Opinion
No. 5-588 / 04-1945
Filed September 28, 2005
Appeal from the Iowa District Court for Fayette County, J.G. Johnson, District Associate Judge.
A defendant appeals his conviction, following jury trial, for indecent contact with a child. JUDGMENT CONDITIONALLY AFFIRMED; REMANDED WITH DIRECTIONS.
Linda Del Gallo, Appellate Defender and Greta Truman, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell-Douglass, Assistant Attorney General, W. Wayne Saur, County Attorney, and J.D. Villont, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Miller, JJ.
Raymond Reinlasoder appeals his conviction, following jury trial, for indecent contact with a child in violation of Iowa Code section 709.12 (2003). Reinlasoder contends the district court erred in ruling that certain statements made by the victim were admissible under an exception to the hearsay rule. He further contends the court erred in denying his motion for a new trial. He also asserts trial counsel was ineffective in failing to object to the testimony of a witness because that witness was unqualified to render the opinion given, and because the witness's testimony improperly bolstered the credibility of the victim.
We conclude the witness was qualified to render the requested opinion, and that the district court did not err in admitting the victim's statements. However, because the district court's new trial ruling did not address Reinlasoder's claim that the verdict was contrary to the weight of evidence, we remand this matter so the district court may consider that issue. We preserve for a possible postconviction proceeding Reinlasoder's claim that counsel was ineffective for failing to object to testimony he contends improperly bolstered the credibility of the victim.
I. Background Facts and Proceeding.
On January 18, 2004, Reinlasoder arrived at the apartment of eleven-year-old H.W. and her mother J.W.H.W. and J.W. invited Reinlasoder into the apartment, then J.W. went into the kitchen to wash dishes. H.W. gave Reinlasoder a hug. H.W. asserted that Reinlasoder held on to her shoulders, placed his fingers on her "crotch" or "private area" over her clothing, wiggled his fingers, and whispered, "Oh, yeah!" H.W. informed her mother of the incident later that same day. J.W. immediately reported the incident to the police.
On January 28, 2004, social worker Stacie Mitchell conducted a videotaped interview with H.W. at the St. Luke's Hospital Child Protection Center (CPC). Prior to trial Reinlasoder moved to exclude the videotape and Mitchell's testimony concerning the tape, asserting that both were hearsay and did not fall within any recognized exception to the hearsay rule. The court denied the motion, determining that both fell within the exception that allows statements made for the purpose of medical diagnosis or treatment.
The matter came on for a jury trial in September 2004. H.W. and J.W. testified. Mitchell also testified. The social worker explained CPC procedures and how those procedures were meant to insure the accuracy of the victim's statements. She further testified to the specifics of her interview with H.W., including statements H.W. made about the alleged abuse. The videotaped interview was admitted and played for the jury.
Following trial the jury found Reinlasoder guilty of indecent contact with a child. Reinlasoder filed a motion for a new trial, which was denied by the district court. The court entered a judgment of conviction and imposed a term of imprisonment. This appeal followed.
II. Scopes and Standards of Review.
Reinlasoder's claims of ineffective assistance of counsel are constitutional challenges, requiring us to conduct a de novo review. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). In contrast, we review claims of district court error for the correction of errors at law. Iowa R. App. P. 6.4.
"If a court's factual findings with respect to application of the hearsay rule are not `clearly erroneous' or without substantial evidence to support them, they are binding on appeal." State v. Long, 628 N.W.2d 440, 445 (Iowa 2001). In contrast, a district court's ruling on a motion for a new trial, where that motion is based upon a claim that the verdict is contrary to the evidence, is upheld absent an abuse of the court's discretion. See State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). That discretion must, however, be exercised with caution, and "the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict." State v. Adney, 639 N.W.2d 246, 253 (Iowa Ct.App. 2001).
III. Hearsay Statements.
Reinlasoder asserts that H.W.'s statements in the videotaped interview, and Mitchell's testimony regarding those statements, were inadmissible hearsay. He contends the statements and testimony do not fall within Iowa Rule of Evidence 5.803(4), which applies even when the declarant is available to testify, and which allows admission of
[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
Iowa courts apply a two-part test to determine whether a hearsay statement falls within the exception of rule 5.803(4). State v. Long, 628 N.W.2d 440, 443 (Iowa 2001). "[F]irst, the declarant's motive in making the statement must be consistent with the purpose of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis." Id. (citation omitted). The first prong of this test is satisfied "where a child's statements are made during a dialogue with a health care professional and are not prompted by concerns extraneous to the patient's physical or emotional problem, real or perceived." State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998).
Reinsoldar asserts the first prong is not satisfied in this case because Mitchell was not qualified to render health care, there is no evidence of H.W.'s motive in making the statements, and the interview was focused on gathering evidence rather than providing diagnosis or treatment. We find his claim to be without merit.
"[S]tatements made to a social worker in connection with diagnosis or treatment of emotional trauma may fall within the purview of rule [5.]803(4) if the social worker is sufficiently qualified by training and experience to provide that diagnosis and treatment." Hildreth, 582 N.W.2d at 169. In addition to her training as a forensic interviewer of abused children, and the experience gained in conducting over 400 interviews in the past two years, Mitchell holds an undergraduate degree in health behavior and a master's degree in counseling. She is an also an experienced counselor and therapist. Mitchell is a health care professional qualified to diagnose and offer treatment options for emotional trauma.
Prior to working at CPC Mitchell was a substance abuse counselor and a family therapist. She is also an adjunct professor of psychology at a local community college.
Turning to H.W.'s statements, there is no evidence that they were prompted by concerns beyond the child's emotional trauma. Moreover, Mitchell is part of a multi-disciplinary team (MDT) that considers the information gathered in the interview, and during a physical examination of the child, in order to make an accurate diagnosis of abuse and form treatment recommendations for the child and the child's family. While there is an investigative component to CPC's procedures, the circumstances surrounding H.W.'s statements to Mitchell indicate that they were responses in a dialogue initiated for purposes of diagnosis or treatment.
The MDT consists of the interviewer; the medical doctor who examined the child; and investigators from the Department of Human Services, law enforcement, or both, depending upon the circumstances of the individual case.
The record contains substantial evidence to support a finding that H.W.'s statements were made during a dialogue with a health care professional and were not prompted by a concern extraneous to her emotional state. In addition, Reinsolder does not dispute and there is in fact substantial evidence to support a finding that H.W.'s statements were of the kind reasonably relied upon in treatment and diagnosis. We accordingly conclude the district court did not err in admitting the contested statements under the exception of rule 5.803(4). IV. New Trial Motion.
Although the district court did not make express findings regarding the two-prong test, we assume it found as fact that both prongs were satisfied. See Long, 628 N.W.2d at 445.
We further note that the statements were largely cumulative, as they primarily replicated the victim's own trial testimony. See Hildreth, 582 N.W.2d at 170 (noting that, while "erroneous admission of hearsay is presumed to be prejudicial unless the contrary is established affirmatively . . .[,] we will not find prejudice if the admitted hearsay is merely cumulative").
In his motion for a new trial, Reinlasoder asserted the court should grant a new trial "pursuant to Iowa R. Crim. P. 2.24(2)( b)(6) because the verdict was contrary to the weight of the evidence and pursuant to Iowa R. Crim. P. 2.24(2)( b)(9) because the defendant did not receive a fair and impartial trial." Reinlasoder then specified three alleged evidentiary errors by the trial court. In its ruling denying the new trial motion, the court stated that each issue in the motion had been raised during trial, and that each "was fully discussed and the Court gave its reasoning. . . ."
The State concedes that, based upon the structure of the defendant's motion, and the language in the district court's ruling, it appears the court inadvertently overlooked Reinlasoder's claim that the verdict was contrary to the weight of the evidence. The State asserts that Reinlasoder has failed to preserve error on his claim because he did not thereafter request a ruling on the issue prior to sentencing. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
Although the district court's ruling generally denies "each issue" on the ground each had been raised and dealt with during trial, Reinlasoder's claim the verdict was contrary to the evidence was not raised until after the verdict and thus could not have been and was not ruled on during the trial. Accordingly, while the court's ruling purports to reach the present issue, it does not in fact do so. Under such circumstances we are reluctant to conclude that Reinlasoder had an obligation to request a further ruling. We determine the better course is to remand this matter to the district court so the court may consider Reinlasoder's claim that the verdict was contrary to the weight of the evidence.
V. Ineffective Assistance of Counsel.
Finally, we address Reinlasoder's ineffective assistance of counsel claims. He asserts trial counsel was ineffective for failing to object to Mitchell "rendering expert testimony," because Mitchell lacked the education, certification, and experience to render expert opinions. He also asserts counsel was ineffective for failing to object to portions of Mitchell's testimony that improperly bolstered H.W.'s credibility. Specifically, he contends that Mitchell's repeated references to how the interviewing procedure elicits accurate information, and her testimony regarding the detail and consistency of H.W.'s interview responses, were tantamount to a conclusion on the trustworthiness and credibility of H.W.'s version of events. See State v. Hulbert, 481 N.W.2d 329, 332 (Iowa 1992) ("[E]xpert psychological evidence may not be used to merely bolster a witness's credibility.").
To establish the ineffectiveness assistance of counsel, Reinlasoder must prove his attorney's performance fell below "an objective standard of reasonableness," and "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Prejudice is shown by a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). The ineffective assistance claims may be disposed of if Reinlasoder fails to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999).
As a general matter, where a record on appeal is inadequate to assess the performance of trial counsel, we preserve the ineffective assistance claim for possible postconviction review. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). This allows for a full development of the record regarding counsel's actions. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). Upon review of the record, we conclude it is not adequate to address Reinlasoder's claim that counsel was ineffective for failing to object to portions of Mitchell's testimony that allegedly bolstered H.W.'s credibility. Accordingly, we preserve that claim for a possible postconviction proceeding. However, we conclude the record is adequate to address Reinlasoder's claim that counsel was ineffective for failing to object to Mitchell rendering expert testimony.
We first note that Reinlasoder has failed to specify what expert testimony was rendered by Mitchell. Our review of Mitchell's trial testimony indicates that Mitchell testified about the procedures utilized by CPC, and the details of her interview with H.W. Thus, most if not all of her testimony was directed to factual matters within her personal knowledge. See Iowa R. Evid. 5.602. In presenting his argument Reinlasoder does seem to focus on those portions of Mitchell's testimony where she explained that the protocol used by interviewers at the CPC helped to insure the accuracy and reliability of the victims' statements. Assuming without deciding that this was in fact expert testimony, we agree with the State that Mitchell was qualified to render such testimony.
An expert need not be a specialist in a particular area so long as the testimony falls within the witness's general area of expertise. Hunter v. Board of Trustees of Broadlawns Med. Ctr., 481 N.W.2d 510, 520 (Iowa 1992). Moreover, an expert witness is not required to have any specific education; rather, an expert can qualify by experience. Leaf v. Goodyear Tire Rubber Co., 590 N.W.2d 525, 535 (Iowa 1999). While the level of an expert's experience may affect the weight of her testimony, it does not render her testimony inadmissible. Id.
We have already outlined Mitchell's training, education, and experience. We conclude they qualify her to testify regarding any accuracy and reliability assurances engendered by the CPC protocol. Thus, an objection based upon Mitchell's qualification would have been overruled. Counsel is not ineffective for failing raise meritless issues or to make questionable or meritless objections. State v. Smothers, 590 N.W.2d 721, 724 (Iowa 1999); Atwood, 342 N.W.2d at 477.
VI. Conclusion and Disposition.
The district court did not err in admitting H.W.'s statements and Mitchell's testimony concerning those statements under the rule 5.803(4) hearsay exception. Nor was trial counsel ineffective for failing to object to Mitchell's testimony on the basis of her qualifications. We preserve for a possible postconviction proceeding Reinlasoder's claim that counsel was ineffective for failing to object to those portions of Mitchell's testimony that he contends improperly bolstered H.W.'s credibility.
Because the district court's ruling on Reinlasoder's motion for new trial did not address Reinlasoder's claim that the verdict was contrary to the weight of the evidence, we conditionally affirm his conviction and remand this matter so the district court may consider and enter a ruling on that issue. The district court shall rule on that issue, on the basis of the existing record. If it again denies the motion, our affirmance of Reinlasoder's conviction shall stand. If it does not, it must set Reinlasoder's conviction aside and order a new trial. We do not retain jurisdiction.
JUDGMENT CONDITIONALLY AFFRIMED; REMANDED WITH DIRECTIONS.
Sackett, C.J., concurs in part and dissents in part.
I concur in part and dissent in part.
I concur with the majority opinion except that I would reverse and remand for a new trial. The testimony of Hannah Wall rendered an opinion on the child's truthfulness would not have been admitted if there were proper objection and was prejudicial to defendant.