IN THE SUPREME COURT OF IOWA No. 18–0457
Filed November 22, 2019
STATE OF IOWA,
Appellee,
vs.
LAWRENCE EUGENE WALKER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, John D.
Telleen (trial) and Patrick A. McElyea (sentencing), Judges.
Lawrence Walker appeals his conviction for sexual abuse in the
second degree and lascivious acts with a child. DECISION OF COURT OF
APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.
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. 2
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. 3
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 4
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 5
J., 913 A.2d 505, 512 (Conn. App. Ct. 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 6
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 7
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 sexual abuse and identifying
Walker as the abuser. Our review is for the correction of legal error. See
State v. Smith, 876 N.W.2d 180, 184 (Iowa 2016) (“Although we normally
review evidence-admission decisions by the district court for an abuse of
discretion, we review hearsay claims for correction of errors at law.”); State
v. Jordan, 663 N.W.2d 877, 879 (Iowa 2003); State v. Long, 628 N.W.2d
440, 447 (Iowa 2001) (en banc). While reviewing the district court’s
decision for legal error, the court “give[s] deference to the district court’s
factual findings.” Long, 628 N.W.2d at 447 (stating correction of legal error
standard includes deference to factual findings).
As a general rule, hearsay testimony is inadmissible. See Iowa R.
Evid. 5.802. There are numerous exceptions to the general rule, however.
At issue here is the medical diagnosis or treatment exception. See id.
r. 5.803(4). A statement falls within the medical diagnosis or treatment
exception if the statement:
(A) Is made for—and is reasonably pertinent to—medical diagnosis or treatment; and
(B) Describes medical history, past or present symptoms or sensations, or the inception or general cause of symptoms or sensations.
Id. r. 5.803(4). “The rationale for the exception is that statements made
by a patient to a doctor for purposes of medical diagnosis or treatment are
‘likely to be reliable because the patient has a selfish motive to be 8
truthful.’ ” Smith, 876 N.W.2d at 185 (quoting 5 Jack B. Weinstein &
Margaret A. Berger, Weinstein’s Federal Evidence § 803.06[1], at 803–42
(Mark S. Brodin ed., 2d ed. 2015)).
In State v. Tracy we held that a child-declarant’s identification of an
abuser during treatment with a healthcare professional would fall within
the exception when “the declarant’s motive in making the statement [was]
consistent with the purposes of promoting treatment” and was of the type
“reasonably relied on by a physician in treatment or diagnosis.” 482
N.W.2d 675, 681 (Iowa 1992) (quoting United States v. Renville, 779 F.2d
430, 436 (8th Cir. 1985)). Although testimony of this type is frequently
admitted into evidence, there is no categorical rule allowing such
testimony. See Smith, 876 N.W.2d at 188 (rejecting the state’s argument
“that statements of identity by victims of domestic abuse should be
categorically admissible because such statements are now commonly
admitted in cases of child abuse”).
Instead, . . . the trial court must, as with other statements made during medical diagnosis and treatment, apply the test we adopted in Tracy to determine whether the statements made in that case should fall within this exception to the hearsay rule.
Id. at 188–89. “The State, as the proponent of the evidence, has the
burden” to establish the testimony comes within the exception to the rule.
See id. at 189.
With respect to the first element of the Tracy test, there was
sufficient evidence to establish E.W.’s “motive in making the statement[s]
[was] consistent with the purposes of promoting treatment.” Tracy, 482
N.W.2d at 681. In cases of child sexual abuse, ascertaining the identity of
the abuser is important for medical purposes because the child’s age
prevents her from implementing self-care and because parents are often 9
ill-equipped to elicit the abuser’s identity. See Gail S. Goodman et al.,
Children’s Eyewitness Memory: The Influence of Cognitive and Socio-
Emotional Factors, 19 Roger Williams U. L. Rev. 476, 506–07 (2014)
(“Supportive interviewers are needed who, while maintaining neutrality,
can help maltreated children regulate anxieties, insecurities, and
emotions, so that the interviewer can obtain the most accurate memory
reports possible. . . . This may be especially true for maltreated children,
who may lack trust and self-confidence as well as suffer from trauma-
related symptoms, such as symptoms of PTSD, dissociation, or
depression.”).
The evidence shows E.W.’s mother took E.W. to see Dr. Harre for the
purposes of treatment. There is no evidence the purpose of the visit was
to create evidence or otherwise bolster the State’s case. Dr. Harre took
precautions to ensure E.W. felt comfortable in the setting and unpressured
to say anything in particular. Dr. Harre testified she interviewed the child
separately from the mother, subtly observed the child’s developmental
stage, and asked open-ended questions. Dr. Harre explained to the child
in age-appropriate terms the purpose of the appointment. Dr. Harre
explained she cares for kids who have injuries to their bodies and also
injuries like hurt feelings. The record shows E.W. understood Dr. Harre’s
role. Dr. Harre testified E.W. expressed she was comfortable with doctors
except when they give her shots. From there, Dr. Harre began a review-
of-symptoms approach, checking to see “how the child [was] doing overall.”
This is sufficient foundation to meet the first part of the Tracy test. See,
e.g., State v. Tornquist, 600 N.W.2d 301, 305–06 (Iowa 1999) (concluding
“that the circumstances surrounding [the child]’s statements to [the
medical provider] indicated that they were responses in a dialogue initiated
for purposes of diagnosis or treatment”), overruled on other grounds by 10
State v. DeCamp, 622 N.W.2d 290 (Iowa 2001); State v. Neitzel, 801 N.W.2d
612, 622 (Iowa Ct. App. 2011) (stating the district court did not err in
finding the first prong was met when a nurse explained her role in talking
to the child about things that may have hurt or scared the child).
With respect to the second part of the Tracy test, we conclude the
State established E.W.’s statements were of a type that are “reasonably
relied on by a physician in treatment or diagnosis.” Tracy, 482 N.W.2d at
681 (quoting Renville, 779 F.2d at 436). Dr. Harre met with E.W. for
healthcare purposes. Dr. Harre testified she offers “comprehensive
medical assessments for concerns about medical, behavioral,” and
emotional needs of children. She conducted a mental and physical
examination of E.W. according to her standard protocol. Further,
Dr. Harre testified E.W. was still her patient at the time of the trial.
Statements made by patients “in connection with diagnosis or treatment
of emotional trauma” can fall within the exception, so long as the
statements are made to professionals “sufficiently qualified by training and
experience to provide that diagnosis and treatment.” State v. Hildreth, 582
N.W.2d 167, 169 (Iowa 1998).
Walker contends the purpose of the visit was not for medical
diagnosis because there was an eighteen-day delay between the assault
and E.W.’s appointment with Dr. Harre. We disagree. Under the
circumstances, the delay is not material. In the case of sexual abuse, the
victim may suffer from and seek treatment for “emotional and
psychological injuries” in addition to physical injuries caused by the
abuse. Smith, 876 N.W.2d at 186. The emotional and psychological
injuries may linger longer than the physical injuries. Given this fact, an
eighteen-day delay between the incident and appointment is of short
duration. Or, at least it is not a sufficiently long delay to conclude E.W.’s 11
appointment with Dr. Harre served no medical purpose. See, e.g., In re
J.C., 877 N.W.2d 447, 457 (Iowa 2016) (noting, in Confrontation Clause
analysis, child interview with Dr. Harre was not primarily for testimonial
purposes but for medical treatment and citing similar testimony).
Walker’s reliance on the Maryland case of Coates v. State is
misplaced. 930 A.2d 1140, 1163 (Md. Ct. Spec. App. 2007), aff’d, 950
A.2d 114, 124 (Md. 2008). Coates is readily distinguishable. In Coates,
there was a fourteen-month delay between the offense conduct and the
appointment, no active medical concern, and a finding of an investigatory
purpose. Id. In addition, Maryland has specifically rejected the more
liberal two-part test we adopted in Tracy. See Cassidy v. State, 536 A.2d
666, 688 (Md. Ct. Spec. App. 1988) (stating “Maryland has rejected” the
two-part test).
E.W.’s statements to Dr. Harre meet the requirements of medical
statements for the purpose of diagnosis or treatment; the district court did
not err in allowing the testimony at trial.
C.
In his third claim, Walker contends his counsel was ineffective in
failing to object to nurse Durr-Baxter’s testimony recounting E.W.’s and
E.W.’s mother’s statements identifying Walker as the abuser. He contends
his counsel was also ineffective and further compounded the error by
eliciting additional damaging hearsay testimony from Durr-Baxter on
cross-examination. Pursuant to State v. Macke, 933 N.W.2d 226, 235
(Iowa 2019), we have the authority to decide Walker’s claim of ineffective
assistance of counsel on direct appeal.
To establish his claim of ineffective assistance of counsel, Walker
must show his trial counsel failed to perform an essential duty and
counsel’s failure resulted in constitutional prejudice. See State v. Webster, 12
865 N.W.2d 223, 231 (Iowa 2015). To establish constitutional prejudice,
the defendant is required to show “that counsel’s errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable.”
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).
“It is not enough for the defendant to show that the errors had [only] some
. . . effect on the outcome of the proceeding.” Id. at 693, 104 S. Ct. at
2067. Rather, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068.
On de novo review, we conclude the record is sufficient to resolve
these claims on direct appeal. See State v. Tompkins, 859 N.W.2d 631,
637 (Iowa 2015) (noting ineffective-assistance claims are generally
preserved for postconviction-relief proceedings but may be addressed on
direct appeal when the record is sufficiently developed). We elect to bypass
the question of whether counsel breached a duty in any of the particulars
raised and instead focus on the question of whether the defendant has
established constitutional prejudice.
We conclude Walker failed to establish constitutional prejudice.
There was overwhelming evidence of his guilt. See State v. Carey, 709
N.W.2d 547, 559 (Iowa 2006) (“The most important factor under the test
for prejudice is the strength of the State’s case.”); State v. Bumpus, 459
N.W.2d 619, 627 (Iowa 1990) (determining prejudice did not result given
overwhelming evidence of guilt). Further, Durr-Baxter’s testimony was
merely cumulative of properly admitted testimony. See State v. Schaer,
757 N.W.2d 630, 638 (Iowa 2008) (holding defendant did not establish
Strickland prejudice where the challenged testimony was merely
cumulative and the prosecutor’s case was strong). E.W. testified regarding
Walker’s conduct. There were some minor inconsistencies in her 13
testimony, however, the inconsistencies were immaterial given her age.
See Hildreth, 582 N.W.2d at 170 (“[A]ny inconsistencies in [the victim]’s
testimony were minor and attributable to her young age. . . . ‘[A] person
should not be able to escape punishment for such a disgusting crime
because he has chosen to take carnal knowledge of an infant too young to
testify clearly as to the time and details of such shocking activity.’ ”
(Citation omitted.) (quoting State v. Rankin, 181 N.W.2d 169, 172 (Iowa
1970))). Dr. Harre testified about E.W.’s statements to her regarding
Walker touching E.W. The physical evidence showed a sperm cell in E.W.’s
underwear. Finally, Walker confessed to the conduct. His confession was
recorded. A DVD of the confession was admitted into evidence. Even if
counsel had breached an essential duty in not objecting to Durr-Baxter’s
testimony, the admission of the testimony does not amount to
constitutional prejudice.
III.
For the foregoing reasons, we affirm the decision of the Court of
Appeals and Walker’s convictions and sentences.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
All justices concur except Appel, J., and Wiggins, C.J., who concur
specially. 14
#18–0457, State v. Walker APPEL, Justice (concurring specially).
I concur in most of the opinion in this case but have a somewhat
different view on the evidentiary issues in this case.
Walker sought to introduce evidence tending to show (1) that J.W.,
a brother of the victim, had been sexually abused at some point; (2) that
J.W. would stare inappropriately at the victim’s, E.W.’s, body; and (3) that
their mother was sufficiently concerned that she wanted to separate the
children and make sure that they had clothes on when they were together.
The point of the testimony was to suggest that to the extent E.W. had been
the victim of sexual abuse, it was her brother J.W., and not Walker, who
was the perpetrator of the crime.
The majority’s narrow application of relevance in this case is
concerning, as is its potential to be inappropriately applied in future cases.
Under Iowa Rule of Evidence 5.401(a), “Evidence is relevant if: (a) It has
any tendency to make a fact more or less probable than it would be without
the evidence; and (b) The fact is of consequence in determining the action.”
Iowa R. Evid. 5.401 (emphasis added). Evidence of prior sexual abuse has
consistently been found to be relevant in cases where a defendant seeks
to show that the alleged victim’s sexual knowledge comes from another
source or that another individual perpetrated the crime. See State v.
Jacques, 558 A.2d 706, 708 (Me. 1989) (“Where the victim is a child, as in
this case, the lack of sexual experience is automatically in the case without
specific action by the prosecutor. A defendant therefore must be permitted
to rebut the inference a jury might otherwise draw that the victim was so
naive sexually that she could not have fabricated the charge.”); State v.
Grovenstein, 530 S.E.2d 406, 411 (S.C. Ct. App. 2000) (holding “that
evidence of a child victim’s prior sexual experience is relevant to 15
demonstrate that the defendant is not necessarily the source of the victim’s
ability to testify about alleged sexual conduct”); State v. Pulizzano, 456
N.W.2d 325, 333 (Wis. 1990) (“Evidence of [a] prior sexual assault is
probative of a material issue, to show an alternative source for sexual
knowledge . . . .”). Under the theory that someone else was the perpetrator
of the crime, the evidence Walker sought to admit passes the test of
relevance. This evidence may not be powerful evidence, but it marginally
tends to suggest that someone else living in the household may have been
the perpetrator of the sexual abuse and not Walker.
Although relevant, such evidence is still subject to Iowa Rules of
Evidence 5.412 and 5.403. I do not view this potential testimony as barred
by Iowa Rule of Evidence 5.412. To the extent the evidence was offered to
show a prior sexual assault by J.W., the rape shield law might apply. But
to the extent the evidence tended to show that J.W. and not Walker was
the perpetrator of the crime for which Walker was charged, it is not
evidence of “other sexual behavior” of E.W. As noted by Walker, “if sexual
abuse actually occurred it suggests a different perpetrator and the jury is
free to conclude that it’s possible that a 4 year old would confuse who the
perpetrator actually was.” Evidence admitted under this theory is outside
the scope of Iowa Rule of Evidence 5.412.
That said, the remaining question is whether the evidence is
admissible under Iowa Rule of Evidence 5.403, which provides in relevant
part that evidence may be excluded if its probative value is “substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Iowa R. Evid. 5.403. The
district court concluded that the evidence, though marginally relevant,
would mislead the jury, was highly prejudicial, and would confuse the 16
issues. The court further held that even if the eight-year-old brother J.W.
had an interest in his sister, “that doesn’t explain what happened here.”
In order to be excluded under Iowa Rule of Evidence 5.403, the value
of the evidence must be substantially outweighed by other dangers. That
is ordinarily a very high hurdle. The district court’s determination of the
issue, however, is clothed with discretion and will be reversed only upon a
showing of clear abuse. See State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa
2001) (“The abuse of discretion standard of review applicable in this matter
recognizes that whether evidence of prior crimes should be admitted is a
judgment call on the part of the trial court.”).
In this case, I find analysis under Iowa Rule of Evidence 5.403 and
harmless error tend to merge. Walker made many pretrial incriminating
statements. He admitted putting E.W. on his lap to “cuddle” and
confirmed that he had removed her underpants. He confirmed “that he
rubbed her vagina with his hand.” When confronted with E.W.’s account
and asked if he needed help for his behavior, he nodded in agreement. In
light of the record developed, it does not appear that Walker’s rights were
substantially affected or that there has been a miscarriage of justice. See
State v. Williams, 574 N.W.2d 293, 298 (Iowa 1998) (“Not all errors require
reversal. To warrant reversal the error must have prejudiced the
defendant.”); State v. Traywick, 468 N.W.2d 452, 454 (Iowa 1991) (“When
an alleged error is not of constitutional magnitude, ‘the test of prejudice
[for harmless error] is whether it sufficiently appears that the rights of the
complaining party have been injuriously affected or that the party has
suffered a miscarriage of justice.’ ” (alteration in original) (quoting State v.
Massey, 275 N.W.2d 436, 439 (Iowa 1979))). As a result, the failure to
admit the offered evidence does not require a new trial in this case. 17
However, this is not to say that all evidence of this type will meet the
same fate. When conducting Iowa Rule of Evidence 5.403-like balancing,
a number of courts look to the similarity between the two instances and
the strength of the offered evidence. See State v. Oliver, 760 P.2d 1071,
1077 (Ariz. 1988) (en banc) (adopting a two-pronged test to determine if
the offered evidence was outweighed by the dangers enumerated in
Arizona’s corresponding evidentiary rule 403: (1) “defendant must show,
in camera, that the victim previously had been exposed to a sexual act”
and (2) “defendant must establish that the prior sexual act was sufficiently
similar to the present sexual act to give the victim the experience and
ability to contrive or imagine the molestation charge”); see also
Commonwealth v. Ruffen, 507 N.E.2d 684, 687–88 (Mass. 1987) (“If the
victim had been sexually abused in the past in a manner similar to the
abuse in the instant case, such evidence would be admissible at trial
because it is relevant on the issue of the victim’s knowledge about sexual
matters.”). But the real danger of the majority’s position is the categorical
exclusion, or diminishment, of evidence of prior sexual abuse as irrelevant
or inconsequential. See State v. Carver, 678 P.2d 842, 844 (Wash. Ct. App.
1984) (“We fail to see how prior sexual abuse visited upon very young girls
will tend to confuse the issues, mislead the jury, or cause the jury to decide
the case on an improper emotional basis.”). Courts must always remain
vigilant when balancing the interest of accuser and accused, particularly
when one or more of the parties are juveniles. On this basis, I therefore
concur in the majority’s judgment.
Wiggins, C.J., joins this special concurrence.