                    IN THE COURT OF APPEALS OF IOWA

                                    No. 15-0129
                              Filed February 24, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

HIPOLITO DUBON PANTALEON,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Boone County, James A. McGlynn,

Judge.




       The defendant challenges his convictions for two counts of lascivious acts

with a child following a trial to the district court. AFFIRMED.




       Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Kevin Cmelik and Sheryl A.

Soich, Assistant Attorneys General, for appellee.




       Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

          Following a trial to the district court, Hipolito Dubon Pantaleon (Dubon)

was convicted of two counts of lascivious acts with a child, stemming from acts

he committed in 2013 with a then eleven-year-old child.1 On appeal, Dubon

challenges the court’s admission of the child’s video-recorded interview with

Child Protective Services (CPC) into evidence at trial, alleging the evidence was

prejudicial hearsay.         Additionally, he argues the court erred in granting the

State’s Iowa Code section 915.38 (2013) motion, allowing the child to testify at

trial via closed-circuit television in violation of his right of confrontation.                We

affirm.

          I. Standard of Review.

          We review hearsay rulings for correction of errors at law, including the

determination of “whether statements come within an exception to the general

prohibition on hearsay evidence.” State v. Paredes, 775 N.W.2d 554, 560 (Iowa

2009). However, to the extent constitutional issues are raised, our review is de

novo. State v. Heuser, 661 N.W.2d 157, 162 (Iowa 2003).

          II. Discussion.

          CPC Interview Video. “‘Hearsay’ is a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.”             Iowa R. Civ. P. 5.801(c).          If evidence is

hearsay, it must be excluded “unless admitted as an exception or exclusion

under the hearsay rule or some other provision.” State v. Harper, 770 N.W.2d

316, 319 (Iowa 2009) (citation omitted).               One such exception, known as the

1
    Dubon was acquitted of another charge concerning another child, not relevant to this appeal.
                                         3


residual hearsay exception, permits the admission of hearsay evidence at trial

even if the evidence is “not specifically covered by any of the exceptions in [Iowa

Rules of Evidence] 5.803 or 5.804,” if the court determines the hearsay

evidence: has “equivalent circumstantial guarantees of trustworthiness,” “is

offered as evidence of a material fact,” “is more probative on the point for which it

is offered than any other evidence,” will serve justice’s best interests with its

admission, and the adverse party is notified in advance. Iowa R. Evid. 5.807.

This rule falls within the parameters of rule 5.803, which sets forth when hearsay

evidence is admissible regardless of whether the declarant is available as a

witness.   See Iowa R. Evid. 5.803(24) (explaining that the residual-hearsay-

exception rule was “[t]ransferred to rule 5.807”). The Iowa Supreme Court has

summarized the residual hearsay exception as requiring a showing of

“trustworthiness, materiality, necessity, service of the interests of justice, and

notice.”   State v. Rojas, 524 N.W.2d 659, 662-63 (Iowa 1994) (discussing

residual hearsay exception, then found at rule 5.803(24)).

       Additionally, Iowa Code section 915.38(3) specifically permits the

admission of a child’s recorded statements “describing sexual contact performed

with or on the child,” even if the evidence is “not otherwise admissible in

evidence by statute or court rule,” when a party moves for the evidence’s

admission and “the court determines that the recorded statements substantially

comport with the requirements for admission under rule of evidence 5.803(24) or

5.804(b)(5).”   This evidence falls under the residual hearsay rule, and the

recording may be admitted if the requirements of the exception are met. See

Rojas, 524 N.W.2d at 663.
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       Dubon argues two of the five requirements were not shown to permit the

admission of the child’s recorded CPC interview under the residual hearsay

exception, contending the evidence was unnecessary, since the child testified at

trial, and the interests of justice were not served by its admission into evidence.

We disagree.

       Here, there was no physical evidence to support the child’s reports, and

Dubon testified the child was lying because her mother coached her to make the

allegations. Consistency of the child’s statements and the child’s demeanor were

key in assessing the child’s credibility, making the video necessary. The court

was able to review the video and compare the child’s testimony and demeanor in

each instance, as it was also able to compare Dubon’s police interview with his

contrary trial testimony. Additionally, Dubon was able to cross-examine both the

child and the CPC interviewer at trial. We believe the other requirements for

admitting the video were satisfied, and, consequently, the interests of justice

were served here. See id. (holding “the appropriate showing of reliability and

necessity were made, and admitting the [videotape] evidence advances the goal

of truth-seeking”).   Finally, even if the video evidence was unnecessary, the

evidence was merely cumulative.      “Erroneously admitted hearsay will not be

considered prejudicial if substantially the same evidence is properly in the

record.” State v. Newell, 710 N.W.2d 6, 19 (Iowa 2006); see also 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. Weaver,

608 N.W.2d 797, 804 (Iowa 2000) (noting “the rules of evidence are less
                                         5


stringent” where a case is tried to the court). We conclude the court did not err in

admitting the child’s CPC interview into evidence, and we affirm on the issue.

       Closed-Circuit Television Testimony. The right to confront and cross-

examine witnesses is protected by the federal and state constitutions. See U.S.

Const. amend. VI; Iowa Const. art. 1, § 10. However, though there may be “a

strong preference for face-to-face confrontation, the latter is not an absolute

constitutional requirement.”    State v. Rogerson, 855 N.W.2d 495, 499 (Iowa

2014). In Maryland v. Craig, the United States Supreme Court

       determined that protecting child abuse victims from the
       psychological harm of testifying was a sufficiently important public
       policy concern to justify denying face-to-face confrontation.
       Then, . . . the Court held that Maryland’s closed-circuit video
       system assured the reliability of remote testimony because the
       witness testified under oath; the defendant was still able to fully
       cross-examine the witness; and the judge, jury, and defendant
       could see the witness’s demeanor and body language as he or she
       testified.

Rogerson, 855 N.W.2d at 499 (discussing Craig, 497 U.S. 836, 853, 857 (1990))

(internal citations omitted).

       Iowa Code section 915.38(1)(a) provides that the court may protect a child

       from trauma caused by testifying in the physical presence of the
       defendant where it would impair the minor’s ability to communicate,
       by ordering that the testimony of the minor be taken in a room other
       than the courtroom and be televised by closed-circuit equipment for
       viewing in the courtroom. However, such an order shall be entered
       only upon a specific finding by the court that such measures are
       necessary to protect the minor from trauma.

Our supreme court has determined that, like the statute at issue in Craig, section

915.38 preserves a “defendant’s basic right of confrontation while protecting

minor victims from the trauma which often results from testifying in a defendant’s

physical presence.      If this trauma impairs or handicaps a child’s ability to
                                           6

communicate, protective measures must be adopted.”                State v. Rupe, 534

N.W.2d 442, 444 (Iowa 1995) (discussing essentially the same section, then

found at section 910A.14; see 1998 Iowa Acts ch. 1090, §§ 31, 82 (repealing

section 910A.14 and adding section 915.38)).

       Here, the child’s therapist and her guardian ad litem both recommended

the court grant the State’s section 915.38(1) motion to allow the child to testify via

closed-circuit television. The court found the child’s therapist “possessed the

necessary professional skills and the personal knowledge to a sufficient degree

to render an opinion on the matter” and “approve[d] and adopt[ed] the testimony

of [the child’s therapist] regarding the risk to [the child].” On appeal, Dubon

challenges the therapist’s credibility, pointing out that she was only “temporarily”

licensed in Iowa as a mental health and sexual abuse counselor and that the

therapist also testified the child would be happy to see Dubon, “be[lying] her

testimony that [the child] would be traumatized by appearing in court.” Dubon

seems to assert his right to confrontation overcomes the therapist’s opinions of

trauma to the child because of the alleged credibility issues. We disagree.

       The district court clearly found the therapist to be credible and accepted

her opinion concerning the trauma the child would suffer if required to testify in

Dubon’s presence. Even reviewing the record de novo, we find no reason to

disturb the court’s credibility finding. As the court pointed out in its ruling:

       [The therapist] is a temporary licensed mental health counselor and
       substance abuse counselor. She has been in the field for about six
       years providing counseling. She possesses a master’s degree in
       clinical psychology and a master’s degree in mental health
       counseling. She has passed the national counseling examination,
       and she has submitted her credentials to the Iowa Board of
       Behavioral Sciences for approval. At the present time she is board
                                         7


       certified, working towards full licensure. Full licensure will require
       that she submit more supervision hours by a licensed supervisor to
       the board. She currently has about 50 supervision hours and will
       need to submit 200 supervised hours all together and will also need
       to document that she has 1,000 direct client hours.

The therapist had been working with the child for some time and had seen the

child approximately twenty to twenty-five times at the time of the hearing. The

therapist opined the child would be traumatized by testifying in Dubon’s presence

and the trauma could negate any progress the child had made. That the child

loves and would like to see Dubon does not mean testifying about the lascivious

acts he committed upon her in his presence would not be traumatizing.

       Here, a one-way video stream was used, where Dubon could see the

child’s testimony.   The child was specifically told Dubon could see her via

camera. Additionally, Dubon had access to his attorney by telephone. We find

the child’s therapist’s credible, and we agree with the district court that granting

the State’s section 915.38(1) motion was appropriate to protect the child from

trauma while balancing Dubon’s basic right of confrontation.

       III. Conclusion.

       For these reasons, we affirm Dubon’s two convictions for lascivious acts

with a child.

       AFFIRMED.
