State of Iowa v. Dewayne Michael Veverka

• Court: Court of Appeals of Iowa
• Decided: September 13, 2023
• Docket: 22-0255
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0255 Filed September 13, 2023

STATE OF IOWA, Plaintiff-Appellee,

vs.

DEWAYNE MICHAEL VEVERKA, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Jasper County, Thomas P. Murphy,

Judge.

Dewayne Veverka appeals his conviction of third-degree sexual abuse,

second offense. AFFIRMED.

Raya D. Dimitrova of Carr Law Firm, P.L.C., Des Moines, for appellant.

Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.

Considered by Ahlers, P.J., Badding, J., and Vogel, S.J.* Buller, J., takes

no part.

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023). 2

VOGEL, Senior Judge.

Dewayne Veverka appeals from his conviction for third-degree sexual

abuse, second offense. He challenges the district court’s admission of a forensic

interview and the sufficiency of the evidence supporting his conviction. We affirm.

I. Background Facts and Proceedings

The supreme court set forth the facts and proceedings in the first appeal in

this action. State v. Veverka, 938 N.W.2d 197 (Iowa 2020). Briefly, Veverka was

charged with three counts of third-degree sexual abuse of his daughter, S.V.,

between May and November 2016. In November 2016, S.V. and her mother—

Veverka’s wife—reported to law enforcement that Veverka had inappropriately

touched S.V., who was fourteen years old at the time. Id. at 201. “Specifically,

S.V. said Veverka had touched S.V. under S.V.’s clothes on her breasts and

vagina, that Veverka had digitally penetrated S.V.’s vagina, and that Veverka had

forced S.V. to rub his erect penis.” Id. In December, S.V. underwent a forensic

interview, which was recorded on video. Id. After being charged, Veverka filed a

motion in limine challenging the admissibility of S.V.’s forensic interview. Id. The

State resisted Veverka’s motion, arguing the video was admissible under the

residual exception to hearsay. Id. Following an evidentiary hearing, the district

court found the video was not admissible and granted Veverka’s motion in limine.

Id. at 201. The State appealed, and the supreme court found the district court

erred in granting Veverka’s motion.1 Id. at 202–03. The supreme court vacated

the district court’s ruling and remanded for further proceedings. Id.

1 Specifically, the supreme court concluded the district court erred in: stating it had

discretion to admit or exclude the video; focusing on the testimonial nature of the 3

On remand, the State filed a motion to reconsider admissibility of the video.

The court entered an order finding the video was material, trustworthy, and served

the interests of justice. However, the court at the time did not determine whether

the video was admissible, noting the State did not ask it to rule on necessity.

The case proceeded to a jury trial in December 2021. S.V. was among the

witnesses who testified. However, S.V. could not remember details of the abuse,

testifying that, not only had it been five years ago, but also she believed she had

blocked those memories. The State then moved to admit the video under the

residual exception, and the court agreed. The jury ultimately found Veverka guilty

on all three counts. He appeals, challenging the court’s admission of the forensic

interview and the sufficiency of the evidence supporting his conviction.

II. Standard of Review

“[B]ecause the district court lacks ‘discretion to admit hearsay in the

absence of a provision providing for it’ or deny the admission of hearsay if it falls

within an exception,” appellate courts “review the district court's evidentiary rulings

on hearsay for errors at law.” State v. Thompson, 982 N.W.2d 116, 121 (Iowa

2022) (citation omitted). We also review challenges to the sufficiency of the

evidence for correction of errors at law. State v. Brimmer, 983 N.W.2d 247, 256

(Iowa 2022).

interview in addressing the evidentiary question at issue; and applying the law regarding the requisite findings for admissibility. See Veverka, 938 N.W.2d at 202– 03. 4

III. Residual Exception

“Hearsay is a statement the declarant makes other than while testifying at

the current trial that is offered ‘to prove the truth of the matter asserted in the

statement.’” State v. Fontenot, 958 N.W.2d 549, 555 (Iowa 2021) (quoting Iowa

R. Evid. 5.801(c)(2)). “Hearsay is generally inadmissible unless the rules of

evidence, Iowa Constitution, or an Iowa Supreme Court rule provide otherwise.”

Id.

In admitting the forensic video, the district court relied on the exception for

residual hearsay, which provides a hearsay statement is admissible if:

(1) The statement has equivalent circumstantial guarantees of trustworthiness; (2) It is offered as evidence of a material fact; (3) It is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) Admitting it will best serve the purposes of these rules and the interests of justice.[2]

Iowa R. Evid. 5.807(a).

“Courts have often used the residual exception to admit the out-of-court

statements of child sex abuse victims.” State v. Skahill, 966 N.W.2d 1, 11 (Iowa

2021). However, the residual exception “should be used sparingly” depending “on

the unique facts and circumstances of each case.” Veverka, 938 N.W.2d at 204.

“The requirements of the residual exception can be summarized as

‘trustworthiness, materiality, necessity, service of the interests of justice, and

2 Rule 5.807 “was amended effective January 1, 2023, and applies to all actions

filed on or after that date, as well as in trials and evidentiary hearings conducted on or after that date for actions filed before that date.” State v. Maldonado, 993 N.W.2d 379, 385 n.4 (Iowa Ct. App. 2023). This amendment does not apply to Veverka, who was charged in March 2017 and ultimately tried in December 2021. 5

notice.’” Skahill, 966 N.W.2d at 10 (quoting State v. Rojas, 524 N.W.2d 659, 662–

63 (Iowa 1994)). “These are not factors to be weighed; all five requirements must

be satisfied.” Id. Veverka challenges the district court’s determination that the

trustworthiness, necessity, and interests-of-justice requirements were met.

A. Trustworthiness

“With respect to trustworthiness, the relevant consideration is whether the

proffered evidence has ‘circumstantial guarantees of trustworthiness.’” Veverka,

938 N.W.2d at 203 (quoting Iowa R. Evid. 5.807(a)(1)). Our supreme court

identified several indicia of trustworthiness in a video of a child sex abuse

interview:

“[t]he interviewer asked [the child] open-ended, non-leading questions”; the questions “were not the kind that would prompt a child to fabricate the responses”; the child provided “a fairly detailed account of the abuse itself”; the child remembered other details regarding the circumstances; the descriptions of the sex acts were “beyond the experience of the average ten-year-old”; the child's “statements were consistent throughout the interview”; and “the videotape [was] more reliable than many other forms of hearsay because the trier of fact could observe for itself how the questions were asked, what the declarant said, and the declarant's demeanor.”

Veverka, 938 N.W.2d at 202 (alterations in original) (quoting Rojas, 524 N.W.2d at

663). In ruling the forensic video sufficiently trustworthy, the district court found:

“for the most part, the interviewer asked open-ended questions”; S.V. “provided

detailed information”; even though S.V. was fourteen years old at the time and

older than some other alleged child sex abuse victims, she “did not use adult

vernacular to describe the Defendant's anatomy or the activities in which she said

the Defendant engaged”; and “S.V.’s statements were consistent.” 6

Without pointing to any specific examples, Veverka asserts the interviewer’s

questions were too leading and not sufficiently open-ended. We agree with the

district court that the interviewer generally asked suitable open-ended questions.

The interviewer’s first few questions and statements about the alleged abuse are

illustrative:

• You started talking about . . . okay I’m just gonna tell the things that are the truth and stuff, can you tell me a little more about what you were referring to? • So what are the things that you’re referring to about your dad? • What happened? • Well, you mentioned that you don’t want your dad to go to jail. • So you had a lot of fear. • Did that happen one time or more than one time with your dad? • And so you’re saying that for a period of about six or seven months that things happened on a weekly basis, unless you were on your period week. I want you to go back in your mind to a time when that did happen, and I want you to tell me everything about that one specific time from the beginning before touching happened, through the middle with the touching, and then what happened after.

These questions and statements are not excessively leading; they are

appropriately open-ended and in response to information S.V. just provided. As to

other indicia of trustworthiness, S.V. provided detailed descriptions of the alleged

abuse and her surroundings at the time. See Rojas, 524 N.W.2d at 663 (“In

addition to providing a fairly detailed account of the abuse itself, [the child]

remembered details such as where other family members were when the abuse

occurred.”). S.V. gave consistent answers, including before and after a six-minute

break in the middle of the interview. See id. (“[The child’s] statements were

consistent throughout the interview.”). The trained interviewer had over ten years

of experience in conducting child sex abuse interviews. See Neitzel, 801 N.W.2d 7

at 623 (noting the interviewers “were educated and trained in conducting this type

of interview”). We also observe the interview took place in December 2016, soon

after conclusion of the alleged abuse and five years before the trial.

Veverka also maintains the interview lacks trustworthiness because S.V.

“submitted multiple letters recanting her accusations but changed her accusations

again at trial.” At trial, S.V. acknowledged writing letters in 2018 stating in part the

abuse “didn’t happen.” However, S.V. added context to those letters, testifying

multiple people told her to drop the charges at the time. She also agreed that what

she “said has happened in this case did in fact happen” and “everything that [she]

said in that video [is] 100 percent the truth.” S.V.’s testimony at trial insisting the

abuse occurred distinguishes her claim from those alleged victims who recanted

their claims during testimony. See State v. Cagley, 638 N.W.2d 678, 682 (Iowa

2001) (finding statements to police not sufficiently trustworthy when the alleged

victim recanted during the motion in limine); but see Rojas, 524 N.W.2d at 663–64

(finding a videotaped interview sufficiently trustworthy despite the alleged victim’s

recantation at trial). It is for the jury to decide the weight given to S.V.’s conflicting

statements. See State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006) (“The

function of the jury is to weigh the evidence and ‘place credibility where it belongs.’”

(citation omitted)). Considering all indicia of trustworthiness, we find the

videotaped interview sufficiently trustworthy. See Veverka, 938 N.W.2d at 202.

B. Necessity

Veverka claims admission of the video was not a necessity because at trial,

“[w]hen [S.V.] was asked about the alleged abuse, she was not as specific, but

was still able to testify that she was inappropriately touched.” However, “[t]he word 8

‘necessity’ here is not used in the absolute sense. The hearsay evidence only

needs to be ‘more probative on the point for which it is offered than any other

evidence that the proponent can obtain through reasonable efforts,’ as the rule

requires.” Skahill, 966 N.W.2d at 11 (quoting Iowa R. Evid. 5.807(a)(3)).

“Importantly, in the residual exception context, the proffered hearsay evidence’s

probative value is not viewed in a vacuum.” Id. (considering a video of a child sex

abuse interview “in relation to the other evidence available to the State, particularly

[the child’s] live testimony”). The overarching question is whether the evidence

“tend[s] to prove what happened to [the alleged victim] better than her trial

testimony in which she was subject to cross-examination.” Id.

At trial, S.V. provided general background information about the alleged

abuse, testifying, “I know he touched me inappropriately.” However, she

acknowledged she did not “really remember much of anything else.” She could

not remember specifics about the abuse, believing she “unconsciously . . . blocked”

those memories. When asked if she could remember the events between May

and November 2016, she responded, “Not really anymore. I’m sorry.” Thus, the

evidence presented in the videotaped interview was not available through S.V.’s

in-court testimony. See Skahill, 966 N.W.2d at 13–14 (“[W]hen the same evidence

is available through in-court testimony, hearsay statements are generally not

necessary under the residual exception.”). The residual exception has been used

in situations similar to this case: when the child’s “testimony had a significant gap

or weakness,” “when the child’s trial testimony was inconsistent and hesitant,” or

“when the child testified at trial to abuse but was unable to provide important details

in their trial testimony.” Id. at 14–15; see also Rojas, 524 N.W.2d at 663; Neitzel, 9

801 N.W.2d at 623–24. Furthermore, S.V’s age—nineteen years old at trial—does

not negate a finding of necessity due to her inability to recall the alleged abuse in

detail and concerns she had wavered on her claims of abuse. Cf. Fontenot, 958

N.W.2d at 572 (McDonald, J., dissenting) (rejecting a finding of necessity where

the witness “was a teenager at the time of trial,” “was able to testify regarding the

specific allegations of abuse in great detail,” and “did not recant her allegations of

sexual abuse”). Because at trial S.V. was unable to recall the details of the abuse

and the recorded interview was more probative than her trial testimony, the State

made the required showing of necessity. See Skahill, 966 N.W.2d at 11.

C. Interests of Justice

Veverka also claims admission of the video did not serve the interests of

justice “because it was clear what S.V. was alleging through her testimony.” “With

respect to the finding regarding the interests of justice, evidence serves the

interests of justice where ‘[t]he appropriate showing of reliability and necessity

were made, and admitting the evidence advances the goal of truth-seeking

expressed in Iowa Rule of Evidence [5.102].” Veverka, 938 N.W.2d at 204

(alterations in original) (quoting Rojas, 524 N.W.2d at 663). Again, S.V. could “[n]ot

really” remember the abuse that took place between May and November 2016,

other than that Veverka “touched [her] inappropriately.” We also note S.V. and

others testified family members were pressuring S.V. to drop the charges. Having

found the State showed sufficient trustworthiness and necessity, we agree the

interview also serves the interest of justice. See Neitzel, 801 N.W.2d at 622–23

(finding hearsay statements about sexual abuse were admissible under the

residual exception after the child could not remember the events at trial). 10

Having found the requisite showings of trustworthiness, necessity, and

interests of justice, we affirm the district court’s admission of the interview video

under the residual exception to the hearsay rule.

IV. Sufficiency of the Evidence

Veverka also challenges the sufficiency of the evidence to support his

conviction. He focuses on the reliability of S.V.’s testimony. Specifically, he

argues, “S.V.’s testimony was so unreliable that it fails to support [his] conviction

and the State’s case in chief,” and “when considering all of the evidence together,

there is not enough corroborative evidence to support her claims.”

For all three counts, the jury was instructed the State had to prove the

following elements of third-degree sexual abuse:

1. Between May 1, 2016, and November 15, 2016, Mr. Veverka performed a sex act with [S.V.]. 2. Mr. Veverka performed the sex act: a. While [S.V.] was 14 or 15 years old and a member of the same household as Mr. Veverka and Mr. Veverka was 4 or more years older; or b. [S.V.] was Mr. Veverka’s natural daughter. 3. Mr. Veverka and [S.V.] were not then living together as husband and wife.

Veverka specifically challenges the finding that he performed a sex act with

S.V. The jury viewed the interview in which S.V. described Veverka committing

multiple, specific sex acts. S.V. stated the abuse took place “skin to skin,” “a

handful of times,” “over a span of about six months.” And she explained that “even

though he entered my body twice, he still touched my genitals even if he didn’t go

inside.” She described that as he “got[ ] more confident,” “he tried to do different

and other things.” And she specified “[i]t started about in May, and I finally told my

mom about in November, and he touched me a few days before I told [her].” 11

Veverka points to State v. Smith, in which this court found the testimony

from multiple witnesses about “alleged abuse are inconsistent, self-contradictory,

lacking in experiential detail, and, at times, border on the absurd.” 508 N.W.2d

101, 103 (Iowa Ct. App 1993). However, our supreme court found Smith

“inconsistent with our appellate standard in this case, which permits reversal only

if the district court has abused its discretion, and which requires deference to the

district court’s resolution of the disputed factual issue.” State v. Trane, 984 N.W.2d

429, 437 (Iowa 2023); see also State v. Mathis, 971 N.W.2d 514, 518 (Iowa 2022)

(“Smith is an outlier case. It has been criticized in the commentary, and it has not

been followed in any sexual abuse case in Iowa since. The primary flaw in Smith

is that it is inconsistent with the standard of appellate review of jury verdicts, which

requires that the evidence be viewed in the light most favorable to the verdict and

which requires deference to the jury’s resolution of disputed factual issues.”). Even

assuming Smith remains good law, S.V.’s statements were not so inconsistent or

otherwise deficient that the district court was required to find her unbelievable.

Furthermore, other witnesses corroborated S.V.’s statements. S.V.’s

mother testified: S.V. disclosed the abuse to her, Veverka admitted to her that he

touched S.V., and Veverka asked her to convince S.V. to lie so the charges against

him would be dropped. S.V.’s maternal grandfather testified Veverka admitted to

him that he did “the crime” and other family members pressured S.V. to drop the

charges. A social worker testified Veverka admitted to abusing S.V. on at least

one occasion while the social worker was present.

Questions of credibility are for the factfinder. See State v. Laffey, 600

N.W.2d 57, 59 (Iowa 1999) (“[I]t is for the [factfinder] to judge the credibility of the 12

witnesses and weigh the evidence.”). Upon our review, we are “highly deferential

to the jury’s verdict,” and “[w]e will affirm the jury’s verdict when the verdict is

supported by substantial evidence.” State v. Lacey, 968 N.W.2d 792, 800 (Iowa

2021). It was within the jury’s province to find S.V.’s description of Veverka

engaging in sexual contact with her credible and find Veverka’s denial of abuse

not credible. See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998) (finding “the

alleged victim’s testimony is by itself sufficient to constitute substantial evidence of

defendant’s guilt” of sexual abuse). The statements of S.V. and corroborating

testimony are sufficient evidence to support Veverka’s conviction on all three

counts.

V. Conclusion

The district court did not err in admitting the forensic interview into evidence,

and Veverka’s conviction for three counts of third-degree sexual abuse is

supported by substantial evidence.

AFFIRMED.