                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-2084
                              Filed March 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEREMY ALLAN ANDERSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



      Jeremy Anderson appeals his conviction for second-degree sexual abuse.

AFFIRMED.




      Benjamin J. Bragg of Bragg Law Firm, West Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant

Attorney General, for appellee.




      Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
                                        2


DANILSON, Chief Judge.

       Jeremy Anderson appeals his conviction for second-degree sexual abuse,

in violation of Iowa Code section 709.3 (2014). He contends the district court

erred in allowing two hearsay statements, and there is insufficient evidence to

sustain the conviction. The court did not err in concluding the statements fell

within hearsay exceptions, and there is substantial evidence supporting the

conviction. We therefore affirm.

I. Background Facts & Proceedings.

       Anderson and his then-fiancée were caring for a neighbor’s two children

on the afternoon of July 14, 2014. The fiancée went into a back bedroom to

console one of the children, leaving Anderson and six-year-old A.F. alone in the

living room. When the fiancée returned to the living room, Anderson was sitting

cross-legged on the floor facing a cross-legged A.F. The three continued to

watch a movie. The children’s mother returned about two hours later.

       About three hours after the mother’s return, A.F. was preparing for a bath

and came to her mother crying. A.F. told her mother Anderson “stuck his finger”

in her “pee-pee.” The mother got the girl dressed and took her to the emergency

room (ER) to be examined.

       At the ER, A.F. was examined by Nurse Practitioner Leeann Hoodjer.

Upon visual examination, Hoodjer noted A.F. had two abrasions or scratches at

the vaginal opening, which she classified as consistent with a scratch from a

fingernail.

       On August 7, 2014, Waterloo Police Department Investigator Brice Lippert

contacted Anderson and his fiancée and asked them come to the Waterloo
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Police Department to answer questions. Anderson agreed to speak with the

investigator and, over the course of his interview, Anderson’s statements

changed. Anderson first unequivocally denied any inappropriate contact with

A.F. Later, he stated that if any touching occurred, it was accidental. Eventually,

Anderson stated he and A.F. were on the floor wrestling when his hand slipped

all the way down her pants and he did touch her vagina underneath her

underwear.

      Anderson was charged with second-degree sexual abuse. At the bench

trial held on July 27 and August 5, 2016, A.F.—now eight years old—was asked

if she knew why she was there. She responded, “Because a long time ago,

something happened. . . . I got hurt.” She testified she was sitting on the couch

when Anderson’s fiancée left the room to care for A.F.’s crying sibling. Anderson

then came over to A.F. and started to tickle her. They fell off the couch and she

was lying on top of Anderson. He continued to tickle her. She also testified:

             Q. When you say privates, what do you mean? A. My pee-
      pee.
              Q. And what comes out of your pee-pee? A. Um, pee, and it
      burnt when I went to the bathroom because it was red.
              Q. So he touched your pee-pee, not inside of it, but with—
      A. Yeah.
              ....
              Q. What did he touch your pee-pee with? A. His hand. His
      nail.
              Q. So he—he touched it with his fingernail? A. Uh-huh.
              Q. Is that a yes? A. Yes.
              Q. Did he scratch you with his fingernail? A. Yes.
              Q. Did it hurt when he scratched you? Is that a yes? A.
      Yes. After a couple minutes later, my mom came home and I told
      her.
              Q. Okay. Now, when [Anderson] was touching your pee-
      pee, did you say anything to him? A. I telled him to stop.
              Q. You told him to stop? A. Or quit tickling me, I think, and I
      think that’s all that he did to me. I’m not sure—I think then we went
                                           4


        downstairs. [My sister] took a short nap and then she woke up and
        we played outside for a little and then mom came home.

        A.F. testified, “I told my mom everything that happened, and when I got

my bath, my privates started to hurt, so I told her and she said it looked red.”

When asked if she said “ow” when Anderson touched her, A.F. stated she did not

remember because “I was really little.”

        A.F.’s mother testified that when she was getting the two children ready

for their bath on July 14, A.F. was already undressed and she came to the

bathroom door shaking and crying. Anderson made a hearsay objection to any

testimony by the mother as to what A.F. stated and the district court ruled the

statement was an excited utterance and admissible. The mother testified that

A.F stated, “I just want you to know Jeremy stuck his finger in my va—in my pee-

pee.”

        Anderson also objected to Hoodjer being allowed to testify as to what A.F.

said to her at the ER. Hoodjer testified that as an ER medical care provider,1

“You want to know exactly what brought [the patient] in because it totally affects

how you assess them, how you question them, how you treat them, and how you

diagnose them, and also, their disposition from the ER. Do they go home? Do

they go someplace else?” Further, Hoodjer testified the information she needed

to provide treatment included,

        I would want to know, you know, who it was. You can’t send them
        home if it was someone that was in their home. I would want to
        know if it was a male or female because that depends on the type
        of sexual assault that can occur, and I want to know exactly what
        happened so I know if there was finger penetration, penis

1
  Hoodjer stated that at the hospital at which she is employed, “the nurse practitioners
are the ones that see all of the sexual assaults, domestic abuses, rapes.”
                                        5


      penetration, penetration of the anus. You need to know that whole
      history to do an accurate assessment of the patient.
              Q. So knowing what specific acts were alleged, what specific
      body parts were involved, that would be pertinent to any sort of
      medical diagnosis and treatment? A. Exactly. You couldn't do your
      full assessment, treatment without knowing that part of it.

Finding adequate foundation had been provided, the district court overruled

Anderson’s hearsay objection.

      Hoodjer then testified:

             A.F. said the neighbor’s boyfriend put his hands down her
      pants. In the E[R], the patient states, Jeremy put his hand down
      the front of my pants and poked my hole with his finger. He
      scratched me with his nail. Patient states he also put h[i]s hand
      down the back of her pants and tried to poke her butt.

Further, Hoodjer stated that upon physically examining A.F., “I saw two abrasions

at the opening of her vagina and abrasions are—it’s like a scratch.”

      Anderson testified he did not inappropriately touch A.F. He denied that his

hand was ever in her pants.        The following exchange occurred between

Anderson and his attorney:

             Q. And you—you did tell the officer that [A.F.] was jumping
      on you? A. Yes.
             Q. And somehow, your hand may have accidentally slipped
      between her skin and underwear. Did you tell the officer that? A.
      Yes, I did.
             Q. Is that what happened? A. No.
             Q. Then why did you tell the officer that? A. I was just—I
      was afraid. I—I figured if I told him what he wanted me to say, he
      would just make it go away.

      On cross-examination, the prosecutor and Anderson had this exchange:

             Q. And it’s your testimony today that at no point in time
      during that interaction did your hand go into her pants? A. That’s
      correct.
             Q. That you never made skin-to-skin contact with her? A.
      Correct.
             Q. With her genitals at that point in time? A. Yes.
                                          6



       The prosecutor then asked about the contrary statements Anderson had

made to the investigator:

               Q. You told him that—you know, that this happened when
       you were wrestling on the floor with [A.F.]; right? A. Yes.
               Q. And you were certain at that time when you were
       wrestling with [A.F.] that your hand went down the front of her
       pants; right? A. Yes.
               Q. And that it went—your hand went all the way down
       between her legs; right? A. Yes.
               Q. And that you touched her vagina with your finger right?
       A. That’s what I said.
               Q. And so that whole interview with Investigator Lippert,
       when you were in the first room, that whole time you were talking to
       him, you were intentionally providing him with false information;
       right? A. Yes.
               Q. And now your testimony is that even when you were in
       the second room and you told him that this happened while you
       were wrestling with [A.F.], that you were also providing him with
       false information at that time; correct? A. Yes, I was just telling him
       what I thought he wanted me to say.

       In finding Anderson guilty, the trial court wrote: “The testimony reflects that

[Anderson] was tickling the victim when he put his hand inside her pants,

between her underwear and skin and poked her vagina with his finger nail.” The

court found the contact was sexual in nature.

       Anderson appeals. He contends the trial court improperly admitted A.F.’s

hearsay statements via her mother and Hoodjer. Anderson also asserts there is

insufficient evidence to sustain the conviction.

II. Scope of Review.

       We review claims of inadmissible hearsay for correction of errors of law.

State v. Smith, 876 N.W.2d 180, 184 (Iowa 2016). We review challenges to the

sufficiency of the evidence for correction of errors at law. State v. Turner, 630

N.W.2d 601, 610 (Iowa 2001).
                                          7


III. Discussion.

      Our rules of evidence prohibit the use of hearsay, i.e., a statement made

by one other than the declarant while testifying at trial when offered to prove the

truth of the matter asserted. Iowa Rs. Evid. 5.801, .802. However, “not excluded

by the rule against hearsay” are excited utterances and statements made for

medical diagnosis or treatment. See Iowa R. Evid. 5.803(2), (4). “[T]he question

whether a particular statement constitutes hearsay presents a legal issue.”

Smith, 876 N.W.2d at 184 (citation omitted).

      A.   Excited    Utterance.      Anderson    challenges    the    trial   court’s

determination that the statement made by A.F. to her mother hours after the

event constituted an excited utterance.

      “A statement relating to a startling event or condition, made while the

declarant was under the stress of excitement that it caused” is an excited

utterance. Iowa R. Evid. 5.803(2). A court considers five factors to determine

whether a statement qualifies as an excited utterance:

      (1) the time lapse between the event and the statement, (2) the
      extent to which questioning elicited the statements that otherwise
      would not have been volunteered, (3) the age and condition of the
      declarant, (4) the characteristics of the event being described, and
      (5) the subject matter of the statement.

State v. Dudley, 856 N.W.2d 668, 679 (Iowa 2014) (citation omitted).

      The court observed;

            District courts should consider the time lapse between the
      event and statements to ensure the statements were not the
      product of conscious thought or reflection.         However, it is
      permissible to allow a greater amount of time lapse for children who
      make the statements to a parent or other safe adult, at the soonest
      possible time after the abuse occurred.
                                        8

Id. at 680 (citation omitted). “The exception for excited utterance ‘presupposes

that the declarant blurted out a remark while under the influence of the startling

event, so that it is unlikely that the remark was the product of conscious thought

or reflection, but was probably accurate.’” Id. (quoting Jay M. Zitter, Annotation,

When Is Hearsay Statement “Excited Utterance” Admissible Under Rule 803(2)

of Federal Rules of Evidence, 155 A.L.R. Fed. 583, 583 (1999)).

      Here, the trial court ruled:

      Given the foundation that’s now been laid by the State and in light
      of the fact that this is a witness of the age that she’s at and I do
      think that this does meet the excited utterance exception, the
      witness has indicated that the child, who is a child—was a young
      child at the time, was shaking and crying in response to telling her
      this when the time came for her to undress and take a bath.

      We agree that under the circumstances presented A.F.’s statement to her

mother was an admissible excited utterance.          We acknowledge that the

statement to the mother was made some hours after Anderson touched her. But

the child’s statement was made at the time she felt pain—“when I got my bath,

my privates started to hurt, so I told her.” It was then the six-year-old child

presented herself to her mother crying and shaking. We find it “unlikely that the

remark was the product of conscious thought or reflection, but was probably

accurate.” See id.; see also State v. Mateer, 383 N.W.2d 533, 535 (Iowa 1986)

(upholding a statement as an excited utterance, though made an hour or more

after the event); State v. Galvan, 297 N.W.2d 344, 346 (Iowa 1980) (involving

two days); State v. Paulsen, 265 N.W.2d 581, 586 (Iowa 1978) (two hours); State

v. Stafford, 23 N.W.2d 832, 835-36 (Iowa 1946) (fourteen hours).
                                            9


         B. Statement for Medical Diagnosis or Treatment.               Anderson next

contends A.F.’s statement to Hoodjer as to the identity of the perpetrator was not

required for purposes of medical diagnosis or treatment.           Our supreme court

recently discussed statements made for purposes of medical diagnosis or

treatment:

                 One exception to the rule against hearsay relates to
         statements made for the purposes of medical diagnosis and
         treatment. Iowa R. Evid. 5.803(4). This exception applies to
                 [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.
         Id. The rationale for the exception is that statements made by a
         patient to a doctor for purposes of medical diagnosis or treatment
         are “likely to be reliable because the patient has a selfish motive to
         be truthful.”

Smith, 876 N.W.2d at 185 (citation omitted).

         Anderson objects to the nurse practitioner’s testimony as to A.F.’s

statement of identity, contending it was not necessary for diagnosis and

treatment.     In Smith, our supreme court addressed this issue in child abuse

cases,

         While it is common for statements of identity made by victims of
         child abuse to be admitted under [Iowa Rule of Evidence] 5.803(4),
         the statements are not admitted simply because they fall within a
         category of statements made to doctors or medical personnel by
         victims of abuse. Instead, these statements are admitted only
         when there is evidence that the statements of identity were made
         by a child-abuse victim for purposes of diagnosis or treatment by a
         doctor or medical provider and the identity was pertinent to the
         diagnosis or treatment. Eliciting the identity of a perpetrator of child
         abuse can be a normal aspect of medical treatment and diagnosis
         for child abuse victims; however, the value of that information is
         established by the foundational testimony of the doctors and
         medical providers in each case, and that testimony explains the
                                         10


       pertinence of the perpetrator’s identity to the diagnosis and
       treatment of the victim in the unique circumstances of each case.
       The need to establish foundation for the admission of evidence
       under rule 5.803(4) is compatible with the standard approach to the
       admission of evidence under most other rules of evidence. In other
       words, proper foundation must normally be established before
       evidence may be admitted.

Id. at 187 (citations omitted).

       The district court considered the foundational requirements and

determined,

       [G]iven the fact that this is a trial to the bench, some of these issues
       are perhaps less keen than they would be if we were trying the
       matter to a jury. I certainly believe that the information that was
       provided by the child to the nurse practitioner in terms of what
       happened was—and how she felt and those types of things are
       necessary and pertinent to treatment and diagnosis and are
       admissible.
                The issue concerning identity, I think the case has been
       made that the gender and whether that person was an adult in
       this—in a sex abuse case would be pertinent and helpful and useful
       for purposes of treatment. The specific identity is not necessarily
       . . . as important. That all having been said, again, this is a trial to
       the bench, and for that reason, I’m going to find that the testimony
       offered, including identity information, would be admissible.

We add the nurse practitioner explained the need for a full patient history to

adequately do a full assessment, which included whether abuse had happened in

the past and if it was by someone the child comes into daily contact with or

someone they had just met. Thus, the identity of the alleged abuser and amount

of contact with that individual may affect the extent or scope of the assessment.

We find the trial court did not err in concluding the appropriate foundation was

provided to admit the statement by A.F. to the nurse practitioner.

       C. Sufficiency of the Evidence. To convict Anderson, the State was

required to prove beyond a reasonable doubt Anderson performed a sex act with
                                             11

a child under the age of twelve. See Iowa Code § 709.3(1)(b). Thus, here, the

State had to establish sexual contact between the finger or hand of one person

and the genitals or anus of another person. See id. § 702.17(3). Anderson

contends the State failed to prove the contact here was sexual in nature.

          In State v. Pearson, the court ruled the State must prove sexual abuse on

a case-by-case basis to determine if the defendant’s conduct falls within the

definition of sexual contact described in section 702.17. 514 N.W.2d 452, 455

(Iowa 1994). “The sexual nature of the contact can be determined from the type

of contact and the circumstances surrounding it.” Id. If no non-sexual purpose

for the contact is discernible, then this demonstrates the sexual nature of the

contact. Id.

          Anderson argues any contact he had with A.F. was accidental and not

sexual in nature. The district court found:

          Given the history of playful interactions between [Anderson] and the
          victim, the court is firmly convinced that the timing of this incident is
          not merely coincidence. Instead, the court is convinced the contact
          was voluntary and purposeful in nature, and [Anderson] took
          advantage of an opportunity he had alone with the victim to commit
          sexual abuse against her.
                  Because the contact was not accidental, the court reviewed
          the record for any plausible non-sexual purpose for the contact and
          could find none. A.F. was around seven years old at the time of the
          incident, so any hygiene or bathroom related reasons seem to be
          out of the question and no evidence was submitted alleging these
          may have played a factor. Without such evidence, the court sees
          no plausible scenario in which the touching in question could be
          viewed as anything except sexual in nature.

Finding no reason to disagree with the trial court’s findings and conclusions, we

affirm.

          AFFIRMED.
