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In re C.W.

Court of Appeals of Iowa

November 8, 2017

IN THE INTEREST OF C.W., Minor Child, C.W., Appellant.

         Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.

         The child appeals the juvenile court's order adjudicating him delinquent for sexual abuse in the second degree.

          Judith O'Donohoe of Elwood, O'Donohoe, Braun, White, L.L.P., Charles City, for appellant.

          Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellee.

          Heard by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.

          POTTERFIELD, JUDGE.

         The child appeals the juvenile court's order adjudicating him delinquent for sexual abuse in the second degree. The child claims: (1) the State failed to prove a sexual act occurred, (2) counsel was ineffective for failing to object to leading questions, (3) counsel was ineffective for failing to object to hearsay testimony, (4) counsel was ineffective for failing to object to prior-acts evidence, (5) counsel was ineffective for failing to object to impermissible vouching testimony, (6) counsel was ineffective for failing to object to lack of foundation, (7) counsel was ineffective for failing to argue the statute was unconstitutionally vague, and (8) counsel was ineffective for failing to argue the statute violated C.W.'s equal protection and due process rights. Because counsel elicited vouching testimony from State's witnesses, which prejudiced the juvenile, we reverse and remand for a new trial.

         I. Background Facts and Proceedings.

         On February 18, 2016, the State filed a petition for delinquency against C.W., claiming he sexually abused E.W., in violation of Iowa Code sections 709.1 and 709.3 (2016). C.W. denied the allegations in the State's petition.

         On May 9, an adjudicatory hearing took place. Testimony revealed the following facts related to the State's petition alleging delinquent acts. E.W. and her siblings attended daycare at C.W.'s parents' home in 2014. At the time, E.W. was nine years old. On one occasion, C.W. and E.W. were sitting on the couch watching television. E.W.'s siblings were sitting in between them but eventually moved to the floor. C.W. moved to E.W.'s side of the couch and touched her buttocks with his hand.

         On a separate occasion, E.W., E.W.'s sibling, and C.W. were sitting on a bed in C.W.'s room playing a game. C.W. was at the head of the bed, and E.W. was sitting near the foot of the bed. C.W. moved to E.W.'s location and touched E.W.'s buttocks and vagina with his hand.

         Approximately one year later, following a Take Charge of Your Body presentation, E.W. reported to a teacher that C.W. touched her and her siblings on the vagina-although E.W. later testified that she was the only one touched by C.W. The teacher testified about E.W.'s demeanor during her reporting of the events, stating "[E.W.] was calm but she was also pretty quiet, I guess, she just seemed . . . down a little bit, not her perky self." The teacher reported the event to the school counselor per school procedures.

         The school counselor testified E.W. told the counselor that C.W. had touched E.W.'s vagina. She initially reported to the counselor that the touching was underneath her clothes-although E.W. later testified the touching was over the clothes. The counselor stated E.W. was "nervous, uneasy . . . and not sure of what was going to happen." The counselor reported the events to the Iowa Department of Human Services (DHS) and E.W.'s parents.

         The school counselor also testified about her experience with children reporting sexual abuse. She stated that children do not always understand certain types of touching are inappropriate. It is common for children to report an event after they see the Take Charge of Your Body presentation, and "several different students, " including E.W., made a disclosure after the March presentation. In response to cross-examination by C.W.s counsel, the counselor stated she is not aware that any children with whom she has worked in her twenty-seven years of experience have made false allegations about sexual abuse. The counselor testified regarding her experience and knowledge about circumstances underlying false reports of sexual abuse among children in general, explaining those circumstances did not apply to E.W. She stated:

I suppose there would be getting attention. In this kind of an instance, if I had had several kids come talk to me so they would see that it was a time to get attention, but that wasn't what happened. This was like the first child out of the classroom that had come and talked to me so it wasn't-I mean, she sees me for small groups, it wasn't like she was searching for my attention so.

         The forensic interviewer testified about her interview of E.W., which the law enforcement officer involved in the investigation observed. She stated E.W. was "matter-of-fact" during the interview. She testified about reasons a child might delay a truthful report and her experience with children minimizing the events based on their relationship with the person asking about the event.

         E.W. testified at the adjudicatory hearing about two incidents with C.W. She was first asked about an uncharged encounter, not specified as to date. The following testimony occurred during direct examination:

Q. And what do you remember happening when you were in the room?
A. We were just sitting down watching TV.
Q. And who was in the room with you besides your sisters?
A. [C.W.].
Q. Where were you sitting in the room?
A. On the couch.
Q. And where was [C.W.] at?
A. On the couch.
Q. So your sisters moved away from sitting by you?
A. Yeah.
Q. Then what happened?
A. He touched me, like, he scooted over and he touched me.
Q. And did he say anything to you?
A. No.
Q. Where is it that he touched you?
A. My butt. Then, E.W. testified about the charged incident during direct examination:
Q. What happened while you were in his bedroom?
A. We were just playing a game.
Q. Do you remember what game you were playing?
A. No.
Q. And what happened that made you uncomfortable?
A. He touched me again.
Q. And where were you at or sitting when that ...

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