                    IN THE COURT OF APPEALS OF IOWA

                              No. 3-1145 / 12-2264
                             Filed February 19, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSE FRANCISCO JAQUEZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Louisa County, John M. Wright,

Judge.



      Jose Francisco Jaquez appeals from his conviction for sexual abuse in the

second degree following a jury trial in which the State’s expert witness bolstered

the credibility of the child witness. REVERSED AND REMANDED.



      Benjamin D. Bergman of Parrish Kruidenier Dunn Boles Gribble Gentry

& Fisher, L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney

General, and David L. Matthews, County Attorney, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Potterfield, JJ.
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POTTERFIELD, J.

       Jose Francisco Jaquez appeals from his conviction for sexual abuse in the

second degree. He argues the district court erred by overruling his objection to

an expert witness’s statement in testimony and denying his motion for new trial

on the basis of juror misconduct. He also argues that his conviction is supported

by insufficient evidence. We reverse and remand for new trial.

   I. Facts and Proceedings.

       On April 13, 2012, the State charged Jaquez by trial information with one

count of sexual abuse in the second degree of a child under the age of twelve.

Before trial, Jaquez filed a motion in limine to prevent the State’s expert witness,

Kiesa Kay, who had interviewed the child, from testifying regarding the credibility

of the child.   The court granted the motion, stating “the State may not ask

questions of the [expert] witness that would tend to give the impression to the

jury that the jury should give more credibility to the . . . child witness’s testimony.”

       During Kay’s testimony at trial, the following exchange occurred between

the prosecutor and the expert witness:

              Q: . . . [W]hat was your impression of [the child] when you
       spoke to her? Basically, how did she appear emotionally? A: She
       was quiet and very polite . . . . She was not extremely emotionally
       expressive or upset. She was just very polite.
              Q: In your experience in those prior interviews that you
       conducted, is that unusual that a child be not be overly emotional in
       that type of situation? A: Oh, no. Not at all. Her demeanor was
       completely consistent with a child who has been traumatized,
       particularly multiple times.

Counsel objected to the statement as nonresponsive and bolstering the credibility

of the child witness. The objection was overruled.
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       Kay, the child, the child’s examining physician, and the child’s mother

testified at trial. The jury found Jaquez guilty of second-degree sexual abuse.

Jaquez filed a combined motion in arrest of judgment and motion for new trial.

The motion alleged two grounds for new trial: first, Kay had made impermissible

contact with jurors, and second, the verdict was unsupported by the evidence. A

hearing was held, and Jaquez’s mother and sister testified to seeing a person

from the trial who looked like a doctor speaking with the jurors outside the

courtroom. The court attendant also testified at the hearing; she reported seeing

Kay in the jury room as the jury was to enter and that Kay, when told to leave the

room, apologized to the jurors as she left. The court attendant also testified to a

report from a clerk that Kay had joined several jurors for a smoke break. The

court denied the combined motion. Jaquez appeals.

   II. Analysis.

       Jaquez argues the district court erred both in overruling his objection to

Kay’s testimony and in denying his motion for new trial. We review both these

decisions by the trial court for an abuse of discretion. State v. Hines, 223 N.W.2d

190, 192 (Iowa 1974); see also State v. Thompson, 836 N.W.2d 470, 491 (Iowa

2013) (noting the review of the denial of a motion for new trial is for an abuse of

discretion).

   A. Expert testimony.

       Our courts afford “considerable deference to the trial court’s exercise of its

discretion” on admissibility rulings. State v. Allen, 565 N.W.2d 333, 338 (Iowa

1997). “[W]hen a timely and specific objection under [Iowa Rule of Evidence

5.702] challenges the propriety of expert testimony on a particular subject,” the
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proponent of the evidence has the burden to establish that the testimony is

admissible. State v. Myers, 382 N.W.2d 91, 93 (Iowa 1986). Our courts have

repeatedly noted that there is a fine but essential line between testimony that is

helpful to the jury and an opinion that merely conveys a conclusion regarding a

defendant’s guilt. State v. Pansegrau, 524 N.W.2d 207, 210, 211 (Iowa Ct. App.

1994).      Expert testimony as to the truthfulness of another witness is not

admissible. Myers, 382 N.W.2d at 97. In Myers, the State sought to admit

expert testimony that children who claim to have been sexually abused rarely lie

about such abuse. Id. at 92. The Myers court concluded the district court erred

in allowing the testimony:

                 Expert opinion testimony is admissible pursuant to Iowa Rule
         of Evidence 702 if it “will assist the trier of fact to understand the
         evidence or to determine a fact in issue.”               The ultimate
         determination of the credibility or truthfulness of a witness is not “a
         fact in issue,” but a matter to be generally determined solely by the
         jury. An exception to this would be where the defendant is charged
         with perjury. Consequently, we conclude that expert opinions as to
         the truthfulness of a witness is not admissible pursuant to rule 702.
         As we indicated, the effect of the expert opinions in this case was
         the same as directly opining on the truthfulness of the complaining
         witness.

Id. at 97. However, Iowa courts do allow expert testimony regarding the relevant

mental and psychological symptoms present in sexually abused children. State

v. Seevanhsa, 495 N.W.2d 354, 357–58 (Iowa Ct. App. 1992). This includes

expert testimony regarding the symptoms of child sexual abuse accommodation

syndrome. Id. Also allowed under certain circumstances is expert testimony

regarding post-traumatic stress disorder. See State v. Gettier, 438 N.W.2d 1, 6

(Iowa 1989).      Here, however, we are faced with a fundamentally different

scenario.
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       Kay testified the child was quiet and polite, and when asked whether

victims of sexual abuse are usually quiet and polite instead of emotional, Kay

responded that “[the child’s] demeanor was completely consistent with a child

who has been traumatized, particularly multiple times.”1 Kay did not present her

testimony as general symptomology of post-traumatic stress disorder or child

sexual abuse accommodation syndrome.              Jaquez did not put the victim’s

demeanor in issue; while he referenced in closing that she was “likeable,” he did

not argue that this was somehow incongruous with the child being sexually

abused. See, e.g., State v. Dodson, 452 N.W.2d 610, 612 (Iowa Ct. App. 1989)

(holding a psychologist could testify to why a victim might act normally around

someone who sexually abused her after the defense entered images of the victim

smiling around the defendant).

       We find Kay’s testimony that the child’s demeanor was “completely

consistent” with the demeanor of a child who had been traumatized multiple

times goes beyond the bounds of admissibility established by our precedent.

Kay not only connected the characteristic of a quiet demeanor with the witness

and with the specific allegation of the witness, her testimony violated the court’s

previous ruling in limine. We conclude that “the effect of the expert opinion[] in

this case was the same as directly opining on the truthfulness of the complaining


1
  This testimony is similar to the expert’s opinion in State v. Brown, No. 12–1633, 2013
WL 5743652 (Iowa Ct. App. 2013). In that case, we examined an expert’s report which
stated that the child who alleged she was sexually abused was “consistent,” “detailed
and clear,” and “confidently demonstrated” her allegations and therefore her case
“clearly warranted” further investigation. We found the court’s decision to admit this
report into evidence was in error, as the report impliedly vouched for the child’s
credibility. Here, a case worker testified to her observation of the reporting child’s
demeanor and found it consistent with her observations of other children who
experienced trauma.
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witness.” Myers, 382 N.W.2d at 97. Jaquez had alerted the trial court to the

possibility of inadmissible expert testimony in his motion in limine. The expert’s

violation of the court’s ruling fell outside the court’s range of discretion. Nor did

the State carry its burden of showing admissibility in its general argument that the

expert’s testimony “assisted the jury in understanding the reactions and resulting

demeanor of victims of abuse.”        This ignored the direct comment that the

witness’s demeanor was “completely consistent” with victims of abuse. But even

where a district court abuses its discretion in admitting evidence, we must

determine whether the improper evidence resulted in prejudice to the defendant.

       Kay’s testimony was offered by the State both as a person who

interviewed the child and as an expert in the field of interviewing sexual abuse

victims. She had conducted 186 prior forensic interviews with children and had

taken several specialized training courses on conducting forensic interviews of

children. Her testimony that traumatized children tend to have quiet or withdrawn

demeanors was within her expertise. See Seevanhsa, 495 N.W.2d at 357–58.

Kay also was the forensic investigator; she was also allowed to testify as to her

observations of the child’s demeanor from the interview. See State v. Tonn, 441

N.W.2d 403, 405 (Iowa 1989). Her testimony then carried great weight as both a

subject-matter expert and the person who examined the child. Kay’s additional

volunteered comment linking the demeanor to the multiple instances of abuse

alleged against Jaquez crossed the “fine line” of Myers on the issue of bolstering

credibility. See 382 N.W.2d at 98.

       In Gettier, 438 N.W.2d at 6 our supreme court analyzed whether testimony

by an expert resulted in prejudice:
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               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
       traumatized. We see little, if any, prejudicial effect in the admission
       of this testimony.

In contrast, here, Kay did not present her opinion in the context of PTSD, did not

only show the typical symptoms of a person being traumatized, and instead of

waiting for independent evidence of trauma, she directly drew that conclusion for

the jury.

       The prosecutor recognized the power of Kay’s testimony in urging the jury

in closing argument:

       When there are these serious, serious allegations like this in a
       case, you know, do you believe the adult, or do you believe the
       child? Well, a perpetrator of sexual abuse relies on that type of
       dynamic. I asked Kiesa Kay, who was the forensic interviewer,
       about that. And in our society, adults are supposed to protect
       children, not hurt them.

       The credibility of the child was central to this case. The district court

abused its discretion in overruling the objection to this statement, resulting in

clear prejudice to Jaquez.

       Because we reverse on this issue, we need not address the arguments

regarding Kay’s contact with the jury during trial.2

       REVERSED AND REMANDED.

2
   “When a reviewing court determines prejudicial trial error occurred in a criminal trial,
the case will not be remanded for retrial when the evidence at trial was insufficient to
support the conviction.” State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003). Jaquez
points to various inconsistencies in the child’s testimony as showing the evidence was
insufficient to support his conviction. We find that when the “evidence is viewed in the
light most favorable to the State, including legitimate inferences and presumptions which
may fairly and reasonably be decide from the record” a reasonable jury in this case
could find Jaquez guilty beyond a reasonable doubt. See State v. Smith, 508 N.W.2d
101, 103 (Iowa Ct. App. 1993).
