                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0457
                              Filed March 20, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LAWRENCE EUGENE WALKER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, John D. Telleen,

Judge.



      The defendant challenges some of the district court’s evidentiary rulings

following his convictions for sexual abuse in the second degree and lascivious

acts with a child. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Tabor and Bower, JJ.
                                        2


POTTERFIELD, Presiding Judge.

       Lawrence Walker appeals from his convictions for sexual abuse in the

second degree and lascivious acts with a child. He maintains the district court

abused its discretion when it excluded evidence under the rape-shield law.

Additionally, he maintains the court erred in allowing the doctor to testify to

hearsay that did not fall within the exception for statements for medical diagnosis

and that trial counsel provided ineffective assistance by failing to object when a

nurse testified to similar improper hearsay testimony.

I. Background Facts and Proceedings.

       On the night of June 20, 2016, Walker babysat three children in his

brother’s home at his brother’s request: four-year-old E.W., E.W.’s eight-year-old

brother, and a third child.

       The next day, E.W. told her mother something that led the mother to take

E.W. to a local hospital, where she was examined by a sexual assault nurse

examiner, and to involve the police. E.W. was interviewed at a child protection

center approximately twenty days later, on July 8.

       Then, on July 14, Detective Maureen Hamme met with Walker at the

police station.   After advising him of his Miranda rights, Detective Hamme

informed Walker that E.W. had accused him of touching her sexually. In a taped

interview, which was ultimately played for the jury, Walker told the detective E.W.

was asleep downstairs on the couch before he carried E.W. upstairs to her

parents’ room. He admitted lying next to E.W. on the bed while wearing only his

boxers. He claimed that at some point, he thought E.W. may have wet the bed,

so he took off her underwear, wiped her vagina, then put her underwear back on
                                         3


her. After more questioning, Walker admitted putting E.W. on his lap and rubbing

his hand on her vagina. The detective asked Walker if he thought he needed

help, and he nodded in response. Later, when the detective asked Walker if he

had anything else to tell her, he responded, “I didn’t fuck her or anything if that’s

what you’re asking. I touched her a little bit and that’s it.” Walker was then

placed under arrest. He was charged with sexual abuse in the second degree

and lascivious acts with a child.

       After jury selection for Walker’s trial had already begun, in January 2018,

the State filed a motion in limine asking the court to exclude evidence it had

recently learned the defense intended to offer: that E.W.’s mother told the doctor

E.W. met with at the child protection center E.W.’s eight-year-old old brother “had

engaged in staring at E.W.’s body,” “the mother felt it necessary to separate E.W.

and her older brother,” and “the mother felt it necessary to make sure E.W. and

her older brother have clothes on when they were with each other.” Additionally,

the defense wanted to present evidence E.W.’s father had told the detective

E.W.’s older brother had been sexually abused at the some point in the past.

The State argued the evidence should be excluded because it was irrelevant,

inadmissible, and protected by the rape-shield law.         In arguing against the

evidence being admitted at trial, the State recognized it was being offered to

show, “It’s not this defendant who sexually abused the child victim, it’s somehow

her brother who was eight years old at the time who had possible allegations of

possible sexual abuse with other people.” The defense responded the evidence

should be admitting, arguing:
                                         4


      Obviously Mr. Walker denies sexually abusing E.W. in this case.
      Which raises the obvious question where is E.W. coming up with
      her knowledge of sexual activities or claiming that something
      sexual happened to her. We believe this evidence is relevant to—
      for two reasons: One, how E.W. at four years old learned about
      sexual matters and, number two, the possibility that she was
      sexually abused by someone else and due to her age, whatever
      circumstances, has in her mind gone to Mr. Walker perpetrating the
      abuse rather than someone else.

The State suggested to the court that it need not determine the actual merits of

Walker’s arguments because pursuant to Iowa Rule of Evidence 5.412—which

codifies the rape-shield law—notice of evidence that falls within the rule must be

given no later than fourteen days before trial, which Walker had failed to do. In

response, Walker disputed that the rape-shield law applied, arguing it only

applied to sexual behaviors of the alleged victim and not the sexual behaviors of

others.

      The district court excluded the evidence from trial, stating,

      [T]he clear implication of all of those points and as [the defense]
      even argued that they are relevant to show the possible source of
      E.W.’s knowledge of sexual issues and they’re relevant to show
      that E.W. confused the identity of her attacker. The clear
      implication from those points of evidence from the defense’s
      standpoint is that there was another attacker at a previous time and
      it was the eight-year-old brother and that’s why E.W. knows of
      sexual matters and perhaps she is confusing the identity of the
      attacker. So it’s clearly evidence designed to show that EW was
      subject to abuse sometime in the past and she’s got it all wrong
      now and it’s not this defendant but rather it is the eight-year-old
      brother.

The court also indicated the defense had failed to provide timely notice, as

required by Iowa Rule of Evidence 5.412(c)(1).

      At trial, the nurse who examined E.W. on June 21 testified, without

objection from the defense, that E.W. told her, “Larry did this to me” as E.W.
                                            5


bounced up and down. E.W. further told her, “He made me sit on his crotch and

did this”—E.W. again made a bouncing motion—“then he carried me downstairs

and got me juice.” According to the nurse, E.W. continued, stating, “He touched

my butt crack really deep” and “I had my underwear on so he took it off.” E.W.

also reported Larry “broke her ankle,” which the nurse confirmed had not actually

occurred, as E.W.’s ankles were not broken. When asked what she meant by

that, E.W. twisted her ankle side to side. When asked if E.W. told her where this

occurred, the nurse testified E.W.’s mother told her the incident happened in the

parents’ bedroom and that it occurred the night before. The nurse conducted a

physical exam of E.W. and completed a sexual assault kit.

       Over defense objection,1 Dr. Harre, who works as a physician at the child

protection center, testified that when she met with E.W. on July 8, she asked

E.W. if there had been anything about Larry that was uncomfortable.                 E.W.

indicated there was and said, “Larry doing this” and then made a bouncing

motion. Dr. Harre asked E.W. what was Walker’s clothing situation at the time it

happened, and E.W. reported his underwear was off and he took her underwear

off. E.W. said she was “on his crotch” at that time and that they were in her

parents’ bedroom. Dr. Harre asked E.W. if other parts of her body had been

touched, and E.W. indicated touching with fingers. When asked where else she

was referring to, E.W. pointed between her legs. Dr. Harre asked if she meant

her crotch, and E.W. nodded. E.W. reported this had hurt her. When asked, she


1
 Walker filed a pre-trial motion in limine challenging Dr. Barbara Harre’s testimony as to
E.W.’s statements about sexual abuse. The court entered a final ruling before trial
began overruling the objections to Dr. Harre’s testimony. The defense did not object
again at the time Dr. Harre testified.
                                         6


reported the incident occurred during the daytime. The doctor testified that she

conducted a physical exam of E.W. after the interview and found no injuries.

       A criminalist for the department of criminal investigations testified she

conducted DNA testing on the sexual assault kit materials that were sent as well

as the known swabs from E.W. and Walker. From a sample of the anal swab

that was taken of E.W., the criminalist, using a microscope, was able to identify a

sperm cell. However, the sample was too weak and did not contain enough DNA

to interpret who the sperm cell was from. Similarly, the criminalist testified that a

sample from the back swab and from the crotch of the inside of E.W.’s

underwear indicated the DNA of two individuals were present, but the samples

were not strong enough for further interpretation.

       E.W., who was five years old at the time of trial, was called to testify. She

testified she had not seen Larry in “a long time,” since she “was four when he did

that bad thing.” When asked what she meant by the bad thing, E.W. testified,

“He did it from his private” and “Because he lifted me up and down.”            The

prosecutor asked E.W., “Can you tell me what you mean when you tell the jury

he put you up and down? Can you show us?” In response, E.W. pointed and

said, “Just private.” When presented with an anatomical drawing of a young girl

and asked to circle the corresponding spot on the picture, E.W. drew a circle

around the vagina. She testified it happened in her parents’ bedroom and that

she had been sleeping downstairs when Walker picked her up and carried her to

the room. The following exchange occurred on direct examination:

              Q. What did Larry do to you? A. He did private thing but I
       don’t remember because it was a long time ago.
                                        7


             Q. You can talk about it, it’s okay. A. It was a long time ago
       because I was four.
             Q. You were four and you said it was really bad. A. [The
       witness nodded her head affirmatively].
             Q. How did you it make you feel? A. I was sleeping on him.
             Q. Who was you sleeping on? Larry? A. I was sleeping
       when Larry did it to me.
             Q. When he did what to you? A. On his private part.

The prosecutor than gave E.W. an anatomical drawing of a male child and asked

if E.W. could show her which part Larry did it on. E.W. circled the penis on the

anatomical drawing.

       Larry testified in his own defense.    He recanted his statements to the

detective, asserting he only made the incriminating statements because she

would not take no for answer. He further testified that at the time he met with the

detective in the morning hours, he had slept only a few hours the night before

and had taken Vicodin and sleeping pills before consuming alcohol. Walker

testified that he had carried E.W. from where she was sleeping on the couch to

her parents’ bed and had stripped down to his boxers and laid next to her in the

bed.   He also testified he had removed her underwear to check if she had

urinated but testified he then put them directly back on her. He denied otherwise

touching E.W. and stated he never placed her in his lap.

       The jury convicted Walker as charged. He was later sentenced to a term

of incarceration not to exceed twenty-five years, of which he is required to serve

seventy percent before becoming parole eligible.

       Walker appeals.
                                           8


II. Discussion.

       A. Rape Shield Law.

       Walker maintains the district court abused its discretion when it prevented

him from introducing evidence to show that E.W.’s mother feared E.W.’s eight-

year-old brother—an alleged victim of prior sexual abuse—would act out sexually

on E.W. “We review trial court rulings on admissibility of evidence under rule

5.412 in criminal prosecutions for abuse of discretion.” State v. Alberts, 722

N.W.2d 402, 407 (Iowa 2006).

       At the time Walker argued the evidence was admissible at trial, the district

court understood that Walker was offering it to show E.W.’s brother had sexually

abused E.W. prior to June 20, 2016. In its ruling from the bench, the court

stated, “The clear implication from those points of evidence from the defense’s

standpoint is that there was another attacker at a previous time”; Walker did not

dispute this statement by the court. Assuming Walker was offering the evidence

to show E.W. had been sexually abused prior to the June 20 incident, such

evidence would fall within the prohibition against evidence of a victim’s other

sexual behavior.2    See Iowa R. Evid. 5.412(a)(1), (2) (providing evidence is

inadmissible in a criminal proceeding involving alleged sexual abuse when it is

“[r]eputation or opinion evidence offered to prove that a victim engaged in other

sexual behavior” or “[e]vidence of a victim’s other sexual behavior other than

reputation or opinion evidence”). In reaching this conclusion, we assume the


2 Before January 1, 2017, the rule referenced “past sexual behavior” instead of “other
sexual behavior.” The changed language of “other sexual behavior” now mirrors that of
the federal rule. Compare Fed. R. Evid. 412, with Iowa R. Evid. 5.412. Trial was held in
January 2018.
                                           9


change of language in rule 5.412 from “past sexual behavior” to “other sexual

behavior” was not meant to cause a substantive change in the interpretation of

the rule. See State v. Alberts, 722 N.W.2d 402, 408 (Iowa 2006) (defining “past

sexual behavior” as “a volitional or non-volitional physical act that the victim has

performed for the purpose of the sexual stimulation or gratification of either the

victim or another person or an act that is sexual intercourse, deviate sexual

intercourse or sexual contact, or an attempt to engage in such an act, between

the victim and another person”).

       On appeal, Walker asserts the evidence was not offered to show E.W. had

been sexually abused before June 20 but rather that the brother was the one

responsible for the abuse E.W. reported and that she mistook or confused the

identity of the perpetrator. Even if we assume this argument is preserved for our

review,3 we still find no abuse of discretion by the district court. The evidence

may have been admissible to show a different perpetrator committed the act, as

the rape-shield law provides an exception for “[e]vidence of specific instances of

a victim’s sexual behavior, if offered to prove that someone other than the

defendant was the source of semen, injury, or other physical evidence.” Iowa R.

Evid. 5.412(b)(1)(A). However, if a defendant intends to offer evidence under the

exceptions to the rape-shield law, “the defendant must [f]ile a motion to offer the

evidence at least 14 days before trial.”4 Iowa R. Evid. 5.412(c)(1)(A) (emphasis


3
  It does not appear from the transcript that the district court ever considered this
argument. Generally an argument must be made to and decided by the district court in
order to preserve it for our review. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa
2012).
4
  Pursuant to the rule, the court can excuse the failure to file the motion fourteen days
before trial if “the court determines that the evidence is newly discovered and could not
have been obtained earlier through the exercise of due diligence, or that the evidence
                                            10

added); see also Iowa Supreme Ct. Attorney Disciplinary Bd. v. Attorney Doe No.

819, 894 N.W.2d 1, 5 (Iowa 2016) (noting the word “must” “clearly expressed the

mandatory nature of the rule”).        Although we have not have found an Iowa

authority that discusses the appropriate sanction for a defendant’s failure to file

timely notice of the evidence, we note the Supreme Court has decided it is not

unconstitutional to exclude evidence on that basis. See Michigan v. Lucas, 500

U.S. 145, 152–53 (1991) (“The notice-and-hearing requirement serves legitimate

state interests in protecting against surprise, harassment, and undue delay.

Failure to comply with this requirement may in some cases even justify the

severe sanction of preclusion.”).

       Because the evidence Walker proposed to introduce at trial falls within the

rape-shield law and Walker did not provide notice of the evidence until the eve of

trial, the district court did not abuse its discretion when it granted the State’s

motion in limine to exclude the evidence.

       B. Doctor’s Testimony.

       Walker claims the district court erred when it allowed Dr. Harre to testify

regarding statements made by E.W. that do not fall within the hearsay exception

of statements for medical diagnoses. See Iowa R. Evid. 5.803(4). We review

hearsay rulings for correction of errors at law. State v. Dullard, 668 N.W.2d 585,

589 (Iowa 2003).




relates to an issue that has newly arisen in the case, and the court sets a different time.”
Iowa R. Evid. 5.412(c)(1)(A). Walker did not ask the district court to make any such
determinations, and, on appeal, he does not argue the district court could or should have
done so.
                                        11


       The rationale for the hearsay exception “is that the 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.’” State v. Smith,

876 N.W.2d 180, 185 (Iowa 2016) (citation omitted). The exception imposes two

requirements: (1) “the exception applies to statements ‘made for purposes of

medical diagnosis or treatment’” and (2) “the statements must describe ‘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. (quoting Iowa R. Evid. 5.803(4)). These

conditions are necessary for the exception to apply because the exception is

based upon “special guarantees of credibility” that rely upon the patient’s

understanding “that a false statement in a diagnostic context could result in

misdiagnosis.” Id.

       Walker maintains that E.W.’s statements to Dr. Harre at the child

protection center, to which Dr. Harre testified at trial, do not meet either of the

requirements.    We disagree.     Our supreme court has found that the first

requirement was met in the context of a child-abuse case “where a child’s

statements are made during a dialogue with the health care professional and are

not prompted by concerns extraneous to the patient’s physical or emotional

problem, real or perceived.” State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998).

In State v. Neitzel, the defendant argued the first prong was not satisfied

because the child was not told the medical purpose of the interviews at the time

they occurred. 801 N.W.2d 612, 622 (Iowa Ct. App. 2011). Our court disagreed,

noting the medical professional who testified explained the purpose of the
                                         12


examination of the child was for diagnosis and treatment, that the professional

had told the child the purpose of the visit was to check her to make sure she was

healthy, and that they had discussed the difference between the truth and a lie.

Id.

       Here, Dr. Harre testified she met with E.W. separate from her mother.

When she did so, she explained that she was a physician who “take[s] care of

kids from little babies to big children to high school kids.” She explained that she

cares for kids who have injuries to their bodies that are physical but also injuries

like hurt feelings “or that they feel bad about how someone may have interacted

with them.” E.W. understood Dr. Harre’s role, as she was able to express that

she is comfortable with doctors except when they give her shots. From there, Dr.

Harre began a review of symptoms approach, checking to see “how the child is

doing overall.” During these questions, Dr. Harre noted that E.W. was quick to

respond until the doctor asked E.W. a question about whether anything had

come into contact with her back or bottom that had hurt her. This question led to

E.W. making statements about Walker.          We acknowledge Dr. Harre did not

testify that she explained the importance of truthfulness to E.W. before the

examination began, but we do not find this dispositive. See State v. Lucier, No.

15-1559, 2017 WL 4570531, at *2 (Iowa Ct. App. Oct. 17, 2017) (finding the

child’s statements to the doctor were admissible under the exception where there

was no evidence the child understood the difference between truth and lies);

State v. Overstreet, No. 15-1704, 2016 WL 7403728, at *6 (Iowa Ct. Ap. Dec. 21,

2016) (“While we note Dr. Harre testified she did not instruct [the child] not to lie,

there is no indication in the record T.O.’s motive in making the statements to Dr.
                                         13


Harre ‘was other than as a patient responding to a doctor’s questioning for

prospective treatment.’” (citation omitted)); State v. Woolison, No. 01-1071, 2003

WL 1966446, at *2 (Iowa Ct. App. Apr. 30, 2003) (rejecting defendant’s argument

first requirement was not met because a three-year-old child lacks “selfish motive

in receiving proper treatment,” which guarantees the trustworthiness of the

statements).

       Walker maintains the second requirement for the exception—that the

content of the statement be the kind reasonably relied upon by a physician in

treatment or diagnosis—is not met because E.W. was referred to Dr. Harre “due

to suspected child abuse, not because of active medical concerns.” The only

authority Walker offers in support of this argument is a Maryland case in which

the court excluded the child’s statements to a nurse about sexual abuse that had

occurred fourteen months before, the statements were made when the child was

not displaying any physical or psychological symptoms, the questions asked by

the nurse seemed to have an “overarching investigatory purpose,” and questions

about the perpetrator’s identity were not relevant to the child’s safety needs, as it

was known the child had not seen the perpetrator in more than a year. Coates v.

State, 930 A.2d 1140, 1162–64 (Md. Ct. Spec. App. 2007).              And we have

rejected similar arguments before.      See Woolison, 2003 WL 1966446, at *2

(“Additionally, [the defendant] asserts [the child’s] statements to Dr. Harre should

have been excluded because Dr. Harre was part of a multi-disciplinary team who

main function was investigation. We disagree.”).

       Dr. Harre testified she offers “comprehensive medical assessments for

concerns about medical, behavioral,” and emotional needs of children.
                                         14


Statements made by patients “in connection with diagnosis or treatment of

emotional trauma” can fall within the exception, so long as the statements are

made to professionals “sufficiently qualified by training and experience to provide

that diagnosis and treatment.” Hildreth, 582 N.W.2d at 169. Walker has not—

either at trial or on appeal—questioned Dr. Harre’s qualifications.        Dr. Harre

testified that by the end of the exam, she is “able to identify whether [the child]

need[s] any additional labs or X-rays or other referrals or support, what type of

follow-up we are looking at.” Additionally, Dr. Harre testified at trial that E.W. was

still a patient of hers.

       E.W.’s statements to Dr. Harre meet the requirements of medical

statements for the purpose of diagnosis or treatment; the district court did not err

in admitting the statements at trial.

       C. Nurse’s Testimony.

       Walker maintains he received ineffective assistance from trial counsel

when counsel allowed the nurse who examined E.W. on June 21 to testify

without objection about statements E.W. made to her.             He argues E.W.’s

statements to the nurse would not have been admitted if counsel had objected

because they do not meet the hearsay exception of medical statements made for

diagnosis or treatment.

       “Ordinarily, we do not decide ineffective-assistance-of-counsel claims on

direct appeal.” State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). “We prefer to

[p]reserve such questions for postconviction proceedings so the defendant’s trial

counsel can defend against the charge.” Id. We depart from the preference only

in cases where the record is adequate to evaluate the claims. Id. “Only in rare
                                        15


cases will the trial record alone by sufficient to resolve the claim on direct

appeal.” Id. Because we cannot say what foundation the State could have laid

to show E.W.’s statements meet the hearsay exception if they were challenged

by trial counsel and because it appears from the record trial counsel may have

made a strategic decision not to challenge the testimony of the nurse, we believe

the most prudent action is to preserve Walker’s claims for possible postconviction

relief. See Iowa Code § 814.7(3).

III. Conclusion.

       The district court did not abuse its discretion in excluding evidence based

on the rape-shield law. Additionally, the court did not err in admitting Dr. Harre’s

testimony about E.W.’s statements pursuant to a hearsay exception. We affirm

Walker’s convictions.     We preserve his claim of ineffective assistance for

possible postconviction relief.

       AFFIRMED.
