                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1721
                            Filed December 21, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GLORIA J. OVERSTREET,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith,

Judge.



      Gloria Overstreet appeals her conviction for child endangerment resulting

in bodily injury. AFFIRMED.



      Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Kristin A. Guddall, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., Potterfield, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                          2


SCOTT, Senior Judge.

       Gloria Overstreet appeals her conviction for child endangerment, alleging

there was insufficient evidence to support her conviction and the district court

erred in admitting hearsay testimony. We affirm.

       I.     Background Facts and Proceedings

       On May 19, 2013, Heather Davis, a child protection worker from the Iowa

Department of Human Services (DHS), went to the home of Gloria Overstreet

and her son, Ricky Overstreet, to investigate an anonymous call received about

Ricky’s daughter, T.O., in which the source reported T.O. was being physically

abused by Ricky and Gloria and was receiving inadequate food and clothing. At

the time, T.O. was eight years old. She had lived with Ricky and Gloria since she

was three, having previously lived with her mother.1

       Gloria refused Davis access to her home, so Gloria, Ricky, T.O., and

Davis met in the yard. T.O. was dressed in long pants and long sleeves that

covered her neck and arms, even though the day was unseasonably warm.

Davis observed Gloria had long fingernails. Davis asked to speak with T.O.

alone, but the request was denied. When Davis asked T.O. in front of Ricky and

Gloria how she was disciplined, T.O. said she was told to stand in the corner or

write sentences.

       The following day, the principal at T.O.’s school was confronted with

concerns about Gloria’s treatment of T.O. The principal had T.O. examined by

1
  In 2012, T.O.’s mother expressed her desire that T.O. live with her again. She
indicated Ricky and Gloria had previously allowed her visits with T.O., but after this
request, they stopped communicating with her, so she called DHS and the police in an
effort to see her daughter. Gloria contends T.O.’s mother was the anonymous individual
who called DHS and initiated the investigation.
                                          3


the school nurse; the nurse and principal found marks on T.O.’s body and

contacted the police.     The principal testified at trial the marks were “very

concerning. Much more significant than what [she] had seen before on other

children.” She further testified T.O. would often say things regarding her concern

about the discipline at home, specifically with regard to Gloria.

       The police were called to the scene, and T.O. agreed to have the injuries

photographed; these photos were entered into evidence at trial. The responding

officer testified at trial that T.O. had “scarring and marks on either side of her

neck” and “several pattern marks, linear scars, on her back.”          The officer

described the marks on T.O.’s neck as “claw marks” made by “a person,” which

were consistent with what T.O. told the officer had happened.          The officer

indicated there was a pattern to the markings on T.O.’s back that made it “very

clear” to the officer “some sort of object [was] used,” which “matched up with

what [T.O.] had described to [the officer] [was] happening to her”; specifically,

that she had been hit with a spatula. As to the timing of the injuries, the officer

stated the injuries “were pretty extensive” with “numerous scars” showing

“different stages [of] scarring” with “some more recent, some had been there a

while, so it was clear to [the officer] that this had been ongoing.”

       Davis was also contacted to come to the school, and she personally

observed the fingernail marks on T.O.’s neck and multiple scratches on her back

and first heard T.O. was stating Ricky and Gloria had injured her. T.O.’s mother

also observed the markings and testified they resembled being spanked with an

object. T.O. was then placed in the care of her mother. That same day, police

officers executed a search warrant on Gloria and Ricky’s home.         During the
                                          4


search, police officers seized two spatulas and a spoon from the home. An

officer testified to her belief one of the objects collected had caused the injury,

although she admitted it was “for the most part” a standard-looking spatula. Both

Davis and the officer testified Gloria told them during the search she did not want

T.O. back.

       On May 23, 2013, T.O. was examined by Dr. Barbara Harre, of the Child

Protection Response Clinic, who specializes in child abuse pediatrics. T.O. told

Dr. Harre she had multiple injuries to her back, caused by Gloria hitting her with a

spatula. T.O. said she was hit with a spatula as discipline from the age of six

until she was eight. She also told Dr. Harre that Ricky had struck her with the

spatula as well.    T.O. identified marks on her neck, which she stated were

caused by Gloria choking her. She stated Gloria would lift her off the floor by the

neck, sometimes until she lost consciousness. T.O. also identified marks not

caused by Gloria or Ricky, including a bite mark on her cheek inflicted by a

cousin, a scar on her forearm she caused when she dropped an iron on her wrist,

and a birthmark on her arm. Dr. Harre testified T.O.’s ability to identify marks

and distinguish their origin told her that T.O. “understands that different injuries

can occur in different ways, and [T.O.’s] able to give that history.”

       Dr. Harre then examined T.O., observing the bite mark to her face and

marks on her back and neck. Dr. Harre testified the markings on T.O.’s neck

were consistent with fingernail-type impressions and indicative of a pattern of

repeat behavior. Dr. Harre further testified to “parallel lines distributed all over

[T.O.’s] back” and that these parallel lines “suggest[ed] more of a controlled

contact” making it “much more likely that there’s an object involved.”
                                         5


       As to the timing of the injuries, Dr. Harre testified about a “general rule”

that skin “remodeling”—or healing—can take up to a year. Dr. Harre stated that

during follow-up visits with T.O. she noticed “significant resolution to the degree

of injuries” to both T.O.’s neck and back, although she was unable to identify the

age of the marks. An officer also testified to photographing T.O.’s injuries a

couple months after the initial report was made and stated some scars had faded

but distinct scarring remained.

       On cross-examination, Dr. Harre testified to additional information T.O.

provided her: that T.O. was required to wake at 3 a.m. and perform chores—like

wash dishes, vacuum the floor, and set mouse traps—and that she was only fed

bread and water. Despite T.O.’s testimony regarding her nutritional intake, Dr.

Harre noted T.O. was not malnourished, except for a vitamin D deficiency.

       T.O. testified Ricky and Gloria hurt her using a spatula, Gloria touched her

neck, and she used to have scratches on her neck. When T.O. testified, she

confirmed she was required to wake at 3 a.m. and do chores but denied

performing the specific chores she had previously told Dr. Harre.          She also

denied remembering what she ate when she lived with Ricky and Gloria.

       Gloria’s friend, who lived with Ricky and Gloria at the time in question,

also testified at trial, stating T.O. “constantly needed discipline,” which consisted

of her writing sentences or standing in the corner.        He denied ever seeing

corporal punishment used, but he admitted he was not around all of the time. He

further testified that when T.O. moved in with them he noticed no physical

injuries, except “probably a couple of scratches,” such as “a couple on her back

and places like that.” He also stated T.O. “got scratched up by the cats a lot.”
                                         6


       Following a jury trial, Gloria was convicted of child endangerment resulting

in bodily injury. Gloria appeals.

       II.      Analysis

                A.   Sufficiency of the Evidence

       Gloria contends there was insufficient evidence to support her conviction

for child endangerment resulting in bodily injury. We review sufficiency-of-the-

evidence claims for correction of errors at law. See State v. Vance, 790 N.W.2d

775, 783 (Iowa 2010). “We will sustain the jury’s verdict if it is supported by

substantial evidence.” Id. “Evidence is substantial if it would convince a rational

trier of fact the defendant is guilty beyond a reasonable doubt.” Id. (quoting State

v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008)).          Direct and circumstantial

evidence are equally probative. State v. Meyers, 799 N.W.2d 132, 138 (Iowa

2011).2

       In support of her claim insufficient evidence exists, Gloria does not

challenge any specific element of the offense. Instead, Gloria identifies three

alleged fact issues she claims undermine the jury’s finding: (1) T.O.’s mother’s

history of attempts to obtain custody of T.O., (2) certain inconsistencies in T.O.’s

testimony, and (3) the State’s failure to present evidence regarding the timing of

the injuries.

       As to her first claim, it is up to the jury to weigh the evidence. See Walker

v. Sedrel, 149 N.W.2d 874, 879 (Iowa 1967) (“It is not for [the reviewing court] to

weigh the evidence. To do so is the jury’s function.”). A police officer testified


2
 The State contends error was not preserved on this issue.     We assume, without
deciding, error was preserved.
                                             7


she did not believe the situation appeared to be a custody dispute, as T.O.’s

mother “made no ill remarks towards the Overstreets” and was “very

understanding that she wanted her child to be safe, whether that was with her or

with someone else.” Davis also testified, based on her experience, this did not

appear to be a situation where T.O. had been coached or was being put in the

middle of her parents’ dispute. Further, T.O.’s mother denied that her actions

were based on a desire to obtain custody but instead were motivated by her

concern for her daughter’s safety.

       Further, it is up to the jury to determine a witness’s credibility. See State

v. Laffey, 600 N.W.2d 57, 59 (Iowa 1999) (“[I]t is for the jury to judge the

credibility of witnesses and weigh the evidence.”). While there may have been

inconsistencies in the child’s account,3 once T.O. disclosed Gloria had choked

her and hit her with a spatula, she remained consistent in this claim.4                Any

inconsistencies in this young girl’s testimony were unrelated to the acts of abuse

at issue. See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998) (“Furthermore,

any inconsistencies in A.E.’s testimony were minor and attributable to her age.”).

       Finally, Gloria claims the State’s inability to present evidence as to the

timing of the injuries means the injuries could have occurred before T.O. lived

with Gloria and Ricky or when T.O. was visiting with her mother. However, Dr.


3
  For instance, T.O. told Dr. Harre that, when living with Gloria and Ricky, she was
required to wake up at 3 a.m. and do chores. She further stated she was only allowed to
eat bread and water. At trial, T.O. testified she did have to get up at 3 a.m. to do chores,
but denied the specific chores Dr. Harre testified T.O. had previously identified. She
further testified she did not remember what she ate when she lived with Gloria and
Ricky.
4
  As noted above, when the DHS personnel first investigated the abuse report and T.O.
was asked in front of Gloria and Ricky about how she was discipline, she stated she was
made to stand in the corner or write sentences.
                                          8


Harre testified to a general rule that injuries to the skin take up to a year to

“remodel” or heal. Dr. Harre also testified T.O.’s injuries showed improvement

over the course of her treatment. Additionally, an officer testified that, at a later

examination, some of T.O.’s scars had faded but that distinct scarring remained.

Based on this evidence, the jury could infer the injuries occurred over a period of

time and at least some of the injuries were less than a year old. Regardless,

Gloria’s alternative theories do not undermine the existence of substantial

evidence supporting the jury’s finding.

       Even when considering the purported contradictory evidence, we find

sufficient evidence supports the jury’s findings. T.O.’s principal, an investigating

police officer, Dr. Harre, T.O.’s mother, and Davis all observed the injuries to

T.O.’s person. T.O. voiced concerns to the principal about the discipline she was

receiving from Gloria.       She also told Dr. Harre that Ricky and Gloria had

repeatedly hit her with a spatula and Gloria had repeatedly choked her,

sometimes until she passed out. Both Dr. Harre and the testifying officer stated

the injuries to T.O.’s back were consistent with repeated contact with an object

and both the neck and back injuries were consistent with the version of events

T.O. provided. Officers found a spatula in Gloria’s home that was consistent with

the injuries inflicted on T.O. T.O. also testified that Ricky and Gloria hurt her

using a spatula and Gloria touched her neck. Even Gloria’s friend testified he

noticed no physical injuries on T.O.—except for a couple of scratches—when

T.O. moved in with Gloria and Ricky. Because substantial evidence supports the

jury’s finding, we affirm.
                                         9


              B.     Hearsay Statements

       Gloria also contends the district court erred by allowing Dr. Harre to testify

about T.O.’s statements Gloria was the one who abused her. We review hearsay

claims for errors at law. See State v. Newell, 710 N.W.2d 6, 18 (Iowa 2006). A

court must exclude hearsay unless it is admitted as an exception or exclusion to

the hearsay rule. Id. “Subject to the requirement of relevance, the district court

has no discretion to deny the admission of hearsay if it falls within an exception,

or to admit it in the absence of a provision providing for admission.” Id.

       One such exception arises where the disputed statements were made for

the purpose of medical diagnosis or treatment. See Iowa R. Evid. 5.803(4). “The

rationale for the exception is that statements made by a patient to a doctor for

purposes of medical diagnosis or treatment are ‘likely to be reliable because the

patient has a selfish motive to be truthful.’” State v. Smith, 876 N.W.2d 180, 185

(Iowa 2016) (citation omitted).

               The medical diagnosis or treatment exception imposes two
       requirements. First, the exception applies to statements “made for
       purposes of medical diagnosis or treatment.” Iowa R. Evid.
       5.803(4). Second, 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. Thus, the
       first requirement is directed at the purpose and motive of the
       statement, and the second requirement is directed at the content or
       description of the statement.

Id.; see also State v. Tracy, 482 N.W.2d 675, 681 (Iowa 1992) (“[F]irst the

declarant’s motive in making the statement must be consistent with the purposes

of promoting treatment; and second, the content of the statement must be such

as is reasonably relied on by a physician in treatment or diagnosis.” (quoting
                                         10

United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985))).            One such

circumstance where identifying statements are admissible “involves the identity

of perpetrators of child abuse.” Smith, 876 N.W.2d at 185 “When the ‘alleged

abuser is a member of the victim’s immediate household, statements regarding

the abuser’s identity are reasonably relied on by a physician in treatment or

diagnosis.’”   Id. (citation omitted).    This is because “[t]he emotional and

psychological injuries of such abuse are treated by the doctor along with the

physical injury.” Id.

       Dr. Harre explained that a child’s history is ninety percent of her diagnosis

and provides the context for what she finds in a physical examination of the child.

She specifically testified to her need to know the identity of the abuser to protect

a child “from continued injuries and physical inappropriate interaction.” Dr. Harre

explained the closeness of the relationship between a child and her abuser also

impacts the intensity of the emotional reaction the child may have to what has

happened—which impacts the child’s view of herself and is a consideration as

part of the child’s treatment. Although Dr. Harre was aware T.O. no longer lived

with Gloria and Ricky at the time of the evaluation, Dr. Harre testified she was not

sure whether T.O. might be returned to their care and custody. See id. (“The

doctor is also often concerned about the possibility of recurrent abuse.”). Gloria

notes Dr. Harre testified her treatment of T.O.’s physical injuries would not have

changed regardless of T.O.’s willingness to identify or truthful identification of her

abuser.   Dr. Harre went on to clarify, however, that this did not make the

identification unnecessary for treatment purposes.        It remained important for

ensuring T.O. was protected and identifying other services and treatment she
                                          11


may need.5      While it did not impact the treatment of the physical injuries

themselves, it was indicative of the possible consequences of those injuries. Dr.

Harre explained that knowing the identity of the abuser assisted her overall

diagnosis and treatment plan.

       Dr. Harre testified she talks with children—like T.O.—to build a “special

relationship” so that they know her role is to help them feel better. Following this

talk, T.O. discussed the various marks on her body and described their source—

she identified a birthmark, a mark on her cheek caused by a cousin biting her, a

mark on her forearm caused when she dropped an iron on her wrist, and the

marks on her back and neck caused from being hit with a spatula by Ricky and

Gloria and choked by Gloria. The fact T.O. was able to identify the various

marks and their sources indicates she was able to fairly and honestly distinguish

between their sources. Dr. Harre testified she believed T.O. was aware she was

having this conversation with Dr. Harre to aid Dr. Harre in treating her. While we

note Dr. Harre testified she did not instruct T.O. not to lie, there is no indication in

the record T.O.’s motive in making the statements to Dr. Harre “was other than

as a patient responding to a doctor’s questioning for prospective treatment.”

Tracy, 482 N.W.2d at 681.        We conclude the statements fall within the rule

5.803(4) exception. See Smith, 876 N.W.2d at 187 (“Eliciting the identity of a

perpetrator of child abuse can be a normal aspect of medical treatment and



5
  Gloria maintains the information was not used for the emotional treatment of T.O.
However, Dr. Harre testified “there was some discussion about possibly some therapy”
for T.O., but T.O.’s mother informed Dr. Harre the child was already seeing a counselor
for mental-health issues. The fact Dr. Harre did not end up needing to refer T.O. for
other services does not make the information less pertinent to Dr. Harre’s evaluation or
diagnosis of T.O.
                                         12


diagnosis for child abuse victims; however, the value of that information is

established by the foundational testimony of the doctors and medical providers in

each case, and that testimony explains the pertinence of the perpetrator’s identity

to the diagnosis and treatment of the victim in the unique circumstances of each

case.”).

       Moreover, the testimony of Dr. Harre regarding the source and nature of

T.O.’s injuries was consistent with the testimony provided by T.O. Davis also

testified to the allegations made against Gloria and Ricky, that Gloria had long

fingernails, that T.O. identified Gloria and Ricky as the individuals who caused

the injuries, and that she personally saw the marks on T.O. A police officer also

testified the marks on T.O.’s neck appeared to have been made by a person, the

marks on her back appeared to have been caused by an object, and all injuries

were consistent with T.O.’s rendition of events.     Additionally, the principal at

T.O.’s school testified to observing the marks and hearing T.O.’s statements that

Gloria was physical with her. Thus, Dr. Harre’s testimony was cumulative and

not prejudicial. Hildreth, 582 N.W.2d at 170 (finding the “erroneous admission of

hearsay” was not prejudicial because it was “merely cumulative” with the

testimony of the child or a social worker).

       III.   Conclusion

       For the foregoing reasons, we find there was substantial evidence

supporting Gloria’s conviction. We further find the district court did not err in

admitting Dr. Harre’s testimony about T.O.’s statements and no prejudice

resulted because the testimony admitted was cumulative.

       AFFIRMED.
                                 13


Vaitheswaran, P.J., concurs; Potterfield, J., concurs specially.
                                        14


POTTERFIELD, Judge. (concurring specially)

      I disagree with the majority’s conclusion that the statements made by T.O.

to Dr. Harre were admissible under the exception to the hearsay rule for

statements made for purposes of medical treatment or diagnosis. See Iowa R.

Evid. 5.803(4).   Dr. Harre was not a treating physician encountered in an

emergency room or medical center. She is an evidence-gatherer to whom T.O.

was taken three days after her abuse was discovered and after she had been

removed from the care of Ricky and Gloria Overstreet. T.O. was already in

counseling and had already given statements regarding the perpetrators of her

injuries. She expected no treatment from Dr. Harre and received none. Cf. State

v. Smith, 876 N.W.2d 180, 185 (Iowa 2016) (noting that statements made for the

purpose of diagnosis are generally considered reliable “because the patient has

a selfish motive to be truthful” (citation omitted)).     The motivation for her

identification of her perpetrators had nothing to do with medical treatment. See

id. at 190 (finding the witness’s statement about the identity of the perpetration

not subject to the exception because “the State presented insufficient evidence

that the identity of the assailment was reasonably pertinent to [the witness’s]

diagnosis or treatment”).

      It is true the identifications were cumulative to her testimony. While it is

undoubtedly true that Dr. Harre’s testimony provided substantive bolstering to

T.O.’s testimony, the doctor’s testimony was cumulative. In a case where two

perpetrators are charged and tried together, we are mindful that the identification

by a child could be colored by greater loyalty to one or the other. But nothing in

this record allows us to speculate about that, leaving the admission of Dr. Harre’s
                                         15

testimony as error but cumulative. See State v. Newell, 710 N.W.2d 6, 19 (Iowa

2006) (stating the admission of hearsay evidence “will not be considered

prejudicial if substantially the same evidence is properly in the record”).
