                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0801
                               Filed May 16, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JERRY FULTS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Jasper County, Richard B. Clogg,

Judge.



      A defendant appeals his convictions for five counts of sexual abuse in the

third degree. AFFIRMED.



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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



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

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
                                         2


TABOR, Judge.

       Jerry Fults challenges his convictions for five counts of sexual abuse in the

third degree. Each count represented a different sex act committed against the

daughter of his live-in girlfriend.   On appeal, he contends the district court

improperly considered a video-recorded interview of the alleged victim under the

residual exception to the hearsay rule. Because any consideration of the video

recording was harmless in light of the other record evidence, we affirm.

       I.     Facts and Prior Proceedings

       We glean the following facts from the minutes of evidence. One morning in

early October 2014, J.L.’s mother walked into the family’s living room and saw her

paramour, Fults, sitting next to J.L. on the couch; his hand was between J.L.’s legs

and he appeared to be “masturbating” the twelve-year-old girl. Fults jumped away

when he realized J.L.’s mother was there.         J.L.’s mother accused Fults of

inappropriately touching her daughter.       When questioned, J.L. confirmed her

mother’s suspicion that Fults had been touching her vagina. J.L. disclosed this

encounter was not the first time Fults had molested her. Throughout the summer

of 2014, every other Saturday morning—while her mother slept in—Fults took the

opportunity to have J.L. perform oral sex on him. J.L. also revealed an incident in

which Fults used a vibrator to penetrate her vagina. The mother was aware of this

item and its location in the house, supposedly hidden from the children. After her

mother learned of the ongoing abuse, J.L. told a family friend she was afraid to go

home because her mother and Fults were arguing about the revelations. J.L. also

told the friend that Fults had been touching her vagina.
                                          3


       The mother and J.L. reported the suspected sexual abuse to police. In a

narrative attached to the minutes, an officer described his conversation with J.L.,

who recalled numerous sex acts perpetrated by Fults, including several incidents

in her bedroom when Fults tried to insert his penis into her vagina but was unable

to because it “hurt too much.”

       On October 7, 2014, J.L. went to the Child Protection Center (CPC) at Blank

Children’s Hospital for an hour-long interview with Mikki Hamdorf. During the CPC

interview, which was recorded on video, J.L. said Fults had “moved his fingers

inside her underwear” on several occasions. J.L. also recounted times when Fults

had forced contact between his penis and her hand, mouth, and vagina. Hamdorf

drafted a written report, which was attached to the minutes.

       In January 2016, the State filed a trial information, accusing Fults of six

counts of sexual abuse in the third degree, class “C” felonies, in violation of Iowa

Code sections 709.1 and 709.4(1)(b)(2) (2014). In the accompanying minutes, the

State included the expected testimony of J.L., her mother, the family friend, the

CPC interviewer, and several police officers. The State expected J.L. to offer the

following information:

       Witness will testify to multiple instances of sexual contact by the
       defendant. Witness will testify that in early October the defendant
       engaged in sexual touching of her genitals. Witness will testify that
       throughout the summer of 2014 the defendant engaged in multiple
       sex acts with her. Witness will testify substantially in conformity with
       any and all reports attached hereto and any subsequent reports.

       In March 2017, the defense filed a motion in limine seeking to exclude the

video recording of J.L.’s interview at the CPC. The motion asserted the evidence

was hearsay and was “nothing more than an effort to bolster” the testimony of J.L.,
                                             4


who was then fourteen years old. The State argued the video was admissible

under Iowa Code section 915.38(3)1 and the residual exception to the hearsay rule

at Iowa Rule of Evidence 5.807(a).2 The court overruled the motion in limine, but

suggested the defense could make a record when the State offered the evidence

at trial and the court would give its final ruling then.

       On the morning of trial, Fults waived his right to a jury and agreed the State

could present its case through a stipulated record. The prosecutor offered the

minutes of evidence and attached reports, as well as the recorded CPC interview

with J.L., “for the court to take into consideration when rendering its verdict.” The

defense renewed its motion in limine and the court said it would treat that motion

as “preserved.”

       In its written ruling, the district court found Fults guilty on five of the six

counts.3 The court decided the evidence established beyond a reasonable doubt



1
  This provision states:
                  The court may upon motion of a party admit into evidence the
        recorded statements of a child, as defined in section 702.5, describing
        sexual contact performed with or on the child, not otherwise admissible in
        evidence by statute or court rule if the court determines that the recorded
        statements substantially comport with the requirements for admission
        under rule of evidence [5.807].
2
  This rule states:
                  In general. Under the following circumstances, a hearsay
        statement is not excluded by the rule against hearsay even if the statement
        is not specifically covered by a hearsay exception in rule 5.803 or 5.804:
            (1) The statement has equivalent circumstantial guarantees of
            trustworthiness;
            (2) It is offered as evidence of a material fact;
            (3) It is more probative on the point for which it is offered than any other
            evidence that the proponent can obtain through reasonable efforts; and
            (4) Admitting it will best serve the purposes of these rules and the
            interests of justice.
3
  For one of the six counts, the State had alleged Fults touched J.L.’s breast with his hands
and mouth, contact which did not qualify as a sex act under the definitions in Iowa Code
section 702.17.
                                             5


that Fults committed five separate acts of sexual abuse in the third degree. 4 At

sentencing, the district court imposed two consecutive terms not to exceed ten

years and ordered the three other counts to run concurrently, for a twenty-year

indeterminate prison term. Fults appeals his conviction.

       II.     Preservation of Error and Standard of Review

       The State argues the district court’s ruling on the defense motion in limine

did not constitute a final ruling on admissibility of the CPC video. See State v.

Tangie, 616 N.W.2d 564, 568 (Iowa 2000) (explaining error claimed in a court’s

ruling on a motion in limine is waived unless a timely objection is made when the

evidence is offered at trial). We disagree. Defense counsel renewed its objection

to the video when the State offered its stipulated evidence and the court deemed

the challenge to be “preserved.” The court also mentioned the video in its findings

of fact.

       We review the admission of an exhibit challenged as hearsay for the

correction of legal error. See State v. Plain, 898 N.W.2d 801, 810 (Iowa 2017).

Improperly admitted hearsay is cause to reverse a conviction unless the proffering

party, here the State, establishes the error was not prejudicial. See id.




4
  “A person commits sexual abuse in the third degree when the person performs a sex act
[that is] between persons who are not at the time cohabiting as husband and wife . . . [and]
the other person is twelve or thirteen years of age.” Iowa Code § 709.4(1)(b)(2).
                                             6


       III.    Analysis

       The parties debate the admissibility of J.L.’s recorded statements under the

residual hearsay exception. But given the wealth of other proof that Fults sexually

abused J.L. at least five times, accepted into evidence by stipulation, we don’t

believe it is necessary to settle the question. Assuming, without deciding that the

video did not meet the requirements of admissibility under section 915.38(3) and

rule 5.807(a), we find the district court’s consideration of the video recording is not

grounds for reversal.

       When an alleged error is not of constitutional magnitude, the measure of

prejudice for harmless error purposes is “whether it sufficiently appears that the

rights of the complaining party have been injuriously affected or that the party has

suffered a miscarriage of justice.” See State v. Traywick, 468 N.W.2d 452, 454–

55 (Iowa 1991) (quoting State v. Massey, 275 N.W.2d 436, 439 (Iowa 1979)).5 The

State bears the burden to affirmatively establish the hearsay evidence did not

affect the finding of guilt by the trier of fact. See State v. Elliott, 806 N.W.2d 660,

669 (Iowa 2011). The State may show the challenged hearsay did not impact the


5
  The Traywick decision contrasted the prejudice test for non-constitutional errors with the
“more stringent showing” required for error involving constitutional rights. 468 N.W.2d at
455. Justice Larson rejected the defense attempt to blur the two standards:
                Conceivably under Traywick’s theory, all rulings at the trial affect
        the fairness of the proceedings and therefore implicate due process rights.
        We do not believe this is so. If it were, there would be no basis for different
        rules with respect to the burden of showing a lack of prejudice; all appeals
        in criminal cases would be subject to the “beyond a reasonable doubt”
        showing. We do not believe this is mandated by Chapman [v. California,
        386 U.S. 18, 23–24 (1967)].
Id. We note some recent confusion in our supreme court’s articulation of the harmless-
error standard for hearsay evidence. See State v. Huser, 894 N.W.2d 472, 495 (Iowa
2017) (“The State may show improperly admitted evidence was not prejudicial by proving
the error was harmless beyond a reasonable doubt.” (citing State v. Sowder, 394 N.W.2d
368, 372 (Iowa 1986))). But Huser cited Sowder, which predated Traywick.
                                         7


finding of guilt if the hearsay is cumulative to other evidence admitted into the

record without objection. Id.; see also Plain, 898 N.W.2d at 813.

       Here, Fults stipulated that the State’s minutes of evidence and the attached

reports would serve as the body of proof considered by the court in determining

his guilt. See State v. Adams, 554 N.W.2d 686, 692 n.4 (Iowa 1996) (clarifying

that by stipulating to the minutes, defendant agreed they would become the

“evidence in this case” but defendant did not concede testimony was “accurate,

believable or sufficient to support his conviction”). The minutes included J.L.’s

testimony that Fults subjected her to various sex acts throughout the summer and

fall of 2014 when she was twelve years old. Nothing in the record detracts from

the credibility of J.L.’s testimony. J.L. had no motive to falsely accuse Fults. In

fact, J.L. had not confided in anyone about the abuse until her mother witnessed

an incident of molestation on the couch. That same day, J.L. reported the sexual

abuse to an adult friend of the family. Once the abuse was no longer a secret, J.L.

was consistent in the information she provided her mother and police. Aside from

moving to exclude the CPC video, Fults did not lodge any hearsay objections to

other testimony or reports outlined in the minutes. Likewise, on appeal, Fults limits

his complaint to the admission of the video. As the State points out, “a record

without that video would still include the written report summarizing the same

interview.”

       Accordingly, even if the video was not admissible under the residual

exception, it was cumulative to stipulated evidence in the record without objection.

See State v. Johnson, 272 N.W.2d 480, 482 (Iowa 1978) (concluding admission of

hearsay was harmless error where “a considerable body of evidence in the record,
                                          8


without objection” proved the same point). The State affirmatively established the

video had no material impact on the district court’s determination he was guilty of

five counts of third-degree sexual abuse.        Fults’s rights were not injuriously

affected nor did he suffer a miscarriage of justice as a result of the district court’s

hearsay ruling. Accordingly, Fults is not entitled to a new trial.

       AFFIRMED.
