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State v. Fults

Court of Appeals of Iowa

May 16, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
JERRY FULTS, Defendant-Appellant.

          Appeal from the Iowa District Court for Jasper County, Richard B. Clogg, Judge.

         A defendant appeals his convictions for five counts of sexual abuse in the third degree.

          Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., Tabor, J., and Carr, S.J. [*]

          TABOR, JUDGE.

         Jerry 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.

         I. Facts and Prior Proceedings

         We 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.

         The 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 much."

         On 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.

         In 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 following information:

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.

         In 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)[1] and the residual exception to the hearsay rule at Iowa Rule of Evidence 5.807(a).[2] The court overruled the motion in limine, but ...


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