Appeal from the Iowa District Court for Cedar County, Mark D. Cleve, Judge.
Matthew Eugene Brown appeals from his conviction of second-degree sexual abuse.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, and Jeff L. Renander, County Attorney, for appellee.
Considered by Vogel, P.J., and Danilson and Tabor, JJ.
Matthew Eugene Brown appeals from his conviction of second-degree sexual abuse. Because we conclude Dr. Barbara Harre's report improperly vouched for the credibility of the complaining witness, we reverse and remand for a new trial.
I. Background Facts and Proceedings.
A.T. is the daughter of Jayme and Allen. A.T. has a brother, an older sister, and an older step-sister, Tabitha. Defendant Matthew Brown is Tabitha's fiancé. During the summer of 2011, A.T. was seven years old.
On the morning of August 26, 2011, A.T.'s older sister was with A.T. and Jayme when A.T. told them that Brown had rubbed her vaginal area with his fingers, saying it hurt. A.T. said it had happened twice at Tabitha's house—one time in the living room and one time in Brown and Tabitha's daughter's room. In the kitchen that evening, A.T. whispered to Jayme that "he also made me touch him." Jayme was not talking about Brown or anything sexual either time A.T. made statements about Brown. Jayme and Allen contacted the department of human services for advice.
Michele Mattox interviewed A.T. at the Child Protection Response Center three days after A.T. told her mother and sister about the touching. Although A.T. initially denied that anyone had touched her "potty spot, " Mattox noticed A.T. shake her head yes and motion to her crotch while appearing to hold her breath. After Mattox assured A.T. of her safety, A.T. paused and then said, "Tabitha's boyfriend was rubbing me right here, " putting her hand on her crotch area. She said it happened at Tabitha's house and that "Matt" rubbed her "potty spot"; it was in the morning while she was sleeping on the living room floor near her brother. AT. first said her underwear was pulled down when Brown touched her, but later said his hand was underneath her clothes. A.T. said Brown was wearing underwear, and denied that she had touched or seen his penis or been asked to touch it.
Cedar County Deputy Tom McGuinty observed Mattox's interview of A.T. and interviewed Brown the same day. Brown explained that he lies down with his daughter in an effort to get her to calm down and go to sleep; when she gets to sleep he goes back to bed. Brown admitted he wore boxer shorts to bed. He denied he touched A.T. Brown said "[h]e had no idea why she would [say] this" happened.
Dr. Barbara Harre (a pediatrician specializing in child abuse) was "asked to complete a medical assessment for [A.T.]." On September 20, 2011, Dr. Harre interviewed and examined A.T. During the examination, Dr. Harre asked A.T. "if anybody had ever touched her in her genital area in a way that hurt her or made her feel funny or that she didn't like." A.T. responded, "Matt." Other questions led to A.T. responding with "[h]is hand, " "[u]nder clothes, " and it happened "[a]t Tabitha's house" "[i]n the living room and in my niece's room." A.T. told Dr. Harre that Brown put his hand under her clothing and touched her "front bottom area, " pointing to her genitalia area.
Dr. Harre wrote a lengthy consultation report addressed to "Investigator Tom McGuinty" in which she outlines the presenting concerns; A.T.'s mother's concerns; A.T.'s medical history and concerns; the numerous statements made by A.T. during the examination; observations from the examination; and an "assessment, " ...