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State v. Lucier

Court of Appeals of Iowa

October 11, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
MELVIN T. LUCIER, Defendant-Appellant.

         Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.

         In this consolidated appeal, Melvin Lucier challenges three convictions for second-degree sexual abuse.

          Eric D. Tindal of Nidey Erdahl Tindal & Fisher, P.L.C., Marengo, for appellant.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee.

          Heard by Vaitheswaran, P.J., and Doyle and Bower, JJ.

          VAITHESWARAN, PRESIDING JUDGE.

         This is a consolidated appeal of two criminal judgments against Melvin Lucier. In the first case, a jury found Lucier guilty of second-degree sexual abuse of a five-year-old child. In the second case, a district court judge found Lucier guilty of two counts of second-degree sexual abuse of another young child.

         Lucier challenges his conviction in the first case on the grounds (A) a physician's account of the child's statements was inadmissible hearsay and (B) his trial attorney was ineffective in failing to raise a Confrontation Clause objection to the physician's account of the child's statements. He challenges his convictions in the second case on the grounds (A) the district court's findings of fact were unsupported by sufficient evidence and (B) his trial attorney was ineffective in failing to seek the judge's recusal.

         I. Case 1

         The department of human services was called upon to investigate possible sexual abuse of the five-year-old child. The caseworker referred the child to Dr. Barbara Harre, a pediatrician specializing in child abuse. While Dr. Harre was examining the child's genital area, the child blurted out, "Uncle Tom touched my pee pee." When asked where she was touched, she "pointed to the periclitoral area and also to the introital area or where a tampon would go into, that area." In response to additional questions, she said she was touched "inside" with "fingers."

         The defense filed a motion in limine to exclude Dr. Harre's testimony. The State resisted in part on the ground that her testimony was admissible because it related to diagnosis and treatment. Following a pretrial evidentiary hearing at which Dr. Harre testified, the district court made a final ruling that Dr. Harre's testimony would be admissible at trial. The child did not testify at trial; Dr. Harre did.

         A. Admission of Dr. Harre's Statements

         Lucier contends the district court erred in admitting the child's hearsay statements through Dr. Harre. See State v. Smith, 876 N.W.2d 180, 184 (Iowa 2016) (reviewing hearsay rulings for errors of law). The State responds with an error preservation concern. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("[I]ssues must ordinarily be both raised and decided by the district court before we will decide them on appeal."). We find this concern unpersuasive. Lucier filed a motion in limine asking the court to exclude

[a]ny reference, direct examination or cross-examination of any medical professional or health care provider . . . which would relate any history given by the alleged victim that she was abused, or that would include naming the Defendant in any [manner]. . . or narrating in ...

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