                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1704
                            Filed December 21, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RICKY L. OVERSTREET,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith,

Judge.



      Ricky Overstreet appeals his conviction for child endangerment.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger and Tyler J.

Buller, Assistant Attorneys General, for appellee.



      Considered by Potterfield, P.J., Tabor, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                          2


SCOTT, Senior Judge.

       Ricky Overstreet appeals his conviction for child endangerment, alleging

his counsel was ineffective for failing to move for a severance of trial, there was

insufficient evidence to support the conviction, and the district court erred in

admitting hearsay testimony. We affirm.

       I.     Background Facts and Proceedings

       On May 19, 2013, Heather Davis, a child protection worker from the Iowa

Department of Human Services (DHS), went to the home of Gloria Overstreet

and her son, Ricky Overstreet, to investigate an anonymous call received about

Ricky’s daughter, T.O., in which the source reported T.O. was being physically

abused by Ricky and Gloria and was receiving inadequate food and clothing. At

the time, T.O. was eight years old. She had lived with Ricky and Gloria since she

was three, having previously lived with her mother.1

       Gloria refused Davis access to her home, so Gloria, Ricky, T.O., and

Davis met in the yard. T.O. was dressed in long pants and long sleeves that

covered her neck and arms, even though the day was unseasonably warm.

Davis observed Gloria had long fingernails. Davis asked to speak with T.O.

alone, but the request was denied. When Davis asked T.O. in front of Ricky and

Gloria how she was disciplined, T.O. said she was told to stand in the corner or

write sentences.




1
  In 2012, T.O.’s mother expressed her desire that T.O. live with her again. She
indicated Ricky and Gloria had previously allowed her visits with T.O., but after this
request, they stopped communicating with her, so she called DHS and the police in an
effort to see her daughter.
                                          3


       The following day, the principal at T.O.’s school was confronted with

concerns about Gloria’s treatment of T.O. The principal had T.O. examined by

the school nurse; the nurse and principal found marks on T.O.’s body and

contacted the police.     The principal testified at trial the marks were “very

concerning. Much more significant than what [she] had seen before on other

children.” She further testified T.O. would often say things regarding her concern

about the discipline at home, specifically with regard to Gloria.

       The police were called to the scene, and T.O. agreed to have the injuries

photographed; these photos were entered into evidence at trial. The responding

officer testified at trial that T.O. had “scarring and marks on either side of her

neck” and “several pattern marks, linear scars, on her back.”          The officer

described the marks on T.O.’s neck as “claw marks” made by “a person,” which

were consistent with what T.O. told the officer had happened.          The officer

indicated there was a pattern to the markings on T.O.’s back that made it “very

clear” to the officer “some sort of object [was] used,” which “matched up with

what [T.O.] had described to [the officer] [was] happening to her”; specifically,

that she had been hit with a spatula. As to the timing of the injuries, the officer

stated the injuries “were pretty extensive” with “numerous scars” showing

“different stages of scarring” with “some more recent, some had been there a

while, so it was clear to [the officer] that this had been ongoing.”

       Davis was also contacted to come to the school, and she personally

observed the fingernail marks on T.O.’s neck and multiple scratches on her back

and first heard T.O. was stating Ricky and Gloria had injured her. T.O.’s mother

also observed the markings and testified they resembled being spanked with an
                                          4


object. T.O. was then placed in the care of her mother. That same day, police

officers executed a search warrant on Gloria and Ricky’s home.          During the

search, police officers seized two spatulas and a spoon from the home. An

officer testified to her belief one of the objects collected had caused the injury,

although she admitted it was “for the most part” a standard-looking spatula. Both

Davis and the officer testified Gloria told them during the search she did not want

T.O. back.

       On May 23, 2013, T.O. was examined by Dr. Barbara Harre, of the Child

Protection Response Clinic, who specializes in child abuse pediatrics. T.O. told

Dr. Harre she had multiple injuries to her back, caused by Gloria hitting her with a

spatula. T.O. said she was hit with a spatula as discipline from the age of six

until she was eight. She also told Dr. Harre that Ricky had struck her with the

spatula as well.    T.O. identified marks on her neck, which she stated were

caused by Gloria strangling her. She stated Gloria would lift her off the floor by

the neck, sometimes until she lost consciousness. T.O. also identified marks not

caused by Gloria or Ricky, including a bite mark on her cheek inflicted by a

cousin, a scar on her forearm she caused when she dropped an iron on her wrist,

and a birthmark on her arm. Dr. Harre testified T.O.’s ability to identify marks

and distinguish their origin told her that T.O. “understands that different injuries

can occur in different ways, and [T.O.’s] able to give that history.”

       Dr. Harre then examined T.O., observing the bite mark to her face and

marks on her back and neck. Dr. Harre testified the markings on T.O.’s neck

were consistent with fingernail-type impressions and indicative of a pattern of

repeat behavior. Dr. Harre further testified to “parallel lines distributed all over
                                         5


[T.O.’s] back” and that these parallel lines “suggest[ed] more of a controlled

contact” making it “much more likely that there’s an object involved.”

       As to the timing of the injuries, Dr. Harre testified about a “general rule”

that skin “remodeling”—or healing—can take up to a year. Dr. Harre stated that

during follow-up visits with T.O. she noticed “significant resolution of the degree

of injuries” to both T.O.’s neck and back, although she was unable to identify the

age of the marks. An officer also testified to photographing T.O.’s injuries a

couple months after the initial report was made and stated some scars had faded

but distinct scarring remained.

       On cross-examination, Dr. Harre testified to additional information T.O.

provided her: that T.O. was required to wake at 3 a.m. and perform chores—like

wash dishes, vacuum the floor, and set mouse traps—and that she was only fed

bread and water. Despite T.O.’s testimony regarding her nutritional intake, Dr.

Harre noted T.O. was not malnourished, except for a vitamin D deficiency.

       T.O. testified Ricky and Gloria hurt her using a spatula, Gloria touched her

neck, and she used to have scratches on her neck. When T.O. testified, she

confirmed she was required to wake at 3 a.m. and do chores but denied

performing the specific chores she had previously told Dr. Harre.          She also

denied remembering what she ate when she lived with Ricky and Gloria.

       Gloria’s friend, who lived with Ricky and Gloria at the time in question,

also testified at trial, stating T.O. “constantly needed discipline,” which consisted

of her writing sentences or standing in the corner.        He denied ever seeing

corporal punishment used, but he admitted he was not around all of the time. He

further testified that when T.O. moved in with them he noticed no physical
                                               6


injuries, except “probably a couple of scratches,” such as “a couple on her back

and places like that.” He also stated T.O. “got scratched up by the cats a lot.”

         On October 9, 2013, Ricky and Gloria were charged with child

endangerment resulting in bodily injury and child endangerment resulting in

serious injury.         The State subsequently dismissed the latter charge.      After

numerous continuances, a jury trial commenced on August 10, 2015. Ricky was

convicted of the lesser included charge of child endangerment. Ricky appeals.

         II.       Analysis

                   A.     Severance of Trial

         Ricky asks this court to find his counsel was ineffective for failing to move

to sever his trial from his mother’s trial.        We may consider an ineffective-

assistance-of-counsel claim for the first time on appeal, and our review is de

novo. See State v. Philo, 697 N.W.2d 481, 485 (Iowa 2005). However, we find

further development of the record is necessary to resolve this issue and preserve

this claim for postconviction-relief proceedings.       See State v. Johnson, 784

N.W.2d 192, 198 (Iowa 2010).

                   B.     Sufficiency of the Evidence

         Ricky contends there was insufficient evidence to support his conviction

for child endangerment.2 We review Ricky’s sufficiency-of-the-evidence claim for

correction of errors at law. See State v. Vance, 790 N.W.2d 775, 783 (Iowa

2010).         “We will sustain the jury’s verdict if it is supported by substantial

evidence.” Id. “Evidence is substantial if it would convince a rational trier of fact


2
 The State claims various aspects of Ricky’s sufficiency-of-the-evidence challenge were
not preserve for our review. We assume, without deciding, error was preserved.
                                            7

the defendant is guilty beyond a reasonable doubt.”             Id. (quoting State v.

Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008)).               Direct and circumstantial

evidence are equally probative. State v. Meyers, 799 N.W.2d 132, 138 (Iowa

2011).

         Iowa Code section 726.6(1)(a) (2013) provides:

                A person who is the parent, guardian, or person having
         custody or control over a child . . . commits child endangerment
         when the person . . . [k]nowingly acts in a manner that creates a
         substantial risk to a child or minor’s physical, mental or emotional
         health and safety.

         Ricky contends the State failed to prove the following element of the

offense, as defined in the jury instructions at trial:

         [Ricky] acted with knowledge in any one of the following ways:
                a.     By creating a substantial risk to T.O.’s physical,
         mental or emotional health or safety; or
                b.     By an intentional act or series of intentional acts, uses
         reasonable force, torture, or cruelty that results in bodily injury; or
                c.     By an intentional act or series of intentional acts,
         evidences unreasonable force, torture or cruelty which causes
         substantial mental or emotional harm to a child or minor.

         Ricky maintains there is insufficient evidence to support that he knowingly

created a substantial risk to T.O., as it was Gloria who inflicted the injuries. Ricky

further alleges any evidence regarding his actions toward T.O. can be attributed

to lawful discipline.

         A substantial risk is met where there is “a showing that the risk is real or

articulable.” State v. Anspach, 627 N.W.2d 227, 232-33 (Iowa 2001). T.O.’s

principal, an investigating police officer, Dr. Harre, T.O.’s mother, and Davis all

observed the injuries to T.O.’s person. T.O. told Dr. Harre that Ricky had hit her

with a spatula. Davis testified she first learned T.O. was claiming Ricky and
                                         8


Gloria had caused the injuries when she responded to the call from T.O.’s

school. The police officer testified T.O.’s injuries were consistent with the story

T.O. provided and the spatula found in Ricky and Gloria’s home matched the

injuries T.O. had sustained. Similarly, Dr. Harre testified T.O.’s injuries were

consistent with “a controlled contact” where some type of object was involved.

T.O. herself testified Ricky had hurt her using a spatula.

       Moreover, “[a] person may commit child endangerment without physical

contact with the child.” State v. Hickman, 576 N.W.2d 364, 368 (Iowa 1998).

T.O. testified the injuries were inflicted over multiple years.    A police officer

testified the marks were “numerous” and “extensive” with multiple stages of

healing. Davis testified, “You didn’t have to get close to [T.O.] at all to see [the

marks on] her neck.” T.O.’s principal also testified the injuries to T.O. were

“[m]uch more significant than what [she] had seen before on other children.”

These injuries—which testimony supports had been inflicted over time—

improved following T.O.’s removal from Gloria and Ricky’s residence. Sufficient

evidence supports the jury’s finding that Ricky created a substantial risk to T.O.

See State v. Parker, No. 06-0946, 2008 WL 2038420, at *1 (Iowa Ct. App. May

14, 2008) (affirming the district court’s finding a mother was guilty of child

endangerment resulting in serious injury where the mother failed to intervene on

her daughter’s behalf when the daughter was subjected to a series of abusive

acts by her father); see also State v. Leckington, 713 N.W.2d 208, 214 (Iowa

2006) (finding a woman knowingly created a substantial risk when she left an

intoxicated minor at her home without adult supervision); State v. Osborn, No.

12-1146, 2013 WL 2637291, at *3-4 (Iowa Ct. App. June 12, 2013) (finding
                                            9


sufficient evidence under section 726.6(1)(a) where the mother “understood [a

convicted sex offender] posed a risk to the safety of her children and nonetheless

allowed her children to live with him”).3

       And we are not persuaded by Ricky’s contention his acts merely

constituted lawful discipline. We acknowledge parents have “a right to inflict

reasonable corporal punishment in rearing their children.” Hildreth v. Iowa Dep’t

of Human Servs., 550 N.W.2d 157, 159 (Iowa 1996).                   “The proper test is

whether, under the particular circumstances, the amount of force used or the

means employed by the parent rendered such punishment abusive rather than

corrective in character.” State v. Arnold, 543 N.W.2d 600, 603 (Iowa 1996).

Ricky relies on the court’s finding in Hildreth, claiming the circumstances here are

comparable.     Hildreth involved a single incident of discipline where a father

spanked his daughter three times on the buttocks with a wooden spoon leaving

welts that lasted a few days.         550 N.W.2d at 158-59; see also id. at 160

(determining the father “could not reasonably have foreseen that the rather

limited striking of [the child’s] buttocks would produce a physical injury”). Here,

this was not a one-time event.         The evidence supports the conclusion T.O.

endured repeated injurious contact with a spatula, leaving multiple scars of

varying ages. Moreover, these marks lasted for months, not just days.

       Lastly, Ricky argues he did not “knowingly act” because he did not know

the results of his conduct. See State v. James, 693 N.W.2d 353, 357 (Iowa

2005) (noting the code requires the jury find “the defendant acted with knowledge

3
  We note section 726.6(1)(a) requires a knowing “act . . . that creates a substantial risk
to a child.” The requisite “act” can be “a failure to do any act which the law requires one
to perform.” Iowa Code § 702.2.
                                          10


that []he was creating a substantial risk to the child’s safety”). Again, this is not a

one-time incident where a parent was unaware the discipline would produce a

physical injury.   Nor could a parent maintain such an argument when the

“punishment” includes lifting a child by the neck, strangling them until they lose

consciousness. As discussed above, sufficient evidence supports a finding the

on-going injury to T.O. was readily apparent.          Because sufficient evidence

supports the jury’s finding, we affirm.

              C.     Hearsay Statements

       Finally, Ricky contends the district court erred by allowing Dr. Harre to

testify about T.O.’s statements regarding the injuries she sustained, their cause,

and the individuals T.O. claimed caused those injuries.          We review hearsay

claims for errors at law. See State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006). A

court must exclude hearsay unless it is admitted as an exception or exclusion to

the hearsay rule. Id. “Subject to the requirement of relevance, the district court

has no discretion to deny the admission of hearsay if it falls within an exception,

or to admit it in the absence of a provision providing for admission.” Id.

       One such exception arises where the disputed statements were made for

the purpose of medical diagnosis or treatment. See Iowa R. Evid. 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 truthful.’” State v. Smith, 876 N.W.2d 180, 185

(Iowa 2016) (citation omitted).

              The medical diagnosis or treatment exception imposes two
       requirements. First, the exception applies to statements “made for
       purposes of medical diagnosis or treatment.” Iowa R. Evid.
                                         11


       5.803(4). Second, the statements must describe “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.” Id. Thus, the
       first requirement is directed at the purpose and motive of the
       statement, and the second requirement is directed at the content or
       description of the statement.

Id.; see also State v. Tracy, 482 N.W.2d 675, 681 (Iowa 1992) (“[F]irst the

declarant’s motive in making the statement must be consistent with the purposes

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.” (quoting

United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985))).          One such

circumstance where identifying statements are admissible “involves the identity

of perpetrators of child abuse.” Smith, 876 N.W.2d at 185 “When the ‘alleged

abuser is a member of the victim’s immediate household, statements regarding

the abuser’s identity are reasonably relied on by a physician in treatment or

diagnosis.’”   Id. (citation omitted).   This is because “[t]he emotional and

psychological injuries of such abuse are treated by the doctor along with the

physical injury.” Id.

       Dr. Harre explained that a child’s history is ninety percent of her diagnosis

and provides the context for what she finds in a physical examination of the child.

She specifically testified to her need to know the identity of the abuser to protect

a child “from continued injuries and physical inappropriate interaction.” Dr. Harre

explained the closeness of the relationship between a child and her abuser also

impacts the intensity of the emotional reaction the child may have to what has

happened—which impacts the child’s view of herself and is a consideration as

part of the child’s treatment. Although Dr. Harre was aware T.O. no longer lived
                                          12


with Gloria and Ricky at the time of the evaluation, Dr. Harre testified she was not

sure whether T.O. might be returned to their care and custody. See id. (“The

doctor is also often concerned about the possibility of recurrent abuse.”). Ricky

notes Dr. Harre testified her treatment of T.O.’s physical injuries would not have

changed regardless of T.O.’s willingness to identify or truthful identification of her

abuser.   Dr. Harre went on to clarify, however, that this did not make the

identification unnecessary for treatment purposes.         It remained important for

ensuring T.O. was protected and identifying other services and treatment she

may need.4      While it did not impact the treatment of the physical injuries

themselves, it was indicative of the possible consequences of those injuries. Dr.

Harre explained that knowing the identity of the abuser assisted her overall

diagnosis and treatment plan.

       Dr. Harre testified she talks with children—like T.O.—to build a “special

relationship” so that they know her role is to help them feel better. Following this

talk, T.O. discussed the various marks on her body and described their source—

she identified a birthmark, a mark on her cheek caused by a cousin biting her, a

mark on her forearm caused when she dropped an iron on her wrist, and the

marks on her back and neck caused from being hit with a spatula by Ricky and

Gloria and choked by Gloria. The fact T.O. was able to identify the various

marks and their sources indicates she was able to fairly and honestly distinguish



4
  Ricky notes Dr. Harre “did not make any other referrals to other care providers for
therapy or treatment.” However, Dr. Harre testified “there was some discussion about
possibly some therapy” for T.O., but T.O.’s mother informed Dr. Harre the child was
already seeing a counselor for mental-health issues. The fact Dr. Harre did not end up
needing to refer T.O. for other services does not make the information less pertinent to
Dr. Harre’s evaluation or diagnosis of T.O.
                                          13


between their sources. Dr. Harre testified she believed T.O. was aware she was

having this conversation with Dr. Harre to aid Dr. Harre in treating her. While we

note Dr. Harre testified she did not instruct T.O. not to lie, there is no indication in

the record T.O.’s motive in making the statements to Dr. Harre “was other than

as a patient responding to a doctor’s questioning for prospective treatment.”

Tracy, 482 N.W.2d at 681.        We conclude the statements fall within the rule

5.803(4) exception. See Smith, 876 N.W.2d at 187 (“Eliciting the identity of a

perpetrator of child abuse can be a normal aspect of medical treatment and

diagnosis for child abuse victims; however, the value of that information is

established by the foundational testimony of the doctors and medical providers in

each case, and that testimony explains the pertinence of the perpetrator’s identity

to the diagnosis and treatment of the victim in the unique circumstances of each

case.”).

       Moreover, the testimony of Dr. Harre regarding the source and nature of

T.O.’s injuries was consistent with the testimony provided by T.O. Davis also

testified to the allegations made against Gloria and Ricky, that Gloria had long

fingernails, that T.O. identified Gloria and Ricky as the individuals who caused

the injuries, and that she personally saw the marks on T.O. A police officer also

testified the marks on T.O.’s neck appeared to have been made by a person, the

marks on her back appeared to have been caused by an object, and all injuries

were consistent with T.O.’s rendition of events. Thus, Dr. Harre’s testimony was

cumulative and not prejudicial. State v. Hildreth, 582 N.W.2d 167, 170 (Iowa

1998) (finding the “erroneous admission of hearsay” was not prejudicial because

it was “merely cumulative” with the testimony of the child or a social worker).
                                         14


       III.   Conclusion

       For the foregoing reasons, we find there was substantial evidence

supporting Ricky’s conviction. We further find the district court did not err in

admitting Dr. Harre’s testimony about T.O.’s statements and no prejudice

resulted because the testimony admitted was cumulative. We preserve Ricky’s

claim of ineffective assistance of counsel for postconviction-relief proceedings.

       AFFIRMED.

Tabor, J., concurs; Potterfield, P.J., concurs specially.
                                        15


POTTERFIELD, Presiding Judge. (concurring specially)

      I disagree with the majority’s conclusion that the statements made by T.O.

to Dr. Harre were admissible under the exception to the hearsay rule for

statements made for purposes of medical treatment or diagnosis. See Iowa R.

Evid. 5.803(4).   Dr. Harre was not a treating physician encountered in an

emergency room or medical center. She is an evidence-gatherer to whom T.O.

was taken three days after her abuse was discovered and after she had been

removed from the care of Ricky and Gloria Overstreet. T.O. was already in

counseling and had already given statements regarding the perpetrators of her

injuries. She expected no treatment from Dr. Harre and received none. Cf. State

v. Smith, 876 N.W.2d 180, 185 (Iowa 2016) (noting that statements made for the

purpose of diagnosis are generally considered reliable “because the patient has

a selfish motive to be truthful” (citation omitted)).     The motivation for her

identification of her perpetrators had nothing to do with medical treatment. See

id. at 190 (finding the witness’s statement about the identity of the perpetration

not subject to the exception because “the State presented insufficient evidence

that the identity of the assailment was reasonably pertinent to [the witness’s]

diagnosis or treatment”).

      It is true the identifications were cumulative to her testimony. While it is

undoubtedly true that Dr. Harre’s testimony provided substantive bolstering to

T.O.’s testimony, the doctor’s testimony was cumulative. In a case where two

perpetrators are charged and tried together, we are mindful that the identification

by a child could be colored by greater loyalty to one or the other. But nothing in

this record allows us to speculate about that, leaving the admission of Dr. Harre’s
                                         16

testimony as error but cumulative. See State v. Newell, 710 N.W.2d 6, 19 (Iowa

2006) (stating the admission of hearsay evidence “will not be considered

prejudicial if substantially the same evidence is properly in the record”).
