from the Iowa District Court for Jasper County, Richard B.
defendant appeals his convictions for five counts of sexual
abuse in the third degree.
C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., Tabor, J., and Carr, S.J.
Fults challenges his convictions for five counts of sexual
abuse in the third degree. Each count represented a different
sex act committed against the daughter of his live-in
girlfriend. On appeal, he contends the district court
improperly considered a video-recorded interview of the
alleged victim under the residual exception to the hearsay
rule. Because any consideration of the video recording was
harmless in light of the other record evidence, we affirm.
Facts and Prior Proceedings
glean the following facts from the minutes of evidence. One
morning in early October 2014, J.L.'s mother walked into
the family's living room and saw her paramour, Fults,
sitting next to J.L. on the couch; his hand was between
J.L.'s legs and he appeared to be
"masturbating" the twelve-year-old girl. Fults
jumped away when he realized J.L.'s mother was there.
J.L.'s mother accused Fults of inappropriately touching
her daughter. When questioned, J.L. confirmed her
mother's suspicion that Fults had been touching her
vagina. J.L. disclosed this encounter was not the first time
Fults had molested her. Throughout the summer of 2014, every
other Saturday morning-while her mother slept in-Fults took
the opportunity to have J.L. perform oral sex on him. J.L.
also revealed an incident in which Fults used a vibrator to
penetrate her vagina. The mother was aware of this item and
its location in the house, supposedly hidden from the
children. After her mother learned of the ongoing abuse, J.L.
told a family friend she was afraid to go home because her
mother and Fults were arguing about the revelations. J.L.
also told the friend that Fults had been touching her vagina.
mother and J.L. reported the suspected sexual abuse to
police. In a narrative attached to the minutes, an officer
described his conversation with J.L., who recalled numerous
sex acts perpetrated by Fults, including several incidents in
her bedroom when Fults tried to insert his penis into her
vagina but was unable to because it "hurt too
October 7, 2014, J.L. went to the Child Protection Center
(CPC) at Blank Children's Hospital for an hour-long
interview with Mikki Hamdorf. During the CPC interview, which
was recorded on video, J.L. said Fults had "moved his
fingers inside her underwear" on several occasions. J.L.
also recounted times when Fults had forced contact between
his penis and her hand, mouth, and vagina. Hamdorf drafted a
written report, which was attached to the minutes.
January 2016, the State filed a trial information, accusing
Fults of six counts of sexual abuse in the third degree,
class "C" felonies, in violation of Iowa Code
sections 709.1 and 709.4(1)(b)(2) (2014). In the accompanying
minutes, the State included the expected testimony of J.L.,
her mother, the family friend, the CPC interviewer, and
several police officers. The State expected J.L. to offer the
Witness will testify to multiple instances of sexual contact
by the defendant. Witness will testify that in early October
the defendant engaged in sexual touching of her genitals.
Witness will testify that throughout the summer of 2014 the
defendant engaged in multiple sex acts with her. Witness will
testify substantially in conformity with any and all reports
attached hereto and any subsequent reports.
March 2017, the defense filed a motion in limine seeking to
exclude the video recording of J.L.'s interview at the
CPC. The motion asserted the evidence was hearsay and was
"nothing more than an effort to bolster" the
testimony of J.L., who was then fourteen years old. The State
argued the video was admissible under Iowa Code section
915.38(3) and the residual exception to the hearsay
rule at Iowa Rule of Evidence 5.807(a). The court
overruled the motion in limine, but ...