On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Louisa County, John M. Wright, 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.
Benjamin D. Bergmann of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry & Fisher, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Katie A. H. Fiala, Assistant Attorney General, and David L. Matthews, County Attorney, for appellee.
WIGGINS, Justice. All justices concur except Mansfield, J., Cady, C.J., and Waterman, J., who dissent.
This case involves a charge of sexual abuse in the second degree in violation of Iowa Code sections 709.1 and 709.3(2) (2011). A jury returned a guilty verdict on this charge. In this appeal, the defendant contends an expert witness vouched for
the credibility of the victim and therefore he is entitled to a new trial. We transferred the case to our court of appeals. The court of appeals agreed the defendant is entitled to a new trial on the ground the expert witness vouched for the credibility of the victim.
The State asked for further review, which we granted. On further review, we find the court of appeals is correct 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.
I. Background Facts and Proceedings.
In October 2006, Jose Francisco Jaquez moved in with his new girlfriend and her three children, including her oldest daughter M.M. While living with his girlfriend, M.M. claimed Jaquez had sexual intercourse with her on more than one occasion. At trial, M.M. testified Jaquez had sex with her at least once a week for two years, but she told forensic interviewer Kiesa Kay he had sex with her three times total. M.M. also testified to acts in addition to sexual intercourse that occurred over the course of two years, from the time she was ten until she was twelve. M.M. disclosed the alleged abuse to her best friend when she was twelve and then to her mother. On January 9, 2012, at the Child Protection Center, Dr. Colette Hostetler examined M.M. and forensic interviewer Kay interviewed the child. On April 13, the State charged Jaquez with one count of sexual abuse in the second degree.
Jaquez filed a motion in limine seeking to exclude any testimony by Kay that would serve to bolster the credibility of the child. The district court granted the motion stating, " The Court will rule that the State may not ask questions of the witness that would tend to give the impression to the jury that the jury should give more credibility to the witness's testimony, the child witness's testimony."
At trial, Dr. Hostetler testified without objection that she performed a physical exam on the child. She testified she found scar tissue in the child's anal area and the hymen did not show any " transections or irregularities." Kay testified she conducted a forensic interview of M.M. During her testimony, the following colloquy occurred between her and the county attorney:
Q: All right. First of all, what was your impression of [M.M.] when you spoke to her? Basically, how did she appear emotionally? A: She was quiet and very polite.
Q: Okay. A: She was not extremely emotionally expressive or upset. She was just very polite.
Q: In your experience in those prior interviews that you conducted, is that unusual that a child not be overly emotional in that type of a situation? A: Oh, no, not at all. Her demeanor was completely consistent with a ...