                IN THE SUPREME COURT OF IOWA
                              No. 12–1633

                         Filed December 5, 2014

                      Amended February 23, 2015

STATE OF IOWA,

      Appellee,

vs.

MATTHEW EUGENE BROWN,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Cedar County, Mark D.

Cleve, 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.



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

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant

Attorney General, and Jeffrey L. Renander, 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

convicted the defendant of this charge.        On appeal, the defendant

contends he is entitled to a new trial because a certain expert witness

vouched for the credibility of the victim. We transferred the case to our

court of appeals. The court of appeals held the defendant is entitled to a

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

the victim.

        The State sought further review, which we granted.     On further

review, we agree with the court of appeals 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 the summer of 2011, A.T., along with her brother, went to her

older stepsister’s home for a sleepover. Her stepsister was engaged to

and living with defendant Matthew Brown, and the couple had a four-

year-old daughter. Brown, his fiancé, and all three children spent the

day fishing and playing. Upon returning to Brown’s home that evening,

the children got ready for bed and slept on the living room floor. Each

child had a blanket and pillow for sleeping.       Brown’s daughter was

unable to fall asleep, so he stayed in the living room with her to calm her

down.     A.T.’s stepsister remained in her bedroom, playing computer

games on her tablet until she fell asleep. Brown fell asleep on the floor

with the children.

        A.T. claims while she was on the living room floor, Brown used his

hand to rub her vagina, but he did not put his hand inside her vagina.
                                     3

A.T. alleges this occurred while her brother and niece were also sleeping

on the floor with her; however, they were not awake. A.T. stated she was

wearing a t-shirt and underwear at the time and she could not remember

if Brown touched her under or on top of her underwear.       A.T. further

stated Brown did not say anything to A.T., either during or after the

incident. A.T. said after Brown touched her vagina she got up and had

breakfast.

         On the morning of August 26, A.T.’s mother was cleaning the

child’s genital area when A.T. said Brown had touched her vagina on two

occasions while she was at Brown’s home. A.T.’s other sister was also

present for this disclosure. A.T.’s mother stated they were not talking

about Brown at the time and the statement came out of nowhere. The

mother also stated A.T. told her Brown had made her touch his penis;

however, A.T. denied she touched or saw Brown’s penis.       A.T. further

stated she could not remember Brown touching her any other time.

A.T.’s mother immediately wrote down everything her daughter had told

her about the incident.       The same day, A.T.’s mother and father

contacted the authorities to report the incident.

         A few days later, a forensic interviewer at the Child Protection

Response Center, Michelle Mattox, interviewed A.T. Initially, A.T. denied

Brown touched her.       After Mattox explained to A.T. her job and the

interview process, A.T. told Mattox that Brown had touched her “potty

spot.”

         On September 20, Dr. Barbara Harre examined A.T. at the Child

Protection Response Center. Harre completed a medical assessment for

A.T. including medical, family, and social history. She also took labs,

performed a physical examination, and gathered information regarding

the complaints of inappropriate contacts with A.T.’s body.
                                           4

       In the months before trial, Brown filed several motions in limine.

Relevant here are Brown’s second and fifth motions, seeking to exclude

A.T.’s statements to Harre on hearsay grounds and as against his

Confrontation Clause rights. The district court reserved ruling on any

hearsay statements made by A.T. to Harre and denied the motion on the

Confrontation Clause because the child was testifying at trial.

       At trial, the county attorney asked Mattox whether she was

“trained to tell when a child is telling the truth.” Brown objected to the

question and the district court sustained the objection on the grounds of

improper vouching.

       During trial, Brown made an oral motion asking the court to

prohibit Harre from testifying A.T.’s “claims were credible or that she

believed [A.T.] or that she in her expert opinion . . . thought [A.T.] had in

fact been sexually abused.”             Brown did not reassert his hearsay

objection, so we will not consider it in this appeal. 1 The district court

granted most of Brown’s motion.                However, the court overruled the

motion as to one of the paragraphs in Harre’s report.                 The paragraph

stated:

       [A.T.]’s history is detailed and clear.        She has been
       consistent in what she has reported to her mother and to
       this examiner. She was clear about where the touching
       occurred and confidently demonstrated that. This examiner
       agrees this disclosure is significant and that an investigation
       is clearly warranted.




       1The  gist of the hearsay objection made by Brown in his first motion in limine
was that Harre should not be allowed to testify as to what the child told her because the
child was not making the statements to Harre for the purposes of medical diagnosis or
treatment. See Iowa R. Evid. 5.803; see also United States v. Bercier, 506 F.3d 625, 632
(8th Cir. 2007) (finding statements made to medical provider by a sexual abuse victim
were not for the purpose of medical diagnosis or treatment; therefore, the trial court
abused its discretion in admitting such testimony).
                                      5

        During closing arguments, the county attorney again read this

section of the report to the jury.     The county attorney stressed A.T.’s

“testimony is reinforced by the reports from Dr. Harre.” He also noted,

“Dr. Harre testified this morning. She is a board-certified physician in

pediatrics.   She specializes in child abuse sex cases. . . .”     He stated

other witnesses, such as Harre, reinforced the victim’s testimony.

        Additionally, during closing arguments the county attorney told the

jury,

        If you can’t look at it through the eyes of [A.T.], I would ask
        you to look at it through the eyes of when you were 7. Go
        back to when you were 7 years-old and something like this
        happened to you . . . .

At which point Brown objected, arguing the statement was a golden-rule

violation. The district court sustained the objection.

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

Prior to the sentencing, Brown filed a motion for new trial on the grounds

the verdict was contrary to the evidence because the testimony at trial

regarding the incident was inconsistent and for prosecutorial misconduct

during closing arguments. The district court denied the motion. Brown

appealed. We transferred this case to our court of appeals.
        The court of appeals reversed and remanded the case for a new

trial holding, “Credibility is reserved for the trier of fact and we conclude

the court erred in admitting Dr. Harre’s report, which invaded the

province of the jury.”    The court of appeals did not address the other

issues raised by Brown. The State then filed this application for further

review, which we granted.
                                     6

      II. Issue.

      In this appeal, the issue as to whether the district court erred in

allowing the objected to paragraph in the expert’s report to the jury is

dispositive.

      III. Standard of Review.

      We review the admission of the objected to paragraph for an abuse

of discretion. State v. Dudley, 856 N.W.2d 668, 680 (Iowa 2014). The

district court abuses its discretion when it exercises its discretion on

grounds or for reasons clearly untenable or to an extent clearly

unreasonable.      State v. Nelson, 791 N.W.2d 414, 419 (Iowa 2010).    “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.”

Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).

      IV. Analysis.

      In an opinion filed on this date, we established the legal principles

applicable to the situation when an expert witness’s testimony crosses

the line and directly or indirectly vouches for a witness’s credibility

thereby commenting on a defendant’s guilt or innocence. Dudley, 856

N.W.2d at 676–77. There we said:

      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
      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
                                      7
       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.

Id. (citations omitted) (internal quotation marks omitted).

       Applying these principles to the objected to paragraph, we first

need to parse the sentences in the paragraph. The first three sentences

do nothing more than tell the jury A.T. was able to give Harre a clear and

detailed history. The third sentence adds the fact that when giving the

history A.T. did not hesitate to display where Brown allegedly touched

her.   These sentences also convey to the jury that A.T. gave the same

history to her mom as she did to Harre. We see nothing wrong with the

first three sentences.   These statements give the jury insight into the

witness’s memory and knowledge of the facts.          Id. at 678.       These

sentences factually describe A.T.’s conduct when talking to Harre.

       However, the last sentence of the paragraph is troublesome. This

sentence is indirectly conveying to the jury that A.T. is telling the truth

about the alleged abuse because the authorities should conduct a

further investigation into the matter. The purpose of the interview was to

see if A.T.’s complaints were credible and required further action. Our

reasoning is further supported by the county attorney’s use of this

paragraph in his final argument where he argued the paragraph vouches

for the victim’s credibility. Therefore, we find this sentence crossed the

line and vouched for A.T.’s credibility.

       The State claims Brown was not prejudiced by the admission of

this testimony; thus, even if the district court abused its discretion in
                                     8

admitting the statements, we should not reverse. We disagree. There is

no physical evidence supporting the State’s case. The State’s entire case

depends on the credibility of A.T. The expert witness’s statement put a

stamp of scientific certainty on A.T.’s testimony. A jury uses this type of

expert testimony to bolster the victim’s testimony and tip the scales

against the defendant.    For this reason, we cannot find the expert’s

statement did not prejudice Brown.

      DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.

      All justices concur except Mansfield, J., who concurs specially.
                                     9

                                                 #12–1633, State v. Brown

MANSFIELD, Justice (concurring specially).

      I join almost all of the court’s well-reasoned opinion.       I write

separately because I diverge from the majority on one point.

      Like the court of appeals, I would find the entire paragraph in

Dr. Harre’s report objectionable. In my view, this paragraph is, “in effect,

an expert opining that A.T. was to be believed.” State v. Brown, No. 12–

1633, 2013 WL 5743652, at *5 (Iowa Ct. App. Oct. 23, 2013). Thus, I

would find that all of this paragraph crossed the fine line noted in State

v. Myers, 382 N.W.2d 91, 97 (Iowa 1986), and reiterated today in State v.

Dudley, 856 N.W.2d 668, 671–85 (Iowa 2014).
