IN THE SUPREME COURT OF IOWA
No. 10–1742
Filed December 21, 2012
STATE OF IOWA,
Appellee,
vs.
ROBERT ANTHONY HOWARD,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Muscatine County, Mark J.
Smith and Marlita A. Greve, Judges.
Defendant appeals his convictions for second-degree sexual abuse and
child endangerment, contending his confession was tainted by a promise of
leniency. DECISION OF THE COURT OF APPEALS VACATED, JUDGMENT
OF DISTRICT COURT REVERSED, AND CASE REMANDED FOR NEW
TRIAL.
Mark C. Smith, State Appellate Defender, and Dennis D. Hendrickson
and Martha J. Lucey, Assistant Appellate Defenders, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney
General, and Alan R. Ostergren, County Attorney, for appellee.
2
WATERMAN, Justice.
After the police detective questioning him promised treatment and
implied he would go free if he completed treatment, defendant, Robert Howard,
confessed to sexually abusing his girlfriend’s son. Howard contends his
confession is inadmissible under our caselaw prohibiting the use of confessions
obtained following a promise of leniency. The district court denied Howard’s
motion to suppress his confession, and the jury that heard his confession
convicted him of second-degree sexual abuse and child endangerment. A
divided court of appeals affirmed his convictions and twenty-five-year sentence.
We granted Howard’s application for further review.
For the reasons explained below, we conclude the detective’s questioning
crossed the line into an improper promise of leniency under our long-standing
precedents, rendering Howard’s subsequent confession inadmissible. The
exclusionary rule we enforce again today protects the innocent from a police
tactic that can induce false confessions. The error in admitting his confession
was not harmless. Accordingly, we vacate the decision of the court of appeals,
reverse the judgment of the district court, and remand the case for a new trial.
I. Background Facts and Proceedings.
On January 14, 2010, Howard and his girlfriend, Jessica, took her then
seventeen-month-old son, A.E., to the doctor’s office after discovering blood in
his diaper. Dr. Colette Hostetler examined the baby. Howard and Jessica told
Dr. Hostetler that they believed A.E.’s injuries may have been caused by a hard
stool. During her examination of the infant, Dr. Hostetler observed a laceration
near the top of A.E.’s anus, bruising, swelling, and signs that the blood flow to
that area had recently increased. As Dr. Hostetler later testified, she
determined to a reasonable degree of medical certainty that the cause of the
bleeding was blunt penetration trauma to A.E.’s anus. She also determined
the injuries occurred within several hours of A.E. being brought to the clinic
3
and that, “[b]ecause of the pattern of bruising, . . . [the penetrating object] was
bigger than a pencil or a finger but small enough to fit in that area.”
In reaching her conclusions regarding the cause of the injuries,
Dr. Hostetler specifically rejected the claim that the injuries were caused by a
hard bowel movement
[b]ecause of the pattern of the injury being mostly external to the
anal canal, where stools cause an injury that is in the anus or just
a little ways beyond that. And the bruising that was present was
indicating that there was a blunt force externally.
Dr. Hostetler also noted that bleeding caused by a hard bowel movement is
more common with adults than children.
Howard and Jessica had been in a relationship for approximately six
months. Howard was spending three to four nights a week at Jessica’s
parents’ home, where she lived with A.E. He spent January 13 there, the night
before they took A.E. to the clinic. On the morning of January 14, Howard
went to court for a traffic ticket and then he, Jessica, and A.E. drove to Illinois
to deliver some clothes to Howard’s cousin. Before returning home, they
stopped at a friend’s house and picked up some food and soda.
After running these errands, Howard and Jessica returned with A.E. to
Jessica’s parents’ home. No one else was there. The home’s power went out
while they were there. The fuse box was located in a locked room. Jessica did
not have a key for this room, so she called her mother, who was working about
five to six minutes away. Jessica decided she would go to get her mother’s key.
About thirty minutes before leaving, Jessica changed A.E. and saw no blood in
his diaper or anything abnormal. She put A.E. down for a nap in his crib in
the living room.
Jessica was away from the house for around twenty minutes. After she
arrived at her mother’s workplace, Jessica stayed for about ten minutes talking
with her mother. While there, Jessica received a call from Howard. Howard
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told Jessica he had discovered blood in A.E.’s diaper while he was changing
him. Jessica returned home to find A.E. lying on his stomach, in his crib,
screaming. Howard was lying on the floor.
Jessica checked A.E.’s diaper and found blood in it. Jessica called
Howard’s mother to ask her what could be the cause of the blood. Howard’s
mother indicated that the blood may have been caused by a hard stool, but
recommended that they contact a doctor. A.E. had not had any bloody stools
before this day. Jessica called the clinic where she usually took A.E. and was
told to bring him. Before they left the house together to take the baby to the
doctor, Howard took a shower and changed his clothes. On the way to the
clinic, Howard stopped at a friend’s house for a few minutes. Jessica and A.E.
stayed in the truck during this stop.
After Dr. Hostetler finished examining A.E., she contacted the Iowa
Department of Human Services (IDHS) as a mandatory reporter under Iowa law
because she suspected A.E.’s anal penetration injuries were caused by child
abuse. Dustin Krueger of the IDHS and Detective Tim Hull of the Muscatine
Police Department responded and arrived at the clinic to investigate the report.
Detective Hull and Krueger interviewed Jessica and Howard separately.
Detective Hull did not read Howard his Miranda rights and did not tell Howard
he was recording their conversation.
Early in their recorded conversation, Howard told Detective Hull he has a
pending charge for assault that resulted from a physical altercation he had
with an eighteen-year-old who “told [Howard’s] 13-year-old sister to suck his
dick.” In response, Detective Hull said, “You know, I can see how that would
make you angry because if you have sex with a 13-year-old, it’s actually a 25-
year prison sentence . . . .”
Howard initially told Detective Hull and Krueger that he did not know
what caused A.E.’s injuries, but suspected it could have been caused by a hard
5
stool. According to Howard’s initial account, shortly after Jessica left, Howard
had checked on A.E. and found he was not sleeping, so he took A.E. out of his
crib and let him run around and play with his toys. At some point, Howard
noticed that A.E.’s diaper needed to be changed. While he was changing A.E.,
Howard found blood and a hard stool in his diaper. Howard called Jessica to
tell her.
As Detective Hull and Krueger continued their interview, Howard told
them he did not see A.E. get hurt, cry, or otherwise suggest that he had been
hurt at any time that day or while A.E. was up running around. Howard also
confirmed that the only people who had come into contact with A.E. between
noon and 3 p.m. were Jessica, a friend, and himself, and the friend was never
alone with A.E. After Howard admitted that he and Jessica were the only two
people who had been alone with A.E. during that time, the following exchange
occurred:
MR. KRUEGER: Do you think Jessica would do something
like this?
[HOWARD]: No. To be honest, Jessica don’t even yell at that
kid. To be honest, she’s one of the most perfect mothers I ever
seen.
As the interview continued, Detective Hull began discussing the proper
punishment for someone who abuses a child. It is the following exchange that
begins what Howard contends became an improper promise of leniency: 1
DETECTIVE HULL: So what do you think should happen to
somebody if they stuck their finger or stuck some foreign object in
some kid’s butt?
1We agree with Howard that this is the point at which Detective Hull began to make
impermissible promises of leniency. Accordingly, as we explain below, everything discussed
after this point, including his confession, is inadmissible in the prosecution’s case-in-chief;
however, everything discussed before the line was crossed remains admissible. See State v.
Madsen, 813 N.W.2d 714, 727 (Iowa 2012) (“These statements were properly admitted into
evidence because Madsen made the statements before the detective’s promise of leniency.”).
6
[HOWARD]: I think they should be punished.
DETECTIVE HULL: What do you think should be
punishment?
[HOWARD]: I don’t know. I’m not a cop. I don’t know the
laws are around here.
DETECTIVE HULL: Well, what do you think?
[HOWARD]: I don’t know. I just – I don’t think – I don’t
know.
DETECTIVE HULL: What if some guy had kind of like a
sickness and he couldn’t control himself and he stuck his penis in
a year-and-a-half-year-old’s butt? What do you think should
happen to him? Do you think he should get the help he needs?
You know, because, obviously, he’s sick and needs help.
[HOWARD]: He should go to a hospital where they can help
him or something. I don’t know.
DETECTIVE HULL: Okay. How long should he be in the
hospital, just until he gets treated for his sickness?
[HOWARD]: Yeah.
DETECTIVE HULL: Okay. How do we get the help, get you
the help you need?
[HOWARD]: You really think I did it?
DETECTIVE HULL: I’m just asking you. Do you need help?
Do you think we should help you? There’s people out there that
can help you.
Howard continued to deny that he had sexually abused A.E.
As Detective Hull continued asking Howard what happened that day, the
conversation returned to the “help” that is available for people who sexually
abuse children and about Howard’s future plans:
DETECTIVE HULL: . . . Well, what do you think should
happen to someone who would do something like this to a child?
[HOWARD]: They should go to a hospital and get help.
DETECTIVE HULL: Okay. Because, you know, people can be
helped that have these types of problems. And they can grow up
or get older and, you know, get away from these urges and be a
regular person.
....
[HOWARD]: What happens to people like that, though? I’ve
never met someone like that, whatever it is, like with little kids or
anything.
7
DETECTIVE HULL: There’s doctors and nurses that treat
them and just like any other sickness.
[HOWARD]: I know. But, like, where do they go? Do you
know what I’m trying to say?
DETECTIVE HULL: To a treatment center like people go to
treatment centers for drug addictions.
[HOWARD]: Yeah. I’ve been to New Horizons.
DETECTIVE HULL: It’s a treatment center for sex addiction.
Their addiction is, you know, with children. You know, a lot of
people don’t want to talk about that stuff; but it happens. We deal
with this a lot. You know, we have dozens of cases like this every
year. You know, people go get the treatment they need; and, you
know, then they can prove they can be around children again.
They have to pass the program and make sure they’re going
to be safe around kids, and they graduate. And, you know, then
they have to slowly prove they can be around kids without doing
harm to them.
....
DETECTIVE HULL: Okay. Do you agree with what happened
today that that person just needs some help so they don’t do this
again, they don’t ever harm another child?
[HOWARD]: Yeah.
DETECTIVE HULL: Because, I mean, there is help out there.
So what kind of help do you need?
[HOWARD]: Help from there, I guess.
....
DETECTIVE HULL: Okay. And if I’m you – Where would you
like to be five years from now?
[HOWARD]: Five years for me?
DETECTIVE HULL: Yeah.
[HOWARD]: Well, five years I wish I could have my school
under my belt.
DETECTIVE HULL: Right.
[HOWARD]: And be a nice mechanic and have my own house
and have a family.
DETECTIVE HULL: Okay. So you could earn a good living.
[HOWARD]: Yeah.
DETECTIVE HULL: Okay. And little [A.E.] will be running
around about that time be six and a half?
[HOWARD]: Have whatever he wants.
8
DETECTIVE HULL: Maybe you and Jessica could even have
another child; and you can be normal, right?
[HOWARD]: Yeah.
DETECTIVE HULL: Okay. So how do we get from here to
there?
....
[HOWARD]: Well, I’m looking to go to school. I’m looking for
a job, so I am trying.
DETECTIVE HULL: Okay. The first thing is that we get you
help, right?
[HOWARD]: Yes.
DETECTIVE HULL: Okay. So are you ready to tell us what
happened today or – Because this is the time right now.
I know it’s difficult for you, but I know you love [A.E.] and
you love Jessica. And she loves you. She told us that, okay? And
she does want you to be the father figure that [biological father]
isn’t, okay? He’s not going to be that person. She wants you to be
that person. She told us so. Okay?
....
Okay. So what happened with [A.E.] today? Come on, I
really do want to help you.
[HOWARD]: Okay. Help me.
DETECTIVE HULL: So how did this happen?
[HOWARD]: Like you guys said.
DETECTIVE HULL: Okay. How is that?
You’re just sick, Robert. You need help.
[HOWARD]: I know.
DETECTIVE HULL: Okay. So how do we get you there, from
here to there? How do we do it? I mean, do you have urges that
you can’t control?
[HOWARD]: No. (Crying)
DETECTIVE HULL: No, okay.
[HOWARD]: I don’t know what brought it on.
DETECTIVE HULL: Okay. What brought what on?
[HOWARD]: Doing that.
DETECTIVE HULL: Okay. What did you do?
[HOWARD]: (No response).
DETECTIVE HULL: You know that no matter what you tell
me today, I’ll give you a ride home, drop you off, wherever you
want to go as long as we can promise that Jessica and [A.E.] can
9
[be] safe . . . and you’re not going to contact them until we know
that Jessica and [A.E.] are going to be safe and you get the help
you need, okay.
I’ll give you a ride wherever you want to go, okay? Like I say,
you just got to promise that you’re not going to have contact with
[A.E.] and Jessica for a couple weeks, okay? So what happened?
[HOWARD]: I put my penis in.
....
DETECTIVE HULL: How long did you do that for?
[HOWARD]: Just a minute.
DETECTIVE HULL: Just a minute?
[HOWARD]: Yeah. Just until he started crying.
Detective Hull, as he promised, let Howard go home that evening. On
January 20, Howard was charged with second-degree sexual abuse and child
endangerment causing bodily injury. Howard moved to suppress his
confession alleging that the state violated Miranda 2 and that his confession was
involuntary under the totality-of-the-circumstances and evidentiary tests.
Howard claimed his confession was involuntary because “[Detective] Hull made
promises of ‘help’ if the Defendant admitted to the crime.” Howard argued
these statements amounted to “improper influence, and direct and indirect
promises of help and leniency,” and that, accordingly, Howard’s confession
should be suppressed. The district court denied Howard’s motion to suppress,
concluding
statements that an individual needs treatment . . . and a promise
to get help for the defendant [do] not constitute a promise of
leniency in that Detective Hull never referred to avoiding
incarceration, that it would go better for the defendant if he told
the truth, or that the statements would have any effect on further
criminal prosecution.
At trial, the jury heard testimony from three state witnesses: Jessica,
Detective Hull, and Dr. Hostetler. Howard’s recorded confession was played for
2Howard does not appeal from the district court’s ruling on his Miranda claim.
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the jury. Howard testified and denied having sexual contact with A.E. Howard
explained that he confessed during the interview with Detective Hull and
Krueger because he sought to prevent A.E. from being taken from Jessica.
Howard claimed he believed that if he did not confess A.E. would not be able to
go home with Jessica that evening because the cause of A.E.’s injuries would
still be unknown. The prosecutor emphasized Howard’s confession in his
closing argument, asserting that “it buries him.”
The jury found Howard guilty of second-degree sexual abuse and child
endangerment causing bodily injury. The district court denied Howard’s
motion for a new trial and sentenced him to twenty-five years for the second-
degree sexual abuse charge and five years for the child endangerment, with the
sentences to run concurrently.
Howard appealed, contending the district court erred in admitting his
confession into evidence because Detective Hull’s statements about getting
Howard help were impermissible promises of leniency. We transferred the case
to the court of appeals.
The appeal was heard by a three-judge panel of the court of appeals,
which affirmed his convictions, with one judge dissenting. The majority
concluded that “[a]lthough we are troubled by Officer Hull’s several statements
about getting Howard ‘help’ and ‘treatment,’ no promise of leniency in
prosecution or sentencing was made.” The majority emphasized that Detective
“Hull did not state or imply ‘help’ would be in lieu of criminal charges.” The
majority, thus, concluded that “[t]he officer never crossed the line to explain
‘what advantage is to be gained or is likely from making a confession.’ ”
The dissent concluded that Howard’s confession was inadmissible
because “the accused was repeatedly and deliberately presented with the idea
that his confession would lead to treatment and not to prosecution.” The
dissent further noted that:
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Howard confessed as a result of the officer’s deliberate ruse which
implied that treatment in lieu of incarceration would follow, that
Howard would have the ability to make plans for the next five years
of his life, that he would be released no matter what he confessed,
and that he would be permitted to rejoin the family of the child and
the child’s mother after a short period of no contact with the
mother and child. There is no suggestion in this record that
Officer Hull indicated to Howard that treatment would be merely a
collateral benefit of incarceration. Rather, Officer Hull’s tools of
persuasion were calculated fiction—that a confession would result
in a ride home, treatment, a short period of no contact with the
family, followed by a return to unsupervised interaction with
children and completion of his schooling.
We granted Howard’s application for further review.
II. Standard of Review.
Our review of the district court’s ruling on promises of leniency under the
common law evidentiary test is for corrections of errors at law. State v. Polk,
812 N.W.2d 670, 674 (Iowa 2012).
III. Analysis.
We recently declined the State’s invitation to abandon our common law
evidentiary rule on promissory leniency in favor of a totality-of-the-
circumstances test. State v. Madsen, 813 N.W.2d 714, 726 (Iowa 2012). We
directed district courts to “first employ the evidentiary test to determine the
admissibility of confessions challenged on grounds of a promise of leniency.”
Id. at 726 n.1. We also noted that statements made by the defendant during
the interview before a promise of leniency are not excluded by the evidentiary
rule. See id. at 727 (“These statements were properly admitted into evidence
because Madsen made the statements before the detective’s promise of
leniency.”).
A. Promises of Leniency. In Madsen, we noted “[c]ourts and
commentators have long recognized promises of leniency can induce false
confessions leading to wrongful convictions of the innocent.” Id. at 725. We
reiterated that a “confession can never be received in evidence where the
12
prisoner has been influenced by any threat or promise.” Id. at 724 (citation
and internal quotation marks omitted). In State v. Mullin, we asked: “Were the
statements made to the accused strong enough so that it could in reason be
determined that the prisoner would lie and say he was guilty when he was not,
so as to gain some special favor?” 249 Iowa 10, 16, 85 N.W.2d 598, 601
(1957).
We explained the rationale for the promise-of-leniency doctrine as
follows:
While it is hard to believe that a person would admit false
facts showing his guilt without greater assurance than is
sometimes held sufficient to make inadmissible alleged
confessions, the courts feel compelled to go to the extreme to
protect the weak or confused innocent party who may feel his
chances of establishing his innocence are too remote to turn down
what appears to be an assurance of leniency if he will confess to
the crime of which he is accused. It seems more reasonable to
assume that before an accused would falsify bad conduct for good
conduct, he would demand some fairly specific assurance or
promise of leniency, which is the obvious reason for the many
decisions that a mere statement by an officer that it would be
better or wiser to tell the truth, is not such an assurance or
inducement as to make a statement by accused inadmissible.
However, when the officer or officers go further and explain just
how it will be better or wiser for the accused to speak, these
statements may suddenly become more than an admonishment
and assume the character of an assurance or promise of special
treatment which may well destroy the voluntary nature of the
confession in the eyes of the law.
Id. at 16, 85 N.W.2d at 601–02.
The test “is whether the language used amounts to an inducement which
is likely to cause the subject to make a false confession.” Id. at 17, 85 N.W.2d
at 602. We find it difficult to believe that an innocent man would falsely
confess to sodomizing a toddler simply because the interrogating officer
promises treatment without explicitly promising no other criminal sanctions
would follow. But, in Mullin, we also warned, “ ‘the law cannot measure the
force of the influence used or decide upon its effect on the mind of the
13
prisoner,’ and therefore excludes the declaration if any degree of influence by
force or other inducement has admittedly been exerted upon him.” Id. at 14–15,
85 N.W.2d at 600 (quoting State v. Thomas, 193 Iowa 1004, 1016, 188 N.W.
689, 694 (1922)). “The use of a per se exclusionary rule eliminates the need for
the court to attempt to read the mind of defendant to determine if his
confession, in fact, was induced by or made in reliance upon the promise of
leniency.” Madsen, 813 N.W.2d at 726. And, as we noted in Polk, “The rule
suppressing confessions tainted by promises of leniency deters police from
using a tactic that might induce the innocent to confess falsely.” Polk, 812
N.W.2d at 674 (citing 2 Wayne R. LaFave, et al., Criminal Procedure § 6.2(b), at
612–13 (3d ed. 2007) (noting the “exclusionary rule for confessions . . . is also
intended to deter improper police conduct”)).
The court of appeals majority relied in part on State v. Whitsel, 339
N.W.2d 149 (Iowa 1983), where we stated, “We do not consider either an offer
to recommend psychiatric help or an offer to inform the prosecutor of
defendant’s cooperation to be tantamount to a promise of leniency.” Id. at 153–
54 (collecting cases). Whitsel is distinguishable. In that case, after being given
a Miranda warning at the police station, “Whitsel volunteered information
concerning his prior arrest on a sexual abuse charge in New Jersey in which
the officers offered psychiatric help in exchange for cooperation with the
police.” Id. at 153. The Iowa detectives responded by telling Whitsel they
would recommend he receive psychiatric treatment. Id. Here, Detective Hull,
not Howard, initiated the discussion of treatment. Importantly, in Whitsel, the
Iowa detectives “emphasized” to Whitsel “that they could not make any
promises or give any guarantees and would only relate to the county attorney
what had been said.” Id. Whitsel’s confession followed that disclaimer. Id. By
contrast, Detective Hull, did not Mirandize Howard and never told Howard he
could not make any promise or guarantee that treatment would be the only
14
consequence, nor did he tell Howard the county attorney would decide whether
to pursue criminal charges carrying prison sentences. On the other hand,
Detective Hull did tell Howard early in the interview that sex with a thirteen-
year-old carried a twenty-five year sentence.
It is true, as the court of appeals’ majority noted, Detective Hull never
overtly told Howard he would receive a lighter sentence if he confessed. He
never said an inpatient treatment program would be the only consequence. He
stated no quid pro quo out loud. But, his line of questioning was misleading
by omission. As the court of appeals’ well-reasoned dissent aptly observed,
“Officer Hull’s statements strategically planted in Howard’s mind the idea that
he would receive treatment, and nothing more, if he confessed.” See State v.
McCoy, 692 N.W.2d 6, 28–29 (Iowa 2005) (holding officer’s repeated statement
to the defendant that “[i]f [he] didn’t pull the trigger, [he] won’t be in any
trouble” rendered the defendant’s confession inadmissible because it “indicates
leniency in exchange for defendant’s confession”). Detective Hull’s repeated
references to getting help combined with his overt suggestions that after such
treatment Howard could rejoin Jessica and A.E. conveyed the false impression
that if Howard admitted to sexually abusing A.E. he merely would be sent to a
treatment facility similar to that used to treat drug and alcohol addiction in
lieu of further punishment. Significantly, Detective Hull did not counter this
false impression with any disclaimer that he could make no promises or that
charges would be up to the county attorney. We hold his interrogation crossed
the line into an impermissible promise of leniency, rendering the confession
that followed inadmissible.
B. Harmless Error. The State contends we may affirm Howard’s
convictions because any error in admitting his confession was harmless in light
of other overwhelming evidence establishing his guilt. We conclude that,
although other evidence of Howard’s guilt was strong, we cannot determine the
15
erroneous admission of his confession was harmless. Howard’s recorded
confession was played for the jury, and as the prosecutor argued in his final
summation, “it buries him.”
“ ‘Error . . . predicated upon a ruling which admits or excludes
evidence’ ” will not provide a defendant with a basis for relief on appeal,
“ ‘unless a substantial right of the [defendant has been] affected.’ ” State v.
Parker, 747 N.W.2d 196, 209 (Iowa 2008) (quoting Iowa R. Evid. 5.103(a)). We
presume the defendant’s rights have been prejudiced unless the State can
affirmatively establish otherwise. Id. The State overcomes the presumption of
prejudice if it can establish that there was overwhelming evidence of the
defendant’s guilt. See id. at 210; see also State v. Ware, 205 N.W.2d 700, 705
(Iowa 1973) (applying the overwhelming evidence standard in assessing
whether the district court’s error in admitting defendant’s involuntary
confession was harmless error).
Howard does not argue the evidence was insufficient to convict him
without the inadmissible confession. Rather, he argues he is entitled to a new
trial because the State cannot show the erroneous admission of his confession
was harmless error. The remaining evidence against him was largely
circumstantial. “Circumstantial evidence is equally probative as direct
evidence for the State to use to prove a defendant guilty beyond a reasonable
doubt.” State v. Brubaker, 805 N.W.2d 164, 172 (Iowa 2011).
In contending that allowing the confession into evidence was not
harmless error, Howard relies heavily on State v. Moorehead, 699 N.W.2d 667
(Iowa 2005). In that case, the defendant was charged with operating while
intoxicated. Moorehead, 699 N.W.2d at 670. The district court rejected
Moorhead’s claim that he was denied a right to consult with a family member
before submitting to a breath test. Id. The test results showed Moorehead’s
blood alcohol level was .182, over twice the limit for intoxication. Id. After the
16
test, when an officer asked if he was okay, he replied, “I’m drunk as hell.” Id.
The district court in a nonjury trial convicted him, relying on the breath test.
Id. On appeal, the court of appeals held the breath test was inadmissible but
affirmed his conviction on harmless error grounds, relying on his admission
that he was drunk as hell, as well as the officer’s observation of his erratic
driving and poor performance on three field tests for sobriety. Id. at 672.
On further review, we reversed the conviction, concluding the breath test
was inadmissible. We noted
the test result played a central role in the district court’s decision.
Because this matter was tried to the court, we have a written
exposition of the fact finder’s reasoning in the verdict.
Moorehead’s high breath test result is the very first fact cited as
evidence of guilt. Mindful of a defendant's right to a fair trial and
just application of our rules, it cannot be fairly said that the breath
test result did not injuriously affect Moorehead’s rights. The
district court’s error in admitting this evidence clearly prejudiced
Moorehead. Admission of the breath test result into evidence was
therefore not harmless error.
Id. at 673 (citation omitted). We further held that Moorehead’s statement, “I’m
drunk as hell,” should also be suppressed, unless it was spontaneous. Id. at
675. We declined to decide whether it was spontaneous because the district
court had not reached that issue. Id. We remanded the case for a new trial.
Id. Howard asserts that Moorehead requires a new trial whenever important
evidence was erroneously admitted. Defendant’s confession is powerful
evidence in a child sex abuse case with a victim too young to talk, just as the
breath test result of .182 is powerful proof in an OWI case.
After Moorehead, however, we have continued to hold that a conviction
may be affirmed when supported by other overwhelming evidence of the
defendant’s guilt. For example, in State v. Wells, the State charged Wells with
third-degree sexual abuse. 738 N.W.2d 214, 217 (Iowa 2007). Wells was
accused of having sexual contact with a fourteen-year-old girl, L.M. Id. at 216.
While at the hospital undergoing an examination, L.M. told the nurse
17
examining her that she had engaged in a consensual sexual relationship with
Wells, the latest encounter being earlier that evening. Id. The nurse conducted
a gynecological examination and collected DNA evidence implicating Wells. Id.
The nurse testified at trial to what L.M. told her, over Wells’s objection. Id. at
217. The jury convicted Wells of third-degree sexual abuse. Id. On appeal, we
did not decide whether the district court erred in admitting the victim’s
statement through the nurse because “[t]he jury was presented with DNA
evidence that overwhelmingly established Wells’s guilt.” Id. at 218. We also
noted that, “[b]ecause the admission of the evidence was harmless under the
standard applied to the claimed constitutional error, it was also harmless
under the standard applied [for nonconstitutional error].” Id. at 219; 3 see also
State v. Elliott, 806 N.W.2d 660, 669 n.1 (Iowa 2011) (“Another way to show the
tainted evidence did not affect the jury’s verdict is to show other overwhelming
evidence of the defendant’s guilt, making the prejudicial impact of the tainted
evidence insignificant.”); State v. Redmond, 803 N.W.2d 112, 127 (Iowa 2011)
3To establish harmless error for a constitutional violation, “ ‘the State must “prove
beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.” ’ ” State v. Walls, 761 N.W.2d 683, 686 (Iowa 2009) (quoting State v. Peterson, 663
N.W.2d 417, 431 (Iowa 2003)). We employ a two-step analysis to determine whether the State
has met its burden under the constitutional harmless-error standard. Id.
First, the court asks what evidence the jury actually considered in reaching its
verdict. Second, the court weighs the probative force of that evidence against
the probative force of the erroneously admitted evidence standing alone. This
step requires the court to ask “whether the force of the evidence is so
overwhelming as to leave it beyond a reasonable doubt that the verdict resting
on that evidence would have been the same without the erroneously admitted
evidence.”
Id. at 686–87 (citations omitted) (quoting Peterson, 663 N.W.2d at 431). This two-step analysis
is not required for a nonconstitutional harmless-error review. But even under a constitutional
analysis, it is possible for the erroneous admission of a confession to be harmless error on a
particular record. See id. at 690 (Cady, J., dissenting) (“If the [harmless-error] doctrine is
inapplicable to improperly admitted confessions, we would not have applied it in Hensley to
find the trial court error harmless.” (citing State v. Hensley, 534 N.W.2d 379, 384 (Iowa 1995))).
18
(“Past cases have held the erroneous admission of the defendant's prior
conviction does not violate the defendant's ‘substantial right[s]’ when
overwhelming evidence supports his conviction.” (quoting Parker, 747 N.W.2d
at 209)); State v. Paredes, 775 N.W.2d 554, 571 (Iowa 2009) (nonconstitutional
harmless-error analysis asks whether defendant has been “ ‘injuriously affected
by the error or . . . has suffered a miscarriage of justice’ ” (quoting State v.
Sullivan, 679 N.W.2d 19, 29 (Iowa 2004))).
Ordinarily, the erroneous admission into evidence of defendant’s
confession to the unwitnessed sexual assault of a toddler would require a new
trial in the absence of DNA evidence, reliable eyewitness testimony, video, or
other compelling proof. The jury convicted Howard of two counts: sexual abuse
in the second degree and child endangerment. We consider whether the court’s
admission of Howard’s confession was harmless for each count separately. We
consider only the admissible evidence presented at trial including the recorded
statements Howard made to Detective Hull and Krueger before any
impermissible promise of leniency. See Madsen, 813 N.W.2d at 728 (noting
that certain “statements were properly admitted into evidence because [the
defendant] made the statements before the detective’s promise of leniency”).
1. Count I: sexual abuse in the second degree. The State charged
Howard with second-degree sexual abuse in violation of Iowa Code section
709.3(2) (2009). Jury instruction No. 19 required the jury to find:
1. On or about January 14, 2010, the defendant performed
a sex act with A.E.
2. The defendant performed the sex act while A.E. was
under the age of 12 years.
Iowa Code section 702.17 defines “sex act,” in part, as “any sexual contact
between two or more persons by: penetration of the penis into the vagina or
19
anus.” 4 The jury instructions permitted the jury to consider the type of contact
and the circumstances surrounding it in determining whether the contact was
sexual in nature. See Madsen, 813 N.W.2d at 728 (“[W]hether a ‘sex act’ has
occurred is a fact question for the jury that can ‘be determined from the type of
contact and circumstances surrounding it.’ ” (quoting State v. Pearson, 514
N.W.2d 452, 455–56 (Iowa 1994))).
Such circumstances certainly include whether the contact was
made to arouse or satisfy the sexual desires of the defendant or the
victim. However, the lack of such motivation would not preclude a
finding of sexual abuse where the context in which the contact
occurred showed the sexual nature of the contact. Other relevant
circumstances include but are not limited to the relationship
between the defendant and the victim; whether anyone else was
present; the length of the contact; the purposefulness of the
contact; whether there was a legitimate, nonsexual purpose for the
contact; where and when the contact took place; and the conduct
of the defendant and victim before and after the contact.
Pearson, 514 N.W.2d at 455 (noting with regard to State v. Phipps, 442 N.W.2d
611, 612 (Iowa Ct. App. 1989), that “the fact that no nonsexual purpose for the
contact was discernible also demonstrated the sexual nature of the contact”).
We need to decide whether overwhelming admissible evidence supports the
jury’s verdict on this count.
A.E., who was then a seventeen-month-old, suffered an injury to his
anus, which Dr. Hostetler testified, to a reasonable degree of medical certainty,
was caused by an object penetrating the anus that “was bigger than a pencil or
a finger but small enough to fit in that area.” Dr. Hostetler also testified that
A.E.’s injuries were not consistent with that caused by a hard stool because the
injuries were predominantly external, whereas she would expect injuries
resulting from a hard stool to be primarily internal. Dr. Hostetler also testified
4The definition of “sex act” also includes “sexual contact between two or more persons
by . . . use of artificial sexual organs or substitutes therefor in contact with the genitalia or
anus;” however, the jury instructions omitted this facet of the statutory definition.
20
that the injuries had occurred within several hours of the time when A.E. was
brought to the clinic.
Howard confirmed during the admissible part of his recorded interview
that the only people with A.E. during that time were Jessica, Howard, and a
friend of Howard’s, who Howard said was never alone with A.E. Howard told
Detective Hull he never saw A.E. get hurt, cry, or otherwise suggest that he had
been injured throughout the day. Howard also told Detective Hull that he did
not think Jessica would hurt her child.
Aside from Jessica, Howard was the only one who spent any time alone
with A.E. during that time period. Just thirty minutes before Jessica left A.E.
alone with Howard while she retrieved her mother’s key, she changed A.E. and
saw no blood in A.E.’s diaper or any other abnormality. Howard confirmed in
the admissible part of his interview that Jessica changed A.E. at that time.
Thus, the blood first appeared in A.E.’s diaper while Howard was alone with
A.E. during that twenty-minute period while Jessica was away. Howard’s claim
that A.E.’s injuries resulted from a hard stool was rebutted by Dr. Hostetler’s
testimony. It is difficult to imagine how a child of A.E.’s age could accidentally
suffer an anal penetration injury while wearing a diaper.
Not only was no other accidental or nonsexual explanation for A.E.’s
injuries offered, Howard’s contemporaneous behavior supports the conclusion
that the contact was sexual. When Jessica returned home, A.E. was in his
crib, on his stomach, screaming. Howard was lying on the floor. After Jessica
spoke with the clinic and they told her to bring A.E. in to be examined, Howard
insisted on first taking a shower and changing his clothes. Then, Howard,
freshly showered and in clean clothing, further delayed bringing A.E. to the
clinic when he stopped at a friend’s house on the way to the clinic. These
actions show Howard’s consciousness of guilt and intent to eliminate any
21
evidence on his body or on his underwear. This evidence clearly is sufficient to
sustain a conviction.
Nevertheless, there was no DNA evidence, video, or eyewitness testimony
proving Howard’s sexual assault on A.E. The victim is too young to identify his
assailant. Two other adults had been with A.E. in the hours before the blood
was discovered in his diaper. Howard’s statement that Jessica is a “good
mother” who would not hurt her child does not conclusively rule her out as a
suspect. It is not uncommon for joint caregivers who are romantically involved
to cover for each other in the face of allegations of child abuse. See Paredes,
775 N.W.2d at 571 (erroneous exclusion of self-incriminating statement by
mother not harmless in father’s trial for shaken baby syndrome injuries
because both parents were suspects, despite father’s own confession). To apply
the harmless-error rule here would undermine the deterrent value of the
exclusionary rule for confessions tainted by a promise of leniency. See Polk,
812 N.W.2d at 674 (noting exclusionary rule “deters police from using a tactic
that might induce the innocent to confess falsely”).
We hold the State has failed to establish Howard was not prejudiced by
the erroneous admission of his confession. Accordingly, the error was not
harmless, and Howard is entitled to a new trial on the charge of second-degree
sexual abuse.
2. Count II: child endangerment. The State also charged Howard with
child endangerment in violation of Iowa Code sections 726.6(1)(a), (b) and
726.6(6), alleging that while Howard had custody or control over A.E., he acted
in a manner that created a substantial risk to A.E.’s physical health and safety
and that he intentionally used unreasonable force against A.E. causing bodily
injury. Jury instruction No. 22 required the jury to find:
1. On or about the 14th day of January, 2010, the
defendant was the person having custody or control of A.E.
22
2. A.E. was under the age of fourteen years.
3. The defendant committed an act or a series of acts that
resulted in physical injury to A.E.
4. The defendant’s act resulted in bodily injury to A.E.
The jury instructions defined “bodily injury” as “physical pain, illness or any
impairment of physical condition.”
The admissible evidence of Howard’s guilt is strong, as reviewed above,
and is clearly sufficient to sustain a conviction on this count as well. Howard
admitted before the promise of leniency that he had been alone with A.E. that
day. A.E. was under the age of fourteen. Dr. Hostetler testified A.E. suffered a
penetration injury to his anus within several hours of being brought to the
clinic. Dr. Hostetler specifically rejected Howard’s contention that a hard stool
caused A.E.’s injuries because they were not consistent with the trauma that
would result from a hard stool. Her medical testimony was unrebutted.
Nevertheless, on this record, we cannot say with the required confidence that
the introduction of Howard’s confession was harmless.
We conclude the State has failed to establish Howard was not prejudiced
by the erroneous admission of his confession. Accordingly, the error was not
harmless, and Howard is entitled to a new trial on the charge of child
endangerment.
IV. Conclusion.
For these reasons, we vacate the decision of the court of appeals, reverse
the judgment of the district court, and remand the case for a new trial on both
counts.
DECISION OF THE COURT OF APPEALS VACATED, JUDGMENT OF
DISTRICT COURT REVERSED, AND CASE REMANDED FOR NEW TRIAL.