IN THE COURT OF APPEALS OF IOWA
No. 20-0179 Filed February 17, 2021
STATE OF IOWA, Plaintiff-Appellee,
vs.
JAMES EARL SPATES JR., Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,
Judge.
James Spates appeals his convictions following jury trial. AFFIRMED.
Jeffrey M. Perkins of Perkins Law Office, PLC, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee.
Considered by Mullins, P.J., and May and Schumacher, JJ. 2
MULLINS, Presiding Judge.
James Spates Jr. appeals his convictions following jury trial. He argues the
district court erred in admitting exhibit B and expert testimony provided by an
alleged lay witness and the convictions are reversible on plain error.
I. Background Facts and Proceedings
Spates first met his wife, M.S., in 2004. At that time, she had two children
from a prior relationship, a son and a daughter. Over the years, the couple had
two more children together and ultimately married in 2012. M.S.’s oldest daughter
called Spates “dad” even though she knew her biological father and had limited
contact with him. The oldest two children of M.S. resided primarily with the family
prior to law enforcement intervention.
In February 2017, M.S.’s oldest daughter fought with Spates. The child
went to her bedroom and began to throw clothing and other items. When Spates
entered the bedroom, he began to video record the child on a cell phone. The
child was recorded saying, “[Y]ou tell them what you did to me.” The child then left
the home and went to visit a cousin who lived down the street. The child told the
cousin about acts of sexual and physical abuse perpetrated by Spates. When she
had trouble expressing herself verbally, she wrote her allegations in a notebook.
The cousin also asked the child questions about the abuse and contributed to the
written record of the conversation. The child and cousin revealed the allegations
to the cousin’s mother, who then alerted M.S. The child and M.S. went to the
police station in person to make a formal report.
M.S. told Spates they were speaking with the police. Spates also went to
the police station. He alleged he wanted to complete a lie detector test and resolve 3
any misunderstanding. Spates voluntarily spoke with an officer. Initially, Spates
denied sending text messages to the child that could be misunderstood to have a
sexual intent, but he later admitted to sending certain texts and asking the child to
delete them. He denied all allegations of sexual and physical abuse.
Spates was charged with sexual abuse in the second degree, sexual abuse
in the third degree, and sexual abuse in the third degree by force or against the
will of the other person or with a person twelve or thirteen years of age. He was
convicted of all three charges following a jury trial. Spates appeals his convictions
and sentences, raising evidentiary issues.
II. Standard of Review
“We review the admission of evidence challenged as hearsay for the
correction of errors at law. Improperly admitted hearsay constitutes grounds for
reversal unless the proffering party establishes the error was not prejudicial.” State
v. Plain, 898 N.W.2d 801, 810 (Iowa 2017). “We review all other evidentiary rulings
for an abuse of discretion.” State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014).
We examine the record to determine whether the district court ruled “on grounds
or for reasons clearly untenable or to an extent clearly unreasonable.” Id.
In his final claim, Spates asks this court to adopt and apply the plain-error
doctrine. Our supreme court examines its own prior decisions with great caution.
State v. Brown, 930 N.W.2d 840, 854 (Iowa 2019).
III. Discussion
A. Exhibit B
Spates argues that exhibit B, the two notebook pages created by the child
and her cousin that details the abuse allegations, was double hearsay and should 4
have been excluded. He also argues it is not admissible by the recorded
recollection exception to the rule against hearsay and that prejudice resulted from
its admission. See Iowa R. Evid. 5.803(5). The state challenges error
preservation.
The State first attempted to enter exhibit B while the child testified. Spates
objected, arguing more than half of the exhibit was hearsay and made no further
argument for the remainder of the document. Spates’s objection was sustained.
The State offered exhibit B a second time when the cousin who participated in the
creation of the document testified. Spates objected only to admission of the
second page of the exhibit. Both pages were admitted. The court heard
arguments about exhibit B multiple times following admission. Spates again
argued the exhibit was hearsay. The State argued exhibit B was admissible
pursuant to the exception for recorded recollections. Ultimately, the exhibit was
modified to redact references to another child, but the district court made no ruling
specifically on the hearsay objection.
The State’s error-preservation challenge is based on the timing of the
second hearsay objection. The district court admitted exhibit B while the cousin
was testifying. Spates raised a second hearsay objection later, during arguments
outside the presence of the jury. The State also argues error is not preserved
because the district court never ruled on the second hearsay objection. No post-
trial motions regarding exhibit B were filed.
“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.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). In the event the 5
district court does not rule on an issue raised, “the party who raised the issue must
file a motion requesting a ruling in order to preserve error for appeal.” Id. Error
preservation rests on timely objection at trial. Roberts v. Newville, 554 N.W.2d
298, 300 (Iowa Ct. App. 1996). “A timely and specific objection is required to alert
the judge to the issue raised and enable opposing counsel to take corrective action
to remedy the defect if possible.” Id. “The initiative is placed on the party, not the
judge . . . . [A] failure to object to an offer of evidence at the time the offer is made,
assigning the grounds, is a waiver upon appeal of any ground of complaint against
its admission.” Milks v. Iowa Oto-Head & Neck Specialists, P.C., 519 N.W.2d 801,
806 (Iowa 1994) (quoting John W. Strong, McCormick on Evidence § 52, at 200
(4th ed. 1992)).
The record is clear that the first time the State attempted to offer exhibit B,
Spates immediately made a hearsay objection that was sustained. The record is
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IN THE COURT OF APPEALS OF IOWA
No. 20-0179 Filed February 17, 2021
STATE OF IOWA, Plaintiff-Appellee,
vs.
JAMES EARL SPATES JR., Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,
Judge.
James Spates appeals his convictions following jury trial. AFFIRMED.
Jeffrey M. Perkins of Perkins Law Office, PLC, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee.
Considered by Mullins, P.J., and May and Schumacher, JJ. 2
MULLINS, Presiding Judge.
James Spates Jr. appeals his convictions following jury trial. He argues the
district court erred in admitting exhibit B and expert testimony provided by an
alleged lay witness and the convictions are reversible on plain error.
I. Background Facts and Proceedings
Spates first met his wife, M.S., in 2004. At that time, she had two children
from a prior relationship, a son and a daughter. Over the years, the couple had
two more children together and ultimately married in 2012. M.S.’s oldest daughter
called Spates “dad” even though she knew her biological father and had limited
contact with him. The oldest two children of M.S. resided primarily with the family
prior to law enforcement intervention.
In February 2017, M.S.’s oldest daughter fought with Spates. The child
went to her bedroom and began to throw clothing and other items. When Spates
entered the bedroom, he began to video record the child on a cell phone. The
child was recorded saying, “[Y]ou tell them what you did to me.” The child then left
the home and went to visit a cousin who lived down the street. The child told the
cousin about acts of sexual and physical abuse perpetrated by Spates. When she
had trouble expressing herself verbally, she wrote her allegations in a notebook.
The cousin also asked the child questions about the abuse and contributed to the
written record of the conversation. The child and cousin revealed the allegations
to the cousin’s mother, who then alerted M.S. The child and M.S. went to the
police station in person to make a formal report.
M.S. told Spates they were speaking with the police. Spates also went to
the police station. He alleged he wanted to complete a lie detector test and resolve 3
any misunderstanding. Spates voluntarily spoke with an officer. Initially, Spates
denied sending text messages to the child that could be misunderstood to have a
sexual intent, but he later admitted to sending certain texts and asking the child to
delete them. He denied all allegations of sexual and physical abuse.
Spates was charged with sexual abuse in the second degree, sexual abuse
in the third degree, and sexual abuse in the third degree by force or against the
will of the other person or with a person twelve or thirteen years of age. He was
convicted of all three charges following a jury trial. Spates appeals his convictions
and sentences, raising evidentiary issues.
II. Standard of Review
“We review the admission of evidence challenged as hearsay for the
correction of errors at law. Improperly admitted hearsay constitutes grounds for
reversal unless the proffering party establishes the error was not prejudicial.” State
v. Plain, 898 N.W.2d 801, 810 (Iowa 2017). “We review all other evidentiary rulings
for an abuse of discretion.” State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014).
We examine the record to determine whether the district court ruled “on grounds
or for reasons clearly untenable or to an extent clearly unreasonable.” Id.
In his final claim, Spates asks this court to adopt and apply the plain-error
doctrine. Our supreme court examines its own prior decisions with great caution.
State v. Brown, 930 N.W.2d 840, 854 (Iowa 2019).
III. Discussion
A. Exhibit B
Spates argues that exhibit B, the two notebook pages created by the child
and her cousin that details the abuse allegations, was double hearsay and should 4
have been excluded. He also argues it is not admissible by the recorded
recollection exception to the rule against hearsay and that prejudice resulted from
its admission. See Iowa R. Evid. 5.803(5). The state challenges error
preservation.
The State first attempted to enter exhibit B while the child testified. Spates
objected, arguing more than half of the exhibit was hearsay and made no further
argument for the remainder of the document. Spates’s objection was sustained.
The State offered exhibit B a second time when the cousin who participated in the
creation of the document testified. Spates objected only to admission of the
second page of the exhibit. Both pages were admitted. The court heard
arguments about exhibit B multiple times following admission. Spates again
argued the exhibit was hearsay. The State argued exhibit B was admissible
pursuant to the exception for recorded recollections. Ultimately, the exhibit was
modified to redact references to another child, but the district court made no ruling
specifically on the hearsay objection.
The State’s error-preservation challenge is based on the timing of the
second hearsay objection. The district court admitted exhibit B while the cousin
was testifying. Spates raised a second hearsay objection later, during arguments
outside the presence of the jury. The State also argues error is not preserved
because the district court never ruled on the second hearsay objection. No post-
trial motions regarding exhibit B were filed.
“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.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). In the event the 5
district court does not rule on an issue raised, “the party who raised the issue must
file a motion requesting a ruling in order to preserve error for appeal.” Id. Error
preservation rests on timely objection at trial. Roberts v. Newville, 554 N.W.2d
298, 300 (Iowa Ct. App. 1996). “A timely and specific objection is required to alert
the judge to the issue raised and enable opposing counsel to take corrective action
to remedy the defect if possible.” Id. “The initiative is placed on the party, not the
judge . . . . [A] failure to object to an offer of evidence at the time the offer is made,
assigning the grounds, is a waiver upon appeal of any ground of complaint against
its admission.” Milks v. Iowa Oto-Head & Neck Specialists, P.C., 519 N.W.2d 801,
806 (Iowa 1994) (quoting John W. Strong, McCormick on Evidence § 52, at 200
(4th ed. 1992)).
The record is clear that the first time the State attempted to offer exhibit B,
Spates immediately made a hearsay objection that was sustained. The record is
also clear that the second time the exhibit was offered, it was admitted following a
sidebar discussion. After the cousin’s testimony was complete, further record was
made. Only then did hearsay reenter the discussion, and no ruling was ever made.
Accordingly, error was not preserved. See Roberts, 554 N.W.2d at 300.
B. Social Worker Testimony
The social worker who observed the forensic interview of the child regarding
the abuse allegations testified as a rebuttal witness for the State at trial. Spates
argues the testimony was inadmissible expert testimony provided by a lay witness
and, for the first time on appeal, argues the social worker’s statement amounts to
vouching. The State argues the social worker was permitted to testify to her
observations as a lay witness and contests the error preservation of the vouching 6
argument. Because the vouching issue was raised for the first time on appeal, it
is not preserved. Meier, 641 N.W.2d at 537.
The social worker was asked, “And what was [the child’s] demeanor like
during the interview?” Spates objected and argued the question called for an
opinion and improper rebuttal, but the social worker was allowed to answer and
describe what she observed of the child’s demeanor. The social worker said, “I’d
describe her as maybe sullen and not excited. She spoke in a way that as if she
were recalling memories, you know, just the flow of the conversation was there.”
Iowa Rule of Evidence 5.701 permits a non-expert witness to testify in the
form of an opinion that is “(a) Rationally based on the witness’s perception; (b)
Helpful to clearly understanding the witness’s testimony or to determining a fact in
issue; and (c) Not based on scientific, technical, or other specialized knowledge
within the scope of rule 5.702.” An expert witness is “[a] witness who is qualified
as an expert by knowledge, skill, experience, training, or education.” Iowa R.
Evid. 5.702. An expert witness “may testify in the form of an opinion or otherwise
if the expert’s scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue.” Id.
The parties agree the social worker was a lay witness. The social worker’s
statements were comprised of her opinion of what she personally witnessed during
the child’s interview regarding the child’s demeanor and would help the jury
determine whether the alleged abuse took place. The social worker limited her
answer to describing how she perceived the child’s emotional state and manner of
speaking. Pursuant to the language of rule 5.701, a lay witness may testify to an
opinion regarding events that were personally witnessed, provided those 7
statements aid the jury’s fact-finding role and are not based on the types of
knowledge described in rule 5.701(c). The social worker’s testimony complied with
and was permissible pursuant to rule 5.701. Accordingly, we find no abuse of
discretion.
C. Plain Error
Finally, Spates asks this court to reverse his convictions and sentences
using the plain-error doctrine. “This court has noted before that ‘there may be merit
in adopting a plain error rule rather than continuing to stretch the doctrinal limits of
the right to counsel to address unpreserved error.’ However, we are not at liberty
to overturn Iowa Supreme Court precedent.” State v. Grady, No. 19-0865, 2020
WL 1049833, at *4 (Iowa Ct. App. Mar. 4, 2020) (quoting State v. Sahinovic, No.
15-0737, 2016 WL 1683039, at *2 (Iowa Ct. App. Apr. 27, 2016)).
IV. Conclusion
Spates’s hearsay objection following the admission of exhibit B was
untimely and no ruling followed. Accordingly error was not preserved. We find no
abuse of discretion in admitting the social worker’s testimony regarding her
observations. We decline to adopt the plain-error doctrine.
AFFIRMED.