In re Interest of J.C.

• Decision Date: 06 May 2015
• Docket Number: No. 14–0357.,14–0357.
• Citation: 867 N.W.2d 195 (Table)
• Parties: In the INTEREST OF J.C., Minor Child, J.C., Minor Child, Appellant.
• Court: Iowa Court of Appeals

867 N.W.2d 195 (Table)

In the INTEREST OF J.C., Minor Child J.C., Minor Child, Appellant.

No. 14–0357.

Court of Appeals of Iowa.

May 6, 2015.

Timothy J. Tupper, Davenport, for appellant.

Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Michael Walton, County Attorney, and Elizabeth Cervantes, Assistant County Attorney, for appellee.

Considered by VAITHESWARAN, P.J., and TABOR and MULLINS, JJ.

Opinion

MULLINS, J.

J.C. appeals the trial court's order finding him delinquent for committing assault with the intent to commit sexual abuse. J.C. asserts the trial court erred in allowing the testimony of Catherine Jackson notwithstanding the State's failure to provide sufficient notice and a full and fair statement of her testimony. He asserts his right to confront the victim, A.W., was violated when the court admitted A.W.'s statements via Michele Mattox, Dr. Harre, and Dr. Harre's report. Finally, J.C. contends the trial court erred in admitting A.W.'s statements due to her incompetency. We affirm the order of the trial court.

I. Background Facts and Proceedings

On July 2, 2013, twelve-year-old J.C. was socializing with several other children at his friend K.W.'s house. K.W. shared this home with four-year-old A.W. Sometime that afternoon, A.W. was heard screaming from an upstairs bedroom. Other children present in the home ran upstairs in response.

One child testified he saw J.C. pulling down A.W.'s underwear. A .W. was lying on her back, and J.C. was on his knees; they were both on the floor. Another child testified she saw A.W. “pinned to the bed” by J.C., who was lifting up A.W.'s shirt like he was taking her clothes off. Yet another child testified J.C. had his arm over A.W. and was lying next to her. J.C. was red faced and denied any wrongdoing. The other children took A.W. downstairs to her mother. J.C. ran outside.

A.W.'s mother immediately filed a police report and took A.W. to the hospital. During the ensuing investigation, the police interviewed the children and recovered two videos and four photographs from K.W.'s phone. The photographs showed J.C.'s exposed penis. The videos depicted J.C. masturbating, and in one video J.C. stated K.W. would be performing a sex act on him that night. One of the other children present that day testified that earlier J.C. tried to show her photographs on the phone, but she covered her eyes. He also requested a photograph of her chest and tried to touch her chest; both requests were denied. In the past, J.C. had asked this child to have sex.

The hospital and police referred A.W. to Dr. Harre and Michele Mattox at the Child Protection Response Center (CPRC). Dr. Harre conducted a medical examination to evaluate any genital contact. A.W. told Dr. Harre J.C. touched her boob and bottom area, but A.W.'s physical examination was normal. Michele Mattox conducted a forensic interview, during which A.W. revealed J.C. hurt her private parts with his genitalia.

In August 2013, J.C. was charged with assault with intent to commit sexual abuse, in violation of Iowa Code section 709.11 (2013). J.C.'s delinquency hearing was held in December 2013. In addition to hearing the testimony of Dr. Harre, Mattox, A.W.'s mother, and the children who witnessed A.W.'s assault, the State called Catherine Jackson to testify. Jackson is a psychologist who, though she had not personally interviewed A.W., testified that a sexually abused girl A.W.'s age, exhibiting speech delays and heightened anxiety like A.W., would be harmed by testifying.

The trial court found J.C. was a delinquent child. It held that the state of A.W.'s clothing evidenced J.C.'s intent to sexually assault her; this was supported by Dr. Harre's testimony that A.W. stated J.C. touched A.W.'s boob and bottom area and the photographs, videos, and witness testimony illustrating J.C.'s “heightened interest in sexual activity.” J.C. appeals the trial court's delinquency order.

II. Jackson's Testimony

J.C. contends the trial court erred by allowing Jackson to testify because the State failed to provide J.C. a “full and fair” statement of her testimony, failed to file the appropriate notice, and failed to inform J.C. that Jackson would testify until the day before trial, in violation of Iowa Rule of Criminal Procedure 2.5(3). This rule provides that “[t]he prosecuting attorney shall ... file the minutes of evidence of the witnesses ... and a full and fair statement of the witness' expected testimony” prior to trial. Iowa R.Crim. P. 2.5(3). Our scope of review for juvenile court proceedings is de novo. State v. Iowa Dist. Ct., 750 N.W.2d 531, 534 (Iowa 2008) (citations omitted); In re E.P., 478 N.W.2d 402, 403 (Iowa 1991) (holding that an appellate court is not bound by juvenile court's factual findings, but it gives them weight).

At the outset, the State asserts J.C. waived this argument on appeal by failing to move for a continuance, pursuant to State v. Epps, 313 N.W.2d 553, 557–58 (Iowa 1981), and by failing to argue rule 2.5(3) applied to juvenile delinquency hearings. The State argues, alternatively, that any error in not disclosing Jackson's testimony earlier did not constitute reversible error as both A.W.'s mother and Mattox testified regarding the same subject matter—that it would be detrimental to A.W. for her to testify at the hearing, so Jackson's testimony was cumulative.

J.C. has cited no authority in support of his assertion that the requirements of rule 2.5(3) are applicable to this juvenile delinquency case. Iowa Code section 232.35 provides that the manner of commencing “a formal judicial proceeding to determine whether a child has committed a delinquent act” is by the filing of a petition. Section 232.36 specifies the contents of the petition. Iowa Rules of Juvenile Procedure 8.1 and 8.2 set forth the scope of discovery and access to records. In the case of In re Dugan, 334 N.W.2d 300, 305 (Iowa 1983), our supreme court rejected a claim that a juvenile delinquency petition must also comply with what was then rule 5(3) (now rule 2.5(3) ). “We have long recognized that a juvenile court proceeding is not a prosecution for crime, but a special proceeding that serves as an ameliorative alternative to a criminal prosecution.” In re C.T.F., 316 N.W.2d 865, 866–67 (Iowa 1982). Accordingly, J.C.'s claim based on a violation of rule 2.5(3) is rejected.

Although J.C. cites no other authority in support of his claim of surprise as to the testimony of Jackson, we note J.C. has neither claimed the lateness of disclosure disadvantaged him in trial preparation nor shown that the subject of Jackson's testimony was a surprise. Accordingly, we agree with the district court that “[J.C .] knew [A.W.'s availability] was going to be an issue,” and we find that because J.C. was presented with the correspondence between the State and Jackson—which evidenced that Jackson would testify regarding unavailability—the court committed no error in allowing the testimony.

III. Mattox's and Dr. Harre's Testimony

Next, J.C. asserts the trial court's admission of Mattox's testimony, Dr. Harre's testimony, and Dr. Harre's exam report violated his Confrontation Clause right as the admission included A.W.'s testimonial statements, J.C. had no prior opportunity to cross-examine A.W., and A.W. was not “unavailable.” The trial court admitted Mattox's and Dr. Harre's testimony pursuant to Iowa Rules of Evidence 5.803(4) and 5.807. It noted J.C.'s Confrontation Clause objection, but did not elaborate on it in its order.¹ We review Confrontation Clause claims de novo. State v. Harper, 770 N.W.2d 316, 319 (Iowa 2009) (citations omitted).

The Sixth Amendment to the United States Constitution guarantees that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI ; see also Iowa Const. art. I, § 10 (same). “[T]his provision bars ‘admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’ “ Davis v. Washington, 547 U.S. 813, 821 (2006) (citing Crawford v. Washington, 541 U.S. 36, 53–54 (2004) ).

Only testimonial statements come within the reach of the Confrontation Clause. See Crawford, 541 U.S. at 51. Accordingly, we begin our analysis with the threshold determination of whether A.W.'s statements to Mattox and Dr. Harre were testimonial. See Harper, 770 N.W.2d at 321. Our analysis will address the issue generally as J.C.'s brief does not identify specific statements that he claims were testimonial.

The Iowa Supreme Court determined whether a child's out-of-court statements describing sexual abuse were testimonial in State v. Bentley. See 739 N.W.2d 296, 297 (Iowa 2007). That case involved a ten-year-old girl's out-of-court statements made to a Child Protection Center (CPC) counselor. Id. The court held that “[t]he interview of [the child victim] was essentially a substitute for police interrogation.” Id. at 299. In so holding, the court emphasized CPC's ongoing relationship with police, that police referred child victims of sexual abuse to the CPC for “forensic interviews,” that police met with the CPC counselor prior to the interview, that police were present during the interview, and that the child victim was informed of their presence. Id. at 299–300. The “indicia of formality” surrounding the child victim's statements reinforced the court's holding that the statements were the “product of police interrogation.” Id. at 300 (noting that the child victim spoke in room designed to facilitate forensic interviews, as indicated by the observation window and video equipment, and the child victim answered structured questions concerning past events).

The Iowa Supreme Court later distinguished Bentley from other statements made to medical personnel in Harper, 770 N.W.2d at 316 and State v. Schaer, 757 N.W.2d 630 (Iowa 2008). The Schaer court held that a...