from the Iowa District Court for Scott County, Joel W.
consolidated appeal, Melvin Lucier challenges three
convictions for second-degree sexual abuse.
D. Tindal of Nidey Erdahl Tindal & Fisher, P.L.C.,
Marengo, for appellant.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee.
by Vaitheswaran, P.J., and Doyle and Bower, JJ.
VAITHESWARAN, PRESIDING JUDGE.
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
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
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
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.
Admission of Dr. Harre's Statements
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 ...