               IN THE SUPREME COURT OF IOWA
                                No. 13–1202

                            Filed March 4, 2016

                            Amended May 5, 2016

STATE OF IOWA,

      Appellee,

vs.

TRENT D. SMITH,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County,

Jeffrey L. Harris, Judge.



      Defendant appeals from conviction for domestic abuse assault

causing bodily injury. DECISION OF COURT OF APPEALS AFFIRMED

IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT

REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Tyler Buller and Jean C.

Pettinger, Assistant Attorneys General, Thomas J. Ferguson, County

Attorney, and Jeremy Westendorf, Assistant County Attorney, for

appellee.
                                     2

CADY, Chief Justice.

      In this appeal from a conviction for domestic abuse assault, we

consider whether hearsay statements made to an emergency room nurse

and doctor by a victim that identified the perpetrator of the attack were

admissible under Iowa Rule of Evidence 5.803(4) as statements made for

purposes of medical diagnosis or treatment. The court of appeals found

the hearsay statements were properly admitted at the trial.       On our

review, we conclude there was insufficient foundation to admit the

statements under rule 5.803(4). We affirm the decision of the court of

appeals in part and vacate in part, reverse the decision of the district

court, and remand for further proceedings.

      I. Background Facts and Proceedings.

      On June 9, 2012, at 1:03 a.m., the Black Hawk County emergency

call center received a 911 call from M.D. She gave her address and said,

“Just get here, thank you, please!”      A short time later, M.D.’s mother

called the center on a nonemergency line. She told the phone operator

that M.D. asked her to call the police to report that Trent Smith had

threatened M.D. and that M.D. was afraid of him.

      Two officers were dispatched to M.D.’s residence. They found M.D.

sitting in a car outside the residence with her five-year-old daughter and

a dog. The officers checked the residence for intruders and began their

investigation by interviewing M.D.

      M.D. told the officers she had been upstairs and after hearing a

sound was “hit” by something when going downstairs in the dark to

investigate. She also said she lost consciousness after she was kicked in

the head. She told the officers she believed the assailant had entered her

residence through a locked door. M.D. eventually identified her assailant

as “Trent Daniel,” whom dispatch officers later identified as Trent Smith.
                                     3

M.D. said Smith did not live at her residence but had been abusing her

for ten years.   She mentioned one prior assault when Smith beat her

after he was released from jail following an arrest for domestic abuse.

      The officers took M.D. to the emergency room of a local hospital

around 2:40 a.m.       She was treated by a doctor and a nurse for her

injuries. The doctor found M.D. to be “in a moderate amount of distress”

and “extremely shaken up.” The nurse asked M.D. to explain what had

happened to her. M.D. responded that she was “assaulted by her baby’s

daddy around midnight.” She told the nurse that she had been kicked in

the head and right arm, and she felt that her front teeth were loose. The

nurse also pursued several standard screening questions at some point

during the evening.     Three questions pertained to domestic abuse. In

response to these questions, M.D. indicated she did “feel afraid

of/threatened by someone close to me.”       She also responded she had

“been hurt by someone.”      She further agreed that “someone is taking

advantage of [her].”

      In response to an inquiry by the doctor about how she sustained

her injuries, M.D. said she had been assaulted by her child’s father.

However, the doctor did not make any domestic abuse diagnosis or

render any treatment for emotional or psychological injuries based on the

identity of the perpetrator. The identity of the assailant or the effects of

domestic abuse were not mentioned as a part of any treatment or

diagnosis.   The treatment consisted of radiology testing and other

medical care to those areas of the body that had sustained physical

injury.   The diagnosis by the doctor pertained solely to the physical

injuries sustained by M.D.      It was limited to a closed head injury,

cervical strain, facial contusion, and arm contusions.
                                    4

      M.D. was released from the hospital around 5 a.m.          She was

prescribed pain and antianxiety medications. The officers took her to the

law enforcement center to obtain a written statement. An officer wrote a

statement based on M.D.’s statements earlier in the night, but M.D.

refused to acknowledge it with her signature.

      Smith was subsequently charged with domestic abuse assault with

intent to cause serious injury and domestic abuse assault causing bodily

injury, both in violation of Iowa Code section 708.2A(2) (2011).      At a

pretrial hearing, the State informed the district court that M.D. intended

to recant her statements identifying Smith as her assailant. The State

further informed the court it intended to prove Smith was the assailant

through the statements made by M.D. to the officers and medical

personnel.   In particular, the State indicated they would offer M.D.’s

statements of identification made to the emergency room nurse and

doctor under the medical treatment and diagnosis exception to the rule

against hearsay.   In response, Smith claimed the statements were not

part of any medical diagnosis or treatment. The district court ultimately

determined the identification statements were admissible at trial under

the medical treatment and diagnosis exception to the rule against

hearsay. It also determined M.D.’s statements to police were admissible

at trial under the excited-utterance exception to the rule against hearsay.

The State never argued the statements to the nurse and doctor were also

admissible as excited utterances, and the district court did not rely on

the excited-utterance exception in admitting them.

      The case proceeded to trial. Law enforcement officers and medical

personnel at the hospital testified at trial for the State, as well as a

domestic abuse expert. The officers and medical providers recalled the

statements M.D. made to them the night of the incident that identified
                                     5

Smith as her assailant. There was no testimony that M.D. was told how

the questions related to her treatment or diagnosis, and there was no

testimony how they were used or needed by medical providers in her

treatment or diagnosis.      The domestic abuse expert explained the

dynamics of domestic abuse, including the control exercised by the

perpetrator. M.D. testified for Smith at trial. She said she was injured

when she fell from a trampoline after drinking in excess.

      The jury found Smith guilty of domestic abuse assault and

domestic abuse assault causing bodily injury.        Following sentencing,

Smith appealed.    He claimed the district court erred in admitting the

hearsay statements made to police and medical personnel.           He also

claimed the district court erred in failing to merge the two convictions for

purposes of sentencing.

      We transferred the case to the court of appeals.        It found the

district court erred by admitting M.D.’s statements to police as excited

utterances. However, it found the district court did not err in admitting

M.D.’s statements made to the nurse and doctor as statements for

purposes of medical diagnosis or treatment.      As a result, the court of

appeals found Smith was not prejudiced by the admission of the hearsay

statements to police.     It merged the convictions and affirmed the

judgment and sentence for domestic abuse assault causing bodily injury.

      Smith sought, and we granted, further review. The primary claim

asserted by Smith is the statements of identity made to the doctor and

nurse were inadmissible under the medical treatment and diagnosis

exception. The State did not seek further review from the decision by the

court of appeals that the statements made to police were not admissible

as excited utterances.    Accordingly, that decision stands as the final

determination on that issue. See State v. Guerrero Cordero, 861 N.W.2d
                                    6

253, 258 (Iowa 2015) (addressing on further review only one of four

issues raised on appeal).

      II. Scope of Review.

      Although we normally review evidence-admission decisions by the

district court for an abuse of discretion, we review hearsay claims for

correction of errors at law. State v. Paredes, 775 N.W.2d 554, 560 (Iowa

2009).      “[T]he question whether a particular statement constitutes

hearsay presents a legal issue,” leaving the trial court no discretion on

whether to admit or deny admission of the statement. State v. Dullard,

668 N.W.2d 585, 589 (Iowa 2003).

      With respect to the issue now raised on further review involving

the district court’s decision to admit at trial the statements of identity

made to the medical providers, we recognize we may affirm a ruling on

the admission of evidence by using a different rationale than relied on by

the district court. See DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002).

However, the rule described in DeVoss is discretionary, and we must be

careful not to exercise our discretion to decide an issue concerning the

admissibility of evidence on an alternative ground when the parties have

not had an opportunity to properly develop or challenge the foundation

for the evidence.

      III. Admission of Statements Identifying Perpetrator.

      “ ‘Hearsay’ is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.”   Iowa R. Evid. 5.801(c).   Hearsay is not

admissible at trial subject to certain exceptions and exclusions. See id.

r. 5.802.

      The statements at issue in this case—third-party accounts of

identification statements made by M.D.—are hearsay.        The question is
                                      7

whether they are admissible under an exception to the rule against

hearsay.

      The general rationale for the rule against hearsay is that out-of-

court statements are inherently unreliable because false perception,

memory, or narration of the declarant cannot be addressed through the

admission of an oath or exposed through cross-examination of the

declarant. See 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s

Federal Evidence § 802.02[3], at 802-6 to -7 (Mark S. Brodin 2d ed.

2015) [hereinafter Weinstein]. Thus, the exceptions to the rule against

hearsay generally overcome this rationale through the identification of

circumstances    surrounding    the   issuance   of   the   statement   that

demonstrate its reliability and necessity. See id. § 802.03[3] [a], at 802-

8.

      One exception to the rule against hearsay relates to statements

made for the purposes of medical diagnosis and treatment. Iowa R. Evid.

5.803(4). This exception applies to

      [s]tatements made for purposes of medical diagnosis or
      treatment and describing 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. 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.”

Weinstein § 803.06[1], at 803-41 to -42; see 7 Laurie Kratky Doré, Iowa

Practice Series: Evidence § 5.803:4, at 951–52 (2015–2016 ed. 2015)

[hereinafter Doré].   This motive exists because the effectiveness of the

medical treatment rests on the accuracy of the information imparted to

the doctor.     Weinstein § 803.06[1], at 803-41 to -42.         A patient
                                     8

understands that a false statement in a diagnostic context could result in

misdiagnosis.   State v. Tornquist, 600 N.W.2d 301, 304 (Iowa 1999),

overruled on other grounds by State v. DeCamp, 622 N.W.2d 290 (Iowa

2001). Thus, the circumstances of statements made for diagnosis and

treatment provide “special guarantees of credibility” and justify the

exception to the rule against hearsay. State v. Hildreth, 582 N.W.2d 167,

169 (Iowa 1998).

      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.

Yet as to both requirements, the statements must also “be reasonably

pertinent to diagnosis or treatment.”     Doré § 5.803:4, at 952.   These

requirements track with the two-part test we adopted in State v. Tracy for

establishing the admission of hearsay statements identifying a child

abuser under the exception for medical diagnosis and treatment.       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

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

      The fighting issue in this case is whether the portion of the

statement made to a doctor or nurse that identifies the person who
                                    9

caused or was the source of the injury is reasonably pertinent to

diagnosis or treatment. This is a question that can be vexing for judges

and lawyers. Normally, the identity of the perpetrator of physical injuries

is not understood to be necessary information for effective medical

treatment.   United States v. Joe, 8 F.3d 1488, 1494 (10th Cir. 1993).

Thus, these statements generally lack the inherent reliability of

statements by patients to doctors for medical diagnosis or treatment.

Colvard v. Commonwealth, 309 S.W.3d 239, 245–46 (Ky. 2010) (finding

no inherent trustworthiness in identification statement not arising from a

desire for effective treatment). When the identity of the perpetrator of an

injury is not necessary information for effective medical treatment, a

declarant could remain motivated to truthfully describe the cause of

injuries while being motivated to suppress or twist the identity of the

perpetrator towards their own ends. See State v. Long, 628 N.W.2d 440,

444 (Iowa 2001) (noting ulterior motives aside from treatment may affect

statements of causation made to medical providers). In other words, self-

motivation to be truthful that supports the admission of statements

under the exception may be absent when the identity of the perpetrator

is not necessary or pertinent to the medical diagnosis or treatment. See

id. Accordingly, each assertion sought to be admitted that is contained

within a broader statement made to medical providers must meet the

requirements of the exception to be admissible.

      We have identified some circumstances when statements that

identify perpetrators are admissible under Iowa Rule of Evidence

5.803(4). One circumstance involves the identity of perpetrators of child

abuse. See Tracy, 482 N.W.2d at 681–82. 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
                                     10

diagnosis.” Id. at 681. The emotional and psychological injuries of such

abuse are treated by the doctor along with the physical injury. Id. The

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

Id.   In Tracy, the doctor followed a standard dialogue for purposes of

diagnosis and treatment, and the victim understood that the doctor

needed truthful responses to provide treatment. Id. This circumstance

is key to admitting statements of identity. The circumstances need to

show that the victim’s statements are “not prompted by concerns

extraneous to the patient’s physical or emotional problem.” Hildreth, 582

N.W.2d at 169–70.

       The State argues that cases of domestic abuse fall within the same

rule that commonly allows statements of the identity of perpetrators in

cases of child abuse to be admitted. It argues the circumstances of this

case fit within the reasoning behind the child-abuse exception because

they do not show M.D. was motivated to be untruthful when she

identified Smith as the assailant.

       The State’s overarching argument suggests that a categorical rule

has emerged from rule 5.803(4) that admits statements of identity made

to medical personnel by victims of child abuse and that should also

apply to victims of domestic abuse.       Yet, no such categorical rule for

victims of child abuse has been recognized.        While it is common for

statements of identity made by victims of child abuse to be admitted

under rule 5.803(4), the statements are not admitted simply because

they fall within a category of statements made to doctors or medical

personnel by victims of abuse. Instead, these statements are admitted

only when there is evidence that the statements of identity were made by

a child-abuse victim for purposes of diagnosis or treatment by a doctor or

medical provider and the identity was pertinent to the diagnosis or
                                   11

treatment. See State v. Dudley, 856 N.W.2d 668, 676 (Iowa 2014) (“The

child must make the statements to a trained professional for the

purposes of diagnosis or treatment to be admissible under rule

5.803(4).”); Doré § 5.803:4, at 957–58 & nn.22–23 (collecting cases and

contrasting how courts apply the rule); see also State v. Neitzel, 801

N.W.2d 612, 621–22 (Iowa Ct. App. 2011) (discussing the steps taken by

healthcare professionals to ensure truthfulness and the need to assess

safety risks and the child’s need for further counseling).   Eliciting the

identity of a perpetrator of child abuse can be a normal aspect of medical

treatment and 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 uinique circumstances of each case. See,

e.g., Hildreth, 582 N.W.2d at 169–70 (setting foundation for social

workers’ diagnosis of child’s emotional disturbance resulting from sexual

abuse). The need to establish foundation for the admission of evidence

under rule 5.803(4) is compatible with the standard approach to the

admission of evidence under most other rules of evidence.        In other

words, proper foundation must normally be established before evidence

may be admitted.    See State v. Tompkins, 859 N.W.2d 631, 639 (Iowa

2015) (requiring the State to lay a proper foundation before finding

hearsay statements identifying a domestic abuse assailant and his

actions admissible).    There is no rule that provides a categorical

exception for victims of child abuse or domestic abuse.

      The profound and serious problem of domestic abuse in this nation

and this state does not escape us in our analysis of this case. These

problems are significant for victims of domestic abuse and the children
                                     12

who have suffered by witnessing the abuse. The consequences to these

victims and society as a whole are diverse and immense.         These are

problems and consequences this court has been addressing for decades.

See generally Final Report of the Supreme Court Task Force on Courts’ and

Communities’ Response to Domestic Abuse (1994) (compiling statistics on

the incidence of domestic abuse in Iowa, identifying the courts’ role, and

formulating recommendations to address the problem from the judicial

standpoint).    We are also aware that the underlying dynamics of

domestic abuse can create many obstacles in the criminal prosecution of

perpetrators.   See Laurie S. Kohn, The Justice System and Domestic

Violence: Engaging the Case but Divorcing the Victim, 32 N.Y.U. Rev. L. &

Soc. Change 191, 200–06 (2008) (discussing the influence of outside

factors on victims’ behavior both before and after reporting abuse and

affecting their cooperation with the justice system).      These complex

dynamics can lead many victims to refrain from reporting abuse and

then further lead to the recantation of statements of identity prior to

trial.   See id. at 203–05 (noting victims may ask to drop the criminal

case, refuse to testify, recant, or downplay their risks); Jennifer L.

Truman & Rachel E. Morgan, U.S. Dep’t of Justice, Nonfatal Domestic

Violence, 2003–2012, at 9 & tbl. 8, http://www.bjs.gov/content/pub/

pdf/ndv0312.pdf (revealing only around fifty-five percent of domestic

violence is reported to police).   Nevertheless, our role in reviewing the

admission of the hearsay statements at trial in this case is not to inject

this policy into the analysis to create a new rule of evidence.       Our

authority to establish rules to govern the trial of a case exists

independent of our authority to decide issues presented to us on appeal

in cases. Today, we only address the issue of admission of statements of
                                     13

identity through our existing rule of evidence. Our role is to interpret the

rule as it is written and apply the hearsay exception as it exists.

      Moreover, any categorical evidentiary rule must carefully consider

the competing interests at stake. These interests include those found in

the constitutional right of people accused of crimes to be confronted by

their accusers. See, e.g., State v. Bentley, 739 N.W.2d 296, 300–01 (Iowa

2007) (weighing accused’s confrontation right against the interests of a

child abuse victim). They are also found in the concept of fundamental

fairness.   See Iowa R. Evid. 5.102.      The sheer complexity of domestic

abuse would need to be considered, including both the interests of the

victim and the rights of the accused. It has been observed that “there is

neither a ‘typical’ victim of domestic violence, nor ‘typical’ responses, nor

‘typical’ circumstances in which such violence occurs.” Jane C. Murphy

& Robert Rubinson, Domestic Violence and Mediation: Responding to the

Challenges of Crafting Effective Screens, 39 Fam. L.Q. 53, 58 (2005)

(footnotes omitted). Thus, any categorical rule cannot be adopted that

would “ignore[] variables such as the seriousness of the assault, the

frequency of the abuse against the victim, the type of domestic

relationship, or the presence or absence of emotional or psychological

harm.” State v. Robinson, 718 N.W.2d 400, 407 (Minn. 2006) (refusing to

adopt a categorical exception to rule 803(4) in domestic violence cases).

      We understand how the identity of an abuser could be pertinent to

the treatment of a domestic abuse victim by a doctor. Domestic abuse

victims suffer from far more than physical injuries.        Emotional and

psychological injuries are also inflicted with an assault, and it is

understandable how the depth and breadth of those injuries would vary

depending on the identity of the abuser.         As a result, we see how

complete medical treatment could normally include information on the
                                           14

identity of the abuser.            Yet, until a categorical rule exists, this

understanding must be supplied from the testimony of doctors in the

form of foundation pursuant to the broad rule providing for the

admission of hearsay statements for all types of medical treatment. See

Joe, 8 F.3d at 1494 & n.6 (citing to doctor testimony that established

foundation despite finding there is general need for identity knowledge in

domestic abuse cases).

       In this light, we reject the argument by the State that statements of

identity by victims of domestic abuse should be categorically admissible

because such statements are now commonly admitted in cases of child

abuse. Instead, we hold that in each case, the trial court must, as with

other statements made during medical diagnosis and treatment, apply

the test we adopted in Tracy to determine whether the statements made

in that case should fall within this exception to the hearsay rule. 1 482

N.W.2d at 681.       The State, as the proponent of the evidence, has the

burden to show the statements fit within rule 5.803(4). 2                    Long, 628

N.W.2d at 443.

       1Several  other courts also examine whether criteria similar to our Tracy test
have been met before admitting identity statements. E.g., United States v. Bercier, 506
F.3d 625, 632 (8th Cir. 2007) (requiring foundation that the statements were essential
to diagnosis and treatment in domestic sexual abuse case); Robinson, 718 N.W.2d at
407 (holding domestic abuse victim’s identification of her assailant inadmissible
without sufficient evidentiary foundation establishing the identity was reasonably
pertinent to diagnosis or treatment); State v. Moen, 786 P.2d 111, 118–21 (Or. 1990)
(en banc) (examining prior statements made concerning domestic abuse causing
victim’s depression to determine whether they met the foundational criteria of
pertinence to medical diagnosis in murder case); Oldman v. State, 998 P.2d 957, 961–62
(Wyo. 2000) (utilizing the Renville criteria to determine the identity in a domestic abuse
case was pertinent for treating bite marks for infectious condition).
       2We   recognize that statements made to emergency personnel in order to obtain
medical treatment can also fall within the excited-utterance exception to the hearsay
rule. Iowa R. Evid. 5.803(2); State v. Harper, 770 N.W.2d 316, 319–20 (Iowa 2009)
(finding no need to determine if the statements would fall within rule 5.803(4) by
holding other exceptions applied). However, the State made no claim in the district
court or its appeal that the excited-utterance rule should apply.
                                           15

        The foundation required to admit a statement identifying a

perpetrator of domestic abuse under rule 5.803(4) need not be elaborate.

It establishes why the identity of the assailant is important in a domestic

abuse case, as opposed to stranger assault, and what effect that identity

has on diagnosis or treatment. It recognizes there is a difference between

the need to know the cause or external source of the injuries—i.e., “what

happened”—and the need to know the identity of the person causing the

injuries. See United States v. Iron Shell, 633 F.2d 77, 84 (8th Cir. 1980)

(“It is important to note that the statements concern what happened

rather than who assaulted her. The former in most cases is pertinent to

diagnosis and treatment while the latter would seldom, if ever, be

sufficiently related.”). 3     It requires evidence that the identity of the

perpetrator was reasonably pertinent to medical treatment or diagnosis.

We now turn to the evidence in this case.

        The trial record in this case shows the nurse and the doctor only

asked M.D. how she was injured, and their treatment efforts that

followed only focused on the physical trauma to her head, arm, and

hand.     The nurse also asked three questions pertaining to domestic

abuse in general pursuant to a broader screening protocol. However, the
State offered no evidence that the protocol questions prompted any

treatment of M.D. for her emotional or psychological response to the

injuries or were asked in order to make a diagnosis relating specifically to

domestic assault over other types of assault.                  In other words, the

foundational evidence relating to her statements only pertained to the


        3The United States Court of Appeals for the Eighth Circuit found five years later

that a child-abuse victim who lived in the same household with the abuser was
sufficiently different to fall within the narrow seldom-sufficiently-related category left
open by Iron Shell. Renville, 779 F.2d at 436.
                                    16

treatment she received for her physical injuries, not treatment she might

have needed for her emotional, psychological, or other injuries as a result

of the domestic violence.

      M.D. was prescribed antianxiety medication prior to her discharge,

but there was no evidence that the medication pertained to treatment of

domestic abuse rather than the same anxiety as might be felt in a

stranger-assault situation. It would be pure speculation to conclude the

antianxiety medication related to the identity of the perpetrator. The rule

requires that the connection between the statement and the treatment be

“reasonable.” Iowa R. Evid. 5.803(4).

      Importantly, there was no evidence to suggest M.D. believed the

identity of the perpetrator was reasonably pertinent to her treatment or

diagnosis.   There was no evidence the nurse or doctor told M.D. the

identity of the perpetrator was important to the treatment or diagnosis of

her injuries. There was no evidence the nurse or doctor used the identity

of the perpetrator to treat or diagnosis M.D.’s injuries. In fact, there was

nothing from the circumstances at the hospital to reasonably indicate

M.D.’s treatment or diagnosis would have been different if she had not

mentioned the identity of her perpetrator in describing how she was

injured.

      In short, the State presented insufficient evidence that the identity

of the assailant was reasonably pertinent to M.D.’s diagnosis or

treatment. Consequently, the circumstances mandated by the exception

to show M.D. was self-motivated to truthfully describe her assailant were

not established.    Without this foundation, the trial court erred in

admitting the portion of the statement that identified Smith as the

assailant.
                                           17

       We acknowledge that the general circumstances presented at trial

do not suggest a motivation by M.D. to be untruthful in her identification

of Smith as her assailant to the emergency room nurse and doctor. Her

statements of identity were not prompted by any cues asking for the

identity of the perpetrator, and she only conveyed Smith’s identity as

part of the description of how she was injured. 4 Yet the exception does

not seek to use the absence of a motive to be untruthful, but it requires

evidence of a specific motivation to be truthful derived from its rationale.

We are required to follow rule 5.803(4) as it is written.

       This conclusion does not mean the identity of a perpetrator of

domestic abuse can never be admitted into evidence under rule 5.803(4).

It only means that the State must introduce evidence to establish the

necessary foundation regarding both the declarant’s motive in making

the statement and the pertinence of the identification in diagnosis or

treatment. This foundation requires evidence that a statement of identity

was made for the purpose of medical diagnosis or treatment and the

identity was part of a medical history reasonably pertinent to diagnosis

or treatment.

       IV. Conclusion.

       We conclude the trial court committed legal error by admitting the

hearsay statements of M.D. through the testimony of the emergency

room nurse and doctor without sufficient foundation. This error resulted

in prejudice and requires a new trial.             To be fair to both parties, we

decline to consider for the first time on appeal whether the evidence


       4M.D.  recanted not only the identity of an assailant, but even the existence of an
assault causing her injuries when she testified in court. However, the treating nurse
and physician both testified that M.D.’s injuries were consistent with the description of
the assault that evening.
                                    18

would have been admissible under another exception to the rule against

hearsay.   Accordingly, we reverse the judgment and sentence of the

district court and remand for a new trial.

      DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND

REMANDED.

      All justices concur except Waterman, Mansfield, and Zager, JJ.,

who dissent.
                                    19
                                                   #13–1202, State v. Smith

WATERMAN, Justice (dissenting).
      I respectfully dissent. I agree with the court of appeals that the

district court properly allowed the emergency room physician and nurse

to testify regarding the victim’s identification of Smith, her ex-boyfriend

and the father of her child, as her attacker.        That information was

elicited pursuant to the hospital’s screening protocol to protect patients

traumatized by suspected domestic abuse. As the medical community

and many other courts have long recognized, identifying the abuser is a

key component in treating the patient’s mental and physical injuries and

ensuring the patient’s safety. The majority errs by holding the district

court abused its discretion by admitting the testimony under Iowa Rule

of Evidence 5.803(4) and misses the opportunity to adopt a categorical

rule allowing medical treatment providers to testify regarding a patient’s

identification of an intimate partner as the assailant. In my view, our

court adopted a categorical rule in child abuse cases, and the rationale

easily extends to adult domestic abuse. I would join the parade of courts

adopting a categorical rule.   Our application of this rule of evidence

should evolve in response to the growing understanding and body of

medical literature on intimate-partner violence.

      Moreover, even if I agreed with the majority that admission of this

kind of evidence should occur only on a case-by-case basis, I would find

the record here adequate to warrant its admission.       The State in this

case laid the requisite foundation for the admission of the evidence under

rule 5.803(4).   This case is emblematic of the recurring problem in

domestic abuse cases—a victim who identifies the attacker while

traumatized but then later, controlled by his or her abuser, changes his

or her story or refuses to cooperate with the prosecution. I trust Iowa
                                      20

juries to find the truth. In this case, the jury disbelieved the victim’s trial

testimony that her injuries resulted from falling off a trampoline and

believed what she told her treating physician and nurse the night of her

attack.

      I would also affirm the district court ruling allowing the physician

and nurse to testify as to the victim’s identification of her assailant on an

alternative ground the majority understandably declines to reach—the

excited-utterance exception to the hearsay rule.        The victim was still

reeling from the assault when she spontaneously identified Smith at the

hospital simply when asked what happened to her. We may affirm an

evidentiary ruling on any valid alternative ground supported by the

record. See DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002). The State,

however, did not raise that ground in district court or brief it on appeal,

and the court of appeals did not reach it as to the emergency room

personnel.    The majority appropriately chooses to defer deciding the

issue under these circumstances, and nothing in today’s opinion

precludes the State from relying on the excited-utterance exception in

the second trial.

      I. Additional Facts.

      The majority’s recitation of the facts is truncated.        To put the

issues in better context, I will recapitulate what happened to M.D. When

police officers responding to her 911 call arrived at her home at 1 a.m.,

M.D., age twenty-nine, was sitting in her car with her five-year-old

daughter and dog.      M.D. was crying, upset, tense, and scared, with

visible injuries—a swelling in her arm and around one eye, and scratches

on her shoulder and knees.       She initially told police an intruder had

jimmied the side door lock and attacked her. She said he called her a

“dirty whore,” punched her, knocked her to the floor, and kicked the
                                       21

back of her head repeatedly.        She told officers she had blacked out

during the attack and thought her arm was broken. At first she claimed

she did not know her assailant. The officers were skeptical because they

had previously been summoned to M.D.’s home over an altercation with

Trent Daniel Smith, the father of her child. 5         The police persisted in

questioning M.D. and urged her to be honest with them. She indicated

she was afraid of her attacker and told police, “[Y]ou guys can’t protect

me forever.” She then said “Trent Daniel” attacked her. Under further

questioning, M.D., who seemed scared, gave Smith’s full name.

      The police officers gave M.D. a ride to the emergency room at Allen

Memorial Hospital for treatment. When she arrived, she was “extremely

shaken up.” Nurse Trisha Knipper asked M.D. what happened and wrote

down that M.D. said she “was assaulted by her baby’s daddy around

midnight.”    Knipper, pursuant to the hospital’s protocol, asked M.D.

screening questions that are asked of every patient who presents with a

traumatic injury. M.D. answered that “there was domestic violence going

on,” “she was afraid of or threatened by someone close to her,” “she had

been physically hurt by her baby’s dad,” and “she felt as if someone was

taking advantage of her.”

      Approximately      eleven   minutes    after   being   admitted   to   the

emergency room, M.D. spoke with Dr. Robert Mott. Dr. Mott asked what

happened, and she replied she “was assaulted by the father of her child.”

She said she was knocked to the ground and kicked in the head and face

multiple times. Dr. Mott noted that she was in a lot of pain and her arm




       5Smith was the father of M.D.’s daughter.   M.D. and Smith also had a son
together, but the son died.
                                   22

was very tender.    No bone fractures were found.         M.D. was given

antianxiety medication and discharged at 5 a.m.

      At trial eleven months later, M.D. changed her story to claim her

injuries resulted from falling off a trampoline.    The jury heard the

testimony of the emergency room nurse and physician and police that

M.D. had identified Smith as her attacker. The jury convicted Smith of

domestic abuse assault and domestic abuse causing bodily injury. The

court of appeals affirmed his convictions, concluding the district court

properly admitted the testimony of the emergency room physician and

nurse under Iowa Rule of Evidence 5.803(4) and that it was harmless

error to admit the police officer’s testimony of M.D.’s identification of

Smith under the excited-utterance exception, rule 5.803(2).      I would

affirm the decisions of the district court and court of appeals.

      II. The Medical Diagnosis and Treatment Exception.

      The fighting issue is whether the patient’s identification of her

assailant is admissible under the hearsay exception for

      [s]tatements made for purposes of medical diagnosis or
      treatment and describing 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.

Iowa R. Evid. 5.803(4). In State v. Tracy, we adopted the Renville two-

part test to establish the admissibility of statements under this

exception:

      [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.

482 N.W.2d 675, 681 (Iowa 1992) (quoting United States v. Renville, 779

F.2d 430, 436 (8th Cir. 1985)). In Renville, the United States Court of
                                     23

Appeals for the Eighth Circuit applied that test to affirm a trial court

ruling that admitted a treating physician’s testimony regarding the child

abuse victim’s identification of her abuser during a medical examination.

779 F.2d at 438–39. As I show below, our decisions in child abuse cases

reach the same conclusion and demonstrate that a domestic abuse

victim’s identification of his or her attacker is admissible under this test.

        A. M.D.’s Statement Was Reasonably Pertinent to Medical

Diagnosis or Treatment. The emergency room nurse, Knipper, testified

that M.D., like every patient admitted into the emergency room, was

asked screening questions under the hospital’s standard protocol. These

questions covered topics including domestic violence, suicide, and

workplace injuries.       M.D.’s responses indicated she had experienced

domestic violence. Each response was noted in M.D.’s chart. Knipper

testified that she is required to “document complaints and treatment and

diagnoses” on a chart for every patient that enters the hospital.          The

chart is maintained as a reference “for continued care” or “for any other

needs      that   come   about.”   Knipper’s   testimony   shows    that   the

documented responses to these standardized questions are used by the

medical community in crafting a treatment plan and diagnosing the

patient.    M.D. replied to the standard questions by identifying Smith.

M.D.’s statement was responsive to the questions being asked, and that

information can be useful for diagnosis or treatment.

        Dr. Mott’s testimony showed that he considers the patient’s version

of what happened to be highly relevant to treatment. Dr. Mott testified

regarding how he approaches new patients in the emergency room:

             Q. And do you try to find out from the patient what
        had happened? A. Absolutely.
               Q. Is that necessary for treating the patient? A. That
        is key.
                                     24

When M.D. entered the emergency room, Dr. Mott followed his protocol

to determine how to proceed with treatment:

           Q. And did you speak with [M.D.] about what had
      happened? A. I did.
            Q. And what did she say occurred?
              MS. LAVERTY: Objection.
              THE COURT: Same ruling. Overruled.
              Q. You may answer. A. Okay. She said that she was
      assaulted by the father of her child, was pretty much the
      first thing that she told me.
              Q. And did she explain to you how she was assaulted?
      A. She stated that she was knocked to the ground. And
      then once she was on the ground, then she was kicked in
      the head and the face multiple times.

His medical testimony showed that M.D.’s explanation of why she came

to the emergency room was key to determine a proper course of

treatment. See Vasconez v. Mills, 651 N.W.2d 48, 56 (Iowa 2002) (noting

a doctor “who is called to treat and actually treats the patient” may

testify under the hearsay exception because there is an increased

“probability that the patient will not falsify in statements made to his

physician at a time when he is expecting and hoping to receive from him

medical aid and benefit.” (quoting Devore v. Schaffer, 245 Iowa 1017,

1021, 65 N.W.2d 553, 555 (1954))).

      M.D. consistently identified Smith as her attacker to medical

personnel that night. That she recanted nearly a year later at trial does

not cast doubt on her motives when seeking treatment the night of her

attack.   See Douglas E. Beloof & Joel Shapiro, Let the Truth Be Told:

Proposed Hearsay Exceptions to Admit Domestic Violence Victims’ Out of

Court Statements as Substantive Evidence, 11 Colum. J. Gender & L. 1,

3–4 (2002) (listing reasons why victims recant). The rate of recantation

among domestic violence victims has been estimated between eighty and

ninety percent. Id.; Lisa Marie De Sanctis, Bridging the Gap Between the
                                    25

Rules of Evidence and Justice for Victims of Domestic Violence, 8 Yale J.L.

& Feminism 359, 367 (1996); see also People v. Brown, 94 P.3d 574, 576

(Cal. 2004) (approving the use of expert testimony stating that “[a]bout

80 to 85 percent of victims ‘actually recant at some point in the

process’ ”); State v. Dority, 324 P.3d 1146, 1152 (Kan. Ct. App. 2014)

(noting that a fact finder may use common knowledge that “victims of

domestic violence often recant their initial statements to police” (quoting

State v. Coppage, 124 P.3d 511, 515 (Kan. Ct. App. 2005))).

      Dr. Mott and Knipper treated M.D. for her emotional or

psychological response to the attack.    She was prescribed antianxiety

medication. The hospital’s screening questions do not exist in a vacuum.

The questions about domestic abuse are asked for a reason—to allow the

treating physicians and nurses to understand what happened and

properly conduct follow-up treatment as necessary. In any event, rule

5.803(4) does not condition admissibility on a showing that the patient’s

statements given for medical treatment and diagnosis were actually used

for treatment. See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998)

(holding medical diagnosis and treatment hearsay exception applies to

child sex abuse cases because “the identity of the abuser is a matter that

may assist in diagnosis or treatment of an emotional or psychological

injury” (emphasis added)).    The context in which the identification is

made is what matters, not what the treating physician and nurse did

with that information.

      For these reasons, M.D.’s statements were admissible under the

medical diagnosis and treatment hearsay exception.

      B. We Should Adopt a Categorical Rule.           A categorical rule

would be a logical extension of our jurisprudence regarding this hearsay

exception’s application to child abuse cases. Our precedents recognize
                                   26

that a statement to a treating physician by a child identifying his or her

abuser is admissible under rule 5.803(4). State v. Tornquist, 600 N.W.2d

301, 306 (Iowa 1999) (holding a child’s “responses in a dialogue initiated

for purposes of diagnosis or treatment” for child abuse “may assist in

diagnosis or treatment”), overruled on other grounds by State v. DeCamp,

622 N.W.2d 290, 293 (Iowa 2001); Hildreth, 582 N.W.2d at 170

(“[A]scertaining the identity of the [child’s] abuser is a matter that may

assist in diagnosis or treatment of an emotional or psychological

injury.”); Tracy, 482 N.W.2d at 682     (“Because of the nature of child

sexual abuse, the only direct witnesses to the crime will often be the

perpetrator and the victim. Consequently, much of the State’s proof will

necessarily have to be admissible hearsay statements made by the victim

to relatives and medical personnel.”); see also Renville, 779 F.2d at 436

(“Statements by a child abuse victim to a physician during an

examination that the abuser is a member of the victim’s immediate

household are reasonably pertinent to treatment.”).

      In Tracy, we stressed that a child seeking medical treatment will

generally lack an improper motive, and the identification of an abuser is

reasonably pertinent to medical treatment. 482 N.W.2d at 681. In that

case, a minor told her doctor during an examination that she had been

sexually abused by her stepfather.        Id.   We concluded the first

requirement is met when “the examining doctor emphasize[s] to the

alleged victim the importance of truthful responses in providing

treatment” and when the “child’s motive in making the statements [is]

consistent with a normal patient/doctor dialogue.” Id.

            The second part of the Renville test for admissibility
      under rule 803(4) requires that the content of the statement
      be such as is reasonably relied on by a physician in
      treatment or diagnosis. Where the alleged abuser is a
      member of the victim’s immediate household, statements
                                     27
       regarding the abuser’s identity are reasonably relied on by a
       physician in treatment or diagnosis. Since child abuse often
       involves more than physical injury, the physician must be
       attentive to treating the emotional and psychological injuries
       which accompany this offense. To adequately treat these
       emotional and psychological injuries, the physician will often
       times need to ascertain the identity of the abuser.

Id. at 681 (emphasis added) (citations omitted).      The same reasoning

applies to adult domestic abuse victims.

       In Hildreth, A.E., a minor, made several comments that led her

parents to suspect the child had been sexually abused by her

babysitter’s son, Steven Hildreth. 582 N.W.2d at 168. A.E. was referred

to a therapist, who interviewed A.E. about her recollections of the abuse

and the identity of her abuser. Id. at 169. The trial court permitted the

therapist to testify regarding A.E.’s identification of her abuser at trial.

Id.   In affirming the trial court ruling, we emphasized that “where a

child’s statements are made during a dialogue with a health care

professional and are not prompted by concerns extraneous to the

patient’s physical or emotional problem, the first prong of the Renville

test is satisfied.”   Id. at 170.   We held the second requirement was

satisfied because “ascertaining the identity of the abuser is a matter that

may assist in diagnosis or treatment of an emotional or psychological

injury.” Id.

       The justifications expressed in Hildreth and Tracy for a physician

treating child abuse parallel a physician treating adult domestic abuse.

Regarding the first prong, a domestic violence victim has no motive to lie

to a doctor or nurse. The identification of the abuser is “consistent with

a normal patient/doctor dialogue” because standard screening questions

elicit this information.   See Tracy, 482 N.W.2d at 681.       The second

requirement is met because, as with child abuse, doctors must be
                                   28

attentive to treating the emotional and psychological injuries that

accompany domestic violence.

      The United States Court of Appeals for the Tenth Circuit

recognized these similarities in United States v. Joe and explained why a

categorical rule for adult domestic violence logically follows from child

abuse jurisprudence:

      [T]he identity of the abuser is reasonably pertinent to
      treatment in virtually every domestic sexual assault case,
      even those not involving children. All victims of domestic
      sexual abuse suffer emotional and psychological injuries, the
      exact nature and extent of which depend on the identity of
      the abuser. The physician generally must know who the
      abuser was in order to render proper treatment because the
      physician’s treatment will necessarily differ when the abuser
      is a member of the victim’s family or household. In the
      domestic sexual abuse case, for example, the treating
      physician may recommend special therapy or counseling and
      instruct the victim to remove herself from the dangerous
      environment by leaving the home and seeking shelter
      elsewhere. In short, the domestic sexual abuser’s identity is
      admissible under Rule 803(4) where the abuser has such an
      intimate relationship with the victim that the abuser’s
      identity becomes ‘reasonably pertinent’ to the victim’s proper
      treatment.

8 F.3d 1488, 1494–95 (10th Cir. 1993) (footnote omitted). I agree.

      We should adopt a categorical rule to allow healthcare providers to

testify as to the adult domestic abuse victim’s identification of an

intimate partner as the assailant. The Louisiana Supreme Court recently

surveyed current medical literature and practices to adopt a categorical

rule that

      reflects the current integrated approach to the treatment of
      domestic violence cases in the medical community. See
      American Medical Association Policy Statement on Family
      and Intimate Partner Violence H–515.965 Chicago: AMA
      (2014) (advocating that physicians: (a) “Routinely inquire
      about the family violence histories of their patients as this
      knowledge is essential for effective diagnosis and care;” and
      (e) “Screen patients for psychiatric sequelae of violence and
      make appropriate referrals for these conditions upon
      identifying a history of family or other interpersonal
                                    29
      violence.”) (emphasis added); see also U.S. Dep’t of Health &
      Human Serv., Screening for Domestic Violence in Health
      Care Settings (August 2013), Office of the Assistant
      Secretary for Planning and Evaluation (“Screening and
      counseling for domestic violence was first institutionalized in
      1992 when the Joint Commission on the Accreditation of
      Hospitals and Health Care Organizations (JCAHO) mandated
      that emergency departments develop written protocols for
      identifying and treating survivors of domestic violence in
      order to receive hospital accreditation (Joint Commission,
      2009). Since then, many health associations have supported
      screening across health care specialties. The American
      Medical Association (AMA), American Congress of
      Obstetrician Gynecologists (ACOG), and the American
      Nurses Association (ANA) all recommend routine universal
      screening.”).

State v. Koederitz, 166 So. 3d 981, 985–86 (La. 2015) (footnote omitted).

      Mandatory screening procedures, such as the one used in the

emergency room in this case, recognize the harsh reality that many

people are repeatedly victimized by the same person during the domestic

abuse cycle. Approximately two-thirds of people—65.5% of women and

66.2% of men—physically assaulted by an intimate partner are

victimized multiple times by the same partner. See Patricia Tjanden &

Nancy Thoennes, U.S. Dep’t of Justice, Extent, Nature, and Consequences

of Intimate Partner Violence 39 (2000). Domestic violence survivors are

often caught in cycles of violence that may persist for years. The average
female domestic violence survivor reported the domestic violence cycle

involving an intimate partner lasted over 4.5 years, whereas the average

male domestic survivor’s cycle lasted 3.6 years.        Id. at 39–40.    In

consideration of these sobering statistics, we should adopt a per se rule

that the identification of the perpetrator of domestic violence is pertinent

to medical diagnosis or treatment and admissible under rule 803(4).

      Other jurisdictions have reached this conclusion and adopted a

categorical rule. See Joe, 8 F.3d at 1494–95; Moore v. City of Leeds, 1

So. 3d 145, 150 (Ala. Crim. App. 2008) (“We believe that the rationale
                                    30

employed by the [Alabama] Supreme Court in [Ex parte C.L.Y., 928 So. 2d

1069 (Ala. 2005), announcing a categorical rule to admit a child–patient’s

identification of their abuser] would also apply to victims of domestic

violence.”); Nash v. State, 754 N.E.2d 1021, 1025 (Ind. Ct. App. 2001)

(“[I]n cases such as the present one where injury occurs as the result of

domestic violence, which may alter the course of diagnosis and

treatment, trial courts may properly exercise their discretion in admitting

statements regarding identity of the perpetrator.”); Koederitz, 166 So. 3d

at 985–86 (“[W]e see no principled basis for confining statements of fault

under [the medical diagnosis and treatment exception] solely to cases

involving domestic sexual assault, whether of adults or children, as

opposed to other instances of physical assault and abuse taking place in

a context that may be fairly described in terms of domestic violence.”);

People v. Pham, 987 N.Y.S.2d 687, 690–91 (App. Div. 2014) (“Details of

the abuse, even including the perpetrator’s identity, may be relevant to

diagnosis and treatment when the assault occurs within a domestic

violence relationship because the medical provider must consider the

victim’s safety when creating a discharge plan and gauging the patient’s

psychological needs.”); State v. Moen, 786 P.2d 111, 121 (Or. 1990)

(en banc) (“Admissibility of statements of the type challenged here[—i.e.,

a domestic abuse victim identifying her abuser—]is not limited to cases

involving child abuse.”); State v. Bong, No. 33000–1–III, 2015 WL

3819223, at *5 (Wash. Ct. App. 2015) (“Although statements attributing

fault are generally not relevant to diagnosis or treatment, this court has

found statements attributing fault to an abuser in a domestic violence

case are an exception because the identity of the abuser is pertinent and

necessary to the victim’s treatment.”); State v. Moses, 119 P.3d 906, 911

(Wash. Ct. App. 2005) (same); Oldman v. State, 998 P.2d 957, 961 (Wyo.
                                    31

2000) (“There is no logical reason for not applying [the sexual domestic

abuse exception in Joe] to non-sexual, traumatic abuse within a family

or household, since sexual abuse is simply a particular kind of physical

abuse.”); Commonwealth v. O’Connor, 6 N. Mar. I. 125, 129 (N. Mar. I.

2000) (“[I]n cases of domestic and child abuse . . . the identity of the

abuser becomes ‘reasonably pertinent to diagnosis or treatment[,’] and a

statement identifying the abuser is admissible under the medical hearsay

exception.”). These decisions are persuasive and should be followed.

      The majority concludes there are too many variables in domestic

violence cases to adopt a categorical rule, relying on State v. Robinson,

without mentioning the Minnesota Supreme Court in that decision

expressly left open the possibility it would adopt a categorical rule for

domestic abuse cases in the future. 718 N.W.2d 400, 407 (Minn. 2006)

(“We do not foreclose the possibility that we might in the future adopt a

properly limited categorical rule of admissibility under the medical

exception to hearsay for statements of identification by victims of

domestic violence.”).

      The majority also refers to “the constitutional right of people

accused of crimes to be confronted by their accusers,” citing for support

State v. Bentley.   739 N.W.2d 296, 300–01 (Iowa 2007).         Bentley is

nothing like this case.    There, the police investigating child abuse

arranged a “forensic interview” of the ten-year-old victim who was told at

the outset of her interview that “a police officer and a DHS representative

were listening on the other side of the observation window.” Id. at 300.

When the child asked to halt the interview, her interrogator “specifically

implored [the victim] to continue because ‘it’s just really important the

police know about everything that happened.’ ”      Id.   The interrogator

during breaks consulted with the police officer about additional
                                       32

questions to ask. Id. By contrast, M.D. asked the police to take her to

the emergency room for treatment, and the police had no involvement

when Dr. Mott and nurse Knipper examined her.

        The majority cites no case holding that a statement made to a

treating physician or nurse in the emergency room is “testimonial” for

purposes of the Confrontation Clause. By definition, a statement made

for purposes of medical treatment or diagnosis is not testimonial, as the

Louisiana Supreme Court observed: “The statements at issue in the

present case are also non-testimonial for purposes of the Sixth

Amendment Confrontation Clause because they were not ‘procured [with

a] primary purpose of creating an out-of-court substitute for trial

testimony.’ ”    Koederitz, 166 So. 3d at 986–87 (quoting Michigan v.

Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 1155, 179 L. Ed. 2d 93, 107

(2011) (emphasis added)); see Bryant, 562 U.S. at 358–59, 131 S. Ct. at

1155,    179    L. Ed. 2d   at   107   (“In   making     the    primary   purpose

determination, standard rules of hearsay, designed to identify some

statements as reliable, will be relevant.”); White v. Illinois, 502 U.S. 346,

356, 112 S. Ct. 736, 743, 116 L. Ed. 2d 848, 859 (1992) (“[A] statement

made in the course of procuring medical services, where the declarant

knows that a false statement may cause misdiagnosis or mistreatment,

carries special guarantees of credibility that a trier of fact may not think

replicated      by   courtroom     testimony.”);       cf.     Melendez–Diaz   v.

Massachusetts, 557 U.S. 305, 312 n.2, 129 S. Ct. 2527, 2533 n.2, 174

L. Ed. 2d 314, 322 n.2 (2009) (“[M]edical reports created for treatment

purposes . . . would not be testimonial under our decision today.”); Giles

v. California, 554 U.S. 353, 376, 128 S. Ct. 2678, 2692–93, 171 L. Ed. 2d

488, 505–06 (2008) (“[O]nly testimonial statements are excluded by the

Confrontation Clause. Statements to friends and neighbors about abuse
                                        33

and intimidation [by women in abusive relationships], and statements to

physicians in the course of receiving treatment would be excluded, if at

all, only by hearsay rules . . . .”).    In any event, in this case, M.D.,

Dr. Mott, and nurse Knipper all testified live at trial subject to cross-

examination. The majority’s reference to the Confrontation Clause is a

red herring.

      III. Excited-Utterance Exception.

      Under the DeVoss rule, we may affirm an evidentiary ruling under

any valid alternative ground supported in the record.             See State v.

Newell, 710 N.W.2d 6, 23 (Iowa 2006) (“Although we base our decision on

a different rationale, we find no reversible error in the trial court’s

ruling.”); DeVoss, 648 N.W.2d at 62–63 (noting that evidentiary rulings

are an exception to our error preservation requirements and the district

court ruling will be upheld if sustainable on any ground). In my view,

M.D.’s statements to her doctor and nurse identifying Smith as her

abuser were admissible under the excited-utterance exception. Iowa R.

Evid. 5.803(2). 6

      An excited utterance is “[a] statement relating to a startling event

or condition made while the declarant was under the stress of excitement
caused by the event or condition.”       Id.   “[S]tatements made under the

stress of excitement are less likely to involve deception than if made upon

reflection or deliberation.” State v. Harper, 770 N.W.2d 316, 319 (Iowa

2009) (quoting State v. Tejeda, 677 N.W.2d 744, 753 (Iowa 2004)). We




      6When     an alternative ground supports a ruling admitting evidence, the
proponent should brief and argue the alternative ground on appeal. Otherwise, our
court may defer deciding the issue until a case in which we have the benefit of
adversarial briefing.
                                           34

consider five nonexclusive factors in determining whether a statement

qualifies as an excited utterance:

       (1) the time lapse between the event and the statement,
       (2) the extent to which questioning elicited the statements
       that otherwise would not have been volunteered, (3) the age
       and condition of the declarant, (4) the characteristics of the
       event being described, and (5) the subject matter of the
       statement.

Id. (quoting State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999)).

       Our court considered a similar fact pattern in Atwood.                    Atwood

was charged with vehicular homicide after killing two pedestrians. 602

N.W.2d at 777. Atwood’s passenger, Chris Sivertsen, was hospitalized.

Id. at 782. A police officer interviewed Sivertsen approximately two and

one-half hours after the accident. Id. The officer spoke with Sivertsen

for about four to six minutes.           Id.    The officer asked Sivertsen what

happened, and Sivertsen responded the defendant “jerked the wheel—or

steering wheel way too hard and I thought he was mad.” Id. We held the

statement was admissible. Id. at 783. We noted that Sivertsen had been

through a very traumatic experience; “he had just been involved in a

serious car accident and had apparently seen a child hit the windshield.”

Id. We did not find that the time-lapse or the officer’s question brought

the statement outside the excited-utterance exception. Id. at 782. 7




       7We  have applied the excited-utterance exception after significantly longer time-
lapses. See State v. Galvan, 297 N.W.2d 344, 347 (Iowa 1980) (holding the passage of
two days “leaves [the evidence] close enough to the transaction so that the trial court
could have believed any presumption of fabrication was excluded”); State v. Stafford,
237 Iowa 780, 785–87, 23 N.W.2d 832, 835–36 (1946) (holding statements made
fourteen hours following the alleged crime satisfied “the test of spontaneity” and were “a
natural expression of what had happened to [the victim]”). But see Tejeda, 677 N.W.2d
at 754 (finding a thirty-minute time gap between the startling event and the statement
“weigh[s] heavily against the [statement’s] admission”).
                                     35

      The circumstances surrounding M.D.’s statements show her

statements to Knipper and Dr. Mott were excited utterances. M.D. was

extremely upset from the time she called 911 through her emergency

room visit. She was anxious, in pain, and separated from her daughter

in the middle of the night. Against this backdrop, M.D. twice identified

Smith as her abuser in response to the first question asked by the nurse

and then to another asked by the doctor—“what happened?”                The

substance of M.D.’s statement was the very reason she was so upset—

because she had been assaulted by her intimate partner, the father of

her child.   We have found the excited-utterance exception applies in

similar circumstances. See State v. Richards, 809 N.W.2d 80, 95 (Iowa

2012) (holding domestic violence victim’s statement to her daughter that

the defendant had put a cane to her neck was an admissible excited

utterance because the victim had just come down the stairs, she “was

upset and crying,” and her “neck was red”).

      Accordingly, I would affirm the district court’s admission of those

statements as excited utterances. I agree with the court of appeals that

any error in allowing the police officer to testify about what M.D. told him

was harmless error. For these reasons, I would affirm the judgment of

the district court and decision of the court of appeals.

      Mansfield and Zager, JJ., join this dissent.
