IN THE COURT OF APPEALS OF IOWA
No. 20-0227 Filed January 21, 2021
STATE OF IOWA, Plaintiff-Appellee,
vs.
FABIAN IVAN GARCIA, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Clay County, Charles Borth, Judge.
Fabian Garcia appeals his convictions for sexual abuse in the second
degree, lascivious acts with a child, and incest. AFFIRMED.
Michael H. Johnson of Johnson Law Firm, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Tabor and Ahlers, JJ. 2
AHLERS, Judge.
Fabian Garcia appeals his convictions for sexual abuse in the second
degree, lascivious acts with a child, and incest. He argues the district court erred
in admitting a recording of the child’s forensic interview, the evidence is insufficient
to support his convictions, and the court abused its discretion in denying his
request for an in camera review of the child’s mental-health records. We reject his
arguments and affirm.
I. Background Facts and Proceedings.
On December 31, 2017, Garcia lived with his paramour (the mother) and
the couple’s five children. The complaining witness was five years old at the time.
The mother testified she and the children were in their bedrooms getting ready to
sleep by 10:00 that night while Garcia remained in the living room drinking beer
and playing video games. She later heard Garcia call the child into the living room
to help him clean up. Eventually, Garcia and the child entered the mother’s
bedroom and wished her a happy birthday.1 Later that night, the child reentered
the bedroom by herself upset and crying, and she told the mother Garcia “was
putting his fingers inside of her anus.” The mother immediately confronted Garcia
in the living room, and Garcia denied anything happened.
On January 1, the mother contacted police. The next day, the mother and
child went to the Child Advocacy Center (CAC) in Sioux City for a physical
examination and interview. The physical examination noted the child’s genital and
anal areas were “[n]ormal” with no signs of irritation or injury; however,
1 The mother’s birthday is January 1. 3
“[p]enetration and trauma may occur in the genital and rectal area without leaving
definite physical signs due to the elasticity of the tissue in this area as well as the
potential for rapid healing without scarring.” During the interview, the child
spontaneously said Garcia “pulled down his pants . . . he showed his private part,
he put it, he put it in my butt and his finger, and then he licked his finger and then
he put it on his private part. And, and then he put his private part in my butt.” When
asked what his “private part” looked like, the child pointed between her legs and
said it was “like a boy.” When asked about putting the “private part in [her] butt,”
the child laid down to show her position that night and said she “kept moving
forward because it hurted.” When asked “where did it hurted at?” the child pointed
to her anus and said “he put it inside my . . . hole that, that poop comes out.”
The State charged Garcia with sexual abuse in the second degree in
violation of Iowa Code sections 709.1 and 709.3 (2017), lascivious acts with a child
in violation of Iowa Code section 709.8, and incest in violation of Iowa Code section
726.2. The matter proceeded to a bench trial on November 6 and 7, 2019, after
which the district court found Garcia guilty as charged. The court sentenced him
to indeterminate terms of incarceration not to exceed twenty-five years for sexual
abuse, ten years for lascivious acts with a child, and five years for incest, run
concurrently. Garcia appeals.
II. Standard of Review.
We review hearsay claims for errors at law. State v. Newell, 710 N.W.2d 6,
18 (Iowa 2006). A district court has no discretion to admit hearsay into evidence
unless there is a provision providing for its admission. State v. Veverka, 938
N.W.2d 197, 202 (Iowa 2020). Conversely, subject to relevance and Iowa Rule of 4
Evidence 5.403 considerations, a district court also has no discretion to exclude
hearsay evidence if the statement falls within an enumerated exception. Id. This
lack of discretion regarding admission or exclusion of hearsay is why rulings on
hearsay are reviewed for the correction of legal error. Id.
We review insufficient-evidence claims for errors at law. State v. Truesdell,
679 N.W.2d 611, 615 (Iowa 2004). “Substantial evidence exists to support a
verdict when the record reveals evidence that a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.” Id. “In making this determination,
‘[w]e view the evidence in the light most favorable to the verdict,’ including all
reasonable inferences that may be deduced from the record.” Id. (alteration in
original) (quoting State v. Gay, 526 N.W.2d 294, 295 (Iowa 1995)).
We review nonconstitutional challenges to discovery rulings for abuse of
discretion. State v. Leedom, 938 N.W.2d 177, 187 (Iowa 2020).
III. Hearsay.
Garcia challenges the admission of the video recording of the CAC
interview. Garcia asserts the video is inadmissible hearsay. The State
acknowledges the video is hearsay but asserts the video is admissible under the
residual exception. See Iowa R. Evid. 5.807; see also Iowa Code § 915.38(3).
Under the residual exception, such a video is admissible if the State shows five
elements: “trustworthiness, materiality, necessity, service of the interests of justice,
and notice.” State v. Rojas, 524 N.W.2d 659, 662–63 (Iowa 1994); see also
Veverka, 938 N.W.2d at 200. 5
Garcia concedes the video is material if true and the State provided proper
notice. He challenges the trustworthiness, necessity, and interests-of-justice
requirements.
As to trustworthiness, our supreme court has identified several indicia of
trustworthiness that are present here. See Rojas, 524 N.W.2d at 663. By watching
the interview on video, “the trier of fact could observe for itself how the questions
were asked, what the declarant said, and the declarant’s demeanor.” Id. The
interview occurred less than forty-eight hours after the events at issue when the
child’s memory would still be fresh, much fresher than at the trial almost two years
after the events. The interview was open-ended and non-leading, with the
interviewer adopting the child’s terminology such as “private part” and “butt.” The
child’s description of sexual contact was consistent throughout the interview and
with other accounts in the record. This description was also detailed, with the child
explaining how she squirmed forward in pain from penetration. Such a description
is “beyond the experience of the average” five-year-old, especially considering the
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IN THE COURT OF APPEALS OF IOWA
No. 20-0227 Filed January 21, 2021
STATE OF IOWA, Plaintiff-Appellee,
vs.
FABIAN IVAN GARCIA, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Clay County, Charles Borth, Judge.
Fabian Garcia appeals his convictions for sexual abuse in the second
degree, lascivious acts with a child, and incest. AFFIRMED.
Michael H. Johnson of Johnson Law Firm, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Tabor and Ahlers, JJ. 2
AHLERS, Judge.
Fabian Garcia appeals his convictions for sexual abuse in the second
degree, lascivious acts with a child, and incest. He argues the district court erred
in admitting a recording of the child’s forensic interview, the evidence is insufficient
to support his convictions, and the court abused its discretion in denying his
request for an in camera review of the child’s mental-health records. We reject his
arguments and affirm.
I. Background Facts and Proceedings.
On December 31, 2017, Garcia lived with his paramour (the mother) and
the couple’s five children. The complaining witness was five years old at the time.
The mother testified she and the children were in their bedrooms getting ready to
sleep by 10:00 that night while Garcia remained in the living room drinking beer
and playing video games. She later heard Garcia call the child into the living room
to help him clean up. Eventually, Garcia and the child entered the mother’s
bedroom and wished her a happy birthday.1 Later that night, the child reentered
the bedroom by herself upset and crying, and she told the mother Garcia “was
putting his fingers inside of her anus.” The mother immediately confronted Garcia
in the living room, and Garcia denied anything happened.
On January 1, the mother contacted police. The next day, the mother and
child went to the Child Advocacy Center (CAC) in Sioux City for a physical
examination and interview. The physical examination noted the child’s genital and
anal areas were “[n]ormal” with no signs of irritation or injury; however,
1 The mother’s birthday is January 1. 3
“[p]enetration and trauma may occur in the genital and rectal area without leaving
definite physical signs due to the elasticity of the tissue in this area as well as the
potential for rapid healing without scarring.” During the interview, the child
spontaneously said Garcia “pulled down his pants . . . he showed his private part,
he put it, he put it in my butt and his finger, and then he licked his finger and then
he put it on his private part. And, and then he put his private part in my butt.” When
asked what his “private part” looked like, the child pointed between her legs and
said it was “like a boy.” When asked about putting the “private part in [her] butt,”
the child laid down to show her position that night and said she “kept moving
forward because it hurted.” When asked “where did it hurted at?” the child pointed
to her anus and said “he put it inside my . . . hole that, that poop comes out.”
The State charged Garcia with sexual abuse in the second degree in
violation of Iowa Code sections 709.1 and 709.3 (2017), lascivious acts with a child
in violation of Iowa Code section 709.8, and incest in violation of Iowa Code section
726.2. The matter proceeded to a bench trial on November 6 and 7, 2019, after
which the district court found Garcia guilty as charged. The court sentenced him
to indeterminate terms of incarceration not to exceed twenty-five years for sexual
abuse, ten years for lascivious acts with a child, and five years for incest, run
concurrently. Garcia appeals.
II. Standard of Review.
We review hearsay claims for errors at law. State v. Newell, 710 N.W.2d 6,
18 (Iowa 2006). A district court has no discretion to admit hearsay into evidence
unless there is a provision providing for its admission. State v. Veverka, 938
N.W.2d 197, 202 (Iowa 2020). Conversely, subject to relevance and Iowa Rule of 4
Evidence 5.403 considerations, a district court also has no discretion to exclude
hearsay evidence if the statement falls within an enumerated exception. Id. This
lack of discretion regarding admission or exclusion of hearsay is why rulings on
hearsay are reviewed for the correction of legal error. Id.
We review insufficient-evidence claims for errors at law. State v. Truesdell,
679 N.W.2d 611, 615 (Iowa 2004). “Substantial evidence exists to support a
verdict when the record reveals evidence that a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.” Id. “In making this determination,
‘[w]e view the evidence in the light most favorable to the verdict,’ including all
reasonable inferences that may be deduced from the record.” Id. (alteration in
original) (quoting State v. Gay, 526 N.W.2d 294, 295 (Iowa 1995)).
We review nonconstitutional challenges to discovery rulings for abuse of
discretion. State v. Leedom, 938 N.W.2d 177, 187 (Iowa 2020).
III. Hearsay.
Garcia challenges the admission of the video recording of the CAC
interview. Garcia asserts the video is inadmissible hearsay. The State
acknowledges the video is hearsay but asserts the video is admissible under the
residual exception. See Iowa R. Evid. 5.807; see also Iowa Code § 915.38(3).
Under the residual exception, such a video is admissible if the State shows five
elements: “trustworthiness, materiality, necessity, service of the interests of justice,
and notice.” State v. Rojas, 524 N.W.2d 659, 662–63 (Iowa 1994); see also
Veverka, 938 N.W.2d at 200. 5
Garcia concedes the video is material if true and the State provided proper
notice. He challenges the trustworthiness, necessity, and interests-of-justice
requirements.
As to trustworthiness, our supreme court has identified several indicia of
trustworthiness that are present here. See Rojas, 524 N.W.2d at 663. By watching
the interview on video, “the trier of fact could observe for itself how the questions
were asked, what the declarant said, and the declarant’s demeanor.” Id. The
interview occurred less than forty-eight hours after the events at issue when the
child’s memory would still be fresh, much fresher than at the trial almost two years
after the events. The interview was open-ended and non-leading, with the
interviewer adopting the child’s terminology such as “private part” and “butt.” The
child’s description of sexual contact was consistent throughout the interview and
with other accounts in the record. This description was also detailed, with the child
explaining how she squirmed forward in pain from penetration. Such a description
is “beyond the experience of the average” five-year-old, especially considering the
mother’s testimony that the child has never viewed pornography or otherwise seen
a sex act. See id. While Garcia raises several issues with the interview, we believe
none of these issues are so serious as to undermine the trustworthiness of the
interview. Therefore, we find the interview sufficiently trustworthy.
As to necessity, a hearsay statement sought to be admitted under the
residual hearsay rule does not meet the requirement just because the State needs
it. See State v. Barnard, No. 18-0757, 2019 WL 5792578, at *4 (Iowa Ct. App.
Nov. 6, 2019). Rather, “the State must show the evidence is ‘more probative . . .
than any other evidence that the proponent can obtain through reasonable efforts.’” 6
Veverka, 938 N.W.2d at 204 (alteration in original) (quoting Iowa R.
Evid. 5.807(a)(3)). Here, the lack of physical evidence and other witnesses meant
the State relied almost entirely on the child’s statements to prove a sex act
occurred. Cf. State v. Metz, 636 N.W.2d 94, 100 (Iowa 2001) (finding hearsay
statements of an unavailable witness were not necessary where “the State had
available to it for use at trial the testimony of other witnesses who had actually
heard statements made by the defendant”). At trial, the State offered the child as
a witness, but the child testified she did not remember many details of December
31, 2017, including whether Garcia did anything that hurt her. After the child’s
testimony, the district court admitted the CAC interview. We agree the interview
was sufficiently necessary at that point.
Finally, hearsay evidence serves the interests of justice if it meets the other
requirements of residual hearsay and “advances the goal of truth-seeking
expressed in Iowa Rule of Evidence” 5.102. Rojas, 524 N.W.2d at 665. Having
found the State showed sufficient trustworthiness and necessity, we agree the
interview also serves the interest of justice. See State v. Neitzel, 801 N.W.2d 612,
622–23 (Iowa Ct. App. 2011) (finding a child’s hearsay statements about sexual
abuse were admissible under the residual exception after the child could not
remember the events at trial). We find no error in admitting the CAC interview
under the residual hearsay exception.
IV. Sufficiency of the Evidence.
Garcia argues the evidence is insufficient to prove he engaged in sexual
activity with the child. See Iowa Code §§ 709.1 (defining sexual abuse to include
performing a sex act with a specified person), 709.8 (defining lascivious acts with 7
a child to include specified sexual contact with a child), 726.2 (defining incest to
include performing a sex act with a specified related person). Garcia raises several
issues that he claims cast doubt on the child’s credibility during the CAC interview.
However, 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
witnesses and weigh the evidence.”). The district court found the child’s
description of Garcia engaging in sexual contact with her credible, and it found
Garcia’s testimony about that night 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). We find
the evidence sufficient to support Garcia’s conviction on all three counts.
V. Mental-Health Records.
Garcia filed a motion for privileged records seven days before trial, seeking
mental-health records from the child’s therapist. Two days later, the district court
denied Garcia’s motion verbally during a hearing and confirmed the denial in a
written order that followed. Garcia claims the district court erred in denying his
motion.
Iowa Code section 622.10 controls “access to mental health records and
generally prohibits disclosure of confidential communications between mental
health professionals and their patients.” Leedom, 938 N.W.2d at 186. To gain
access to confidential records, a defendant must satisfy multiple conditions,
including showing “a reasonable probability that the privileged records sought may
likely contain exculpatory information that is not available from any other source.”
Iowa Code § 622.10(4)(a)(2)(b); see also Leedom, 938 N.W.2d at 187–88 (finding 8
the fact the therapist never reported the minor was sexually abused is sufficient to
review therapy records); State v. Neiderbach, 837 NW.2d 180, 196–97 (Iowa 2013)
(finding a witness’s recent bizarre behaviors are sufficient to review the witness’s
mental-health records); State v. Thompson, 836 N.W.2d 470, 490–91 (Iowa 2013)
(rejecting the defendant’s request to review mental-health records because the
defendant showed no “nexus between the issues at trial and the mental health
treatment received by” the witness). If the defendant makes such a showing, “the
court shall conduct an in camera review of such records to determine whether
exculpatory information is contained in such records.” Iowa Code
§ 622.10(4)(a)(2)(b). This process protects “the confidentiality of counseling
records while also protecting the due process rights of defendants.” Leedom, 938
N.W.2d at 186 (quoting Thompson, 836 N.W.2d at 481).
In denying Garcia’s motion, the district court found the motion was not timely
and the record contained “no evidence . . . whatsoever that” the requested records
will contain exculpatory information unavailable from any other source. Even if we
were to find the motion was timely, Garcia only advances “a rational, good faith”
belief that the State sought to admit the CAC interview because the child provided
exculpatory information “during the course of her counseling sessions.”2 When the
State filed a motion to determine the admissibility of the CAC interview, it expected
2 Garcia’s appellate brief mentions the district court may have violated his constitutional rights to due process and a fair trial in denying a review of the records. The district court’s order contains no indication the court considered or decided these constitutional claims. Therefore, to the extent Garcia raises constitutional claims on appeal, these claims are not preserved for our review. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.”). 9
the child to testify with “limited memory of any of the events establishing the basis
for the allegations in this case.” In an ensuing hearing on that and other matters,
the State explained the child “may have difficulty testifying” based on the
therapist’s statement “that there may be some difficulties at trial.” Nothing in the
record establishes the child’s difficulties were in any way related to information that
would be exculpatory for Garcia. While our supreme court has encouraged “judges
in close cases to examine the records in camera,” this is not a close case. See
Leedom, 938 N.W.2d at 188. Garcia has shown a generalized hope, rather than
a reasonable probability, that the child’s mental-health records will contain
exculpatory information. He is “not entitled to go on a fishing expedition in [the
witness’s] mental health records.” Thompson, 836 N.W.2d at 491. We find no
abuse of discretion in the district court’s denial of his motion for review of the child’s
mental-health records.
VI. Conclusion.
We find the child’s recorded interview is admissible under the residual
hearsay exception, the child’s testimony is sufficient evidence to support Garcia’s
conviction on all counts, and the court did not abuse its discretion in denying
Garcia’s request for review of the child’s mental-health records. Therefore, we
affirm.
AFFIRMED.