IN THE SUPREME COURT OF IOWA
No. 19–0603
Filed January 31, 2020
STATE OF IOWA,
Appellant,
vs.
DEWAYNE MICHAEL VEVERKA,
Appellee.
Discretionary review from the Iowa District Court for Jasper County,
Thomas P. Murphy, Judge.
Discretionary review of pretrial order excluding from evidence
forensic interview of alleged child sex abuse victim. ORDER VACATED
AND REMANDED.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant
Attorney General, Scott Nicholson, County Attorney, and Peter W. Blink,
Assistant County Attorney, for appellant.
Theresa R. Wilson, Assistant Appellate Defender, for appellee.
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McDONALD, Justice.
Dewayne Veverka was charged with three counts of sexual abuse in
the third degree, in violation of Iowa Code sections 709.1 and 709.4(1)(a)
(2016), arising out of his alleged sexual abuse of his fourteen-year-old
child, S.V. The question presented is whether the district court erred in
its preliminary ruling that a video recording of a forensic interview of S.V.
was not admissible under the residual exception to the hearsay rule.
We begin with the relevant law. “Hearsay ‘is a statement, other than
one made by the declarant while testifying at the trial . . . offered in
evidence to prove the truth of the matter asserted.’ ” State v. Dullard, 668
N.W.2d 585, 589 (Iowa 2003) (quoting Iowa R. Evid. 5.801(c) (2003)). As a
general rule hearsay is not admissible. See id. Hearsay can be admitted
when the proffered evidence falls within one of the numerous exceptions
to the hearsay rule. See id.; see also Iowa R. Evid. 5.803, 5.804 (2019).
The residual exception to the hearsay rule is one such exception.
The residual exception is set forth in Iowa Rule of Evidence 5.807. The
rule provides,
a. In general. Under the following circumstances, a
hearsay statement is not excluded by the rule against hearsay
even if the statement is not specifically covered by a hearsay
exception in rule 5.803 or 5.804:
(1) The statement has equivalent circumstantial
guarantees of trustworthiness;
(2) It is offered as evidence of a material fact;
(3) It is more probative on the point for which it is
offered than any other evidence that the proponent can obtain
through reasonable efforts; and
(4) Admitting it will best serve the purposes of these
rules and the interests of justice.
b. Notice. The statement is admissible only if, before
the trial or hearing, the proponent gives an adverse party
reasonable notice of the intent to offer the statement and its
particulars, including the declarant’s name and address, so
that the party has a fair opportunity to meet it.
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Iowa R. Evid. 5.807.
The residual exception to the hearsay rule is to “be used very rarely,
and only in exceptional circumstances.” State v. Brown, 341 N.W.2d 10,
14 (Iowa 1983) (quoting 28 U.S.C.A. Rule 803, Historical Note at 583).
“Before hearsay evidence can be admitted” under the residual exception,
“the district court must make five findings concerning the nature of the
evidence: (1) trustworthiness; (2) materiality; (3) necessity; (4) notice; and
(5) service of the interests of justice.” State v. Weaver, 554 N.W.2d 240,
247 (Iowa 1996), overruled on other grounds by State v. Hallum, 585
N.W.2d 249, 254 (Iowa 1998); see State v. Rojas, 524 N.W.2d 659, 662–63
(Iowa 1994) (“The requirements for admissibility under the residual
exception are five-fold: trustworthiness, materiality, necessity, service of
the interests of justice, and notice.”). “As the above criteria are set forth
in the conjunctive, the failure to satisfy one requirement precludes
admission of the evidence.” Weaver, 554 N.W.2d at 247.
With these principles in mind, we turn to the facts and
circumstances of this case. In November 2016, Veverka’s wife, Christine,
reported to the Jasper County Sheriff’s Office that her daughter, S.V., told
Christine that Veverka had touched S.V. inappropriately. Specifically, S.V.
said Veverka had touched S.V. under S.V.’s clothes on her breasts and
vagina, that Veverka had digitally penetrated S.V.’s vagina, and that
Veverka had forced S.V. to rub his erect penis. Christine reported that her
mother (S.V.’s maternal grandmother) was trying to talk S.V. into dropping
the allegations because the matter should be handled within the family.
In December 2016, Tammera Bibbins conducted a forensic interview with
S.V. at the Blank Children’s Hospital STAR Center, formerly known as the
Regional Child Protection Center. In that interview, S.V. provided
additional information regarding the alleged abuse. The forensic interview
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was recorded. In January 2017, Veverka allegedly admitted to the sexual
abuse. Specifically, in a meeting with Veverka, a social worker involved
with the family asked Veverka if the allegations were true, and Veverka
responded, “Yes.” The pretrial record showed Veverka is on the sex
offender registry for two prior sex offenses. It appears the prior offenses
were assault with intent to commit sexual abuse and indecent contact with
a child.
Based on this and other information, the State charged Veverka in
March 2017. Veverka filed two motions in limine relevant to this appeal.
In the first, Veverka moved to exclude from evidence the video of the
forensic interview. Veverka argued the video was hearsay and not
admissible under the residual hearsay exception. He also argued
admission of the video into evidence would violate his federal and state
constitutional rights to confront witnesses as set forth in Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), and State v. Bentley,
739 N.W.2d 296 (Iowa 2007). The State resisted the motion in limine,
contending the evidence was admissible under the residual hearsay
exception as applied in Rojas.1 The State further argued the defendant’s
right to confrontation would not be violated because S.V. was available
and subject to cross-examination.
1The Code provides for the admission of child hearsay in certain circumstances:
The court may upon motion of a party admit into evidence the recorded
statements of a child, as defined in section 702.5, describing sexual
contact performed with or on the child, not otherwise admissible in
evidence by statute or court rule if the court determines that the recorded
statements substantially comport with the requirements for admission
under rule of evidence 5.803(24) or 5.804(b)(5) [now combined at Iowa R.
Evid. 5.807].
Iowa Code § 915.38(3). A child is defined as a “person under the age of fourteen years.”
Id. § 702.5. It is undisputed S.V. was fourteen at the time of the alleged abuse and not
a “child” within the meaning of the Code. The State does not rely on the statute, and it
is not at issue in this case.
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In the second motion in limine, Veverka sought to prohibit the State
from calling S.V. as a witness on the ground that S.V. had recanted her
allegations and that the State was not allowed to call S.V. for the purpose
of impeaching her testimony with the forensic interview. See State v.
Turecek, 456 N.W.2d 219, 225 (Iowa 1990). In support of the second
motion, Veverka attached a letter allegedly authored and signed by S.V.
and dated March 29, 2018. In the letter, S.V. said the prosecutor put
“things in reports and other stuff that [S.V. had] not said.” The letter also
stated, “This case needs to end now,” and “[I]t didn’t happen.” Veverka
also attached a transcript of S.V.’s August 18, 2017 deposition. In the
deposition, S.V. stated her father had been touching her inappropriately
for approximately a six-month period prior to S.V. disclosing the abuse to
Christine. When asked to describe what Veverka did that was
inappropriate, S.V. stated, “I don’t recall. I really don’t. I’m sorry.”
The district court granted the defendant’s first motion and effectively
denied the second. With respect to the first motion to exclude the forensic
interview, the district court stated, “The court, without hearing more from
the alleged victim, finds that the video will neither be admitted into
evidence nor played for the jury.” With respect to the second motion, the
district court concluded that the alleged victim’s testimony could not be
determined to be inadmissible in its entirety and that the court would wait
to see what was offered at trial.
This brings us to the motion at issue. After the district court issued
its rulings on the motions in limine, the State filed a motion to adjudicate
preliminary questions of law under Iowa Rule of Evidence 5.104. The State
sought an evidentiary hearing and requested the district court make
findings and a “definitive ruling” on four of the findings requisite for
evidence to be admitted under the residual exception—trustworthiness,
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materiality, notice, and service of the interests of justice. See Rojas, 524
N.W.2d at 662–63 (identifying the five requisite findings). The State did
not request a finding on necessity. At the hearing, the State called three
witnesses: Douglas Shullaw, the social worker to whom Veverka admitted
the allegations were true; Bibbins, the forensic interviewer who conducted
S.V.’s interview at the STAR Center; and Katie Strub, a forensic interviewer
at another Iowa facility, who served as an expert witness in the forensic
interview process. The State also introduced into evidence a document
from the National Children’s Advocacy Center describing the forensic
interview structure and process. After hearing the testimony and
reviewing the exhibits, the district court concluded the video was not
admissible under the residual hearsay exception. The State contends the
district court’s preliminary ruling was in error.2
We now directly address the question presented—whether the
district court’s preliminary ruling was in error. Iowa Rule of Evidence
5.104(a) provides that “the court must decide any preliminary question
about whether a witness is qualified, a privilege exists, or evidence is
2Veverka asks us to dismiss the State’s appeal as improvidently granted. He
argues that the district court did not definitively exclude the video. Rather, the court
stated that “without hearing more from the alleged victim, . . . the video will neither be
admitted into evidence nor played for the jury.” (Emphasis added.). Iowa Code section
814.5(2)(b), the relevant statute, permits the State to seek discretionary review of an order
“suppressing or admitting evidence.” Veverka maintains that the district court’s order
was equivocal and neither suppressed nor admitted the video. See id. Therefore, he
insists that discretionary review is unavailable.
We disagree for two reasons. First, as we read the district court’s findings, they
tip the scales decisively against admissibility. We are not sure how the State would
change this landscape at trial. As a practical matter, the evidence was suppressed.
Second, we read the “suppressing or admitting evidence” language as establishing the
possibility of discretionary review over evidentiary rulings, not as categorically prohibiting
review of any pretrial ruling that does not conclusively admit or exclude particular
evidence regardless of what happens at trial. The latter would be an impractical reading
of the section. Once trial begins, jeopardy attaches and as a practical matter it would be
impossible for the State to obtain review of an unfavorable evidentiary ruling.
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admissible. In so deciding, the court is not bound by evidence rules,
except those on privilege.” Our review of the district court’s ruling on a
preliminary question of admissibility is for the correction of legal error.
See State v. Long, 628 N.W.2d 440, 447 (Iowa 2001) (en banc). When the
preliminary question is one of fact, “we give deference to the district court’s
factual findings and uphold such findings if they are supported by
substantial evidence.” Id.
We conclude the district court committed two overarching errors in
its analysis of the preliminary question. First, the district court stated it
had discretion regarding the admission of the videotape. We disagree. “[A]
district court has no discretion to deny the admission of hearsay if the
statement falls within an enumerated exception, subject, of course, to the
rule of relevance under rule 5.403.” Dullard, 668 N.W.2d at 589.
Conversely, a district court “has no discretion to admit hearsay in the
absence of a provision providing for it.” Id. This is why we review rulings
on hearsay for the correction of legal error. See State v. Heuser, 661
N.W.2d 157, 162 (Iowa 2003) (“We review the trial court’s admission of
hearsay evidence for correction of errors of law.”); State v. Neitzel, 801
N.W.2d 612, 621 (Iowa Ct. App. 2011) (“Although we generally review a
court’s decision to admit or exclude evidence for an abuse of discretion,
we review a hearsay claim for correction of errors at law.”). It is unclear
whether and to what extent the district court’s belief that it had discretion
to admit or exclude the evidence infiltrated the district court’s analysis.
This error requires remand and reconsideration.
Second, the district court’s analysis of the preliminary question was
infected with extraneous considerations relating to our confrontation
clause jurisprudence. Much of modern confrontation clause
jurisprudence turns of the question of whether the evidence is
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“testimonial” in nature. See, e.g., Bentley, 739 N.W.2d at 298 (discussing
the concern with the admission of testimonial statements from unavailable
witnesses not subjected to cross-examination). Here, the district court’s
analysis of the requisite findings appeared to turn on whether the video
was testimonial in nature. For example, in assessing the trustworthiness
of the video, the district court found “CPC interviews are incredibly
important and are of great service to victims and the justice system.
However, they are not (and should not be considered) testimonial.” By way
of another example, in assessing the interests of justice, the district court
found the forensic interview was conducted to investigate the allegations
but not “conducted for the purpose of creating testimony.” The district
court stated it would thus not treat the interview as admissible testimony.
While the testimonial nature of the forensic interview might have been
relevant to Veverka’s Confrontation Clause claim raised in his second
motion in limine, which is not at issue in this appeal, it was not relevant
to the preliminary evidentiary question presented to the district court.
Like the preceding error, this error requires remand and reconsideration.
In addition to these overarching errors, the district court also erred
in its application and analysis of the law regarding the requisite findings.
In particular, the district court failed to follow the relevant precedents in
analyzing the trustworthiness of the forensic interview and in determining
whether admission of the forensic interview would be in the interests of
justice.
With respect to trustworthiness, the relevant consideration is
whether the proffered evidence has “circumstantial guarantees of
trustworthiness.” Iowa R. Evid. 5.807(a)(1). We have previously
considered the trustworthiness of recorded interviews and identified
relevant considerations. In Rojas, we concluded the district court properly
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admitted a social worker’s videotaped interview of a child sex abuse victim
under the residual exception after the victim recanted her videotaped
statements at trial. See 524 N.W.2d at 663–64. With respect to the
trustworthiness of the evidence, we explained the recorded interview had
sufficient guarantees of trustworthiness. See id. at 663. In particular, we
noted the following: “[t]he interviewer asked [the child] open-ended, non-
leading questions”; the questions “were not the kind that would prompt a
child to fabricate the responses”; the child provided “a fairly detailed
account of the abuse itself”; the child remembered other details regarding
the circumstances; the descriptions of the sex acts were “beyond the
experience of the average ten-year-old”; the child’s “statements were
consistent throughout the interview”; and “the videotape [was] more
reliable than many other forms of hearsay because the trier of fact could
observe for itself how the questions were asked, what the declarant said,
and the declarant’s demeanor.” Id. In contrast, in State v. Cagley, we held
there was substantial evidence supporting the finding that a recorded
interview was not sufficiently trustworthy where the alleged victim was
older; “had sufficient time to fabricate her allegations”; “recanted, under
oath, the statements at issue”; and “testified as to her motivation for doing
so.” 638 N.W.2d 678, 682 (Iowa 2001).
The court of appeals has also considered the issue. In Neitzel, the
court of appeals held the district court did not err in admitting a
videotaped interview of a seven-year-old sex abuse victim. 801 N.W.2d at
623. In that case, the interview was conducted by an experienced forensic
interviewer at a child advocacy center. See id. at 622. The interviewer
“testified her purpose of conducting the interview was fact finding to
determine what happened to the child, assessment of the safety risk of the
child’s environment, and assessment of the child’s need for further
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counseling or treatment.” Id. In concluding the video was admissible, the
court of appeals found the interview had sufficient circumstantial
guarantees of trustworthiness. See id. at 623. In particular, the court of
appeals noted the interviewer was “educated and trained in conducting
this type of interview,” the interviewer “asked non-leading questions,” the
interview “occurred shortly after the abuse occurred,” and the victim’s
statements were consistent. Id. As in Rojas, the court of appeals also
noted playing the videotape for the jury allowed the jury to view the
interview and draw its own conclusions. See id. (“As for the videotape,
[the interviewer] did not testify to what [the child] said during her
interview, but [the child]’s statements were introduced through the playing
of the videotape for the jury. This permitted the jury to hear exactly what
questions were asked and what [the child] said in response, while viewing
[the child]’s demeanor.”).
In this case, the district court failed to consider the indicia of
trustworthiness as identified in the relevant precedents. Instead, the
district court considered whether the interview was “inherently
trustworthy,” whether the interview was testimonial in nature, whether the
interview constituted expert testimony, and whether the forensic interview
protocol was based on science or social science. While the finding of
trustworthiness or lack thereof must be based on the facts and
circumstances of the particular case, the district court should have at least
addressed the factors identified in the relevant precedents and omitted
consideration of extraneous factors unrelated to the relevant inquiry.
With respect to the finding regarding the interests of justice,
evidence serves the interests of justice where “[t]he appropriate showing of
reliability and necessity were made, and admitting the evidence advances
the goal of truth-seeking expressed in Iowa Rule of Evidence [5.102].”
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Rojas, 524 N.W.2d at 663. Here, the district court found the interests of
justice would not be served because the interview was not conducted for
the purpose of creating testimony. We think the consideration not relevant
to the issue, and the district court erred in so holding.
Because the court’s preliminary ruling will have to be reconsidered
on remand, we address the showing for necessity. Evidence is not
necessary merely because the State claims to need the evidence to
prosecute certain categories of offenses. Instead, the State must show the
evidence is “more probative . . . than any other evidence that the
proponent can obtain through reasonable efforts.” Iowa R. Evid.
5.807(a)(3). In Rojas, we held a forensic interview was necessary evidence
after the child was called to testify and then recanted what she said in the
forensic interview. See 524 N.W.2d at 662, 663. In Neitzel, the court of
appeals determined a forensic interview was necessary evidence when the
child witness could not recall any specific information about the alleged
abuse. See 801 N.W.2d at 623. In State v. Metz, we found there was no
showing of necessity when the hearsay did “not differ substantially from
the testimony of the other witnesses.” 636 N.W.2d 94, 100 (Iowa 2001).
We concluded, “The residual hearsay rule should not be invoked in the
absence of a far greater need than that which was shown to exist.” Id.
The residual exception to the hearsay rule should be used sparingly.
The admissibility of evidence under the exception depends on the unique
facts and circumstances of each case. There is no rule that allows for the
automatic admission of certain categories or types of evidence under the
residual exception, and nothing in Rojas, Neitzel, or this opinion should
be read to allow for the categorical admission into evidence of forensic
interviews of alleged child sex abuse victims. With that understanding,
and for the reasons set forth above, we vacate the district court’s
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preliminary ruling. We remand this matter for further proceedings not
inconsistent with this opinion.
ORDER VACATED AND REMANDED.