                 IN THE SUPREME COURT OF IOWA
                              No. 12–2264

                         Filed December 5, 2014

                      Amended February 23, 2015

STATE OF IOWA,

      Appellee,

vs.

JOSE FERNANDO JAQUEZ SR.,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Louisa County, John M.

Wright, Judge.



      The State seeks further review of a court of appeals decision

reversing a defendant’s conviction because the district court allowed

expert testimony vouching for the victim’s credibility.    DECISION OF

COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT
REVERSED AND CASE REMANDED.



      Benjamin D. Bergmann of Parrish, Kruidenier, Dunn, Boles,

Gribble, Gentry & Fisher, L.L.P., Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Katie A. H. Fiala, Assistant

Attorney General, and David L. Matthews, County Attorney, for appellee.
                                     2

WIGGINS, Justice.

      This case involves a charge of sexual abuse in the second degree in

violation of Iowa Code sections 709.1 and 709.3(2) (2011).          A jury

returned a guilty verdict on this charge. In this appeal, the defendant

contends an expert witness vouched for the credibility of the victim and

therefore he is entitled to a new trial.   We transferred the case to our

court of appeals. The court of appeals agreed the defendant is entitled to

a new trial on the ground the expert witness vouched for the credibility of

the victim.

      The State asked for further review, which we granted. On further

review, we find the court of appeals is correct that the defendant is

entitled to a new trial on the ground an expert witness vouched for the

credibility of the victim. Therefore, we affirm the decision of the court of

appeals and remand the case for a new trial.

      I. Background Facts and Proceedings.

      In October 2006, Jose Francisco Jaquez moved in with his new

girlfriend and her three children, including her oldest daughter M.M.

While living with his girlfriend, M.M. claimed Jaquez had sexual

intercourse with her on more than one occasion. At trial, M.M. testified

Jaquez had sex with her at least once a week for two years, but she told

forensic interviewer Kiesa Kay he had sex with her three times total.

M.M. also testified to acts in addition to sexual intercourse that occurred

over the course of two years, from the time she was ten until she was

twelve. M.M. disclosed the alleged abuse to her best friend when she was

twelve and then to her mother.       On January 9, 2012, at the Child

Protection Center, Dr. Colette Hostetler examined M.M. and forensic

interviewer Kay interviewed the child.     On April 13, the State charged

Jaquez with one count of sexual abuse in the second degree.
                                     3

      Jaquez filed a motion in limine seeking to exclude any testimony

by Kay that would serve to bolster the credibility of the child.        The

district court granted the motion stating, “The Court will rule that the

State may not ask questions of the witness that would tend to give the

impression to the jury that the jury should give more credibility to the

witness’s testimony, the child witness’s testimony.”

      At trial, Dr. Hostetler testified without objection that she performed

a physical exam on the child. She testified she found scar tissue in the

child’s anal area and the hymen did not show any “transections or

irregularities.” Kay testified she conducted a forensic interview of M.M.

During her testimony, the following colloquy occurred between her and

the county attorney:

            Q: All right. First of all, what was your impression of
      [M.M.] when you spoke to her? Basically, how did she
      appear emotionally? A: She was quiet and very polite.

            Q: Okay.     A: She was not extremely emotionally
      expressive or upset. She was just very polite.

            Q: In your experience in those prior interviews that
      you conducted, is that unusual that a child not be overly
      emotional in that type of a situation? A: Oh, no, not at all.
      Her demeanor was completely consistent with a child who
      has been traumatized, particularly multiple times.

      The jury found Jaquez guilty of sexual abuse in the second degree.

Jaquez filed a motion for new trial, arguing the verdict was against the

weight of the evidence and jury misconduct had occurred when Kay had

contact with jurors outside the courtroom. The district court denied the

motion. Jaquez filed a notice of appeal. We transferred this case to our

court of appeals.      The court of appeals reversed the decision of the

district court and remanded the case for a new trial. The court found,

      Kay did not present her opinion in the context of PTSD, did
      not only show the typical symptoms of a person being
                                     4
      traumatized, and instead of waiting for independent evidence
      of trauma, she directly drew that conclusion for the jury.

The court of appeals did not address the other issues raised by Jaquez’s
appeal. The State then filed this application for further review, which we

granted.

      II. Issue.

      In this appeal, we will only reach the issue as to whether error

occurred when the expert testified the child’s “demeanor was completely

consistent with a child who has been traumatized, particularly multiple

times,” because this issue is dispositive of this appeal.

      III. Standard of Review.

      In State v. Brown, we said:

            We review the admission of the objected to paragraph
      for an abuse of discretion. The district court abuses its
      discretion when it exercises its discretion on grounds or for
      reasons that are clearly untenable or to an extent clearly
      unreasonable. A ground or reason is untenable when it is
      not supported by substantial evidence or when it is based on
      an erroneous application of the law.

856 N.W.2d 685, 688 (Iowa 2014) (citations omitted) (internal quotation

marks omitted).

      IV. Analysis.

      This case involves the situation where an expert directly or

indirectly vouches for a witness’s credibility thereby commenting on a

defendant’s guilt or innocence. In regards to this type of testimony, we

have stated:

      Although we are committed to the liberal view on the
      admission of psychological evidence, we continue to hold
      expert testimony is not admissible merely to bolster
      credibility. Our system of justice vests the jury with the
      function of evaluating a witness’s credibility. The reason for
      not allowing this testimony is that a witness’s credibility is
      not a fact in issue subject to expert opinion. Such opinions
      not only replace the jury’s function in determining
                                      5
      credibility, but the jury can employ this type of testimony as
      a direct comment on defendant’s guilt or innocence.
      Moreover, when an expert comments, directly or indirectly,
      on a witness’s credibility, the expert is giving his or her
      scientific certainty stamp of approval on the testimony even
      though an expert cannot accurately opine when a witness is
      telling the truth. In our system of justice, it is the jury’s
      function to determine the credibility of a witness. An abuse
      of discretion occurs when a court allows such testimony.

             We again reaffirm that we are committed to the legal
      principle that an expert witness cannot give testimony that
      directly or indirectly comments on the child’s credibility. We
      recognize there is a very thin line between testimony that
      assists the jury in reaching its verdict and testimony that
      conveys to the jury that the child’s out-of-court statements
      and testimony are credible.

State v. Dudley, 856 N.W.2d 668, 676–77 (Iowa 2014) (citations omitted)

(internal quotation marks omitted).

      Applying these principles to the objectionable testimony, we find

the expert witness’s testimony indirectly vouched for M.M.’s credibility

thereby commenting on the defendant’s guilt or innocence. By opining

M.M.’s demeanor was “completely consistent with a child who has been

traumatized, particularly multiple times,” Kay was vouching for the

credibility of the child.   In other words, the expert witness is saying

M.M.’s demeanor means the child suffered a sexual abuse trauma,
therefore, the child must be telling the truth. See id. at 677. We allow

an expert witness to testify generally that victims of child abuse display

certain demeanors. Id. at 676; see also State v. Gettier, 438 N.W.2d 1, 4

(Iowa 1989).     However, when an expert witness testifies a child’s

demeanor or symptoms are consistent with child abuse, the expert

crosses that very thin line and indirectly vouches for the victim’s

credibility, thereby commenting on the defendant’s guilt or innocence.

      In its brief, the State claims Jaquez was not prejudiced by the

admission of this testimony. We disagree.
                                     6

       M.M.’s testimony was not consistent with her out-of-court

statements.    She testified the abuse occurred at least once a week at

trial, but told the forensic investigator it only happened three times.

       M.M. also testified the alleged abuse began when she was ten years

old.   However, her mother testified she was exhibiting sexual behavior

towards her peers at the age of eight, inconsistent with when M.M.

alleged the incidents began.

       Furthermore, M.M. testified while the alleged abuse was occurring

her mother would be in the home cooking or showering in a bathroom

with a shared wall to the room where the incidents were occurring. M.M.

testified she would cry during the abuse and that she would bleed

afterwards. This testimony is inconsistent with her mother’s testimony.

Her mother testified she did not hear any crying or notice any abnormal

bleeding and that she was unaware of any of the alleged incidents

occurring in her house until the child made the accusation.

       Finally, the physical evidence did not support M.M.’s claim of child

abuse.    Dr. Hostetler testified there was nothing abnormal about the

child’s physical examination other than a little scar tissue around her

anal opening.    Dr. Hostetler first testified the scar tissue, which was

approximately a half a centimeter in length, “could be from anything

from having repeated hard stools that passed through and caused

fissures, or other kind of trauma like penetrating trauma.”        However,

M.M. had not made any allegations of anal contact until after the doctor’s

examination.     Additionally, because of the new allegation following

Dr. Hostetler’s examination, the child was taken for a second forensic

interview immediately following the exam. Dr. Hostetler testified in all

the years she has been examining children at the Child Protection Center
                                            7

she had never had a child do a forensic interview, then the exam, and

then go back for a second interview.

      Moreover, the county attorney emphasized this wrongly admitted

testimony in his presentation to the jury. In his opening statement, the

county attorney warned the jury the child was not going to be emotional

in her testimony. He was preparing the jury to ensure the jury did not

see the child’s seemingly odd behavior of emotional apathy as a lack of

credibility.     He then elicited a direct answer from Kay regarding this

exact behavior, ensuring he was not the only person telling the jury it

was normal for M.M. to act in this manner. This testimony set the tone

for the remainder of Kay’s testimony regarding what the child told her

occurred.

      V. Disposition.

      Accordingly, we affirm the decision of the court of appeals, reverse

Jaquez’s conviction, and remand the case for a new trial.

      DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.

      All      justices   concur   except       Mansfield,   J.,   Cady,   C.J.,   and

Waterman, J., who dissent.
                                     8
                                                #12–2264, State v. Jaquez
MANSFIELD, Justice (dissenting).

      While I agree with the analytical framework set forth in the court’s

well-reasoned opinions of today, see, e.g., State v. Dudley, 856 N.W.2d

668, 671–85 (Iowa 2014), I would not send this particular case back for a

new trial. In my view, the evidentiary error in this case did not prejudice

the defendant.

      As the majority opinion indicates, the district court’s error in this

case was quite limited.      Specifically, the district court should have

granted the defendant’s motion to strike one sentence volunteered by the

State’s expert.   That sentence was: “[M.M.’s] demeanor was completely

consistent with a child who has been traumatized, particularly multiple

times.”

      I agree with the majority that this volunteered testimony was

improper. However, I do not believe it prejudiced substantial rights of

the defendant. Reading the record in this case, the victim’s unrebutted

testimony was clear, convincing, and generally consistent.     The victim

told her best friend and her mother of the defendant’s acts of sexual

abuse after the defendant had left for New Mexico and her mother had

broken up with the defendant. At that point, and when she later testified

in court, the victim was twelve years old. According to the victim, over a

period of approximately two years, the defendant took advantage of her

when her mother was at work or in the shower or cooking. A medical

examination revealed that the victim had scarring in her anus, which

was the result of some type of repeated action, although it could have

been repeated hard stools.

      When the victim was interviewed by Kiesa Kay, she told Kay about

numerous instances of various forms of sexual abuse over those two
                                     9

years. According to Kay’s report, the victim said Jaquez had only forced

her to engage in vaginal intercourse three times total (at least according

to Kay’s report).     At trial and when deposed, the victim said the

defendant forced her into sexual intercourse three times a week. In other

respects, the victim’s trial testimony and the Kay report were consistent.

      The defendant did not take the stand or present any other evidence

on his behalf.     Furthermore, while the State’s expert should not have

been permitted to make the foregoing statement, it was only one

sentence, and it simply connected the dots between the expert’s

observations of the victim’s demeanor and general characteristics of child

abuse victims.     The jury likely could have connected those same dots

themselves.

      The prosecutor did not mention the victim’s demeanor or Kay’s

testimony on that subject in closing argument. In fact, the prosecutor

deemed it necessary to deliver very little by way of closing argument. In

the transcript, the State’s closing argument runs for less than nine

pages, including rebuttal.

      We will not reverse when an evidentiary ruling did not prejudice

the defendant.     See, e.g., Iowa R. Evid. 5.103(a) (“Error may not be

predicated upon a ruling which admits or excludes evidence unless a

substantial right of the party is affected . . . .”); State v. Parker, 747

N.W.2d 196, 209 (Iowa 2008).        In my view, the defendant was not

prejudiced here.

      I also believe the remaining issues raised by Jaquez on appeal are

without merit. I would affirm his conviction.

      Cady, C.J., and Waterman, J., join this dissent.
