                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0295
                               Filed June 3, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TIMOTHY M. FONTENOT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Patrick R. Grady,

Judge.



      Timothy Fontenot appeals his convictions on two counts of indecent contact

with a child. AFFIRMED.



      Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Bower, C.J., Mullins, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
                                         2


SCOTT, Senior Judge.

       In July 2016, allegations surfaced that Timothy Fontenot had been

inappropriately touching eleven-year-old H.N.       In the coming days the child

underwent a medical evaluation and a forensic interview, which was recorded.

Fontenot was ultimately charged by trial information with two counts of second-

degree sexual abuse as to H.N.1 In February 2018, the State filed its notice of

intent to present the video of the child’s forensic interview as evidence under the

residual hearsay exception or, in the event the defense made a charge of

fabrication or action from a recent improper influence or motive in testifying, as a

prior consistent statement with the declarant’s testimony. See Iowa Rs. Evid.

5.801(d)(1)(B) (prior consistent statement), .807 (residual exception).             In

December, the State amended its trial information to include two additional counts

of indecent contact with a child as to H.N. The matter proceeded to a jury trial.

       At trial, H.N. testified Fontenot first “did something bad to” her when she

was six or seven during a camping trip in Minnesota, when he “rubb[ed] up and

down [her] leg.” The alleged inappropriate touching continued at the child’s home

in Marion, Iowa, when the child testified she was seven or eight and Fontenot

would rub her with his hand. The child testified Fontenot directed her to not tell

anyone about the encounters. After a year or two, Fontenot began touching the

child’s “private spot.” This continued until the child was eleven. H.N. testified the

last occurrence involved Fontenot rubbing her “private spot” under her underwear,

and on one occasion he inserted his fingers. The child also testified Fontenot


1He was also charged with two counts of indecent contact with a child as to
another child, E.M.
                                         3


bought her items so he could have extra “tickle time”—which is what Fontenot

called the inappropriate touching episodes—with her. H.N. generally testified

Fontenot touched her both over and under her clothing more times than she could

count.

         On cross-examination, defense counsel highlighted inconsistencies

between H.N.’s testimony and her prior statements in her forensic interview and

February 2018 deposition. Later in the trial, the State requested admission of the

video of H.N.’s forensic interview. The State argued the video was admissible

under the residual exception to the rule against hearsay. Alternatively, the State

argued defense counsel’s cross-examination of the child amounted to a charge

that the child recently fabricated her allegations or acted from a recent improper

influence or motive in testifying, and the child’s statements in the video therefore

did not amount to hearsay. The court allowed the video to be admitted. Ultimately,

the jury found Fontenot guilty of two counts of indecent contact with a child as to

H.N.2

         Fontenot now appeals his convictions, claiming the video of the forensic

interview amounted to hearsay and the district court erred in allowing its admission.

Appellate review of challenges to the admission of evidence on hearsay grounds

is for correction of errors at law. In re Det. of Tripp, 915 N.W.2d 867, 873 (Iowa

2018); State v. Juste, 939 N.W.2d 664, 674 (Iowa Ct. App. 2019). “This standard

of review extends to determining whether statements come within an exception to

the general prohibition on hearsay evidence.” State v. Russell, 893 N.W.2d 307,


2 The jury could not reach verdicts on the sexual-abuse counts, which were later
dismissed. The jury found Fontenot not guilty of indecent contact with E.M.
                                           4


314 (Iowa 2017). Improper admission of hearsay evidence “is presumed to be

prejudicial unless the State shows the contrary,” which may be established by

“proving the error was harmless beyond a reasonable doubt.” State v. Huser, 894

N.W.2d 472, 495 (Iowa 2017).

       Fontenot argues the video contains hearsay and was therefore

inadmissible. Hearsay is inadmissible except as provided by the Iowa Constitution,

a statute, the rules of evidence, or a supreme court rule. Iowa R. Evid. 5.802.

Hearsay is any out-of-court “statement” made by the “declarant” while not testifying

at the current trial or hearing that is offered “into evidence to prove the truth of the

matter asserted in the statement.” Iowa R. Evid. 5.801(c). The term “statement”

means a person’s oral or written assertion, or “[n]onverbal conduct, if intended as

an assertion.” Iowa R. Evid. 5.801(a). The term “declarant” means “the person

who made the statement.” Iowa R. Evid. 5.801(b).

       However, certain statements are not hearsay. See Iowa R. Evid. 5.801(d).

A declarant-witness’s prior statement is not hearsay if the declarant-witness

“testifies and is subject to cross-examination about a prior statement, and the

statement” “[i]s consistent with the declarant’s testimony and is offered to rebut an

express or implied charge that the declarant recently fabricated it or acted from a

recent improper influence or motive in so testifying.” Iowa R. Evid. 5.801(d)(1)(B).

One scholar has laid out the elementary requirements for admissibility as follows:

       To be admissible under Rule 5.801(d)(1)(B), the party seeking to
       admit the prior consistent statement must establish the following four
       elements: (1) the declarant must testify at trial and be subject to
       cross-examination concerning the prior statement; (2) there must be
       an express or implied charge of recent fabrication or improper
       influence or motive against the declarant; (3) the prior statement
       must be consistent with the declarant’s challenged in-court
                                         5


       testimony; and (4) the prior consistent statement must be made
       before the alleged motive to fabricate or improper influence arose.

7 Laurie Kratky Doré, Iowa Practice Series: EvidenceTM § 5.801:7 (Nov. 2019

update) (footnotes and citations omitted).

       Fontenot only appears to challenge the fourth element. He argues because

the statements contained in the video occurred after H.N.’s allegations of

inappropriate touching, they do not fit the exception. “Our supreme court adopted

the rule ‘that a witness’s prior consistent statement is admissible as nonhearsay to

rebut a charge of recent improper motive under Iowa rule of evidence

[5.]801(d)(1)(B) only if the statement was made before the alleged improper motive

to fabricate arose.’” Juste, 939 N.W.2d at 674 (quoting State v. Johnson, 539

N.W.2d 160, 165 (Iowa 1995)). The statement must occur before the allegation of

motive to fabricate arose, not before the initial report of alleged abuse. See id.

The implicit allegation of recent fabrication arose during defense counsel’s cross-

examination of H.N. or, at the very earliest, during H.N.’s February 2018

deposition, both of which unquestionably occurred after H.N. made her statements

in the forensic interview. The defense’s cross-examination of H.N. implied a

fabrication of H.N.’s version of the facts and occurred after her forensic interview

and, therefore, the fourth element is satisfied. See, e.g., State v. Crawley, No. 11-

0466, 2012 WL 470174, at *4 (Iowa Ct. App. Feb. 15, 2012); State v. Wells, 522

N.W.2d 304, 309 (Iowa Ct. App. 1994).

       While somewhat unclear, Fontenot also appears to lodge a challenge to the

establishment of the third element, that the prior statement be consistent with the

declarant’s challenged in-court testimony.        He claims the video included
                                          6


statements that were inconsistent with H.N.’s trial testimony. Specifically, in her

trial testimony, H.N. agreed Fontenot never touched her breasts, but in the forensic

interview she stated Fontenot placed his hand under her shirt and sports bra and

started touching, squeezing, and rubbing her “private spot up here,” referring to

her chest area, two days earlier. He also claims the video contained information

not contained in H.N.’s testimony, that Fontenot variously touched his penis over

his pants while he touched H.N. and conversation H.N. had with Fontenot and the

other alleged victim. But the jury was instructed that witness statements made

before trial that it found “inconsistent with the witness’s testimony during the trial

could only be used “as a basis for disregarding all or any part of the witness’s

testimony during the trial.”3 In other words, the jury was instructed H.N.’s prior

inconsistent statements could not be used as substantive evidence but only as a

tool to assess H.N.’s credibility as a witness during trial. Cf. State v. Kramer, No.

16-2048, 2018 WL 346454, at *9 (Iowa Ct. App. Jan. 10, 2018) (“Insofar as the

admitted portion contained more than prior consistent statements, we note the

district court clearly articulated the purpose for which the [evidence] was admitted

and its intention to restrict the evidence to such use.”). We presume the jury

followed the court’s direction that it could only use the conflicting or additional

information as a credibility assessment tool, see State v. Sanford, 814 N.W.2d 611,

620 (Iowa 2012); State v. Hanes, 790 N.W.2d 545, 552 (Iowa 2010), and the

evidence was therefore not inadmissible hearsay because it was not being

considered for the truth of the matter asserted. See Iowa R. Evid. 5.801(c)(2).


3Defense counsel objected to this instruction at trial, but it is not challenged on
appeal.
                                         7


Presuming the jury followed the instruction, we are also unconvinced the

complained-of evidence had any prejudicial effect on the jury’s verdict.      The

instruction, coupled with the inconsistent statements in the video, served to

Fontenot’s benefit rather than his detriment.

       We conclude the bulk of the forensic interview video was properly admitted

as non-hearsay prior consistent statements and Fontenot suffered no prejudice

from the admission of the inconsistent statements contained in the video of the

interview. As such, we affirm Fontenot’s dual convictions of indecent contact with

a child.

       AFFIRMED.
