                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0037
                                  Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TIMOTHY MICHAEL BASQUIN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea J.

Dryer, Judge.



      Timothy Basquin appeals from his conviction of domestic abuse assault.

REVERSED AND REMANDED.




      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant

Attorney General, for appellee.




      Considered by Danilson, C.J. and Vogel and Potterfield, JJ.
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DANILSON, Chief Judge.

      Timothy Basquin appeals his conviction by jury trial for domestic abuse

assault causing bodily injury, in violation of Iowa Code section 708.2A(2)(b)

(2013). Basquin seeks vacation of the conviction and a remand for new trial,

contending the district court erred by admitting improper expert and hearsay

testimony from a medical professional, including improper jury instructions, and

summarily denying Basquin’s motion for new trial. Basquin also argues there is

insufficient evidence to support the conviction and the verdict is contrary to the

greater weight of the evidence. Because we find hearsay testimony not subject

to an exception was admitted and the jury was improperly instructed, we reverse

and remand for a new trial.

I. Background Facts and Proceedings.

      Sally Hayward testified that on the afternoon of May 12, 2014, she

returned to Timothy Basquin’s residence to find a note on the counter accusing

her of lying, cheating, and stealing. Hayward confronted Basquin about the note,

and both parties agree that an argument followed.

      Shortly thereafter, Hayward went to the sheriff’s department, where

Deputy Tim Petersen observed she was visibly upset and had marks on her

neck. Deputy Petersen testified that Hayward informed him how the marks had

gotten on her neck.    After speaking with Hayward, Deputy Petersen went to

Basquin’s residence to speak with Basquin.

      Hayward subsequently went to the hospital where nurse practitioner

LeeAnn Hoodjer treated her injuries. Over an objection, Hoodjer testified that

Hayward had red marks on her neck, a red mark on her thigh, and was
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experiencing pain in her wrist and thumb. Hoodjer testified Hayward stated she

was assaulted by her boyfriend, he had grabbed her by the shoulder and then

the neck and pushed her out the door, he shook her neck and she was not able

to breathe, and he had kicked her. Hoodjer further testified Hayward’s physical

injuries were consistent with her description of the assault. Hoodjer also testified

over an objection that before she went into the hospital room to see Haywood,

she had read the nurse’s note “which said this is the fifth time it happened, or it

had happened five times before that.”

      Hayward and Basquin testified at trial that the argument was only verbal.

Hayward stated that eventually Basquin told her to leave, and she complied. She

claimed that while exiting the residence she slipped on the deck and injured her

arm and shoulder. Hayward testified the marks on her neck were self-inflicted by

using a paint brush to “gouge” her neck. Hayward stated she was angry with

Basquin and wanted to get even by reporting him for the abuse.

      On June 4, 2014, Basquin was charged by trial information with domestic

abuse assault by impeding breathing or circulation causing bodily injury, in

violation of Iowa Code section 708.2A(5). Jury trial commenced on September

16, 2014. The jury returned a verdict of guilty on the lesser-included offense of

domestic abuse assault causing bodily injury. Basquin filed a motion for new trial

on October 5, 2014. On January 5, 2015, the district court heard arguments on

the motion for new trial, summarily denied the motion, and proceeded to

sentencing. Basquin was sentenced to 365 days of incarceration, with all but

seven days suspended, and placed on probation for a period of one to two years.

      Basquin now appeals.
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II. Discussion.

      Basquin contends that the district court erred in admitting the following

hearsay testimony by nurse practitioner Hoodjer:

      [Hayward] had told me that she was assaulted by her boyfriend,
      that he had grabbed her and—by the shoulder and then her neck
      and pushed her through the door, and then he shook her neck and
      she wasn’t able to breathe until he let go, and then he had kicked
      her in the thigh.

      We review hearsay claims for correction of errors at law.          State v.

Paredes, 775 N.W.2d 554, 560 (Iowa 2009).          It is undisputed that Hoodjer’s

testimony as to Hayward’s statements constituted hearsay. See Iowa R. Evid.

5.801(c). Basquin contends that the testimony was improperly admitted under

the Iowa Rule of Evidence 5.803(4) exception to the rule against hearsay, 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.

      Statements identifying the perpetrator do not always fall within the rule

5.803(4) exception. See State v. Smith, ___ N.W.2d ___, ___, 2016 WL 85199,

at *5-7 (Iowa 2016). In order to fall under this exception, statements to medical

professionals must be made for purposes of medical diagnosis or treatment and

must be the types of statements as are reasonably relied on by a medical

professional in treatment or diagnosis. State v. Tracy, 482 N.W.2d 675, 681

(Iowa 1992); see also Smith, 2016 WL 85199, at *7 (rejecting a categorical rule in

domestic abuse cases and requiring that the Tracy test be applied in each case

to determine whether statements should fall within the hearsay exception).
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       Upon application of the Tracy test and the reasoning of Smith, we

determine that Hoodjer’s testimony as to Hayward’s identification statement was

inadmissible hearsay.     Hoodjer treated Hayward by focusing on her physical

injuries and did not testify that she treated or diagnosed Hayward for emotional

or psychological issues. Thus, Hayward’s statement identifying her boyfriend as

the person who assaulted her was not made for purposes of medical treatment or

diagnosis, and the rule 5.803(4) exception does not apply. 1 See Smith, 2016 WL

851991, at *7 (“In other words, the foundational evidence relating to her

statements only pertained to the treatment she received for her physical injuries,

not treatment she might have needed for her emotional, psychological, or other

injuries as a result of the domestic violence.”).

       The State contends that if the admission of the nurse practitioner’s

testimony was in error we should conclude it was harmless error. However, we

conclude the error was compounded by the modified uniform jury instruction on

prior inconsistent statements made under oath.2           The jury instruction made


1
  Oppositely, Hayward’s statements related to how she was assaulted were made for
purposes of medical treatment and used by Hoodjer to diagnose and treat Hayward, and
were properly admitted under the rule 5.803(4) hearsay exception.
2
  At the State’s encouragement, the court modified the uniform jury instruction on prior
inconsistent statements under oath. The district court’s jury instruction provided:
                 You have heard evidence claiming a witness made statements
        before this trial while under oath and to medical care providers while not
        under oath which were inconsistent with what the witness said in this trial.
        If you find these statements were made and were inconsistent, then you
        may consider them as part of the evidence, just as if they had been made
        at this trial.
                 You may also use these statements to help you decide if you
        believe the witness. You may disregard all or any part of the testimony if
        you find the statements were made and were inconsistent with the
        testimony given at trial, but you are not required to do so. Do not
        disregard the trial testimony if other evidence you believe supports it or
        you believe it for any other reason.
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specific reference to statements not made under oath to the medical providers

and thereby elevated the testimony to the level of prior testimony under oath.

Here, the State’s case was not so overwhelming that it can overcome the

absence of the nurse practitioner’s testimony of both the identity of the attacker

as boosted by the jury instruction, and the reference to four or five prior assaults.

Thus, the erroneous admission of Hoodjer’s hearsay testimony was not harmless

error.

         Basquin also raises a challenge to the sufficiency of the evidence.

                 Our Supreme Court has stated, “when a reviewing court
         determines prejudicial trial error occurred in a criminal trial, the
         case will not be remanded for retrial when the evidence at trial was
         insufficient to support the conviction.” State v. Dullard, 668 N.W.2d
         585, 597 (Iowa 2003). We must, therefore determine whether the
         evidence was insufficient.       In making this determination, we
         consider “all the evidence admitted during the trial, including
         erroneously admitted evidence.” Id.

State v. Vanderleest, No. 03-1721, 2005 WL 1397167, at *6 (Iowa Ct. App. June

15, 2005).

         The record in the underlying case supports the jury’s verdict. Substantial

evidence was presented to convince a rational fact finder that Basquin was the

perpetrator of the assault, and that he and Hayward were in a domestic

relationship.   “As the evidence was sufficient to support the verdict, double-

jeopardy principles do not preclude a retrial.” Id.

         In light of our conclusions on these issues, we find it unnecessary to reach

the remaining issues raised by Basquin.3



3
  We would acknowledge, however, the district court’s unusual use of two intent
instructions under these facts.
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III. Conclusion.

      Because the district court erred in admitting some of the nurse

practitioner’s testimony and improperly emphasized the testimony in a jury

instruction, Basquin’s substantial rights have been affected, and we reverse and

remand for a new trial.

      REVERSED AND REMANDED.
