                   IN THE SUPREME COURT OF IOWA
                                 No. 10–1742

                           Filed December 21, 2012


STATE OF IOWA,

      Appellee,

vs.

ROBERT ANTHONY HOWARD,

      Appellant.



      On review from the Iowa Court of Appeals.



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

Smith and Marlita A. Greve, Judges.



      Defendant appeals his convictions for second-degree sexual abuse and

child endangerment, contending his confession was tainted by a promise of

leniency. DECISION OF THE COURT OF APPEALS VACATED, JUDGMENT

OF DISTRICT COURT REVERSED, AND CASE REMANDED FOR NEW

TRIAL.



      Mark C. Smith, State Appellate Defender, and Dennis D. Hendrickson

and Martha J. Lucey, Assistant Appellate Defenders, for appellant.



      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney

General, and Alan R. Ostergren, County Attorney, for appellee.
                                       2

WATERMAN, Justice.

      After the police detective questioning him promised treatment and

implied he would go free if he completed treatment, defendant, Robert Howard,

confessed to sexually abusing his girlfriend’s son.       Howard contends his

confession is inadmissible under our caselaw prohibiting the use of confessions

obtained following a promise of leniency. The district court denied Howard’s

motion to suppress his confession, and the jury that heard his confession

convicted him of second-degree sexual abuse and child endangerment.            A

divided court of appeals affirmed his convictions and twenty-five-year sentence.

We granted Howard’s application for further review.

      For the reasons explained below, we conclude the detective’s questioning

crossed the line into an improper promise of leniency under our long-standing

precedents, rendering Howard’s subsequent confession inadmissible.           The

exclusionary rule we enforce again today protects the innocent from a police

tactic that can induce false confessions. The error in admitting his confession

was not harmless. Accordingly, we vacate the decision of the court of appeals,

reverse the judgment of the district court, and remand the case for a new trial.

      I. Background Facts and Proceedings.

      On January 14, 2010, Howard and his girlfriend, Jessica, took her then

seventeen-month-old son, A.E., to the doctor’s office after discovering blood in

his diaper. Dr. Colette Hostetler examined the baby. Howard and Jessica told

Dr. Hostetler that they believed A.E.’s injuries may have been caused by a hard

stool. During her examination of the infant, Dr. Hostetler observed a laceration

near the top of A.E.’s anus, bruising, swelling, and signs that the blood flow to

that area had recently increased.          As Dr. Hostetler later testified, she

determined to a reasonable degree of medical certainty that the cause of the

bleeding was blunt penetration trauma to A.E.’s anus. She also determined

the injuries occurred within several hours of A.E. being brought to the clinic
                                        3

and that, “[b]ecause of the pattern of bruising, . . . [the penetrating object] was

bigger than a pencil or a finger but small enough to fit in that area.”

      In reaching her conclusions regarding the cause of the injuries,

Dr. Hostetler specifically rejected the claim that the injuries were caused by a

hard bowel movement

      [b]ecause of the pattern of the injury being mostly external to the
      anal canal, where stools cause an injury that is in the anus or just
      a little ways beyond that. And the bruising that was present was
      indicating that there was a blunt force externally.

Dr. Hostetler also noted that bleeding caused by a hard bowel movement is

more common with adults than children.

      Howard and Jessica had been in a relationship for approximately six

months.    Howard was spending three to four nights a week at Jessica’s

parents’ home, where she lived with A.E. He spent January 13 there, the night

before they took A.E. to the clinic.   On the morning of January 14, Howard

went to court for a traffic ticket and then he, Jessica, and A.E. drove to Illinois

to deliver some clothes to Howard’s cousin.        Before returning home, they

stopped at a friend’s house and picked up some food and soda.

      After running these errands, Howard and Jessica returned with A.E. to

Jessica’s parents’ home. No one else was there. The home’s power went out

while they were there. The fuse box was located in a locked room. Jessica did

not have a key for this room, so she called her mother, who was working about

five to six minutes away. Jessica decided she would go to get her mother’s key.

About thirty minutes before leaving, Jessica changed A.E. and saw no blood in

his diaper or anything abnormal. She put A.E. down for a nap in his crib in

the living room.

      Jessica was away from the house for around twenty minutes. After she

arrived at her mother’s workplace, Jessica stayed for about ten minutes talking

with her mother. While there, Jessica received a call from Howard. Howard
                                        4

told Jessica he had discovered blood in A.E.’s diaper while he was changing

him.   Jessica returned home to find A.E. lying on his stomach, in his crib,

screaming. Howard was lying on the floor.

       Jessica checked A.E.’s diaper and found blood in it.      Jessica called

Howard’s mother to ask her what could be the cause of the blood. Howard’s

mother indicated that the blood may have been caused by a hard stool, but

recommended that they contact a doctor. A.E. had not had any bloody stools

before this day. Jessica called the clinic where she usually took A.E. and was

told to bring him. Before they left the house together to take the baby to the

doctor, Howard took a shower and changed his clothes.       On the way to the

clinic, Howard stopped at a friend’s house for a few minutes. Jessica and A.E.

stayed in the truck during this stop.

       After Dr. Hostetler finished examining A.E., she contacted the Iowa

Department of Human Services (IDHS) as a mandatory reporter under Iowa law

because she suspected A.E.’s anal penetration injuries were caused by child

abuse. Dustin Krueger of the IDHS and Detective Tim Hull of the Muscatine

Police Department responded and arrived at the clinic to investigate the report.

Detective Hull and Krueger interviewed Jessica and Howard separately.

Detective Hull did not read Howard his Miranda rights and did not tell Howard

he was recording their conversation.

       Early in their recorded conversation, Howard told Detective Hull he has a

pending charge for assault that resulted from a physical altercation he had

with an eighteen-year-old who “told [Howard’s] 13-year-old sister to suck his

dick.” In response, Detective Hull said, “You know, I can see how that would

make you angry because if you have sex with a 13-year-old, it’s actually a 25-

year prison sentence . . . .”

       Howard initially told Detective Hull and Krueger that he did not know

what caused A.E.’s injuries, but suspected it could have been caused by a hard
                                              5

stool. According to Howard’s initial account, shortly after Jessica left, Howard

had checked on A.E. and found he was not sleeping, so he took A.E. out of his

crib and let him run around and play with his toys. At some point, Howard

noticed that A.E.’s diaper needed to be changed. While he was changing A.E.,

Howard found blood and a hard stool in his diaper. Howard called Jessica to

tell her.

       As Detective Hull and Krueger continued their interview, Howard told

them he did not see A.E. get hurt, cry, or otherwise suggest that he had been

hurt at any time that day or while A.E. was up running around. Howard also

confirmed that the only people who had come into contact with A.E. between

noon and 3 p.m. were Jessica, a friend, and himself, and the friend was never

alone with A.E. After Howard admitted that he and Jessica were the only two

people who had been alone with A.E. during that time, the following exchange

occurred:

              MR. KRUEGER: Do you think Jessica would do something
       like this?
             [HOWARD]: No. To be honest, Jessica don’t even yell at that
       kid. To be honest, she’s one of the most perfect mothers I ever
       seen.

       As the interview continued, Detective Hull began discussing the proper

punishment for someone who abuses a child. It is the following exchange that

begins what Howard contends became an improper promise of leniency: 1

            DETECTIVE HULL: So what do you think should happen to
       somebody if they stuck their finger or stuck some foreign object in
       some kid’s butt?


        1We agree with Howard that this is the point at which Detective Hull began to make

impermissible promises of leniency. Accordingly, as we explain below, everything discussed
after this point, including his confession, is inadmissible in the prosecution’s case-in-chief;
however, everything discussed before the line was crossed remains admissible. See State v.
Madsen, 813 N.W.2d 714, 727 (Iowa 2012) (“These statements were properly admitted into
evidence because Madsen made the statements before the detective’s promise of leniency.”).
                                       6
             [HOWARD]: I think they should be punished.
          DETECTIVE        HULL:    What     do   you   think   should   be
     punishment?
           [HOWARD]: I don’t know. I’m not a cop. I don’t know the
     laws are around here.
             DETECTIVE HULL: Well, what do you think?
             [HOWARD]: I don’t know.       I just – I don’t think – I don’t
     know.
           DETECTIVE HULL: What if some guy had kind of like a
     sickness and he couldn’t control himself and he stuck his penis in
     a year-and-a-half-year-old’s butt? What do you think should
     happen to him? Do you think he should get the help he needs?
     You know, because, obviously, he’s sick and needs help.
           [HOWARD]: He should go to a hospital where they can help
     him or something. I don’t know.
           DETECTIVE HULL: Okay. How long should he be in the
     hospital, just until he gets treated for his sickness?
             [HOWARD]: Yeah.
           DETECTIVE HULL: Okay. How do we get the help, get you
     the help you need?
             [HOWARD]: You really think I did it?
           DETECTIVE HULL: I’m just asking you. Do you need help?
     Do you think we should help you? There’s people out there that
     can help you.

Howard continued to deny that he had sexually abused A.E.

     As Detective Hull continued asking Howard what happened that day, the

conversation returned to the “help” that is available for people who sexually

abuse children and about Howard’s future plans:

          DETECTIVE HULL: . . . Well, what do you think should
     happen to someone who would do something like this to a child?
             [HOWARD]: They should go to a hospital and get help.
           DETECTIVE HULL: Okay. Because, you know, people can be
     helped that have these types of problems. And they can grow up
     or get older and, you know, get away from these urges and be a
     regular person.
             ....
           [HOWARD]: What happens to people like that, though? I’ve
     never met someone like that, whatever it is, like with little kids or
     anything.
                                7
     DETECTIVE HULL: There’s doctors and nurses that treat
them and just like any other sickness.
     [HOWARD]: I know. But, like, where do they go? Do you
know what I’m trying to say?
      DETECTIVE HULL: To a treatment center like people go to
treatment centers for drug addictions.
      [HOWARD]: Yeah. I’ve been to New Horizons.
      DETECTIVE HULL: It’s a treatment center for sex addiction.
Their addiction is, you know, with children. You know, a lot of
people don’t want to talk about that stuff; but it happens. We deal
with this a lot. You know, we have dozens of cases like this every
year. You know, people go get the treatment they need; and, you
know, then they can prove they can be around children again.
      They have to pass the program and make sure they’re going
to be safe around kids, and they graduate. And, you know, then
they have to slowly prove they can be around kids without doing
harm to them.
      ....
      DETECTIVE HULL: Okay. Do you agree with what happened
today that that person just needs some help so they don’t do this
again, they don’t ever harm another child?
      [HOWARD]: Yeah.
     DETECTIVE HULL: Because, I mean, there is help out there.
So what kind of help do you need?
      [HOWARD]: Help from there, I guess.
      ....
       DETECTIVE HULL: Okay. And if I’m you – Where would you
like to be five years from now?
      [HOWARD]: Five years for me?
      DETECTIVE HULL: Yeah.
     [HOWARD]: Well, five years I wish I could have my school
under my belt.
      DETECTIVE HULL: Right.
     [HOWARD]: And be a nice mechanic and have my own house
and have a family.
      DETECTIVE HULL: Okay. So you could earn a good living.
      [HOWARD]: Yeah.
     DETECTIVE HULL: Okay. And little [A.E.] will be running
around about that time be six and a half?
      [HOWARD]: Have whatever he wants.
                                 8
     DETECTIVE HULL: Maybe you and Jessica could even have
another child; and you can be normal, right?
      [HOWARD]: Yeah.
      DETECTIVE HULL: Okay.          So how do we get from here to
there?
      ....
       [HOWARD]: Well, I’m looking to go to school. I’m looking for
a job, so I am trying.
       DETECTIVE HULL: Okay. The first thing is that we get you
help, right?
      [HOWARD]: Yes.
     DETECTIVE HULL: Okay. So are you ready to tell us what
happened today or – Because this is the time right now.
       I know it’s difficult for you, but I know you love [A.E.] and
you love Jessica. And she loves you. She told us that, okay? And
she does want you to be the father figure that [biological father]
isn’t, okay? He’s not going to be that person. She wants you to be
that person. She told us so. Okay?
      ....
       Okay. So what happened with [A.E.] today?        Come on, I
really do want to help you.
      [HOWARD]: Okay. Help me.
      DETECTIVE HULL: So how did this happen?
      [HOWARD]: Like you guys said.
      DETECTIVE HULL: Okay. How is that?
      You’re just sick, Robert. You need help.
      [HOWARD]: I know.
      DETECTIVE HULL: Okay. So how do we get you there, from
here to there? How do we do it? I mean, do you have urges that
you can’t control?
      [HOWARD]: No. (Crying)
      DETECTIVE HULL: No, okay.
      [HOWARD]: I don’t know what brought it on.
      DETECTIVE HULL: Okay. What brought what on?
      [HOWARD]: Doing that.
      DETECTIVE HULL: Okay. What did you do?
      [HOWARD]: (No response).
     DETECTIVE HULL: You know that no matter what you tell
me today, I’ll give you a ride home, drop you off, wherever you
want to go as long as we can promise that Jessica and [A.E.] can
                                              9
      [be] safe . . . and you’re not going to contact them until we know
      that Jessica and [A.E.] are going to be safe and you get the help
      you need, okay.
             I’ll give you a ride wherever you want to go, okay? Like I say,
      you just got to promise that you’re not going to have contact with
      [A.E.] and Jessica for a couple weeks, okay? So what happened?
             [HOWARD]: I put my penis in.
             ....
             DETECTIVE HULL: How long did you do that for?
             [HOWARD]: Just a minute.
             DETECTIVE HULL: Just a minute?
             [HOWARD]: Yeah. Just until he started crying.

      Detective Hull, as he promised, let Howard go home that evening. On

January 20, Howard was charged with second-degree sexual abuse and child

endangerment causing bodily injury.                 Howard moved to suppress his

confession alleging that the state violated Miranda 2 and that his confession was

involuntary under the totality-of-the-circumstances and evidentiary tests.

Howard claimed his confession was involuntary because “[Detective] Hull made

promises of ‘help’ if the Defendant admitted to the crime.”                  Howard argued

these statements amounted to “improper influence, and direct and indirect

promises of help and leniency,” and that, accordingly, Howard’s confession

should be suppressed. The district court denied Howard’s motion to suppress,
concluding

      statements that an individual needs treatment . . . and a promise
      to get help for the defendant [do] not constitute a promise of
      leniency in that Detective Hull never referred to avoiding
      incarceration, that it would go better for the defendant if he told
      the truth, or that the statements would have any effect on further
      criminal prosecution.

      At trial, the jury heard testimony from three state witnesses: Jessica,

Detective Hull, and Dr. Hostetler. Howard’s recorded confession was played for


      2Howard   does not appeal from the district court’s ruling on his Miranda claim.
                                       10

the jury. Howard testified and denied having sexual contact with A.E. Howard

explained that he confessed during the interview with Detective Hull and

Krueger because he sought to prevent A.E. from being taken from Jessica.

Howard claimed he believed that if he did not confess A.E. would not be able to

go home with Jessica that evening because the cause of A.E.’s injuries would

still be unknown.     The prosecutor emphasized Howard’s confession in his

closing argument, asserting that “it buries him.”

      The jury found Howard guilty of second-degree sexual abuse and child

endangerment causing bodily injury.         The district court denied Howard’s

motion for a new trial and sentenced him to twenty-five years for the second-

degree sexual abuse charge and five years for the child endangerment, with the

sentences to run concurrently.

      Howard appealed, contending the district court erred in admitting his

confession into evidence because Detective Hull’s statements about getting

Howard help were impermissible promises of leniency. We transferred the case

to the court of appeals.

      The appeal was heard by a three-judge panel of the court of appeals,

which affirmed his convictions, with one judge dissenting.          The majority

concluded that “[a]lthough we are troubled by Officer Hull’s several statements

about getting Howard ‘help’ and ‘treatment,’ no promise of leniency in

prosecution or sentencing was made.” The majority emphasized that Detective

“Hull did not state or imply ‘help’ would be in lieu of criminal charges.” The

majority, thus, concluded that “[t]he officer never crossed the line to explain

‘what advantage is to be gained or is likely from making a confession.’ ”

      The dissent concluded that Howard’s confession was inadmissible

because “the accused was repeatedly and deliberately presented with the idea

that his confession would lead to treatment and not to prosecution.”        The

dissent further noted that:
                                         11
      Howard confessed as a result of the officer’s deliberate ruse which
      implied that treatment in lieu of incarceration would follow, that
      Howard would have the ability to make plans for the next five years
      of his life, that he would be released no matter what he confessed,
      and that he would be permitted to rejoin the family of the child and
      the child’s mother after a short period of no contact with the
      mother and child. There is no suggestion in this record that
      Officer Hull indicated to Howard that treatment would be merely a
      collateral benefit of incarceration. Rather, Officer Hull’s tools of
      persuasion were calculated fiction—that a confession would result
      in a ride home, treatment, a short period of no contact with the
      family, followed by a return to unsupervised interaction with
      children and completion of his schooling.

We granted Howard’s application for further review.

      II. Standard of Review.

      Our review of the district court’s ruling on promises of leniency under the

common law evidentiary test is for corrections of errors at law. State v. Polk,

812 N.W.2d 670, 674 (Iowa 2012).

      III. Analysis.

      We recently declined the State’s invitation to abandon our common law

evidentiary    rule   on   promissory   leniency   in   favor   of   a   totality-of-the-

circumstances test. State v. Madsen, 813 N.W.2d 714, 726 (Iowa 2012). We

directed district courts to “first employ the evidentiary test to determine the

admissibility of confessions challenged on grounds of a promise of leniency.”

Id. at 726 n.1. We also noted that statements made by the defendant during

the interview before a promise of leniency are not excluded by the evidentiary

rule. See id. at 727 (“These statements were properly admitted into evidence

because Madsen made the statements before the detective’s promise of

leniency.”).

      A. Promises of Leniency.            In Madsen, we noted “[c]ourts and

commentators have long recognized promises of leniency can induce false

confessions leading to wrongful convictions of the innocent.” Id. at 725. We

reiterated that a “confession can never be received in evidence where the
                                      12

prisoner has been influenced by any threat or promise.” Id. at 724 (citation

and internal quotation marks omitted). In State v. Mullin, we asked: “Were the

statements made to the accused strong enough so that it could in reason be

determined that the prisoner would lie and say he was guilty when he was not,

so as to gain some special favor?”    249 Iowa 10, 16, 85 N.W.2d 598, 601

(1957).

      We explained the rationale for the promise-of-leniency doctrine as

follows:

            While it is hard to believe that a person would admit false
      facts showing his guilt without greater assurance than is
      sometimes held sufficient to make inadmissible alleged
      confessions, the courts feel compelled to go to the extreme to
      protect the weak or confused innocent party who may feel his
      chances of establishing his innocence are too remote to turn down
      what appears to be an assurance of leniency if he will confess to
      the crime of which he is accused. It seems more reasonable to
      assume that before an accused would falsify bad conduct for good
      conduct, he would demand some fairly specific assurance or
      promise of leniency, which is the obvious reason for the many
      decisions that a mere statement by an officer that it would be
      better or wiser to tell the truth, is not such an assurance or
      inducement as to make a statement by accused inadmissible.
      However, when the officer or officers go further and explain just
      how it will be better or wiser for the accused to speak, these
      statements may suddenly become more than an admonishment
      and assume the character of an assurance or promise of special
      treatment which may well destroy the voluntary nature of the
      confession in the eyes of the law.

Id. at 16, 85 N.W.2d at 601–02.

      The test “is whether the language used amounts to an inducement which

is likely to cause the subject to make a false confession.” Id. at 17, 85 N.W.2d

at 602.    We find it difficult to believe that an innocent man would falsely

confess to sodomizing a toddler simply because the interrogating officer

promises treatment without explicitly promising no other criminal sanctions

would follow. But, in Mullin, we also warned, “ ‘the law cannot measure the

force of the influence used or decide upon its effect on the mind of the
                                       13

prisoner,’ and therefore excludes the declaration if any degree of influence by

force or other inducement has admittedly been exerted upon him.” Id. at 14–15,

85 N.W.2d at 600 (quoting State v. Thomas, 193 Iowa 1004, 1016, 188 N.W.

689, 694 (1922)). “The use of a per se exclusionary rule eliminates the need for

the court to attempt to read the mind of defendant to determine if his

confession, in fact, was induced by or made in reliance upon the promise of

leniency.” Madsen, 813 N.W.2d at 726. And, as we noted in Polk, “The rule

suppressing confessions tainted by promises of leniency deters police from

using a tactic that might induce the innocent to confess falsely.” Polk, 812

N.W.2d at 674 (citing 2 Wayne R. LaFave, et al., Criminal Procedure § 6.2(b), at

612–13 (3d ed. 2007) (noting the “exclusionary rule for confessions . . . is also

intended to deter improper police conduct”)).

      The court of appeals majority relied in part on State v. Whitsel, 339

N.W.2d 149 (Iowa 1983), where we stated, “We do not consider either an offer

to recommend psychiatric help or an offer to inform the prosecutor of

defendant’s cooperation to be tantamount to a promise of leniency.” Id. at 153–

54 (collecting cases). Whitsel is distinguishable. In that case, after being given

a Miranda warning at the police station, “Whitsel volunteered information

concerning his prior arrest on a sexual abuse charge in New Jersey in which

the officers offered psychiatric help in exchange for cooperation with the

police.”   Id. at 153.   The Iowa detectives responded by telling Whitsel they

would recommend he receive psychiatric treatment. Id. Here, Detective Hull,

not Howard, initiated the discussion of treatment. Importantly, in Whitsel, the

Iowa detectives “emphasized” to Whitsel “that they could not make any

promises or give any guarantees and would only relate to the county attorney

what had been said.” Id. Whitsel’s confession followed that disclaimer. Id. By

contrast, Detective Hull, did not Mirandize Howard and never told Howard he

could not make any promise or guarantee that treatment would be the only
                                       14

consequence, nor did he tell Howard the county attorney would decide whether

to pursue criminal charges carrying prison sentences.     On the other hand,

Detective Hull did tell Howard early in the interview that sex with a thirteen-

year-old carried a twenty-five year sentence.

      It is true, as the court of appeals’ majority noted, Detective Hull never

overtly told Howard he would receive a lighter sentence if he confessed. He

never said an inpatient treatment program would be the only consequence. He

stated no quid pro quo out loud. But, his line of questioning was misleading

by omission.   As the court of appeals’ well-reasoned dissent aptly observed,

“Officer Hull’s statements strategically planted in Howard’s mind the idea that

he would receive treatment, and nothing more, if he confessed.” See State v.

McCoy, 692 N.W.2d 6, 28–29 (Iowa 2005) (holding officer’s repeated statement

to the defendant that “[i]f [he] didn’t pull the trigger, [he] won’t be in any

trouble” rendered the defendant’s confession inadmissible because it “indicates

leniency in exchange for defendant’s confession”).   Detective Hull’s repeated

references to getting help combined with his overt suggestions that after such

treatment Howard could rejoin Jessica and A.E. conveyed the false impression

that if Howard admitted to sexually abusing A.E. he merely would be sent to a

treatment facility similar to that used to treat drug and alcohol addiction in

lieu of further punishment. Significantly, Detective Hull did not counter this

false impression with any disclaimer that he could make no promises or that

charges would be up to the county attorney. We hold his interrogation crossed

the line into an impermissible promise of leniency, rendering the confession

that followed inadmissible.

      B. Harmless Error.       The State contends we may affirm Howard’s

convictions because any error in admitting his confession was harmless in light

of other overwhelming evidence establishing his guilt.     We conclude that,

although other evidence of Howard’s guilt was strong, we cannot determine the
                                       15

erroneous admission of his confession was harmless.           Howard’s recorded

confession was played for the jury, and as the prosecutor argued in his final

summation, “it buries him.”

      “ ‘Error . . . predicated upon a ruling which admits or excludes

evidence’ ” will not provide a defendant with a basis for relief on appeal,

“ ‘unless a substantial right of the [defendant has been] affected.’ ”   State v.

Parker, 747 N.W.2d 196, 209 (Iowa 2008) (quoting Iowa R. Evid. 5.103(a)). We

presume the defendant’s rights have been prejudiced unless the State can

affirmatively establish otherwise. Id. The State overcomes the presumption of

prejudice if it can establish that there was overwhelming evidence of the

defendant’s guilt. See id. at 210; see also State v. Ware, 205 N.W.2d 700, 705

(Iowa 1973) (applying the overwhelming evidence standard in assessing

whether the district court’s error in admitting defendant’s involuntary

confession was harmless error).

      Howard does not argue the evidence was insufficient to convict him

without the inadmissible confession. Rather, he argues he is entitled to a new

trial because the State cannot show the erroneous admission of his confession

was harmless error.       The remaining evidence against him was largely

circumstantial.    “Circumstantial evidence is equally probative as direct

evidence for the State to use to prove a defendant guilty beyond a reasonable

doubt.” State v. Brubaker, 805 N.W.2d 164, 172 (Iowa 2011).

      In contending that allowing the confession into evidence was not

harmless error, Howard relies heavily on State v. Moorehead, 699 N.W.2d 667

(Iowa 2005).   In that case, the defendant was charged with operating while

intoxicated.   Moorehead, 699 N.W.2d at 670.         The district court rejected

Moorhead’s claim that he was denied a right to consult with a family member

before submitting to a breath test. Id. The test results showed Moorehead’s

blood alcohol level was .182, over twice the limit for intoxication. Id. After the
                                        16

test, when an officer asked if he was okay, he replied, “I’m drunk as hell.” Id.

The district court in a nonjury trial convicted him, relying on the breath test.

Id. On appeal, the court of appeals held the breath test was inadmissible but

affirmed his conviction on harmless error grounds, relying on his admission

that he was drunk as hell, as well as the officer’s observation of his erratic

driving and poor performance on three field tests for sobriety. Id. at 672.

      On further review, we reversed the conviction, concluding the breath test

was inadmissible. We noted

      the test result played a central role in the district court’s decision.
      Because this matter was tried to the court, we have a written
      exposition of the fact finder’s reasoning in the verdict.
      Moorehead’s high breath test result is the very first fact cited as
      evidence of guilt. Mindful of a defendant's right to a fair trial and
      just application of our rules, it cannot be fairly said that the breath
      test result did not injuriously affect Moorehead’s rights. The
      district court’s error in admitting this evidence clearly prejudiced
      Moorehead. Admission of the breath test result into evidence was
      therefore not harmless error.

Id. at 673 (citation omitted). We further held that Moorehead’s statement, “I’m

drunk as hell,” should also be suppressed, unless it was spontaneous. Id. at

675. We declined to decide whether it was spontaneous because the district

court had not reached that issue. Id. We remanded the case for a new trial.
Id. Howard asserts that Moorehead requires a new trial whenever important

evidence was erroneously admitted. Defendant’s confession is powerful

evidence in a child sex abuse case with a victim too young to talk, just as the

breath test result of .182 is powerful proof in an OWI case.

      After Moorehead, however, we have continued to hold that a conviction

may be affirmed when supported by other overwhelming evidence of the

defendant’s guilt. For example, in State v. Wells, the State charged Wells with

third-degree sexual abuse.     738 N.W.2d 214, 217 (Iowa 2007).         Wells was

accused of having sexual contact with a fourteen-year-old girl, L.M. Id. at 216.

While at the hospital undergoing an examination, L.M. told the nurse
                                               17

examining her that she had engaged in a consensual sexual relationship with

Wells, the latest encounter being earlier that evening. Id. The nurse conducted

a gynecological examination and collected DNA evidence implicating Wells. Id.

The nurse testified at trial to what L.M. told her, over Wells’s objection. Id. at

217. The jury convicted Wells of third-degree sexual abuse. Id. On appeal, we

did not decide whether the district court erred in admitting the victim’s

statement through the nurse because “[t]he jury was presented with DNA

evidence that overwhelmingly established Wells’s guilt.” Id. at 218. We also

noted that, “[b]ecause the admission of the evidence was harmless under the

standard applied to the claimed constitutional error, it was also harmless

under the standard applied [for nonconstitutional error].” Id. at 219; 3 see also

State v. Elliott, 806 N.W.2d 660, 669 n.1 (Iowa 2011) (“Another way to show the

tainted evidence did not affect the jury’s verdict is to show other overwhelming

evidence of the defendant’s guilt, making the prejudicial impact of the tainted

evidence insignificant.”); State v. Redmond, 803 N.W.2d 112, 127 (Iowa 2011)


       3To   establish harmless error for a constitutional violation, “ ‘the State must “prove
beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.” ’ ” State v. Walls, 761 N.W.2d 683, 686 (Iowa 2009) (quoting State v. Peterson, 663
N.W.2d 417, 431 (Iowa 2003)). We employ a two-step analysis to determine whether the State
has met its burden under the constitutional harmless-error standard. Id.

       First, the court asks what evidence the jury actually considered in reaching its
       verdict. Second, the court weighs the probative force of that evidence against
       the probative force of the erroneously admitted evidence standing alone. This
       step requires the court to ask “whether the force of the evidence is so
       overwhelming as to leave it beyond a reasonable doubt that the verdict resting
       on that evidence would have been the same without the erroneously admitted
       evidence.”

Id. at 686–87 (citations omitted) (quoting Peterson, 663 N.W.2d at 431). This two-step analysis
is not required for a nonconstitutional harmless-error review. But even under a constitutional
analysis, it is possible for the erroneous admission of a confession to be harmless error on a
particular record. See id. at 690 (Cady, J., dissenting) (“If the [harmless-error] doctrine is
inapplicable to improperly admitted confessions, we would not have applied it in Hensley to
find the trial court error harmless.” (citing State v. Hensley, 534 N.W.2d 379, 384 (Iowa 1995))).
                                       18

(“Past cases have held the erroneous admission of the defendant's prior

conviction does not violate the defendant's ‘substantial right[s]’ when

overwhelming evidence supports his conviction.” (quoting Parker, 747 N.W.2d

at 209)); State v. Paredes, 775 N.W.2d 554, 571 (Iowa 2009) (nonconstitutional

harmless-error analysis asks whether defendant has been “ ‘injuriously affected

by the error or . . . has suffered a miscarriage of justice’ ” (quoting State v.

Sullivan, 679 N.W.2d 19, 29 (Iowa 2004))).

      Ordinarily, the erroneous admission into evidence of defendant’s

confession to the unwitnessed sexual assault of a toddler would require a new

trial in the absence of DNA evidence, reliable eyewitness testimony, video, or

other compelling proof. The jury convicted Howard of two counts: sexual abuse

in the second degree and child endangerment. We consider whether the court’s

admission of Howard’s confession was harmless for each count separately. We

consider only the admissible evidence presented at trial including the recorded

statements   Howard    made   to   Detective   Hull   and   Krueger   before   any

impermissible promise of leniency.    See Madsen, 813 N.W.2d at 728 (noting

that certain “statements were properly admitted into evidence because [the

defendant] made the statements before the detective’s promise of leniency”).

      1. Count I: sexual abuse in the second degree.          The State charged

Howard with second-degree sexual abuse in violation of Iowa Code section

709.3(2) (2009). Jury instruction No. 19 required the jury to find:

            1. On or about January 14, 2010, the defendant performed
      a sex act with A.E.
           2. The defendant performed the sex act while A.E. was
      under the age of 12 years.

Iowa Code section 702.17 defines “sex act,” in part, as “any sexual contact

between two or more persons by: penetration of the penis into the vagina or
                                              19

anus.” 4 The jury instructions permitted the jury to consider the type of contact

and the circumstances surrounding it in determining whether the contact was

sexual in nature. See Madsen, 813 N.W.2d at 728 (“[W]hether a ‘sex act’ has

occurred is a fact question for the jury that can ‘be determined from the type of

contact and circumstances surrounding it.’ ” (quoting State v. Pearson, 514

N.W.2d 452, 455–56 (Iowa 1994))).

       Such circumstances certainly include whether the contact was
       made to arouse or satisfy the sexual desires of the defendant or the
       victim. However, the lack of such motivation would not preclude a
       finding of sexual abuse where the context in which the contact
       occurred showed the sexual nature of the contact. Other relevant
       circumstances include but are not limited to the relationship
       between the defendant and the victim; whether anyone else was
       present; the length of the contact; the purposefulness of the
       contact; whether there was a legitimate, nonsexual purpose for the
       contact; where and when the contact took place; and the conduct
       of the defendant and victim before and after the contact.

Pearson, 514 N.W.2d at 455 (noting with regard to State v. Phipps, 442 N.W.2d

611, 612 (Iowa Ct. App. 1989), that “the fact that no nonsexual purpose for the

contact was discernible also demonstrated the sexual nature of the contact”).

We need to decide whether overwhelming admissible evidence supports the

jury’s verdict on this count.

       A.E., who was then a seventeen-month-old, suffered an injury to his
anus, which Dr. Hostetler testified, to a reasonable degree of medical certainty,

was caused by an object penetrating the anus that “was bigger than a pencil or

a finger but small enough to fit in that area.” Dr. Hostetler also testified that

A.E.’s injuries were not consistent with that caused by a hard stool because the

injuries were predominantly external, whereas she would expect injuries

resulting from a hard stool to be primarily internal. Dr. Hostetler also testified


       4The   definition of “sex act” also includes “sexual contact between two or more persons
by . . . use of artificial sexual organs or substitutes therefor in contact with the genitalia or
anus;” however, the jury instructions omitted this facet of the statutory definition.
                                       20

that the injuries had occurred within several hours of the time when A.E. was

brought to the clinic.

      Howard confirmed during the admissible part of his recorded interview

that the only people with A.E. during that time were Jessica, Howard, and a

friend of Howard’s, who Howard said was never alone with A.E. Howard told

Detective Hull he never saw A.E. get hurt, cry, or otherwise suggest that he had

been injured throughout the day. Howard also told Detective Hull that he did

not think Jessica would hurt her child.

      Aside from Jessica, Howard was the only one who spent any time alone

with A.E. during that time period. Just thirty minutes before Jessica left A.E.

alone with Howard while she retrieved her mother’s key, she changed A.E. and

saw no blood in A.E.’s diaper or any other abnormality. Howard confirmed in

the admissible part of his interview that Jessica changed A.E. at that time.

Thus, the blood first appeared in A.E.’s diaper while Howard was alone with

A.E. during that twenty-minute period while Jessica was away. Howard’s claim

that A.E.’s injuries resulted from a hard stool was rebutted by Dr. Hostetler’s

testimony. It is difficult to imagine how a child of A.E.’s age could accidentally

suffer an anal penetration injury while wearing a diaper.

      Not only was no other accidental or nonsexual explanation for A.E.’s

injuries offered, Howard’s contemporaneous behavior supports the conclusion

that the contact was sexual. When Jessica returned home, A.E. was in his

crib, on his stomach, screaming. Howard was lying on the floor. After Jessica

spoke with the clinic and they told her to bring A.E. in to be examined, Howard

insisted on first taking a shower and changing his clothes.       Then, Howard,

freshly showered and in clean clothing, further delayed bringing A.E. to the

clinic when he stopped at a friend’s house on the way to the clinic.        These

actions show Howard’s consciousness of guilt and intent to eliminate any
                                       21

evidence on his body or on his underwear. This evidence clearly is sufficient to

sustain a conviction.

      Nevertheless, there was no DNA evidence, video, or eyewitness testimony

proving Howard’s sexual assault on A.E. The victim is too young to identify his

assailant. Two other adults had been with A.E. in the hours before the blood

was discovered in his diaper.     Howard’s statement that Jessica is a “good

mother” who would not hurt her child does not conclusively rule her out as a

suspect. It is not uncommon for joint caregivers who are romantically involved

to cover for each other in the face of allegations of child abuse. See Paredes,

775 N.W.2d at 571 (erroneous exclusion of self-incriminating statement by

mother not harmless in father’s trial for shaken baby syndrome injuries

because both parents were suspects, despite father’s own confession). To apply

the harmless-error rule here would undermine the deterrent value of the

exclusionary rule for confessions tainted by a promise of leniency. See Polk,

812 N.W.2d at 674 (noting exclusionary rule “deters police from using a tactic

that might induce the innocent to confess falsely”).

      We hold the State has failed to establish Howard was not prejudiced by

the erroneous admission of his confession.       Accordingly, the error was not

harmless, and Howard is entitled to a new trial on the charge of second-degree

sexual abuse.

      2. Count II: child endangerment.      The State also charged Howard with

child endangerment in violation of Iowa Code sections 726.6(1)(a), (b) and

726.6(6), alleging that while Howard had custody or control over A.E., he acted

in a manner that created a substantial risk to A.E.’s physical health and safety

and that he intentionally used unreasonable force against A.E. causing bodily

injury. Jury instruction No. 22 required the jury to find:

            1. On or about the 14th day of January, 2010, the
      defendant was the person having custody or control of A.E.
                                       22
            2. A.E. was under the age of fourteen years.
            3. The defendant committed an act or a series of acts that
      resulted in physical injury to A.E.
            4. The defendant’s act resulted in bodily injury to A.E.

The jury instructions defined “bodily injury” as “physical pain, illness or any

impairment of physical condition.”

      The admissible evidence of Howard’s guilt is strong, as reviewed above,

and is clearly sufficient to sustain a conviction on this count as well. Howard

admitted before the promise of leniency that he had been alone with A.E. that

day. A.E. was under the age of fourteen. Dr. Hostetler testified A.E. suffered a

penetration injury to his anus within several hours of being brought to the

clinic. Dr. Hostetler specifically rejected Howard’s contention that a hard stool

caused A.E.’s injuries because they were not consistent with the trauma that

would result from a hard stool. Her medical testimony was unrebutted.

Nevertheless, on this record, we cannot say with the required confidence that

the introduction of Howard’s confession was harmless.

      We conclude the State has failed to establish Howard was not prejudiced

by the erroneous admission of his confession. Accordingly, the error was not

harmless, and Howard is entitled to a new trial on the charge of child

endangerment.

      IV. Conclusion.

      For these reasons, we vacate the decision of the court of appeals, reverse

the judgment of the district court, and remand the case for a new trial on both

counts.

      DECISION OF THE COURT OF APPEALS VACATED, JUDGMENT OF

DISTRICT COURT REVERSED, AND CASE REMANDED FOR NEW TRIAL.
