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State v. Walker

Court of Appeals of Iowa

March 20, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
LAWRENCE EUGENE WALKER, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, John D. Telleen, Judge.

         The 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.

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

          Thomas 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.

         Lawrence 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.

         I. Background Facts and Proceedings.

         On the 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 third child.

         The 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.

         Then, 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.

         After 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.

         The 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 of others.

         The 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.

         The court also indicated the defense had failed to provide timely notice, as required by Iowa Rule of Evidence 5.412(c)(1).

         At 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.

         Over defense objection, [1] 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. ...


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