State v. Walker

• Decision Date: 22 November 2019
• Docket Number: No. 18-0457,18-0457
• Citation: 935 N.W.2d 874
• Parties: STATE of Iowa, Appellee, v. Lawrence Eugene WALKER, Appellant.
• Court: Iowa Supreme Court

935 N.W.2d 874

STATE of Iowa, Appellee,

v.Lawrence Eugene WALKER, Appellant.

No. 18-0457

Supreme Court of Iowa.

Filed November 22, 2019

Mark C. Smith, State Appellate Defender (until withdrawal), and Nan Jennisch, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Timothy M. Hau, Assistant Attorney General, Mike Walton, County Attorney, and Kimberly Shepherd, Assistant County Attorney, for appellee.

McDONALD, Justice.

Following a jury trial, Lawrence Walker was convicted of sexual abuse in the second degree, in violation of Iowa Code section 709.3 (2016), and lascivious acts with a child, in violation of Iowa Code section 709.8(1)(a ) and (c ). In this direct appeal, Walker raises three evidentiary issues. The first relates to the exclusion of evidence. The second relates to the allegedly erroneous admission of certain hearsay testimony. The third also relates to the allegedly erroneous admission of certain hearsay testimony, but the third issue is raised within the framework of a claim of ineffective assistance of counsel.

I.

The offense conduct occurred in June 2016. On the night at issue, Walker babysat his four-year-old niece, E.W., her eight-year-old brother, J.W., and another child. At some point in the evening, Walker took E.W. upstairs to her parents’ bedroom. He cuddled in bed with her. He removed her underwear, removed his pants, put her on his lap, bounced her up and down, and rubbed the child’s genitals with his hand.

The next day E.W. made statements to her mother that prompted an emergency room visit. At the emergency room, sexual assault nurse examiner Elsa Durr-Baxter interviewed E.W. and E.W.’s mother separately. E.W.’s statements to Durr-Baxter inculpated Walker for sexual abuse of E.W. Durr-Baxter conducted a physical and forensic examination of E.W. Division of Criminal Investigation (DCI) tests of the samples showed the presence of a sperm cell in E.W.’s external anal swab and foreign DNA in the crotch of E.W.’s underwear and on her back. The samples were too weak for reliable comparison to an individual for matching purposes.

Durr-Baxter referred E.W. to Dr. Barbara Harre, a physician at the Child Protection Response Center. A little more than two weeks after the night at issue, Dr. Harre met with E.W. and her mother. Dr. Harre interviewed them separately. Dr. Harre conducted a medical exam of E.W. During the exam, E.W. made statements inculpating Walker for sexual abuse. Dr. Harre testified she asked E.W. if there had been anything about Walker that made her uncomfortable. E.W. stated, "Larry doing this" and then made a bouncing motion. E.W. stated Walker’s underwear was off and he took her underwear off. Dr. Harre testified E.W. said she was "on his crotch" at that time. Dr. Harre asked E.W. if Walker touched her on other parts of her body. E.W. indicated Walker touched her with his fingers between her legs and it hurt.

Approximately a week after E.W.’s appointment with Dr. Harre, Detective Maureen Hammes conducted a video-recorded interview with Walker. Walker initially denied any wrongdoing, but then he admitted to the offense conduct. Walker admitted to taking E.W. upstairs and laying in bed with her. He said he took off her panties and took off his pants. He said he "cuddled with her." He later admitted he put E.W. on his lap while in the bed. He admitted to rubbing his hand against E.W.’s vagina. Walker was arrested and charged thereafter.

The jury found Walker guilty as charged, and Walker timely filed this appeal. The court of appeals affirmed Walker’s convictions, and we granted Walker’s application for further review.

II.

A.

We turn to Walker’s first evidentiary challenge. At trial, Walker sought to admit evidence concerning the victim’s eight-year-old brother, J.W. Specifically, Walker wanted to introduce into evidence statements the parents allegedly made that J.W. may have been a victim of sexual abuse. According to defense counsel, the mother also stated that she observed J.W. "engaged in staring at E.W.’s body," that she wanted the siblings clothed when they were together, and that she "found it necessary to separate" them. Walker contended the evidence was relevant to show E.W. learned age-inappropriate sexual information from J.W. or J.W.—rather than Walker—was the abuser. The State moved in limine to exclude the evidence. The district court granted the State’s motion, concluding the evidence was not relevant. The district court also concluded if the evidence was relevant, it was only marginally relevant but was unduly prejudicial, likely to confuse the issues, and excluded by Iowa Rule of Evidence 5.412.

Our review is for an abuse of discretion. See State v. Tipton , 897 N.W.2d 653, 691 (Iowa 2017) ("The district court rulings on relevance of evidence are reviewable for abuse of discretion, as are challenges to the admission of evidence under Iowa Rule of Evidence 5.403."); State v. Mitchell , 568 N.W.2d 493, 497 (Iowa 1997) (applying abuse of discretion standard to rulings regarding rule 5.412 ). "An abuse of discretion occurs when the trial court exercises its discretion ‘on grounds or for reasons clearly untenable or to an extent clearly unreasonable.’ " Tipton , 897 N.W.2d at 690 (quoting State v. Buenaventura , 660 N.W.2d 38, 50 (Iowa 2003) ).

It is arguable whether the evidence is even relevant. Evidence is relevant when "[i]t has any tendency to make a fact more or less probable than it would be without the evidence" and "[t]he fact is of consequence in determining the action." Iowa R. Evid. 5.401. It is certainly true "that a child victim’s sexual knowledge [that] resulted from an encounter with someone other than the defendant may be relevant and material to a defendant’s defense of mistaken identity or false accusation." State v. Cecil J. , 99 Conn.App. 274, 913 A.2d 505, 512 (2007) ; see State v. Clarke , 343 N.W.2d 158, 162–63 (Iowa 1984) (overturning the district court’s decision to allow evidence of a complainant’s sexual history at trial because the defendant did not have evidence of a previous sexual encounter, nor did he show that the "complainant would more likely have fantasized" the sex act if there had been a previous sexual encounter). However, there must be some evidence of a prior encounter with someone other than the defendant.

Here, Walker failed to make an offer of proof establishing there was in fact an encounter between J.W. and E.W. Instead, at best, the record reflects the parents had concerns J.W. may have been a victim of sexual abuse. There is no evidence J.W. sexually abused E.W. or otherwise had an encounter with E.W. The defendant’s argument is simply speculation. See State v. Gorman , 468 S.W.3d 428, 432 (Mo. Ct. App. 2015) (affirming decision to exclude evidence of other abuse to establish mistaken identity where it was mere speculation).

Even if the evidence were marginally relevant, the district court did not abuse its discretion in excluding the evidence on the ground that it was unduly prejudicial. Walker contends the evidence falls outside the scope of rule 5.412. Where evidence falls outside the scope of rule 5.412, the evidence may still be excluded "if its probative value is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Iowa R. Evid. 5.403. "Under rule 5.403, the primary focus is not upon the witness, but the interests of the defendant and the right of the defendant to present a defense." State v. Alberts , 722 N.W.2d 402, 411 (Iowa 2006). Here, the proposed evidence was, at best, only marginally relevant. But the proposed evidence would have merely confused the issues, misled the jury, and created multiple trials within the trial. Under the defendant’s theory of relevance, the jury would have had to determine whether J.W. had been sexually abused. Then the jury would have had to determine whether J.W. had some sort of encounter that would have provided E.W. with age-inappropriate sexual information or would have caused E.W. to confuse abuse at the hands of her eight-year-old brother with abuse at the hands of her twenty-six-year-old uncle. We cannot say the district court’s decision was clearly untenable or clearly unreasonable. See Tipton , 897 N.W.2d at 691.

If Walker had made an offer of proof establishing a sexual encounter between J.W. and E.W., the proposed evidence would have fallen within the scope of rule 5.412. Under rule 5.412, a victim’s "other sexual behavior" includes any sex act, regardless of the act’s consensual or nonconsensual nature. See State v. Jones , 490 N.W.2d 787, 790 (Iowa 1992) (holding that rule 412 (now rule 5.412 as amended in 2016) "clearly encompasses prior sexual abuse perpetrated upon the victim"), overruled on other grounds by State v. Plain , 898 N.W.2d 801 (Iowa 2017). Where a defendant seeks to offer evidence excepted from rule 5.412, "the defendant must[ ] ... [f]ile a motion to offer the evidence at least 14 days before trial." Iowa R. Evid. 5.412(c )(1)(A).

Here, the district court found the defendant failed to file a timely motion and held the evidence was inadmissible. The defendant does not contest the finding. Nor does the defendant seek to excuse his failure to timely file notice. See id. (requiring fourteen-day notice "unless the court determines that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence, or that the evidence relates to an issue that has newly arisen in the case, and the court sets a different time"). The district court’s decision was not clearly untenable or clearly unreasonable. See Tipton , 897 N.W.2d at 691.

For these reasons, we conclude the district court did not abuse its discretion in excluding Walker’s evidence regarding J.W.

B.

Walker next contends the district court erred in allowing Dr. Harre to testify about E.W.’s statements regarding...