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State v. Barnard

Court of Appeals of Iowa

November 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
BERLOU JOE BARNARD, Defendant-Appellant.

          Appeal from the Iowa District Court for Jasper County, Terry R. Rickers, Judge.

         Defendant Berlou Barnard appeals his conviction of four separate counts of sexual abuse in the second degree and one count of obstruction of justice based on error in two evidentiary rulings.

          Denise M. Gonyea of McKelvie Law Office, Grinnell, for appellant.

          Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney General, for appellee.

          Heard by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.

          POTTERFIELD, JUDGE.

         Defendant Berlou Barnard appeals his conviction of four separate counts of sexual abuse in the second degree and one count of obstruction of justice based on error in two evidentiary rulings. In the first ruling, the district court admitted a 2015 video recording of a forensic interview conducted at the Child Protection Center (CPC) at Blank Hospital in Des Moines. The video recording depicts the complaining witness, Barnard's minor granddaughter, N.C., recount several instances when she claims Barnard sexually abused her. Barnard argues the CPC interview is inadmissible hearsay and its admission also violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. In the second ruling, the district court granted the State's motion in limine to prevent Barnard from introducing evidence that N.C. had made sex abuse allegations against a different family member on a prior occasion. Barnard argues this evidence was not covered by Iowa Rule of Evidence 5.412, which does not cover false allegations of sexual abuse.[1] We affirm.

         I. Factual Background

         In 2013, N.C. lived in Newton with her mother, stepfather, and younger sibling. Barnard moved to Newton in 2013 with his significant other, Michelle Wortman. Barnard began seeing N.C. almost every day and often babysat her. Barnard was previously convicted of two counts of third-degree sexual abuse and was on the sex offender registry. He came to an agreement with N.C. 's parents under which N.C. was allowed to visit him but only if Michelle was present.

         The actions that led to Barnard's conviction became known to N.C. 's parents in August 2015. N.C. was seven years old. On August 13, N.C. told her mother Barnard had touched her "inappropriately" when she was at his house a few days before. N.C. described the incident to her mother in detail. Michelle had fallen asleep in the living room. Once Michelle was asleep, Barnard had picked N.C. up, carried her to his bedroom, and laid her down on the bed. He pulled down his "Hawkeye" shorts and told her to touch his genitals. While she did so, he pulled down her pants and started touching her genitals with his hand. Michelle came in and noticed Barnard with his pants down. N.C. heard Michelle yell "what are you doing" at Barnard, who insisted that he was just scratching.

          N.C. 's parents took her to a local hospital to have her examined for sexual abuse. There, N.C. told an emergency room doctor that Barnard had touched her inappropriately more than once within the last nine months, not just the incident N.C. told her parents about. The doctor referred N.C. for a forensic examination at the CPC.

         The CPC interview was conducted on August 24. N.C. was interviewed by a licensed forensic interviewer. The interview was conducted one on one, in an interview room with a one-way mirror and was video recorded. A deputy from the Jasper County Sheriff's Office observed the interview from behind the oneway mirror. In the interview, N.C. recounted the details of the most recent incident as well as three other times when Barnard inappropriately touched her. In one instance, Barnard licked N.C. 's "private area." During another incident, Barnard took N.C. to a shed behind Barnard's house, where he partially covered her in a blanket and had N.C. lick his "private" and put his "wiener" in her mouth. Barnard applied a watermelon-flavored "jelly" to his genitals before she began. During the third incident, Barnard stopped N.C. in the hallway while Michelle was showering and forced her to rub his genitals while he rubbed her genitals. After observing the CPC interview, Jasper County police obtained a warrant and searched Barnard's home. During the search they found several pairs of "Hawkeye" shorts and sleepwear, a bottle of watermelon-flavored lubricant, and a blanket in Barnard's shed.

         Jasper County police arrested Barnard on October 16. He was charged with four counts of sexual abuse in the second degree.[2] A charge of obstruction of justice was later added after evidence was introduced that showed Barnard had destroyed the blanket used to cover N.C. in the shed. Barnard pled not guilty to all charges.

         II. Procedural Background

         The first evidentiary ruling challenged on appeal is the admission of the CPC interview into evidence. On March 28, 2017, the State moved for the recording to be admitted pursuant to Iowa Rule of Evidence 5.807, the residual hearsay exception. After a hearing on the motion on May 15, the district court determined the State had ...


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