December 21, 2016
STATE OF IOWA, Plaintiff-Appellee,
GLORIA J. OVERSTREET, Defendant-Appellant.
from the Iowa District Court for Scott County, Mark J. Smith,
Overstreet appeals her conviction for child endangerment
resulting in bodily injury. AFFIRMED.
R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for
J. Miller, Attorney General, and Kristin A. Guddall,
Assistant Attorney General, for appellee.
Considered by Vaitheswaran, P.J., Potterfield, J., and Scott,
Overstreet appeals her conviction for child endangerment,
alleging there was insufficient evidence to support her
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
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 choking 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 to 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
a jury trial, Gloria was convicted of child endangerment
resulting in bodily injury. Gloria appeals.
Sufficiency of the Evidence
contends there was insufficient evidence to support her
conviction for child endangerment resulting in bodily injury.
We review sufficiency-of-the-evidence claims 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
support of her claim insufficient evidence exists, Gloria
does not challenge any specific element of the offense.
Instead, Gloria identifies three alleged fact issues she
claims undermine the jury's finding: (1) T.O.'s
mother's history of attempts to obtain custody of T.O.,
(2) certain inconsistencies in T.O.'s testimony, and (3)
the State's failure to present evidence regarding the
timing of the injuries.
her first claim, it is up to the jury to weigh the evidence.
See Walker v. Sedrel, 149 N.W.2d 874, 879 (Iowa
1967) ("It is not for [the reviewing court] to weigh the
evidence. To do so is the jury's function."). A
police officer testified she did not believe the situation
appeared to be a custody dispute, as T.O.'s mother
"made no ill remarks towards the Overstreets" and
was "very understanding that she wanted her child to be
safe, whether that was with her or with someone else."
Davis also testified, based on her experience, this did not
appear to be a situation where T.O. had been coached or was
being put in the middle of her parents' dispute. Further,
T.O.'s mother denied that her actions were based on a
desire to obtain custody but instead were motivated by her
concern for her daughter's safety.
it is up to the jury to determine a witness's
credibility. See State v. Laffey, 600 N.W.2d 57, 59
(Iowa 1999) ("[I]t is for the jury to judge the
credibility of witnesses and weigh the evidence.").
While there may have been inconsistencies in the child's
account,  once T.O. disclosed Gloria had choked her
and hit her with a spatula, she remained consistent in this
claim. Any inconsistencies in this young
girl's testimony were unrelated to the acts of abuse at
issue. See State v. Hildreth, 582 N.W.2d 167, 170
(Iowa 1998) ("Furthermore, any inconsistencies in
A.E.'s testimony were minor and attributable to her
Gloria claims the State's inability to present evidence
as to the timing of the injuries means the injuries could
have occurred before T.O. lived with Gloria and Ricky or when
T.O. was visiting with her mother. However, Dr. Harre
testified to a general rule that injuries to the skin take up
to a year to "remodel" or heal. Dr. Harre also
testified T.O.'s injuries showed improvement over the
course of her treatment. Additionally, an officer testified
that, at a later examination, some of T.O.'s scars had
faded but that distinct scarring remained. Based on this
evidence, the jury could infer the injuries occurred over a
period of time and at least some of the injuries were less
than a year old. Regardless, Gloria's alternative
theories do not undermine the existence of substantial
evidence supporting the jury's finding.
when considering the purported contradictory evidence, we
find sufficient evidence supports the jury's findings.
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. voiced concerns to the principal
about the discipline she was receiving from Gloria. She also
told Dr. Harre that Ricky and Gloria had repeatedly hit her
with a spatula and Gloria had repeatedly choked her,
sometimes until she passed out. Both Dr. Harre and the
testifying officer stated the injuries to T.O.'s back
were consistent with repeated contact with an object and both
the neck and back injuries were consistent with the version
of events T.O. provided. Officers found a spatula in
Gloria's home that was consistent with the injuries
inflicted on T.O. T.O. also testified that Ricky and Gloria
hurt her using a spatula and Gloria touched her neck. Even
Gloria's friend testified he noticed no physical injuries
on T.O.-except for a couple of scratches-when T.O. moved in
with Gloria and Ricky. Because substantial evidence supports
the jury's finding, we affirm.
also contends the district court erred by allowing Dr. Harre
to testify about T.O.'s statements Gloria was the one who
abused her. 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."). Gloria 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.
Additionally, the principal at T.O.'s school testified to
observing the marks and hearing T.O.'s statements that
Gloria was physical with her. Thus, Dr. Harre's testimony
was cumulative and not prejudicial. Hildreth, 582
N.W.2d at 170 (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 Gloria'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.
Vaitheswaran, P.J., concurs; Potterfield, J., concurs
POTTERFIELD, 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 602.9206 (2015).
 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
daughter. Gloria contends T.O.'s mother was the anonymous
individual who called DHS and initiated the
 The State contends error was not
preserved on this issue. We assume, without deciding, error
 For instance, T.O. told Dr. Harre
that, when living with Gloria and Ricky, she was required to
wake up at 3 a.m. and do chores. She further stated she was
only allowed to eat bread and water. At trial, T.O. testified
she did have to get up at 3 a.m. to do chores, but denied the
specific chores Dr. Harre testified T.O. had previously
identified. She further testified she did not remember what
she ate when she lived with Gloria and Ricky.
 As noted above, when the DHS personnel
first investigated the abuse report and T.O. was asked in
front of Gloria and Ricky about how she was discipline, she
stated she was made to stand in the corner or write
 Gloria maintains the information was
not used for the emotional treatment of T.O. 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.