                       IN THE COURT OF APPEALS OF IOWA

                              No. 3-1084 / 12-0729
                              Filed February 5, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PATRICK MICHAEL DUDLEY,
     Defendant-Appellant.
________________________________________________________________


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

Judge.



       Patrick Dudley appeals his judgment and sentence for two counts of

second-degree sexual abuse. REVERSED AND REMANDED.



       Kent A. Simmons, Davenport, for appellant.

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

General, Ed Bull, County Attorney, and Nicole Olson, Assistant County Attorney,

for appellee.



       Heard by Danilson, C.J., and Vaitheswaran and Mullins, JJ. Goodhue,

S.J., takes no part.
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VAITHESWARAN, J.

       Patrick Dudley appeals his judgment and sentence for two counts of

second-degree sexual abuse.         He raises several arguments in support of

reversal, one of which we find dispositive: whether the district court abused its

discretion in admitting a psychologist’s opinion that a child’s physical

manifestations and symptoms “were consistent with a child dealing with sexual

abuse trauma.”

I.     Background Facts and Proceedings

       Patrick Dudley and his wife took their nine-year-old granddaughter to visit

a friend.   After returning from the trip, the child told her mother that Dudley

molested her.

       The State charged Dudley with two counts of second-degree sexual

abuse. Dudley moved to enforce a claimed agreement with the prosecutor to

dismiss the charges if he passed a polygraph test before the prosecutor spoke to

the complaining witness.      Following a hearing at which Dudley’s attorney

testified, the district court denied the motion.        The court concluded the

prosecutor’s offer was withdrawn before Dudley took the polygraph test.

       Prior to trial, Dudley filed a motion in limine challenging proposed

testimony from the complaining witness’s psychologist, Mary Casey.           Dudley

argued that Casey would impermissibly vouch for the child’s credibility.        The

district court denied the motion.

       At trial, the State called several witnesses, including the child, the child’s

mother, the psychologist, and a neighbor to whom the child narrated the incident.

Before the psychologist testified, the child’s mother painted a “before and after”
                                          3


picture of the child, stating she changed from a “girly girl” to “more of a tomboy.”

She recounted that the child turned white when she saw the cars her grandfather

drove.

         Dudley testified and denied the allegations. Following trial, the jury found

Dudley guilty as charged. Dudley appealed.

II.      Agreement to Dismiss Charges

         Dudley contends the district court should have granted his motion to

enforce an “executory” agreement to dismiss the charges. As noted, the State’s

offer to dismiss the charges was predicated on Dudley’s completion of a

polygraph test before the prosecutor spoke to the complaining witness. Dudley

did not complete the test within that time frame. Because the offer was off the

table when he took the test, the district court did not abuse its discretion in

denying the defense motion.

III.     Admission of Expert Testimony

         At trial, Casey testified that she began treating the child based on

“concerns over her well-being due to child sexual abuse.”            The treatment

spanned thirteen sessions and resulted in diagnoses of posttraumatic stress

disorder and generalized anxiety disorder. Casey defined posttraumatic stress

syndrome as “a disorder that happens because of a traumatic event,” is initially

characterized by “intrusive thoughts centered around the traumatic event,” and is

followed by “a sense of avoidance and numbing.” She went on to state that the

physical manifestations of posttraumatic stress disorder would be “different in

degree” depending on the nature of the trauma. When asked about “the telltale

triggers for child or adolescent sexual abuse,” she stated, “The number one
                                         4


would be if they actually saw the perpetrator or if they anticipate that a certain

event or somewhere where they might be in the general public where they

anticipate that they may see that person, if there’s something that they may

identify with the person such as the person’s car.” She continued, “[T]he one

thing we have to remember is it depends on the relationship that that person has

with the perpetrator and how well they know that person, and then those triggers

. . . can vary or be more severe.” Casey agreed with the prosecutor that sexual

abuse victims in the child or adolescent range “frequently change their dress or

appearance,” going to the extremes of either layering their clothes or becoming

“quite provocative.” She also opined that numbing, characterized by constriction

of the individual’s facial muscles, was “consistent with child or adolescent sexual

abuse “if the child is experiencing posttraumatic stress disorder.”

       At this juncture, Casey was asked, “Did you observe changes in [the

child’s] physical manifestation or the way she was presenting herself while you

worked with her?”       Over defense counsel’s objection, Casey responded,

“Definitely constricted affect, kind of a slower—you know, when I first met her,

she was very constricted and slow in her response. She was layered. She had

lots of little layers, you know, a couple tanks and, you know, sweater, and she

typically, you know, didn’t do that. Her clothing changed several times actually.”

       Casey also testified that she had seen changes in hairstyles among

adolescents or children who experienced posttraumatic stress syndrome as it

related to sexual abuse. She agreed that this was “consistent with the concept”

of changes in personal behavior. When asked if she observed the child “have
                                         5


changes in hairstyling or length,” she responded, “Well, I haven’t thought of this

but she did. She cut her hair. She had her hair cut. She wanted her hair cut.”

         Next, Casey was asked whether anniversaries were important triggers.

She responded, “Yeah, it’s a trigger.” She was then asked, “[D]id [the child]

demonstrate any trauma or trigger around [the anniversary date of the incident]?”

She responded, “[H]er clothing was very different. We didn’t talk about the date

or anniversary, but she was dressed very boyish. She was in . . . clothes that

I’ve never seen her before . . . baggy clothes, baggy sweatshirt.” She agreed

with the prosecutor that this was very “relevant and noteworthy.”

         Finally, the prosecutor asked the following question: “[D]o 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?” Casey responded, “Yes, her symptoms were.”

         On cross-examination, defense counsel sought to clarify Casey’s opinion.

He asked whether her testimony was that “[t]he [child’s] symptoms were

consistent with sexual abuse.” She responded, “Yeah.”

         Dudley contends the district should not have admitted Casey’s opinion

testimony because its “obvious purpose” was to “bolster the credibility of the

complaining witness.”       The State responds that Casey’s testimony was

admissible because she did not “testif[y] that [the child] had been sexually

abused, [the child] was telling the truth, or that Dudley had sexually abused her.”

In superb oral arguments, both sides explored the precedent on either side of the

issue.
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       Counsel began with State v. Myers, 382 N.W.2d 91, 91 (Iowa 1986), an

appeal of a conviction and sentence for indecent contact with a child. There, a

school principal and a child abuse investigator testified that children rarely lied to

them about sexual abuse. Myers, 382 N.W.2d at 91. In considering the propriety

of this testimony, the court stated “expert opinions on the truthfulness of a

witness should generally be excluded because weighing the truthfulness of a

witness is a matter reserved exclusively to the fact finder.” Id. at 95. The court

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

explain relevant mental and psychological symptoms present in sexually abused

children.” Id. at 97. The court cautioned, however, that “[t]here is a fine but

essential line between testimony that is helpful to the jury and an opinion that

merely conveys a conclusion concerning the defendant’s guilt.”           Id. (internal

quotation marks omitted). The court explained that, in the view of most courts,

the line is crossed where “expert testimony [] either directly or indirectly renders

an opinion on the credibility or truthfulness of a witness.” Id. (emphasis added).

The court concluded the opinions of the principal and investigator were “the

same as directly opining on the truthfulness of the complaining witness.” Id.

       The parties agree Casey made no direct comments on the child’s

credibility. They disagree on whether she made indirect comments on the child’s

credibility. As the State points out, this is a nuanced issue that requires a close

examination of post-Myers precedent.

       Shortly after Myers, the Iowa Supreme Court decided State v. Brotherton,

384 N.W.2d 375, 377 (Iowa 1986), an appeal of a judgment and sentence for

second-degree sexual abuse. Brotherton contended the district court abused its
                                           7


discretion in admitting a counselor’s opinion that a three or four-year-old child

could not fantasize sexual activity between the child and another person. The

court concluded the opinion was inadmissible because the counselor “indirectly

opined on the truthfulness of the complaining witness rather than explained

relevant mental and psychological symptoms present in a sexually abused child.”

Brotherton, 384 N.W.2d at 379. The court nonetheless found the admission of

the testimony harmless because “although inadmissible, [it] was merely

cumulative to previous testimony in the record concerning the believability of

children’s reports of sexual abuse.” Id.

       We agree with the State that Brotherton provides a classic example of an

impermissible indirect comment concerning a complaining witness’s credibility.

Subsequent opinions fall closer to the “fine line.”

       In State v. Gettier, 438 N.W.2d 1, 4 (Iowa 1989), an appeal of a conviction

for third-degree sexual abuse, an expert testified to “the classic characteristics

that are exhibited after people have experienced a trauma.” The court noted the

testimony “was framed in a general context, equally applicable to any major

trauma such as natural disasters, combat/wartime encounters, muggings or

sexual assault.” Gettier, 438 N.W.2d at 4. The court also explained that “[w]hile

[the expert’s] testimony centered around a particular aspect of this syndrome,

commonly described as ‘rape trauma syndrome,’ this term was not specifically

referred to in the trial.” Id. The court concluded:

       The testimony in the present case showed only the typical
       symptoms exhibited by a person after being traumatized.
       Independent evidence showed that the complainant had
       experienced some of the symptoms of PTSD. Consequently, the
       evidence was relevant as tending to show that she had been
                                            8


        traumatized. We see little, if any, prejudicial effect in the admission
        of this testimony. The more prejudicial term rape trauma syndrome
        was not used. We do not believe the evidence misleads the jury.
        In fact, there is little, if any, in the testimony which is not within the
        jury’s own common sense evaluation.

Id. at 6.

        Gettier is instructive because the testimony was along the same lines as

Casey’s testimony.      The testimony was deemed permissible because it was

general in nature.

        The Iowa Supreme Court reaffirmed this distinction in State v. Payton, 481

N.W.2d 325, 327 (Iowa 1992). There, a therapist explained why child sex abuse

victims delay reporting abuse. Payton, 481 N.W.2d at 327. The therapist did not

say anything about the complaining witnesses, a factor that, according to the

court, placed her testimony on the right side of the fine line drawn in Myers. See

id.

        Shortly thereafter, the court decided State v. Tracy, 482 N.W.2d 675, 679

(Iowa 1992). The case involved “prosecutorial maneuvering” to admit otherwise

inadmissible evidence. Tracy, 482 N.W.2d at 679. In that context, the State

called a psychiatrist who “testified, without objection, that there was evidence that

K.A. was suffering from child sexual abuse accommodation syndrome.” Id. at

678. The psychiatrist also testified “that in his opinion, K.A. was telling the truth

when she first reported sexual abuse by her stepfather.” Id. The court stated,

“Dr. Comly’s testimony regarding child sexual abuse accommodation syndrome

and the general truthfulness of child abuse victims was relevant to the

prosecution’s case only insofar as it tended to discredit K.A.’s testimony. Thus, if

K.A. had not testified, [] Dr. Comly’s testimony . . . would [not] have been
                                         9

admissible.” Id. at 679. In short, the court found the expert’s direct comment on

the witness’s truthfulness as well as the indirect comment on child sexual abuse

accommodation syndrome impermissible.

       The Iowa Supreme Court next decided State v. Allen, 565 N.W.2d 333

(Iowa 1997), an appeal from a conviction for sexual exploitation of an adult by a

counselor, which, in the State’s view, signaled a retreat from the “indirect”

language of Myers. Two experts who treated the complaining witness for mental

illness arising from sexual and mental abuse as a child testified about the low

potential for false memories during hypnotherapy and the absence of a

connection between mental illness and credibility. Allen, 565 N.W.2d at 338.

The court concluded the experts “did not directly evaluate [the complaining

witness’s] credibility” but “gave their opinions concerning the effects of her mental

condition on her ability to tell the truth.” Id. The court stated the testimony “was

permissible to help the jury understand the evidence it heard about [the

complaining witness’s] mental illness.” Id.

       We believe an expert opinion “concerning the effects of [a complaining

witness’s] mental condition on her ability to tell the truth” could be seen as an

evaluation of the complaining witness’s credibility. Be that as it may, we are not

persuaded by the State’s assertion that Allen retreated from the “indirect”

language of Myers.     We believe the court simply had no reason to address

indirect comments because the comments made by the experts were direct.

       The question of whether an expert opinion amounted to an indirect

comment on witness credibility was again addressed in State v. Seevanhsa, 495

N.W.2d 354 (Iowa Ct. App. 1992), an opinion on which the State heavily relies.
                                        10


Seevanhsa argued the district court improperly elicited testimony from a child

protective center coordinator regarding child sexual abuse accommodation

syndrome (CSAAS). Seevanhsa, 495 N.W.2d at 355. The court stated, “[E]xpert

testimony regarding CSAAS may, in some instances, assist the trier of fact to

both understand the evidence and to determine facts in issue.” Id. at 357. The

court found the testimony admissible because the “expert limited her discussion

of CSAAS to generalities. She did not testify she believed the complainant was

credible nor did she testify that she believed the complainant had been sexually

abused. She limited her discussion to an explanation of the symptoms common

to children who have been sexually abused.” Id. at 357.

       The court reached the opposite conclusion in State v. Pansegrau, 524

N.W.2d 207 (Iowa Ct. App. 1994), an appeal from a conviction for third-degree

sexual abuse of an adult. There, the State called a rebuttal witness, who testified

to “sexual abuse trauma” and opined that a hypothetical woman with the same

characteristics as the complaining witness suffered sexual trauma and could be

expected to delay reporting the sexual abuse incident. Pansegrau, 524 N.W.2d

at 210. The court stated, “The evidence was not of a general symptom. The

hypothetical question outlined all the events the alleged victim had testified

preceded the alleged rape. This personalized the opinion and conclusion [and

went] beyond the careful exception carved in Gettier.” Id. at 211. The court

concluded the “testimony exceeded the permissible limits” and reversed and

remanded for a new trial. Id.

       In a third opinion decided by this court, State v. Tonn, 441 N.W.2d 403,

404-05 (Iowa Ct. App. 1989), a clinical psychologist testified to general as well as
                                         11


specific behaviors. Deciding the case under an ineffective-assistance-of-counsel

rubric, the court concluded the testimony was not “necessarily inadmissible.”

Tonn, 441 N.W.2d at 405. The court reasoned that “the opinion evidence could

help the jury in understanding the evidence because it explained the delayed

reporting symptom that existed in children who were sexually abused.” Id. The

court cited a Washington opinion approving the admission of “statistics that

supported [the expert’s] opinion that delay in reporting is not unusual and that the

length of delay correlates with the relationship between the abuser and child.” Id.

(citing State v. Petrich, 683 P.2d 173, 180 (Wash 1984) (overruled on other

grounds by State v. Kitchen, 756 P.2d 105 (Wash. 1988))).               However, the

Washington court also concluded that, on retrial “expert testimony should be

excluded that invites the jury to conclude that because of defendant’s particular

relationship to the victim, he is statistically more likely to have committed the

crime.” Petrich, 683 P.2d at 180. It is unclear to what extent the ineffective-

assistance-of-counsel standard affected the outcome in Tonn.

       The pattern we discern in the post-Brotherton opinions involving indirect

comments      in   sex   abuse   cases—Gettier,     Payton,    Tracy,    Seevanhsa,

Pansegrau—is that it is permissible to offer general expert testimony about

symptoms or characteristics of sex abuse, but the “fine line” is crossed when that

general testimony is tied to the specifics characteristics of the complaining

witness. At that point, the testimony becomes an impermissible comment on

witness credibility.

       Casey’s testimony crossed the “fine line.” While Casey could permissibly

testify to her diagnoses of the child, and, under Myers, could testify to the classic
                                          12


manifestations and symptoms of the diagnosed conditions (posttraumatic stress

syndrome and anxiety disorder), her testimony went much further.                   She

described the physical manifestations of sexual abuse, focusing almost

exclusively on the manifestations the child’s mother observed in this child. She

went on to opine that the child’s manifestations were consistent with sexual

abuse.    If the operative distinction between permissible and impermissible

testimony is the specificity with which the expert ties the general characteristics

of the disorder to the complaining witness, there is no question in our minds that

Casey’s testimony was impermissible.

       We recognize that the Iowa Supreme Court has approved expert

testimony on key elements of the State’s case.           See State v. Meyers, 799

N.W.2d 132, 146 (Iowa 2011) (citing expert testimony on ability of child to

consent to sex act and giving weight to district court’s credibility finding in favor of

that testimony). But testimony on an element is not the same thing as testimony

about witness veracity or the guilt or innocence of the defendant. See State v.

Hulbert, 481 N.W.2d 329, 332 (Iowa 1992) (stating expert psychological evidence

may not be used to merely bolster witness credibility or be employed as a direct

comment on guilt or innocence of the defendant)1; see also State v. Chancy, 391

N.W.2d 231, 234 (Iowa 1986) (approving testimony of complaining witness’s

mental condition and specifically noting the case was not controlled by Myers

because Myers involved “a direct comment by an expert on the credibility of a

witness” and the testimony in Myers was not directed at a fact in issue). Casey


1
  Hulbert prohibits direct comments on a defendant’s guilt, but, as noted, Myers is
broader, at least with respect to comments on witness veracity.
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commented on both, albeit indirectly.           By stating that the child’s physical

appearance was “consistent with sexual abuse,” Casey impermissibly reinforced

the child’s version of events, obliquely commented on Dudley’s guilt, and

usurped the jury’s role in deciding whether Dudley committed sexual abuse. For

these reasons, Casey’s opinion that the child’s physical manifestations were

consistent with sex abuse should have been excluded.2

       We turn to the question of whether Dudley was prejudiced by Casey’s

testimony. Casey’s opinion was not duplicative of duly-admitted testimony. See

Brotherton, 384 N.W.2d at 379. Her reference to “sex abuse trauma” is a hair’s

breadth away from the “rape trauma syndrome” and “child abuse accommodation

syndrome” references condemned in Gettier and Tracy. Finally, the fact that

Casey was the complaining witness’s treating counselor added gravitas to her

opinion.   We conclude her comments prejudiced Dudley.                Accordingly, we

reverse and remand for a new trial.

       We find it unnecessary to address the remaining issues raised by Dudley.3

       REVERSED AND REMANDED.




2
  This court recently decided several opinions on this issue. See State v. Brown, No. 12-
1633, 2013 WL 5743652, at *5 (Iowa Ct. App. Oct. 23, 2013) (reversing where expert
testimony crossed the “fine line” into the realm of an opinion on the credibility of the
victim); State v. McEndree, No. 12-0983, 2013 WL 3458217, at *5-7 (Iowa Ct. App. July
10, 2013) (concluding court did not abuse discretion in admitting expert testimony to
explain generally delayed reporting in children who were sexually abused and in
excluding proposed testimony that indirectly rendered an opinion on the credibility or
truthfulness of a witness).
3
  We question the State’s reliance on the excited utterance exception to the hearsay rule
for admission of the neighbor’s narration of what the child told her. In light of our
reversal on another ground, we need not address this issue.
