed unless the record affirmatively establishes
otherwise, State v. Paredes, 775 N.W.2d 554, 571 (Iowa 2009), an abuse
of discretion constitutes reversible error only if the admission of the
evidence “injuriously affect[s]” the complaining party, results in a
“miscarriage of justice,” or a different result would have occurred if the
evidence had not been admitted, 7 Laurie Kratky Doré, Iowa Practice
Series, Evidence § 5.103:14, at 65 (2013).
The fine line in the legal standard in this case weighs against
prejudice to support reversible error. The trial court had discretion to
admit expert testimony that identified recognized symptoms of sexual
abuse trauma that were exhibited by the victim, and there is nothing in
28
the record to suggest the State used or sought to use this evidence to
vouch for the credibility of the victim. Reversible error in admission of
evidence at trial should not come down to splitting hairs.