              IN THE SUPREME COURT OF IOWA
                              No. 12–0729

                         Filed December 5, 2014

                      Amended February 10, 2015


STATE OF IOWA,

      Appellee,

vs.

PATRICK MICHAEL DUDLEY,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Marion County, Darrell J.

Goodhue, 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 WITH INSTRUCTIONS.



      Kent Simmons, Davenport, for appellant.



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

Attorney General, Edward W. Bull, County Attorney, and Nicole L. Olson,

Assistant County Attorney, for appellee.
                                      2

WIGGINS, Justice.

      This case involves two charges of sexual abuse in the second

degree in violation of Iowa Code section 709.3(2) (2009). A jury convicted

the defendant of these charges.     On appeal, defendant contends he is

entitled to have the charges dismissed because the State failed to comply

with a plea bargain agreement. He also contends, if we do not dismiss

the charges, he is entitled to a new trial because certain expert witnesses

vouched for the credibility of the victim, the district court admitted

hearsay statements from the victim into the record, and the district court

did not allow him to use a prior conviction of a witness to impeach that

witness. We transferred the case to our court of appeals. The court of

appeals held the State did not violate the plea bargain agreement, but

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 State did not violate

the plea bargain agreement, but 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. On retrial, the district court should not

admit the victim’s hearsay statements into the record and should revisit

the use of the prior conviction consistent with this opinion.

      I. Background Facts and Proceedings.

      Patrick Dudley and his wife Kay lived in Northfield, Minnesota. In

June 2010, Dudley and his wife planned a trip to Knoxville, Iowa, to visit

a friend. The Dudleys took their ten-year-old granddaughter B.O. along

for the trip. When the Dudleys arrived in Knoxville, all three individuals

slept in one bedroom. The Dudleys slept on a mattress on the floor and
                                     3

B.O. slept in a sleeping bag on the floor.     B.O. alleged on the second

night of the trip, after she and her grandparents went to bed, Dudley

touched her vagina with his hand. B.O. alleged he did the same thing on

the third night of the trip.

      Dudley, his wife, and B.O. returned to Minnesota the next day. On

the evening she returned home, B.O. told her mother that her

grandfather had touched her vagina with his hand. B.O.’s parents called

the police in Minnesota to report the abuse. The Minnesota authorities

contacted the police in Knoxville to report the incident.

      Later that month the child traveled to the Regional Child Protection

Center at Blank Children’s Hospital in Des Moines. Tammera Bibbins, a

forensic interviewer, conducted an interview of B.O. The purpose of the

interview was to determine if the authorities should continue their

investigation. The interviewer recommended further investigation.

      The State eventually charged Dudley with two counts of sexual

abuse in the second degree.      In September 2011, Dudley filed seven

motions in limine, including motions to exclude expert testimonies of

Bibbins and B.O.’s treating therapist, Mary Casey, and exclude the

testimony of B.O.’s neighbor, Pat Korinek. On December 27, Dudley also

filed a motion to dismiss the charges and enforce a pretrial plea

agreement. The district court overruled all the motions at issue in this

appeal.

      Before trial, the county attorney made a plea offer to Dudley. The

county attorney agreed to dismiss the charges if Dudley passed a

polygraph test given by a certified test administrator.      The county

attorney also notified Dudley the offer would expire once the parties took

B.O.’s deposition. Dudley initially refused to take a polygraph test and

did nothing with the offer for more than sixty days. After months had
                                           4

passed, the county attorney contacted Dudley to inform him he would be

making a trip to Minnesota to interview B.O., and once he did, all plea

offers were off the table. Dudley decided to take the polygraph test in

Minnesota but did so after the county attorney made the trip to speak

with B.O.

       Dudley passed the Minnesota polygraph test and sent the results

to the county attorney. Dudley did not inform the county attorney he

had agreed to go forward with the test prior to the county attorney’s trip

to see the child. The county attorney only found out Dudley took the test

after Dudley sent him the results of the exam.                The county attorney

agreed to look at the results but had concerns with the veracity of the

results.    Even with these concerns and Dudley’s failure to inform the

county attorney that he decided to take the test, the county attorney

agreed to allow Dudley to take another exam in Iowa. Dudley did not

pass the Iowa test.1

       Dudley filed a motion arguing the court should enforce the plea

agreement because he detrimentally relied upon the plea offer by waiving

his Fifth Amendment right against self-incrimination and his Sixth

Amendment right to a speedy trial. The district court denied Dudley’s
motion and the case proceeded to trial.

       At trial, Casey, a board certified psychologist, testified she provided

therapeutic treatment to B.O. Casey testified she diagnosed B.O. with

posttraumatic stress disorder and generalized anxiety disorder.                    The

court permitted Casey to testify regarding typical physical manifestations

and symptoms of an individual suffering from posttraumatic stress

       1The results of the Iowa polygraph test were not in the record before this court.
The county attorney indicated Dudley did not pass the exam during the pretrial motion
hearing.
                                      5

because of sexual abuse. Her descriptions matched, almost exactly, the

manifestations other witnesses had already testified B.O. was exhibiting.

Casey then testified to the observations she made of B.O.’s symptoms

and physical manifestations while she was treating the child.              Casey

testified she observed some “telltale” physical manifestations such as the

child dressing in layers, cutting her hair, dressing “very boyish,” and

reacting to triggers such as seeing her grandfather’s car.                 Casey

concluded her testimony on direct examination with the following

exchange with the county attorney:

            Q: Ma’am, based on your education, training, and
      experience, do you have an opinion to a reasonable degree of
      certainty in your field as to whether or not [B.O.]’s physical
      manifestations were consistent with a child suffering from
      sexual abuse trauma? A: Yes, they were consistent.

           Q: And do you have an opinion based on your line of
      work again, based on your credentials as to whether or not
      her symptoms were consistent with a child dealing with
      sexual abuse trauma? A: Yes, her symptoms were.

      At trial, Bibbins testified to the type of interview she conducts with

children who have made allegations of sexual abuse. Bibbins testified

she conducted her interview with B.O. in the same manner. She also

explained   to   the   jury   the   concepts   of   coaching   a   child    and

suggestibility—using leading questions when interviewing the child.

Bibbins testified B.O.’s “statement was consistent throughout the entire

interview process.”    The county attorney also asked Bibbins to opine

whether B.O.’s involvement with therapy was “problematic in the realm

of coaching” to which Bibbins answered she “did not see it as

problematic.” Bibbins also testified she made recommendations for B.O.

to receive therapy and cease all contact with Dudley.

      Dudley also tried to exclude testimony regarding what B.O. had

told the child’s neighbor, Korinek, about the incident in Iowa.             The
                                     6

district court stated it would allow the testimony so long as the State

established the statements qualified under the excited utterance

exception to hearsay.    At trial, B.O.’s mother testified that after her

daughter told her about the incident the child went to bed.       The next

morning the mother called Korinek and told her about B.O.’s accusation.

She asked Korinek to talk with B.O. about the trip with her

grandparents.   B.O.’s mother then sent her to the neighbor’s home to

deliver eggs.

      Korinek testified B.O. was not her normal bubbly self when she

arrived at the neighbor’s home. Korinek further testified she asked the

child what was wrong. B.O. began to cry and was very upset. Korinek

testified she prompted the child to tell her what was wrong a few times

before the child disclosed the incident to her.     The State then asked

Korinek what B.O. told her had happened that caused the child to be so

upset. Over objection, the district court ruled the statements fell under

the excited utterance exception and permitted Korinek to respond.

Korinek testified B.O. told her Dudley had touched her vagina while they

were in Iowa.

      Lastly, Dudley filed a notice of his intent to introduce evidence of a

prior criminal conviction of one of the State’s witnesses, Michael

Gannaway. During the course of the case, Dudley’s sister-in-law and her

boyfriend, Gannaway, were living with the Dudleys. Gannaway testified

that while he was living in Dudley’s home, Dudley disclosed to him that

“he [Dudley] was guilty of what he was charged with and that as soon as

it blew over, he was going to seek therapy or something like that.”

Around the same time this statement was made, the Dudleys asked

Gannaway and Kay’s sister to move out of the home. Dudley sought to

introduce evidence to impeach Gannaway’s credibility.
                                     7

      Gannaway was convicted of theft in Minnesota more than twenty

years prior to the current trial. When asked about his criminal history

during his deposition, Gannaway stated he had never been convicted of a

crime. Dudley wanted to admit the crime of dishonesty and the denial

during deposition to impeach Gannaway.         The district court ruled it

would not

      sustain the motion in limine on [the] 20-year-old
      misdemeanor. It’s kind of like a speeding charge. I suspect
      if you got back in that and the record went long enough, he
      probably had a speeding charge and that’s shown as a
      criminal charge too.

      The State argued the statement in his deposition was an innocent

mistake and did not rise to the level of perjury. The district court did not

permit Dudley to impeach Gannaway with either the criminal charge or

the statement in the deposition.

      The jury found Dudley guilty on both charges.         Dudley filed a

notice of appeal. We transferred the appeal to our court of appeals. The

court of appeals found the district court did not abuse its discretion in

denying Dudley’s motion to enforce the plea agreement because the offer

was no longer valid at the time Dudley took the polygraph test. However,

the court of appeals reversed and remanded the case for a new trial

finding Casey’s testimony amounted to an impermissible comment on

B.O.’s credibility.   After reaching that conclusion, the court of appeals

did not address the other issues raised by Dudley’s appeal. The State

then filed this application for further review, which we granted.

      II. Issues.

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

failing to require the State to honor the plea agreement and whether the

expert testimony amounted to an impermissible comment on B.O.’s
                                     8

credibility are dispositive. However, because some of the issues raised by

Dudley may reoccur on remand, we will address whether the court

abused its discretion in admitting the neighbor’s testimony as an

exception to the hearsay rule and whether the court was correct in not

allowing Dudley to impeach Gannaway’s testimony with Gannaway’s

criminal conviction.

      III. Standard of Review.

      When faced with a motion to dismiss as a sanction for the State’s

alleged repudiation of a plea agreement, the district court has the same

limited discretion it has “when ruling on a motion to dismiss for failure to

provide a speedy trial under Iowa Rule of Criminal Procedure [2.33(2)].”

State v. Hovind, 431 N.W.2d 366, 368 (Iowa 1988). If the district court

abused its limited discretion by finding the State did not repudiate the

plea agreement, we will reverse its finding. Id.

      We review hearsay rulings for correction of errors at law and will

reverse the admission of hearsay evidence as prejudicial unless the

contrary is shown. State v. Elliott, 806 N.W.2d 660, 667 (Iowa 2011). We

review all other evidentiary rulings for an abuse of discretion. Id.

      When the district court exercises its discretion on grounds or for

reasons clearly untenable or to an extent clearly unreasonable, an abuse

of discretion occurs. State v. Nelson, 791 N.W.2d 414, 419 (Iowa 2010).

When a ground or reason is based on an erroneous application of the law

or not supported by substantial evidence, it is untenable. Graber v. City

of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).
                                       9
      IV. Whether the District Court Abused Its Limited Discretion
By Not Dismissing the Case Due to the State’s Alleged Repudiation
of the Plea Agreement.

       For a plea bargain agreement to be binding, the performance of the

terms of the plea bargain agreement must be mutual.            Hovind, 431

N.W.2d at 368.        The State has no obligation to make available the

anticipated benefits of a plea agreement when the defendant fails to

perform his or her end of the bargain. Id. Furthermore, the State has

the ability to withdraw from a plea agreement up until the time a

defendant enters a guilty plea or until the defendant has taken action

that amounts to a detrimental reliance on the agreement. See State v.

King, 576 N.W.2d 369, 370 (Iowa 1998) (per curiam).

       The State communicated to Dudley, prior to withdrawing the plea

offer, that the county attorney was making a trip to Minnesota to

interview B.O. and that once he made the trip, the offer would be off the

table. Dudley did not take the test or advise the county attorney he was

arranging to take the test prior to the time the county attorney made the

trip. Accordingly, the State withdrew the plea agreement to dismiss the

charges in exchange for a successful test prior to the time Dudley took

his polygraph test. Additionally, because Dudley had not taken the test
when    the   State   withdrew   the   plea   agreement,   Dudley   did   not

detrimentally rely on the plea agreement when he took the test.

Therefore, the district court did not abuse its limited discretion by

denying Dudley’s motion to enforce the plea agreement.

     V. Whether the District Court Abused Its Discretion When It
Found the Expert Witnesses’ Testimony Did Not Amount to an
Impermissible Comment on B.O.’s Credibility.

       A. Applicable Legal Principles.        Iowa Rule of Evidence 5.702

permits expert opinion testimony “if . . . specialized knowledge will assist
                                     10

the trier of fact to understand the evidence or to determine a fact in

issue.”   Expert testimony in child sexual abuse cases can be very

beneficial to assist the jury in understanding some of the seemingly

unusual behavior child victims tend to display. Veronica Serrato, Expert

Testimony in Child Sexual Abuse Prosecutions: A Spectrum of Uses, 68

B.U. L. Rev. 155, 163 (1988). Juries may have misconceptions regarding

how an abused child should behave. Id. at 160–62. A child may appear

frightened on the stand or unwilling to testify.        Id.   The child’s

recollection of the events may seem inconsistent, or the child may have

delayed reporting the abuse for quite some time. Id. An expert witness,

such as a psychologist or social worker, can help the jury understand

these behaviors and other behaviors common to children who have

suffered sexual abuse trauma. Id. at 163.

      In an early Iowa case in this area, the expert witness testified it

was rare for children to lie about sexual abuse.      State v. Myers, 382

N.W.2d 91, 91 (Iowa 1986). In Myers, we set forth the legal principles

regarding expert testimony in child sexual abuse cases.        We stated

“experts will be allowed to express opinions on matters that explain

relevant mental and psychological symptoms present in sexually abused

children.”   Id. at 97.   However, we acknowledged, “most courts reject

expert testimony that either directly or indirectly renders an opinion on

the credibility or truthfulness of a witness.” Id.

      We have consistently followed Myers in our subsequent case law.

We have permitted an expert witness to testify regarding the “typical

symptoms exhibited by a person after being traumatized.”         State v.

Gettier, 438 N.W.2d 1, 6 (Iowa 1989).         We held this testimony was

admissible because it did not directly comment on whether the victim at

issue had symptoms consistent with “rape trauma syndrome.” Id. In a
                                     11

later case, we allowed expert testimony to explain to a jury why children

victims may delay reporting their sexual abuse.     State v. Payton, 481

N.W.2d 325, 327 (Iowa 1992).         Again, the expert witness avoided

commenting directly on the child at issue and only testified generally

about victims of sexual abuse. Id.

      We have also analyzed expert witness testimony under the hearsay

exception. Under a hearsay analysis, when the child makes statements

for the purposes of diagnosis or treatment, those statements fall under

the hearsay exception contained in Iowa Rule of Evidence 5.803(4). See

State v. Hildreth, 582 N.W.2d 167, 169–70 (Iowa 1998) (holding a social

worker treating the child was permitted to testify to statements the child

made about the abuse, including the victim’s identification of the

perpetrator, because the statements were necessary to the treatment of

ensuring the continued safety of the child).   The child must make the

statements to a trained professional for the purposes of diagnosis or

treatment to be admissible under rule 5.803(4).       Id.   Even under a

hearsay analysis, the experts did not couple their testimony of the

statements made by the child, the identity of the abuser, and the events

of the abuse with a professional opinion as to whether the child was

truthful, had symptoms of sexual abuse trauma, or whether the

symptoms of the child were consistent with child abuse. See id. at 169.

      We see no reason to overturn this well-settled Iowa law prohibiting

an expert witness from commenting on the credibility of a victim in a

criminal sex abuse proceeding. 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. State v.

Hulbert, 481 N.W.2d 329, 332 (Iowa 1992). Our system of justice vests

the jury with the function of evaluating a witness’s credibility. Id. The
                                     12

reason for not allowing this testimony is that a witness’s credibility “is

not a ‘fact in issue’ subject to expert opinion.” Id. (quoting Myers, 382

N.W.2d at 97).    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. Id. 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 function to

determine the credibility of a witness.      An abuse of discretion occurs

when a court allows such testimony. Id.

      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.   We will now analyze the

testimony in this case to determine whether the line was crossed.

      B. Testimony       of   Treating    Therapist,    Mary    Casey.      The

testimony   at   issue    deals   with    Casey     opining    B.O.’s   physical

manifestations and symptoms were consistent with a child dealing with

and suffering from sexual abuse trauma. We must determine whether

the expert crossed the line by testifying in a manner that indirectly

conveyed to the jury that the child was telling the truth.

      One leading expert in the field notes allowing expert testimony that

a child’s symptoms are consistent with sexual abuse trauma is

problematic because the symptoms do not prove someone abused the

child. See Brett C. Trowbridge, The Admissibility of Expert Testimony in
                                     13

Washington on Post Traumatic Stress Disorder and Related Trauma

Syndromes: Avoiding the Battle of the Experts by Restoring the Use of

Objective Psychological Testimony in the Courtroom, 27 Seattle U. L. Rev.

453, 474–79 (2003). Psychiatrists formulated a syndrome to describe the

trauma suffered by sexually abused children.                Id. at 474–77.    This

syndrome is called child sexual abuse accommodation syndrome

(CSAAS) and its proponents urge it is representative of a common

denominator of the most frequently observed behaviors of sexual abuse

victims.   Id.     The psychiatrists developed the syndrome to give a

diagnosis and provide better treatment to children suffering from these

behaviors. Id. The psychiatrists did not develop the diagnosis of sexual

abuse trauma or CSAAS to prove abuse occurs because the diagnosis

assumes abuse has occurred. Id. at 475. Moreover, the identification of

symptoms or physical manifestations of sexual abuse trauma in children

is not consistent among professionals.           See Mary Ellen Reilly, Note,

Expert Testimony on Sexually Abused Child Syndrome in a Child

Protective Proceeding: More Hurtful than Helpful, 3 Cardozo Pub. L. Pol’y

& Ethics J. 419, 442 (2005) (explaining a “study of over 122 appellate

court decisions involving expert testimony of child sexual abuse revealed

sharp contradictions” (internal quotation marks omitted)).

      To   allow    an   expert   witness   to    testify    a   child’s   physical

manifestations or symptoms are consistent with sexual abuse trauma or

CSAAS allows the expert witness to indirectly vouch that the victim was

telling the truth because the expert opines the symptoms are consistent

with child abuse.     To put it another way, the expert is saying these

symptoms mean the child suffered a sexual abuse trauma; therefore, the

child must be telling the truth when he or she relates his or her story to

the jury. It is the jury’s function to determine if the victim is telling the
                                     14

truth, not the expert witness’s.        Accordingly, the expert witness’s

testimony    crossed   the   line   when   she   testified   B.O.’s   physical

manifestations or symptoms were consistent with sexual abuse trauma

or CSAAS.

      C. Testimony of Forensic Interviewer, Tammera Bibbins. The

portion of testimony Dudley finds objectionable in Bibbins’s testimony is

her explanation of coaching and suggestibility.       Bibbins stated B.O.’s

“statement was consistent throughout the entire interview process.”

Dudley also finds objectionable Bibbins’s recommendation for B.O. to

receive therapy and cease all contact with Dudley.           Finally, he finds

objectionable her opinion that B.O.’s involvement in therapy was not

problematic in the realm of coaching.

      Bibbins is a forensic interviewer whose purpose in this matter was

to gather facts for the police. She was not conducting her interview for

purposes of diagnosis or treatment. However, Dudley does not claim the

testimony should have been excluded because the testimony did not fall

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

The only objection Dudley made was that this testimony vouched for

B.O.’s credibility.

      We need to break down each statement Dudley claims as

objectionable to determine whether the State crossed the line. The first

statement by Bibbins was that B.O.’s statements were consistent

throughout the interview. We do not find this statement crossed the line.

Bibbins was merely stating the fact that throughout the interview B.O.

never changed her story as to the events with Dudley.             The jury is

entitled to use this information to determine the victim’s credibility. This

information gives the jury an insight into the victim’s memory and

knowledge of the facts. See State v. Frake, 450 N.W.2d 817, 819 (Iowa
                                     15

1990) (stating a jury may consider a witness’s memory and knowledge of

facts in determining the witness’s credibility). With this information as

part of the evidence, the jury still had to decide if B.O.’s complaints

against Dudley were credible.

      The second statement by Bibbins was that she recommended B.O.

receive therapy and stay away from Dudley.           Bibbins based these

recommendations on her opinion that she believed Dudley sexually

abused B.O. This testimony crossed the line because she testified she

believed B.O. was in fact sexually abused by Dudley; thus, indirectly

vouching for her credibility.

      The third statement dealt with her opinion that B.O.’s involvement

in therapy was not problematic in the realm of coaching. We do not find

this statement crossed the line.       The gist of the statement is that

participation in therapy, in and of itself, does not mean the therapist is

coaching the victim. If Dudley contends anybody coached B.O., he can

develop this claim through the cross-examination of the witnesses or his

own expert testimony regarding coaching.

      D. Harmless Error. “Error may not be predicated upon a ruling

which admits or excludes evidence unless a substantial right of the party

is affected . . . .”   Iowa R. Evid. 5.103.   In cases of nonconstitutional

error, we start with the presumption that the substantial rights of the

defendant have been affected. State v. Howard, 825 N.W.2d 32, 41 (Iowa

2012).     The State has the burden to affirmatively establish the

substantial rights of the defendant were not affected.     Id. at 42.   The

State does not argue the admissibility of the objectionable statements

constitute harmless error. Therefore, we will not make the arguments for

the State or reach the issue of harmless error. See In re Det. of Blaise,

830 N.W.2d 310, 320–21 (Iowa 2013) (acknowledging generally that the
                                    16

State waives a harmless-error argument if not raised on appeal, but

makes an exception to this rule if the error is based on ineffective

assistance of counsel because in an ineffective-assistance-of-counsel

claim the burden is on the defendant to show prejudice).

      Therefore, we affirm the decision of the court of appeals, reverse

Dudley’s conviction, and remand the case for a new trial.

      VI. Other Issues Raised on Appeal.

      Dudley has raised other issues on appeal that may not be

dispositive. However, these issues may reoccur on the retrial of this case

so we will address them.

      A. Testimony of B.O.’s Neighbor.          The district court let the

neighbor testify regarding B.O.’s statements to her concerning the abuse.

The district court allowed the statements in as an exception to hearsay

under rule 5.803(2). The rule provides:

      The following are not excluded by the hearsay rule, even
      though the declarant is available as a witness:

            ....

             (2) Excited utterance.  A statement relating to a
      startling event or condition made while the declarant was
      under the stress of excitement caused by the event or
      condition.

Iowa R. Evid. 5.803(2).

      We have enumerated the factors we consider to determine whether

a statement qualifies as an excited utterance. See State v. Harper, 770

N.W.2d 316, 319 (Iowa 2009). These factors are

      “(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.”
                                    17

Id. (quoting State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999)).        The

court must consider all the factors to determine if the statements are

admissible. State v. Hy, 458 N.W.2d 609, 611 (Iowa Ct. App. 1990). The

neighbor’s testimony regarding B.O.’s statements is problematic because

of the time lapse between the alleged event and the statements and the

extent to which questioning elicited the statements that otherwise would

not have been volunteered.

      First, the lapse of time was from Friday evening, when the last

incident occurred, to sometime before Sunday afternoon. This factor is

not determinative and on its own, is not enough to take the statements

out of the exception.    See id. (holding a four-year olds’ statements

disclosing sexual abuse to her parents were admissible despite the

passage of time because she disclosed at the first possible opportunity).

      Second, the statement must be spontaneous and any questions

asked of the child must not be “ ‘calculated to elicit information which

would otherwise have been withheld.’ ” State v. Brown, 341 N.W.2d 10,

13 (Iowa 1983) (quoting State v. Watson, 242 N.W.2d 702, 704 (Iowa

1976)). Here, the child, upon the family’s return home, told her mother

the story. The following day, the mother sent B.O. over to the neighbor’s

home to have the neighbor talk to B.O. about the disclosure she had

made to her mother the night before. Further, the mother sent B.O. to

Korinek’s home under the pretense of delivering eggs to the neighbor.

Korinek testified B.O. was not her normal bubbly self when she arrived

at the neighbor’s home.         Korinek also testified she began the

conversation by asking B.O. about her vacation. The child then started

to cry. Korinek continued to ask B.O. what was wrong. The more she

pressed B.O., the more upset the child became.
                                     18

      The rationale underlying the “excited utterance” exception is “that

the excitement of the event limits the declarant’s capacity to fabricate a

statement and thereby offers some guarantee of its reliability.” United

States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998); see also United States

v. Brown, 254 F.3d 454, 458 (3d Cir. 2001) (“[E]xcitement suspends the

declarant’s powers of reflection and fabrication, consequently minimizing

the possibility that the utterance will be influenced by self interest and

therefore rendered unreliable.”). Also, “it is possible for someone to be

too excited to volunteer pertinent information . . ., and thus the inherent

‘guarantee   of   truthfulness’   supporting   the   admission   of   excited

utterances applies equally to declarations made in response to an

inquiry.” United States v. Joy, 192 F.3d 761, 767 (7th Cir. 1999).

      We review the admissibility of an excited utterance for an abuse of

discretion. The last alleged incident of abuse occurred Friday evening.

The next day, B.O. traveled in a car with the Dudleys from Knoxville,

Iowa, to Fairfield, Minnesota.    Upon arriving at the child’s home, the

Dudleys stayed to visit with B.O.’s family for a short time. Once Dudley

left and the child felt safe, she disclosed what happened to her mother.

B.O.’s mother testified that, sometime between 9 p.m. and 10 p.m. on

Saturday evening, B.O. came into the mother’s room and, without any

questioning, told the mother her grandfather had touched her.

      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. See State v. Tejeda, 677 N.W.2d 744,

753–54 (Iowa 2004) (finding the district court did not abuse its discretion

omitting statements made thirty minutes after the event, in a different

location, and in response to direct questioning).          However, it is

permissible to allow a greater amount of time lapse for children who
                                         19

make the statements to a parent or other safe adult, at the soonest

possible time after the abuse occurred.          See Hy, 458 N.W.2d at 611.

B.O. made the statements to her mother almost twenty-four hours after

the incident. After B.O. made the statements to her mother, the child

went to bed, and it was not until the next afternoon, approximately

thirty-six hours after the incident, B.O.’s mother sent her to Korinek’s

house. During the time between the disclosure to her mother and the

next day, B.O. had time to reflect upon what had occurred.         Further,

unlike the disclosure to her mother, B.O. required more than one

prompting question before she made the statements to Korinek.

      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.”           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). B.O.’s statements to Korinek were not spontaneous in reaction to

a startling event, but rather an upset child telling her story to a neighbor

and friend after she no longer felt the urgent need to disclose the

information to someone safe.        We find the district court abused its

discretion in admitting this testimony. On retrial, the statements B.O.

made to Korinek are not admissible.

      B. Not     Allowing      Dudley     to   Use   Gannaway’s    Criminal

Conviction to Impeach His Testimony.              Dudley sought to impeach

Gannaway’s testimony by using Gannaway’s theft conviction that was

more than twenty years old. The district court denied Dudley’s request,

equating the theft charge to a traffic ticket.
                                    20

      Iowa Rules of Evidence allow past crimes of dishonesty to be

admitted for the purposes of impeaching a witness.          Iowa R. Evid.

5.609(a)–(b). We have held theft is a crime of dishonesty. See State v.

Parker, 747 N.W.2d 196, 208 (Iowa 2008) (distinguishing a previous

conviction of drug possession from convictions “found to be probative of

credibility, like perjury and theft offenses”).   Crimes of dishonesty are

admissible unless they fall outside the time limit of rule 5.609(b). Iowa

R. Evid. 5.609(a)(2), (b). When a crime falls outside the time limit of rule

5.609(b), the probative value must substantially outweigh the prejudice

of the evidence. Id.

      Here, the district court did not properly weigh the probative value

against the prejudice of the evidence. Because we are ordering a retrial,

we do not have to weigh the probative value against the prejudice of the

evidence and decide this issue. Therefore, on retrial, the court should do

the analysis required under rule 5.609.        After the court makes that

analysis, an appellate court, if necessary, will be in a better position to

decide if the evidence is admissible.

      VII. Disposition.

      We affirm the decision of the court of appeals and reverse the

judgment of the district court because some of the expert testimony

admitted by the district court amounted to impermissible vouching of the

victim’s credibility. We remand the case to the district court in order for

Dudley to have a new trial consistent with our holding in this opinion.

      DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT

COURT     JUDGMENT        REVERSED       AND   CASE    REMANDED      WITH

INSTRUCTIONS.

      All justices concur except Waterman and Zager, JJ., who concur

specially, and Cady, C.J., who dissents.
                                       21
                                                  #12–0729, State v. Dudley

WATERMAN, Justice (concurring specially).
      I join the majority opinion but write separately because the

majority fails to examine well-reasoned decisions from other jurisdictions

addressing the same question we must confront today—the admissibility

of expert testimony that the specific child victim’s behavior or symptoms

are   “consistent   with”   sexual    abuse   trauma.     As   the   majority

acknowledges, “there is a very thin line” between expert testimony that

assists the jury and that which impermissibly vouches for the child-

witness’s credibility. Our court has not previously decided whether the

line is crossed by an expert who opines the victim’s behavior or

statements are “consistent with” child abuse trauma. I think it is worth

considering the guidance provided by our sister state supreme courts to

help decide this close and important question. The stakes are high when

the retrial forces the victim to relive the trauma of the abuse.

      I also write separately to emphasize the majority opinion should

not be read to foreclose the possible use of such expert testimony in

rebuttal if the defendant opens the door by suggesting the victim’s

behavior is inconsistent with that of an abused child. As noted below,

many other courts have allowed testimony that a child victim’s behavior

or symptoms are “consistent with” child abuse trauma as rebuttal

evidence. That is not what happened in this case.

      Just two years ago, in State v. Favoccia, the Supreme Court of

Connecticut thoroughly reviewed the conflicting precedent and policy

considerations in reaching the same conclusion we reach today. 51 A.3d

1002, 1012–22 (Conn. 2012).          The Favoccia court overturned its own

precedent to hold that “the trial court abused its discretion in permitting

[the expert] to testify about the complainant’s behaviors being consistent
                                     22

with those generally characteristic of sexual assault victims.”       Id. at

1026. Conversely, in People v. Spicola, the New York Court of Appeals

recently held “the trial judge did not abuse his discretion when he

allowed the expert to testify about CSAAS [Child Sexual Abuse

Accommodation Syndrome] to rehabilitate the boy’s credibility.”          947

N.E.2d 620, 635 (N.Y. 2011). Significantly, here, the State offered the

challenged expert testimony in its case in chief against Dudley, not in

rebuttal. Spicola is therefore distinguishable. But, the observation of the

Spicola dissent nonetheless applies: “[T]he expert[] confirm[ed] . . . nearly

every detail of the case and of complainant’s behavior as consistent with

that of a victim of sexual abuse . . . .”      Id. at 639 (Lippman, C.J.,

dissenting). These divergent outcomes reflect national jurisprudence on

the issue.    Lisa R. Askowitz, Restricting the Admissibility of Expert

Testimony in Child Sexual Abuse Prosecution: Pennsylvania Takes It to the

Extreme, 47 U. Miami L. Rev. 201, 205–06 nn.34–35 (Sept. 1992)

(surveying caselaw and recognizing the split in authority).

      Many other courts have held opinions that a child victim’s behavior

or symptoms are “consistent with” child abuse are inadmissible.          See

Favoccia, 51 A.3d at 1015–16 & n.26 (collecting cases); see also id. at

1009 (holding that “expert testimony linking a specific complainant to

those general characteristics” is “impermissible vouching and ultimate

issue testimony” and therefore inadmissible); Wheat v. State, 527 A.2d

269, 274–75 (Del. 1987) (concluding that allowing an expert to connect

general characteristics to a specific complainant is equivalent to

bolstering the victim’s credibility and is therefore inadmissible); State v.

Foret, 628 So. 2d 1116, 1130 (La. 1993) (holding that an expert testifying

to child sexual abuse symptoms must limit the testimony to general

characteristics that cannot directly concern the particular victims);
                                           23

Commonwealth v. LaCaprucia, 671 N.E.2d 984, 985 (Mass. App. Ct.

1996) (holding that the trial court abused its discretion by allowing

expert testimony that “directly link[ed] the characteristics of sexually

abused children to the complainants in this case”); State v. Chamberlain,

628 A.2d 704, 707 (N.H. 1993) (holding that testimony that a child’s

symptoms were “consistent with” CSAAS could not be offered to prove

the child was abused); State v. Michaels, 625 A.2d 489, 499–502 (N.J.

Super. Ct. App. Div. 1993) (reversing a conviction based on inadmissible

testimony that the victims’ behavior was “consistent with” sexual abuse),

aff’d, 642 A.2d 1372 (N.J. 1994).

       Although many other jurisdictions have allowed testimony the

victim’s behavior or symptoms are “consistent with” child abuse trauma

under some circumstances, 2 most limit such testimony to rehabilitation

of the victim 3 whose credibility was attacked by the defense. See People

       2See  Favoccia, 51 A.3d at 1015 n.26 (surveying cases); see also United States v.
Lukashov, 694 F.3d 1107, 1116 (9th Cir. 2012) (“We conclude that the district court did
not abuse its discretion in allowing [the doctor] to testify about the characteristics that
she looks for when assessing a child victim’s story of sexual abuse, and to opine that
her evaluation of [the child] was consistent with [the child’s] allegations of sexual
abuse.”); Steward v. State, 636 N.E.2d 143, 146 (Ind. Ct. App. 1994) (“Indiana courts
have consistently allowed expert testimony concerning whether a particular victim’s
behavior is consistent with the behavioral patterns of victims of sexual abuse.”), aff’d,
652 N.E.2d 490 (Ind. 1995); State v. McIntosh, 58 P.3d 716, 728–30 (Kan. 2002)
(holding that the testimony of an expert witness is admissible when the witness outlines
the general characteristics of sexually abused children and then states that the victim’s
symptoms are consistent with those characteristics); Spicola, 947 N.E.2d at 635
(holding that the trial judge did not abuse his discretion by admitting expert testimony
on rebuttal which connected generalized sexual abuse symptoms to the individual
victim); State v. Stowers, 690 N.E.2d 881, 883 (Ohio 1998) (holding that “an expert
witness’s testimony that the behavior of an alleged child victim of sexual abuse is
consistent with behavior observed in sexually abused children is admissible under the
Ohio Rules of Evidence”).
       3These    safeguards can take the form of prohibiting all expert testimony—
including all “consistent with” testimony—except for purposes of rehabilitation on
rebuttal by requiring the testimony to be narrowly tailored to an identifiable symptom
from which the complainant suffers. See, e.g., People v. Nelson, 561 N.E.2d 439, 444
(Ill. App. Ct. 1990) (“At this time, we choose to limit the admissibility of such testimony
                                          24

v. Beckley, 456 N.W.2d 391, 399 (Mich. 1990) (“We find that the rebuttal

limitation as expressed by the majority of jurisdictions is the preferable

approach.” (Emphasis added.)).              Such cases are inapplicable here

because the State does not argue Dudley opened the door to such

testimony by arguing the victim’s behavior was inconsistent with child

abuse trauma.

         The result we reach today is supported by the decisions of other

courts that recognize testimony the victim’s behavior or symptoms are

“consistent with” child abuse is the “functional equivalent” of vouching

for the victim’s credibility. Spicola, 947 N.E.2d at 639. The Connecticut

Supreme Court aptly concluded:

         “[T]here is no material distinction between express testimony
         that the child has been sexually abused, and implicit
         testimony that outlines the unreliable behavioral reactions
         found with sexually abused victims, followed by a list of the
         complainant’s own behavioral reactions, that points out that
         the two are consistent, and then invites the jury to add up
         the points to conclude that the child has been sexually
         abused.”

Favoccia, 51 A.3d at 1023 (quoting People v. Peterson, 537 N.W.2d 857,

873 (Mich. 1995) (Cavanagh, J., dissenting)). “[S]uch testimony ‘comes

too close to testifying that the particular child is a victim of sexual

abuse.’ ” Id. at 1017–18 (quoting Peterson, 537 N.W.2d at 868).

         The victim’s credibility is often the fighting issue in child abuse

cases.     See John E.B. Myers, et al., Expert Testimony in Child Sexual



____________________
to rebuttal after the victim’s credibility has first been attacked.”); see also People v.
Bowker, 249 Cal. Rptr. 886, 891 (Ct. App. 1988) (requiring that the testimony is
“targeted to a specific ‘myth’ or ‘misconception’ suggested by the evidence”); People v.
Beckley, 456 N.W.2d 391, 399 (Mich. 1990) (holding that “only those aspects of ‘child
sexual abuse accommodation syndrome,’ which specifically relate to the particular
behaviors which become an issue in the case are admissible”).
                                    25

Abuse Litigation, 68 Neb. L. Rev. 1, 89 (1989).          I agree with the

Connecticut Supreme Court’s assessment that:

      [“Consistent with”] testimony create[s] a significant risk that
      the jury w[ill] consider [the expert’s] testimony as an
      imprimatur on the complainant’s allegations, particularly
      [when] her testimony [is] based directly on observations of
      the complainant[] . . . , which renders [the] case distinct from
      those wherein the expert disclaims any familiarity with the
      specific facts of the case or testifies only in terms of
      generalities or hypotheticals.

Favoccia, 51 A.3d at 1025. As another appellate court recognized:

      It is one thing to educate the jury to understand that child
      abuse victims may act in counterintuitive ways, and that
      excessive weight should not be given to factors such as
      failure to disclose when the child victim’s credibility is
      weighed . . . [and] quite another to suggest to the jury that
      the events and feelings expressed by the child witnesses are
      the same as those experienced by other victims of abuse.
      That this has the effect of buttressing the witnesses’
      credibility seems impossible to deny.

Commonwealth v. Deloney, 794 N.E.2d 613, 623 (Mass. App. Ct. 2003)

(citations omitted).   The purpose of expert testimony in child sexual

abuse cases

      is to give the jury a framework of possible alternatives for the
      behaviors of the victim at issue in the case in relation to the
      class of abuse victims. In this respect, the expert’s role is to
      provide sufficient background information about each
      individual behavior at issue which will help the jury to dispel
      any popular misconception commonly associated with the
      demonstrated reaction.

Beckley, 456 N.W.2d at 406. This purpose can be accomplished through

generalized testimony without vouching for the victim’s truthfulness.

See Favoccia, 51 A.3d at 1018 (“[T]he ‘conduct of a child who has been

sexually abused, and the emotional antecedents underlying this conduct,

can be effectively explained to the jury through testimony relating to the
                                     26

class of victims in general . . . .’ ” (quoting State v. Sims, 608 A.2d 1149,

1154 (Vt. 1991))).

      [W]here “the sole reason for questioning the ‘expert’ witness
      is to bolster the testimony of [the complainant] by explaining
      that his version of the events is more believable than the
      defendant’s, the ‘expert’s’ testimony is equivalent to an
      opinion that the defendant is guilty, and the receipt of such
      testimony may not be condoned.”

Spicola, 947 N.E.2d at 639 (quoting People v. Ciaccio, 391 N.E.2d 1347,

1351 (N.Y. 1979)).

      Armed with generalized knowledge, the fact finder can connect the

dots. We should be mindful that “more specific testimony yields returns

that increase in prejudice to the defendant as they diminish in value with

respect to the edification of the jury as to behaviors that might affect the

complainant’s credibility.” Favoccia, 51 A.3d at 1024.

      As the foregoing cases demonstrate, expert testimony may be

admissible in rebuttal if the defendant opens the door by challenging the

credibility of the child victim based on behavior or symptoms the expert

can show is consistent with child abuse trauma. But, in this case, the

expert crossed the line by providing such an opinion in the State’s case

in chief.

      Zager, J., joins this special concurrence.
                                    27
                                               #12–0729, State v. Dudley

CADY, Chief Justice (dissenting).
      I respectfully dissent. I would conclude that any error in this case

in admitting expert testimony at trial concerning behavior exhibited by

the victim that was consistent with sexual abuse trauma was harmless

and does not require a new trial.

      There is a very fine line between the admission of expert testimony

that identifies behavior or symptoms typically displayed by victims of

sexual abuse and inadmissible expert testimony about behavior or

symptoms displayed by victims of sexual abuse that vouches for the

credibility of a victim of sexual abuse. Finding that subtle difference is

committed to the sound discretion of the district court to make the

difficult call, ruling on such evidence in light of all the circumstances.

See State v. Frank, 298 N.W.2d 324, 327 (Iowa 1980). Discretion is not

abused unless the ruling is based on “untenable” grounds, is “clearly

unreasonable,” or no support for the decision exists in the record. State

v. Gartin, 271 N.W.2d 902, 910–11 (Iowa 1978).       Moreover, although

prejudice is presumed unless the record affirmatively establishes

otherwise, State v. Paredes, 775 N.W.2d 554, 571 (Iowa 2009), an abuse

of discretion constitutes reversible error only if the admission of the

evidence “injuriously affect[s]” the complaining party, results in a

“miscarriage of justice,” or a different result would have occurred if the

evidence had not been admitted, 7 Laurie Kratky Doré, Iowa Practice

Series, Evidence § 5.103:14, at 65 (2013).

      The fine line in the legal standard in this case weighs against

prejudice to support reversible error. The trial court had discretion to

admit expert testimony that identified recognized symptoms of sexual

abuse trauma that were exhibited by the victim, and there is nothing in
                                    28

the record to suggest the State used or sought to use this evidence to

vouch for the credibility of the victim. Reversible error in admission of

evidence at trial should not come down to splitting hairs.
