from the Iowa District Court for Scott County, John D.
defendant challenges some of the district court's
evidentiary rulings following his convictions for sexual
abuse in the second degree and lascivious acts with a child.
C. Smith, State Appellate Defender, and Nan Jennisch,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
POTTERFIELD, PRESIDING JUDGE.
Walker appeals from his convictions for sexual abuse in the
second degree and lascivious acts with a child. He maintains
the district court abused its discretion when it excluded
evidence under the rape-shield law. Additionally, he
maintains the court erred in allowing the doctor to testify
to hearsay that did not fall within the exception for
statements for medical diagnosis and that trial counsel
provided ineffective assistance by failing to object when a
nurse testified to similar improper hearsay testimony.
Background Facts and Proceedings.
night of June 20, 2016, Walker babysat three children in his
brother's home at his brother's request:
four-year-old E.W., E.W.'s eight-year-old brother, and a
next day, E.W. told her mother something that led the mother
to take E.W. to a local hospital, where she was examined by a
sexual assault nurse examiner, and to involve the police.
E.W. was interviewed at a child protection center
approximately twenty days later, on July 8.
on July 14, Detective Maureen Hamme met with Walker at the
police station. After advising him of his Miranda
rights, Detective Hamme informed Walker that E.W. had accused
him of touching her sexually. In a taped interview, which was
ultimately played for the jury, Walker told the detective
E.W. was asleep downstairs on the couch before he carried
E.W. upstairs to her parents' room. He admitted lying
next to E.W. on the bed while wearing only his boxers. He
claimed that at some point, he thought E.W. may have wet the
bed, so he took off her underwear, wiped her vagina, then put
her underwear back on her. After more questioning, Walker
admitted putting E.W. on his lap and rubbing his hand on her
vagina. The detective asked Walker if he thought he needed
help, and he nodded in response. Later, when the detective
asked Walker if he had anything else to tell her, he
responded, "I didn't fuck her or anything if
that's what you're asking. I touched her a little bit
and that's it." Walker was then placed under arrest.
He was charged with sexual abuse in the second degree and
lascivious acts with a child.
jury selection for Walker's trial had already begun, in
January 2018, the State filed a motion in limine asking the
court to exclude evidence it had recently learned the defense
intended to offer: that E.W.'s mother told the doctor
E.W. met with at the child protection center E.W.'s
eight-year-old old brother "had engaged in staring at
E.W.'s body," "the mother felt it necessary to
separate E.W. and her older brother," and "the
mother felt it necessary to make sure E.W. and her older
brother have clothes on when they were with each other."
Additionally, the defense wanted to present evidence
E.W.'s father had told the detective E.W.'s older
brother had been sexually abused at the some point in the
past. The State argued the evidence should be excluded
because it was irrelevant, inadmissible, and protected by the
rape-shield law. In arguing against the evidence being
admitted at trial, the State recognized it was being offered
to show, "It's not this defendant who sexually
abused the child victim, it's somehow her brother who was
eight years old at the time who had possible allegations of
possible sexual abuse with other people." The defense
responded the evidence should be admitting, arguing:
Obviously Mr. Walker denies sexually abusing E.W. in this
case. Which raises the obvious question where is E.W. coming
up with her knowledge of sexual activities or claiming that
something sexual happened to her. We believe this evidence is
relevant to- for two reasons: One, how E.W. at four years old
learned about sexual matters and, number two, the possibility
that she was sexually abused by someone else and due to her
age, whatever circumstances, has in her mind gone to Mr.
Walker perpetrating the abuse rather than someone else.
State suggested to the court that it need not determine the
actual merits of Walker's arguments because pursuant to
Iowa Rule of Evidence 5.412-which codifies the rape-shield
law-notice of evidence that falls within the rule must be
given no later than fourteen days before trial, which Walker
had failed to do. In response, Walker disputed that the
rape-shield law applied, arguing it only applied to sexual
behaviors of the alleged victim and not the sexual behaviors
district court excluded the evidence from trial, stating,
[T]he clear implication of all of those points and as [the
defense] even argued that they are relevant to show the
possible source of E.W.'s knowledge of sexual issues and
they're relevant to show that E.W. confused the identity
of her attacker. The clear implication from those points of
evidence from the defense's standpoint is that there was
another attacker at a previous time and it was the
eight-year-old brother and that's why E.W. knows of
sexual matters and perhaps she is confusing the identity of
the attacker. So it's clearly evidence designed to show
that EW was subject to abuse sometime in the past and
she's got it all wrong now and it's not this
defendant but rather it is the eight-year-old brother.
court also indicated the defense had failed to provide timely
notice, as required by Iowa Rule of Evidence 5.412(c)(1).
trial, the nurse who examined E.W. on June 21 testified,
without objection from the defense, that E.W. told her,
"Larry did this to me" as E.W. bounced up and down.
E.W. further told her, "He made me sit on his crotch and
did this"-E.W. again made a bouncing motion-"then
he carried me downstairs and got me juice." According to
the nurse, E.W. continued, stating, "He touched my butt
crack really deep" and "I had my underwear on so he
took it off." E.W. also reported Larry "broke her
ankle," which the nurse confirmed had not actually
occurred, as E.W.'s ankles were not broken. When asked
what she meant by that, E.W. twisted her ankle side to side.
When asked if E.W. told her where this occurred, the nurse
testified E.W.'s mother told her the incident happened in
the parents' bedroom and that it occurred the night
before. The nurse conducted a physical exam of E.W. and
completed a sexual assault kit.
defense objection,  Dr. Harre, who works as a physician at the
child protection center, testified that when she met with
E.W. on July 8, she asked E.W. if there had been anything
about Larry that was uncomfortable. E.W. indicated there was
and said, "Larry doing this" and then made a
bouncing motion. Dr. Harre asked E.W. what was Walker's
clothing situation at the time it happened, and E.W. reported
his underwear was off and he took her underwear off. E.W.
said she was "on his crotch" at that time and that
they were in her parents' bedroom. Dr. Harre asked E.W.
if other parts of her body had been touched, and E.W.
indicated touching with fingers. When asked where else she
was referring to, E.W. pointed between her legs. Dr. Harre
asked if she meant her crotch, and E.W. nodded. E.W. ...