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State v. Heggebo

Court of Appeals of Iowa

December 19, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
MARVIN LEE HEGGEBO, Defendant-Appellant.

          Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer, Judge.

         Marvin Heggebo appeals from his conviction and sentence for second-degree sexual abuse. AFFIRMED.

          Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Vogel and Tabor, JJ.

          DANILSON, CHIEF JUDGE

         Marvin Heggebo appeals from his conviction and sentence for second-degree sexual abuse following jury trial. Heggebo contends the trial court erred in admitting statements the child witness made to her mother and in admitting the video recording of the daughter's interview at the Child Protection Center. Because we conclude the statements and video were properly admitted, we affirm.

         I. Background Facts and Proceedings.

         Heggebo was charged with second-degree sexual abuse, in violation of Iowa Code section 709.3(1)(b) (2015), after he was accused of abusing a four-year-old child while he was babysitting the child and her brother. The children's father arranged for Heggebo to watch the children while the children's mother went to a job interview. The mother dropped the children off at Heggebo's house and left for her job interview.

         When the mother returned to pick up the children, she walked into the house and did not see anyone. The mother called out for the children, the bathroom door swung open, and the children came out of the bathroom. The mother saw Heggebo sitting naked on the toilet. The mother told the children, "You don't go in the bathroom with [Heggebo]. You don't go in the bathroom with anybody." Heggebo quickly shut the bathroom door and said nothing.

         The daughter did not seem eager to greet her mother. Initially, the daughter refused to come to her mother. When the daughter finally did come to her mother, the mother noticed a clear substance around the daughter's mouth. The mother asked her daughter what the substance was, but the daughter looked away and said nothing. The mother touched the substance and smelled it. The mother described the substance as an odorless, sticky "glob of clear fluid," that looked like semen.

         Heggebo came out of the bathroom wearing only shorts just as the mother was telling the children to put on their coats. The mother took the children outside to her vehicle, secured her son in his car seat, and then spoke with her daughter. The mother assured her daughter she was not in trouble but told her, "You need to tell mommy what's on your face." Her daughter did not respond. The mother then asked, "Will you please tell mommy what that is?" Then, her daughter replied it was "pee" on her face. The mother asked, "What did [Heggebo] do to put that 'pee' on your face?" Pointing at her own mouth, the daughter responded that Heggebo touched his "pee pee" and that "it" went into her mouth.

         The mother called and told the children's father what happened, and he advised her to take the children home. The father then called the mother back and asked her to bring the children to him at work so he could look at the substance on their daughter. The mother drove to the father's work, and the father spoke with his daughter briefly about the incident. The father thought his daughter was unusually quiet and withdrawn.

         At some point, the mother contacted the police, and a police officer arrived at the father's work. The family went to the police station where the mother was interviewed and swabbed for forensic evidence.[1] The family then went to the hospital, and the daughter underwent a physical examination. During the exam, the daughter told the nurse practitioner that Heggebo had touched his "pee pee" to her mouth and that "pee" had gotten on her face. The daughter underwent a sexual-assault forensic examination. Later DNA testing did not detect any of Heggebo's DNA on either the mother or her daughter.

         After the physical examination, the daughter was taken to the Child Protection Center ("CPC") at the hospital where a forensic interviewer spoke with her about the incident. This interview was video-recorded. The daughter told the CPC interviewer that she and her brother were at Heggebo's house. She said Heggebo was "sitting on the potty" in the bathroom, and he tried to take out his "pee pee" and pulled down his pants. Several times, the daughter said Heggebo was "naughty." When the interviewer asked the daughter to describe Heggebo's "pee pee," she responded that it looked like a "pee pee" and was "for going potty." The daughter indicated Heggebo told her to play with his "pee pee" using her mouth, and she confirmed her mouth touched it. The daughter told the interviewer that Heggebo "squished it"-his "pee pee"-"with [her] mouth." When asked if anything came out of his "pee pee," the daughter answered "pee."

         Meanwhile, the police went to Heggebo's house to execute a search warrant. Heggebo answered the door wearing only shorts. The police seized Heggebo's shorts because the shorts had apparent semen stains on them. Heggebo was eventually arrested in connection with the alleged sexual assault. Penile swabs were collected from Heggebo. The penile swab revealed seminal fluid but no spermatozoa, and tests showed the stains from the shorts contained both seminal fluid and spermatozoa.

         The daughter's mother testified at trial about her observations made when she arrived at Heggebo's house. She also testified as to what her daughter told her. Heggebo objected to the mother testifying as to the daughter's statements. The district court determined these statements fell within the hearsay exception for present sense impressions under Iowa Rule of Evidence 5.803(1). The court also determined the statements fell within the hearsay exception for excited utterances under rule 5.803(2).

         At the time of trial, approximately fifteen months after the alleged abuse, the daughter was five years old. The daughter testified she remembered being in the bathroom with Heggebo but did not remember what had happened. She remembered telling her mother Heggebo's "pee" was on her face, but she did not remember how it got there. She remembered a doctor wiped the "pee" off her face, but she did not know where the "pee" came from. She gave inconsistent answers about whether she remembered talking to doctors or talking in the room with the camera. She did not remember telling the CPC interviewer Heggebo had touched her with his "pee pee."

         Because the daughter could remember very little, the State sought to introduce the video recording of the CPC interview. Heggebo objected to the admission of the video, but the court ultimately admitted the recorded interview under rule 5.807's ...


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