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State v. Overstreet

Court of Appeals of Iowa

December 21, 2016

STATE OF IOWA, Plaintiff-Appellee,
RICKY L. OVERSTREET, Defendant-Appellant.

         Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.

         Ricky Overstreet appeals his conviction for child endangerment. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Jean C. Pettinger and Tyler J. Buller, Assistant Attorneys General, for appellee.

          Considered by Potterfield, P.J., Tabor, J., and Scott, S.J. [*]

          SCOTT, Senior Judge.

         Ricky Overstreet appeals his conviction for child endangerment, alleging his counsel was ineffective for failing to move for a severance of trial, there was insufficient evidence to support the conviction, and the district court erred in admitting hearsay testimony. We affirm.

         I. Background Facts and Proceedings

         On May 19, 2013, Heather Davis, a child protection worker from the Iowa Department of Human Services (DHS), went to the home of Gloria Overstreet and her son, Ricky Overstreet, to investigate an anonymous call received about Ricky's daughter, T.O., in which the source reported T.O. was being physically abused by Ricky and Gloria and was receiving inadequate food and clothing. At the time, T.O. was eight years old. She had lived with Ricky and Gloria since she was three, having previously lived with her mother.[1]

         Gloria refused Davis access to her home, so Gloria, Ricky, T.O., and Davis met in the yard. T.O. was dressed in long pants and long sleeves that covered her neck and arms, even though the day was unseasonably warm. Davis observed Gloria had long fingernails. Davis asked to speak with T.O. alone, but the request was denied. When Davis asked T.O. in front of Ricky and Gloria how she was disciplined, T.O. said she was told to stand in the corner or write sentences.

         The following day, the principal at T.O.'s school was confronted with concerns about Gloria's treatment of T.O. The principal had T.O. examined by the school nurse; the nurse and principal found marks on T.O.'s body and contacted the police. The principal testified at trial the marks were "very concerning. Much more significant than what [she] had seen before on other children." She further testified T.O. would often say things regarding her concern about the discipline at home, specifically with regard to Gloria.

         The police were called to the scene, and T.O. agreed to have the injuries photographed; these photos were entered into evidence at trial. The responding officer testified at trial that T.O. had "scarring and marks on either side of her neck" and "several pattern marks, linear scars, on her back." The officer described the marks on T.O.'s neck as "claw marks" made by "a person, " which were consistent with what T.O. told the officer had happened. The officer indicated there was a pattern to the markings on T.O.'s back that made it "very clear" to the officer "some sort of object [was] used, " which "matched up with what [T.O.] had described to [the officer] [was] happening to her"; specifically, that she had been hit with a spatula. As to the timing of the injuries, the officer stated the injuries "were pretty extensive" with "numerous scars" showing "different stages of scarring" with "some more recent, some had been there a while, so it was clear to [the officer] that this had been ongoing."

         Davis was also contacted to come to the school, and she personally observed the fingernail marks on T.O.'s neck and multiple scratches on her back and first heard T.O. was stating Ricky and Gloria had injured her. T.O.'s mother also observed the markings and testified they resembled being spanked with an object. T.O. was then placed in the care of her mother. That same day, police officers executed a search warrant on Gloria and Ricky's home. During the search, police officers seized two spatulas and a spoon from the home. An officer testified to her belief one of the objects collected had caused the injury, although she admitted it was "for the most part" a standard-looking spatula. Both Davis and the officer testified Gloria told them during the search she did not want T.O. back.

         On May 23, 2013, T.O. was examined by Dr. Barbara Harre, of the Child Protection Response Clinic, who specializes in child abuse pediatrics. T.O. told Dr. Harre she had multiple injuries to her back, caused by Gloria hitting her with a spatula. T.O. said she was hit with a spatula as discipline from the age of six until she was eight. She also told Dr. Harre that Ricky had struck her with the spatula as well. T.O. identified marks on her neck, which she stated were caused by Gloria strangling her. She stated Gloria would lift her off the floor by the neck, sometimes until she lost consciousness. T.O. also identified marks not caused by Gloria or Ricky, including a bite mark on her cheek inflicted by a cousin, a scar on her forearm she caused when she dropped an iron on her wrist, and a birthmark on her arm. Dr. Harre testified T.O.'s ability to identify marks and distinguish their origin told her that T.O. "understands that different injuries can occur in different ways, and [T.O.'s] able to give that history."

         Dr. Harre then examined T.O., observing the bite mark to her face and marks on her back and neck. Dr. Harre testified the markings on T.O.'s neck were consistent with fingernail-type impressions and indicative of a pattern of repeat behavior. Dr. Harre further testified to "parallel lines distributed all over [T.O.'s] back" and that these parallel lines "suggest[ed] more of a controlled contact" making it "much more likely that there's an object involved."

         As to the timing of the injuries, Dr. Harre testified about a "general rule" that skin "remodeling"-or healing-can take up to a year. Dr. Harre stated that during follow-up visits with T.O. she noticed "significant resolution of the degree of injuries" to both T.O.'s neck and back, although she was unable to identify the age of the marks. An officer also testified to photographing T.O.'s injuries a couple months after the initial report was made and stated some scars had faded but distinct scarring remained.

         On cross-examination, Dr. Harre testified to additional information T.O. provided her: that T.O. was required to wake at 3 a.m. and perform chores-like wash dishes, vacuum the floor, and set mouse traps-and that she was only fed bread and water. Despite T.O.'s testimony regarding her ...

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