December 21, 2016
STATE OF IOWA, Plaintiff-Appellee,
RICKY L. OVERSTREET, Defendant-Appellant.
from the Iowa District Court for Scott County, Mark J. Smith,
Overstreet appeals his conviction for child endangerment.
C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,
Assistant Appellate Defender, for appellant.
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.
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.
Background Facts and Proceedings
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.
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.
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.
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
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.
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."
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."
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
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
nutritional intake, Dr. Harre noted T.O. was not
malnourished, except for a vitamin D deficiency.
testified Ricky and Gloria hurt her using a spatula, Gloria
touched her neck, and she used to have scratches on her neck.
When T.O. testified, she confirmed she was required to wake
at 3 a.m. and do chores but denied performing the specific
chores she had previously told Dr. Harre. She also denied
remembering what she ate when she lived with Ricky and
friend, who lived with Ricky and Gloria at the time in
question, also testified at trial, stating T.O.
"constantly needed discipline, " which consisted of
her writing sentences or standing in the corner. He denied
ever seeing corporal punishment used, but he admitted he was
not around all of the time. He further testified that when
T.O. moved in with them he noticed no physical injuries,
except "probably a couple of scratches, " such as
"a couple on her back and places like that." He
also stated T.O. "got scratched up by the cats a
October 9, 2013, Ricky and Gloria were charged with child
endangerment resulting in bodily injury and child
endangerment resulting in serious injury. The State
subsequently dismissed the latter charge. After numerous
continuances, a jury trial commenced on August 10, 2015.
Ricky was convicted of the lesser included charge of child
endangerment. Ricky appeals.
Severance of Trial
asks this court to find his counsel was ineffective for
failing to move to sever his trial from his mother's
trial. We may consider an ineffective-assistance-of-counsel
claim for the first time on appeal, and our review is de
novo. See State v. Philo, 697 N.W.2d 481, 485 (Iowa
2005). However, we find further development of the record is
necessary to resolve this issue and preserve this claim for
postconviction-relief proceedings. See State v.
Johnson, 784 N.W.2d 192, 198 (Iowa 2010).
Sufficiency of the Evidence
contends there was insufficient evidence to support his
conviction for child endangerment. We review Ricky's
sufficiency-of-the-evidence claim for correction of errors at
law. See State v. Vance, 790 N.W.2d 775, 783 (Iowa
2010). "We will sustain the jury's verdict if it is
supported by substantial evidence." Id.
"Evidence is substantial if it would convince a rational
trier of fact the defendant is guilty beyond a reasonable
doubt." Id. (quoting State v.
Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008)). Direct
and circumstantial evidence are equally probative. State
v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011).
Code section 726.6(1)(a) (2013) provides:
A person who is the parent, guardian, or person having
custody or control over a child . . . commits child
endangerment when the person . . . [k]nowingly acts in a
manner that creates a substantial risk to a child or
minor's physical, mental or emotional health and safety.
contends the State failed to prove the following element of
the offense, as defined in the jury instructions at trial:
[Ricky] acted with knowledge in any one of the following
a. By creating a substantial risk to T.O.'s physical,
mental or emotional health or safety; or
b. By an intentional act or series of intentional acts, uses
reasonable force, torture, or cruelty that results in bodily
c. By an intentional act or series of intentional acts,
evidences unreasonable force, torture or cruelty which causes
substantial mental or emotional harm to a child or minor.
maintains there is insufficient evidence to support that he
knowingly created a substantial risk to T.O., as it was
Gloria who inflicted the injuries. Ricky further alleges any
evidence regarding his actions toward T.O. can be attributed
to lawful discipline.
substantial risk is met where there is "a showing that
the risk is real or articulable." State v.
Anspach, 627 N.W.2d 227, 232-33 (Iowa 2001). T.O.'s
principal, an investigating police officer, Dr. Harre,
T.O.'s mother, and Davis all observed the injuries to
T.O.'s person. T.O. told Dr. Harre that Ricky had hit her
with a spatula. Davis testified she first learned T.O. was
claiming Ricky and Gloria had caused the injuries when she
responded to the call from T.O.'s school. The police
officer testified T.O.'s injuries were consistent with
the story T.O. provided and the spatula found in Ricky and
Gloria's home matched the injuries T.O. had sustained.
Similarly, Dr. Harre testified T.O.'s injuries were
consistent with "a controlled contact" where some
type of object was involved. T.O. herself testified Ricky had
hurt her using a spatula.
"[a] person may commit child endangerment without
physical contact with the child." State v.
Hickman, 576 N.W.2d 364, 368 (Iowa 1998). T.O. testified
the injuries were inflicted over multiple years. A police
officer testified the marks were "numerous" and
"extensive" with multiple stages of healing. Davis
testified, "You didn't have to get close to [T.O.]
at all to see [the marks on] her neck." T.O.'s
principal also testified the injuries to T.O. were
"[m]uch more significant than what [she] had seen before
on other children." These injuries-which testimony
supports had been inflicted over time- improved following
T.O.'s removal from Gloria and Ricky's residence.
Sufficient evidence supports the jury's finding that
Ricky created a substantial risk to T.O. See State v.
Parker, No. 06-0946, 2008 WL 2038420, at *1 (Iowa Ct.
App. May 14, 2008) (affirming the district court's
finding a mother was guilty of child endangerment resulting
in serious injury where the mother failed to intervene on her
daughter's behalf when the daughter was subjected to a
series of abusive acts by her father); see also State v.
Leckington, 713 N.W.2d 208, 214 (Iowa 2006) (finding a
woman knowingly created a substantial risk when she left an
intoxicated minor at her home without adult supervision);
State v. Osborn, No. 12-1146, 2013 WL 2637291, at
*3-4 (Iowa Ct. App. June 12, 2013) (finding sufficient
evidence under section 726.6(1)(a) where the mother
"understood [a convicted sex offender] posed a risk to
the safety of her children and nonetheless allowed her
children to live with him").
are not persuaded by Ricky's contention his acts merely
constituted lawful discipline. We acknowledge parents have
"a right to inflict reasonable corporal punishment in
rearing their children." Hildreth v. Iowa Dep't
of Human Servs., 550 N.W.2d 157, 159 (Iowa 1996).
"The proper test is whether, under the particular
circumstances, the amount of force used or the means employed
by the parent rendered such punishment abusive rather than
corrective in character." State v. Arnold, 543
N.W.2d 600, 603 (Iowa 1996). Ricky relies on the court's
finding in Hildreth, claiming the circumstances here
are comparable. Hildreth involved a single incident
of discipline where a father spanked his daughter three times
on the buttocks with a wooden spoon leaving welts that lasted
a few days. 550 N.W.2d at 158-59; see also id. at
160 (determining the father "could not reasonably have
foreseen that the rather limited striking of [the
child's] buttocks would produce a physical injury").
Here, this was not a one-time event. The evidence supports
the conclusion T.O. endured repeated injurious contact with a
spatula, leaving multiple scars of varying ages. Moreover,
these marks lasted for months, not just days.
Ricky argues he did not "knowingly act" because he
did not know the results of his conduct. See State v.
James, 693 N.W.2d 353, 357 (Iowa 2005) (noting the code
requires the jury find "the defendant acted with
knowledge that he was creating a substantial risk to the
child's safety"). Again, this is not a one-time
incident where a parent was unaware the discipline would
produce a physical injury. Nor could a parent maintain such
an argument when the "punishment" includes lifting
a child by the neck, strangling them until they lose
consciousness. As discussed above, sufficient evidence
supports a finding the on-going injury to T.O. was readily
apparent. Because sufficient evidence supports the jury's
finding, we affirm.
Ricky contends the district court erred by allowing Dr. Harre
to testify about T.O.'s statements regarding the injuries
she sustained, their cause, and the individuals T.O. claimed
caused those injuries. We review hearsay claims for errors at
law. See State v. Newell, 710 N.W.2d 6, 18 (Iowa
2006). A court must exclude hearsay unless it is admitted as
an exception or exclusion to the hearsay rule. Id.
"Subject to the requirement of relevance, the district
court has no discretion to deny the admission of hearsay if
it falls within an exception, or to admit it in the absence
of a provision providing for admission." Id.
such exception arises where the disputed statements were made
for the purpose of medical diagnosis or treatment.
See Iowa R. Evid. 5.803(4). "The rationale for
the exception is that statements made by a patient to a
doctor for purposes of medical diagnosis or treatment are
'likely to be reliable because the patient has a selfish
motive to be truthful.'" State v. Smith,
876 N.W.2d 180, 185 (Iowa 2016) (citation omitted).
The medical diagnosis or treatment exception imposes two
requirements. First, the exception applies to statements
"made for purposes of medical diagnosis or
treatment." Iowa R. Evid. 5.803(4). Second, the
statements must describe "medical history, or past or
present symptoms, pain, or sensations, or the inception or
general character of the cause or external source thereof
insofar as reasonably pertinent to diagnosis or
treatment." Id. Thus, the first requirement is
directed at the purpose and motive of the statement, and the
second requirement is directed at the content or description
of the statement.
Id.; see also State v. Tracy, 482 N.W.2d
675, 681 (Iowa 1992) ("[F]irst the declarant's
motive in making the statement must be consistent with the
purposes of promoting treatment; and second, the content of
the statement must be such as is reasonably relied on by a
physician in treatment or diagnosis." (quoting
United States v. Renville, 779 F.2d 430, 436 (8th
Cir. 1985))). One such circumstance where identifying
statements are admissible "involves the identity of
perpetrators of child abuse." Smith, 876 N.W.2d
at 185 "When the 'alleged abuser is a member of the
victim's immediate household, statements regarding the
abuser's identity are reasonably relied on by a physician
in treatment or diagnosis.'" Id. (citation
omitted). This is because "[t]he emotional and
psychological injuries of such abuse are treated by the
doctor along with the physical injury." Id.
Harre explained that a child's history is ninety percent
of her diagnosis and provides the context for what she finds
in a physical examination of the child. She specifically
testified to her need to know the identity of the abuser to
protect a child "from continued injuries and physical
inappropriate interaction." Dr. Harre explained the
closeness of the relationship between a child and her abuser
also impacts the intensity of the emotional reaction the
child may have to what has happened-which impacts the
child's view of herself and is a consideration as part of
the child's treatment. Although Dr. Harre was aware T.O.
no longer lived with Gloria and Ricky at the time of the
evaluation, Dr. Harre testified she was not sure whether T.O.
might be returned to their care and custody. See id.
("The doctor is also often concerned about the
possibility of recurrent abuse."). Ricky notes Dr. Harre
testified her treatment of T.O.'s physical injuries would
not have changed regardless of T.O.'s willingness to
identify or truthful identification of her abuser. Dr. Harre
went on to clarify, however, that this did not make the
identification unnecessary for treatment purposes. It
remained important for ensuring T.O. was protected and
identifying other services and treatment she may
need. While it did not impact the treatment of
the physical injuries themselves, it was indicative of the
possible consequences of those injuries. Dr. Harre explained
that knowing the identity of the abuser assisted her overall
diagnosis and treatment plan.
Harre testified she talks with children-like T.O.-to build a
"special relationship" so that they know her role
is to help them feel better. Following this talk, T.O.
discussed the various marks on her body and described their
source- she identified a birthmark, a mark on her cheek
caused by a cousin biting her, a mark on her forearm caused
when she dropped an iron on her wrist, and the marks on her
back and neck caused from being hit with a spatula by Ricky
and Gloria and choked by Gloria. The fact T.O. was able to
identify the various marks and their sources indicates she
was able to fairly and honestly distinguish between their
sources. Dr. Harre testified she believed T.O. was aware she
was having this conversation with Dr. Harre to aid Dr. Harre
in treating her. While we note Dr. Harre testified she did
not instruct T.O. not to lie, there is no indication in the
record T.O.'s motive in making the statements to Dr.
Harre "was other than as a patient responding to a
doctor's questioning for prospective treatment."
Tracy, 482 N.W.2d at 681. We conclude the statements
fall within the rule 5.803(4) exception. See Smith,
876 N.W.2d at 187 ("Eliciting the identity of a
perpetrator of child abuse can be a normal aspect of medical
treatment and diagnosis for child abuse victims; however, the
value of that information is established by the foundational
testimony of the doctors and medical providers in each case,
and that testimony explains the pertinence of the
perpetrator's identity to the diagnosis and treatment of
the victim in the unique circumstances of each case.").
the testimony of Dr. Harre regarding the source and nature of
T.O.'s injuries was consistent with the testimony
provided by T.O. Davis also testified to the allegations made
against Gloria and Ricky, that Gloria had long fingernails,
that T.O. identified Gloria and Ricky as the individuals who
caused the injuries, and that she personally saw the marks on
T.O. A police officer also testified the marks on T.O.'s
neck appeared to have been made by a person, the marks on her
back appeared to have been caused by an object, and all
injuries were consistent with T.O.'s rendition of events.
Thus, Dr. Harre's testimony was cumulative and not
prejudicial. State v. Hildreth, 582 N.W.2d 167, 170
(Iowa 1998) (finding the "erroneous admission of
hearsay" was not prejudicial because it was "merely
cumulative" with the testimony of the child or a social
foregoing reasons, we find there was substantial evidence
supporting Ricky's conviction. We further find the
district court did not err in admitting Dr. Harre's
testimony about T.O.'s statements and no prejudice
resulted because the testimony admitted was cumulative. We
preserve Ricky's claim of ineffective assistance of
counsel for postconviction-relief proceedings.
J., concurs; Potterfield, P.J., concurs specially.
POTTERFIELD, Presiding Judge. (concurring specially)
disagree with the majority's conclusion that the
statements made by T.O. to Dr. Harre were admissible under
the exception to the hearsay rule for statements made for
purposes of medical treatment or diagnosis. See Iowa
R. Evid. 5.803(4). Dr. Harre was not a treating physician
encountered in an emergency room or medical center. She is an
evidence-gatherer to whom T.O. was taken three days after her
abuse was discovered and after she had been removed from the
care of Ricky and Gloria Overstreet. T.O. was already in
counseling and had already given statements regarding the
perpetrators of her injuries. She expected no treatment from
Dr. Harre and received none. Cf. State v. Smith, 876
N.W.2d 180, 185 (Iowa 2016) (noting that statements made for
the purpose of diagnosis are generally considered reliable
"because the patient has a selfish motive to be
truthful" (citation omitted)). The motivation for her
identification of her perpetrators had nothing to do with
medical treatment. See id. at 190 (finding the
witness's statement about the identity of the
perpetration not subject to the exception because "the
State presented insufficient evidence that the identity of
the assailment was reasonably pertinent to [the
witness's] diagnosis or treatment").
true the identifications were cumulative to her testimony.
While it is undoubtedly true that Dr. Harre's testimony
provided substantive bolstering to T.O.'s testimony, the
doctor's testimony was cumulative. In a case where two
perpetrators are charged and tried together, we are mindful
that the identification by a child could be colored by
greater loyalty to one or the other. But nothing in this
record allows us to speculate about that, leaving the
admission of Dr. Harre's testimony as error but
cumulative. See State v. Newell, 710 N.W.2d 6, 19
(Iowa 2006) (stating the admission of hearsay evidence
"will not be considered prejudicial if substantially the
same evidence is properly in the record").
Senior judge assigned by order pursuant to Iowa Code section
 In 2012, T.O.'s mother expressed
her desire that T.O. live with her again. She indicated Ricky
and Gloria had previously allowed her visits with T.O., but
after this request, they stopped communicating with her, so
she called DHS and the police in an effort to see her
 The State claims various aspects of
Ricky's sufficiency-of-the-evidence challenge were not
preserve for our review. We assume, without deciding, error
 We note section 726.6(1)(a) requires a
knowing "act . . . that creates a substantial risk to a
child." The requisite "act" can be "a
failure to do any act which the law requires one to
perform." Iowa Code § 702.2.
 Ricky notes Dr. Harre "did not
make any other referrals to other care providers for therapy
or treatment." However, Dr. Harre testified "there
was some discussion about possibly some therapy" for
T.O., but T.O.'s mother informed Dr. Harre the child was
already seeing a counselor for mental-health issues. The fact
Dr. Harre did not end up needing to refer T.O. for other
services does not make the information less pertinent to Dr.
Harre's evaluation or diagnosis of T.O.