                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1814
                            Filed November 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PATRICK BARRETT JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cass County, Jeffrey L. Larson,

Judge.



      The defendant appeals from his conviction for sexual abuse in the second

degree. CONVICTION CONDITIONALLY AFFIRMED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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McDONALD, Judge.

      Patrick Barrett Jr. was convicted of sexual abuse in the second degree

arising out of his sexual abuse of a child under the age of twelve. In this direct

appeal, Barrett challenges his conviction. He contends the district court erred in

denying his discovery request for the child’s mental-health and counseling records.

He also contends the district court abused its discretion in denying his motion for

new trial made on the ground the verdict was contrary to the weight of the

evidence.

                                           I.

      Barrett’s first claim of error relates to the district court’s denial of his motion

to obtain discovery of the child’s mental-health and counseling records. Barrett’s

challenge raises a non-constitutional claim. This court “review[s] nonconstitutional

challenges to a district court ruling on a discovery matter for an abuse of

discretion.” Powers v. State, 911 N.W.2d 774, 780 (Iowa 2018); accord State v.

Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013); State v. Thompson, 836 N.W.2d

470, 476 (Iowa 2013). “A reversal of a discovery ruling is warranted when the

grounds underlying a district court order are clearly unreasonable or untenable.”

Powers, 911 N.W.2d at 780.         “A district court decision is ‘unreasonable or

untenable’ when it ‘is not supported by substantial evidence or when it is based on

an erroneous application of the law.’” Id. at 780 (quoting State v. Brown, 856

N.W.2d 685, 688 (Iowa 2014)).

      As a general rule, a “mental health professional” cannot “disclose any

confidential communication properly entrusted to the person in the person’s

professional capacity” that was “necessary and proper to enable the person to
                                          3


discharge the functions of the person’s office according to the usual course of

practice or discipline.” Iowa Code § 622.10(1) (2016). This statutory privilege

“shall be absolute with regard to a criminal action.” Iowa Code § 622.10(4)(a).

This means the district court cannot “authorize or require the disclosure of any

privileged records to a defendant in a criminal action.” Iowa Code § 622.10(4)(a).

       There are two exceptions to the statutory privilege. First, a defendant can

obtain discovery of privileged records upon showing the privilege holder voluntarily

waived the confidentiality privilege. See Iowa Code § 622.10(4)(a)(1). Second, a

defendant can obtain discovery of privileged records upon “demonstrating in good

faith a reasonable probability that the information sought is likely to contain

exculpatory information that is not available from any other source and for which

there is a compelling need for the defendant to present a defense in the case.”

Iowa Code § 622.10(4)(a)(2)(a). If the defendant satisfies the threshold showing

for the second exception, the district court must “conduct an in camera review of

such records to determine whether exculpatory information is contained in such

records.” Iowa Code § 622.10(4)(a)(2)(b). “If exculpatory information is contained

in the records, the court shall balance the need to disclose such information

against   the   privacy   interest   of   the   privilege   holder.”   Iowa   Code

§ 622.10(4)(a)(2)(c).

       In this case, Barrett sought the child’s mental-health and counseling

records. The district court reviewed the child’s mental-health and counseling

records in camera.      After reviewing the records in camera, the district court

determined the records did not contain exculpatory information and denied the

defendant’s motion for discovery. Barret argues the district court erred in denying
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his motion for discovery. Barrett contends mental-health and counseling records

always have impeachment value in a sexual abuse case and thus always contain

exculpatory information subject to disclosure.

       In assessing the defendant’s argument, we must acknowledge the

defendant is at a disadvantage in challenging the district court’s ruling and the

State is at a disadvantage in defending the district court’s ruling. Because the

records were reviewed only by the district court, the parties are unaware of what

information is contained therein. The defendant’s argument on appeal is thus

necessarily non-specific, and the State’s rebuttal is also necessarily non-specific.

Be that as it may, neither the federal nor state constitution requires defense

counsel be provided access to the privileged records. See Pennsylvania v. Ritchie,

480 U.S. 39, 60 (1987) (“We find that Ritchie’s interest . . . in ensuring a fair trial

can be protected fully by requiring that the . . . files be submitted only to the trial

court for in camera review. Although this rule denies Ritchie the benefits of an

‘advocate’s eye,’ we note that the trial court’s discretion is not unbounded. If a

defendant is aware of specific information contained in the file (e.g., the medical

report), he is free to request it directly from the court, and argue in favor of its

materiality.”); Thompson, 836 N.W.2d at 486 (“The Cashen majority made a policy

choice to allow defense counsel to conduct the in camera review without stating

that procedure is constitutionally required. We hold that it is not. Less than a year

later, the Iowa legislature made a different policy choice—to substitute the trial

judge for defense counsel for the in camera inspection. We decline to make new

law under the Iowa due process clause to redraw the constitutional boundaries to
                                           5


strike down the legislature’s policy choice.”). We thus directly address the claim

as presented in light of controlling authorities.

       We reject Barrett’s contention that mental-health and counseling records

always have exculpatory value in a sexual abuse case and are always subject to

disclosure. The primary case upon which the defendant relies does not support

his claim. In State v. Edouard, the supreme court held the district court erred in

denying the defendant’s request to conduct an in camera review of the privileged

information. 854 N.W.2d 421, 427 (Iowa 2014), overruled on other grounds by

Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016). The supreme court

remanded the case to the district court to determine whether the privileged records

contained exculpatory information and whether a new trial was necessary. See id.

at 442-43. In remanding the matter to the district court for in camera review, the

supreme court implicitly rejected the conclusion that mental-health and counseling

records always have impeachment value and are always subject to discovery.

Otherwise, the supreme court would have ordered the records to be disclosed

rather than remanding the case for in camera review to determine whether the

records should be disclosed. Indeed, after remand, the district court denied the

defendant’s request for discovery of the privileged records, and this court affirmed

the denial. See State v. Edouard, No. 15-0128, 2016 WL 540974, at *1 (Iowa Ct.

App. Feb. 10, 2016). Therefore, Edouard actually undermines the defendant’s

argument.

       While not all mental-health and counseling records will contain exculpatory

information, some certainly will. It is incumbent upon the district court to conduct

a full and fair review of the privileged records to determine whether the privileged
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records contain exculpatory information.       This court has defined the term

“exculpatory” broadly. See State v. Retterath, No. 16-1710, 2017 WL 6516729, at

*11 (Iowa Ct. App. Dec. 20, 2017). In Retterath, we rejected any distinction

between impeachment evidence and exculpatory evidence. See id. We explained

exculpatory information includes any evidence that “tends to ‘establish a criminal

defendant’s innocence.’” See id. (quoting Exculpatory Evidence, Black’s Law

Dictionary (10th ed. 2014)).

       This court has reviewed the mental-health and counseling records the

defendant sought, which were marked as court exhibits 1 and 2 and filed under

seal. In conducting our review, we conclude the district court abused its discretion

in finding the privileged records contained no exculpatory information. We find the

district court also abused its discretion in concluding no exculpatory information

needed to be disclosed under the statutory balancing test. We conclude the

following records contain exculpatory information and should be disclosed

pursuant to section 622.10(4):

            Other Event Sealed Medical Records - Only Exhibit 1: electronic pdf
pages 9-25, 29-46, 108-111, 151, 153-155, 157-158;
            Other Event Sealed Medical Records - Exhibit 2, part 1: electronic
pdf pages 14-15, 18-19;
            Other Event Sealed Medical Records - Exhibit 2, part 2: electronic
pdf pages 13-14, 17-19, 50-51, 76-77, 102-108, 111-112, 115-116, 119-120;
            Other Event Sealed Medical Records - Exhibit 2, part 3: electronic
pdf pages 45-46, 52-53.

Once the district court discloses the records to the attorneys, it shall consider

whether new trial is necessary. See Neiderbach, 837 N.W.2d at 198.

       We conclude this division with two observations regarding the current

statutory scheme. First, in camera review by the district court (and appellate
                                           7


review by this court) is inherently deficient. “Only the attorneys representing the

parties know what they are looking for in the records. The court cannot foresee

what may or may not be important to the defendant.” State v. Cashen, 789 N.W.2d

400, 409 (Iowa 2010), superseded by statute, 2011 Iowa Acts Ch. 8, § 2 (codified

at Iowa Code § 622.10 (2011)), as recognized in State v. Dahl, 874 N.W.2d 348,

351 (Iowa 2016). Without the help of the the attorney’s eyes, the district court’s

review of the privileged records might result in an underinclusive disclosure of

exculpatory information. This injects unreliability into the trial process and may

infringe the defendant’s right to due process. See id. at 407 (“The purpose of

providing a defendant with the privileged records of a victim is to lessen the chance

of wrongfully convicting an innocent person.”). The statute, by having the district

court rather than the attorneys serve as the gatekeeper of the privileged records,

has created an unsatisfactory process that generates greater unreliability in the

trial process.

       Second, the statutory scheme places the district court (and the appellate

courts) in the untenable position of being an advocate. “[T]he judicial process is

normally driven by the parties. They bring their cases to the court and ask the

court to decide the issues they present. Judges are not advocates who reach out

to decide questions the parties themselves either deem unimportant or, for

whatever reasons, fail to raise.” Feld v. Borkowski, 790 N.W.2d 72, 83 (Iowa

2010). The current statutory scheme, by requiring the district court to determine

what information is exculpatory, forces the district court to place its imprimatur on

information it deems to be important to the litigation. This is contrary to the judicial
                                           8


function. “It is imperative the court not become an advocate of any party’s cause.”

State v. Voelkers, 547 N.W.2d 625, 631 (Iowa Ct. App. 1996).

       “In his classic definition of the qualities of a judge Socrates said: ‘Four things

belong to a judge: to hear courteously; to answer wisely; to consider soberly; and

to decide impartially.’” State v. Glanton, 231 N.W.2d 31, 35 (Iowa 1975). The

statute now adds a fifth quality: “to discover diligently.” This duty is ongoing and

requires the district court to monitor the conduct of trial to determine whether

undisclosed information previously determined to not be not exculpatory later

becomes exculpatory and subject to disclosure.           See Ritchie, 480 U.S. at 60

(“Moreover, the duty to disclose is ongoing; information that may be deemed

immaterial upon original examination may become important as the proceedings

progress, and the court would be obligated to release information material to the

fairness of the trial.”).

       The current statutory scheme is untenable. The General Assembly should

amend the statute to restore the Cashen protocol and have defense counsel,

rather than the district court, conduct an in camera review of the relevant records.

                                           II.

       In his second claim of error, Barrett contends the district court abused its

discretion in denying his motion for new trial. The motion was filed pursuant to

Iowa Rule of Criminal Procedure 2.24(2)(b)(6), asserting the verdict was contrary

to the weight of the evidence. The district court denied the motion on the record

at sentencing. The entirety of the ruling is below:

       The court has had an opportunity to review, prior to coming into the
       courtroom, the post trial motion filed by defense counsel and the
       response and resistance filed by the State. I’ve also had a chance
                                           9


       to review the memorandum that counsel for defendant filed today.
       I’ve heard arguments from counsel, and at this time the court will
       overrule the post trial motions.

       “The district court has broad discretion in ruling on a motion for new trial.”

State v. Reeves, 670 N.W.2d 199, 2002 (Iowa 2003); accord State v. Atley, 564

N.W.2d 817, 821 (Iowa 1997). “When considering a motion for new trial, the district

court must apply the weight-of-the-evidence standard.” State v. Stevenson, No.

04-1395, 2005 WL 2369809, at *1 (Iowa Ct. App. Sept. 28, 2005). “A verdict is

contrary to the weight of the evidence where a greater amount of credible evidence

supports one side of an issue or cause than the other.” Id.

       “[A]ppellate review is limited to a review of the exercise of discretion by the

trial court, not of the underlying question of whether the verdict is against the weight

of the evidence.” Reeves, 670 N.W.2d at 203. To show an abuse of discretion,

the defendant “must show that the district court exercised its discretion on grounds

or for reasons clearly untenable or to an extent clearly unreasonable.” Id. at 202.

The district court abuses its discretion only where “the evidence preponderates

heavily against the verdict.” See State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa

1998) (quoting 3 Charles A. Wright, Federal Practice and Procedure § 553, at 245-

48 (2d ed. 1982)).

       There are two aspects to Barrett’s challenge to the district court’s ruling.

Barrett first contends the district court’s cursory denial of his motion precludes

appellate review because this court is unable to determine whether the district

court applied the correct legal standard in ruling on the motion. As a remedy, he

requests this matter be remanded with instruction to apply the correct legal

standard. In the second part of his challenge to the district court’s ruling, Barrett
                                          10


contends the verdict is contrary to the weight of the evidence and the district court

was wrong on the merits.

       In support of his argument that the record is inadequate to conduct appellate

review, Barrett relies on State v. Root, 801 N.W.2d 29 (Iowa Ct. App. 2011), and

State v. Scarlett, No. 14-1704, 2016 WL 1130039 (Iowa Ct. App. Mar. 23, 2016).

In Root, the district court denied the defendant’s motion for a new trial by finding

that the verdict was “supported by competent evidence.” 801 N.W.2d at 31. This

court reversed, concluding that “‘competent evidence’ could signal ‘sufficient

evidence’ rather than ‘weight of the evidence.’” Id. In Scarlett, the court denied

the defendant’s motion for a new trial by stating:

       [T]he reasons for denying the judgment of acquittal was [sic] that, in
       fact, a jury question had been committed—or been created as to
       each of the counts that were charged by the defendant. The court
       just relies on those prior findings by the court and denies . . . the
       motion for new trial . . . .

2016 WL 1130039, at *4-5. A judgment of acquittal standard is a sufficiency-of-

the-evidence standard. This court reversed, concluding the district court applied

the incorrect sufficiency-of-the-evidence standard rather than the correct weight-

of-the-evidence standard. See id.

       We conclude Root and Scarlett are not applicable here. In both Root and

Scarlett, the record affirmatively showed the district court applied or may have

applied the incorrect legal standard in ruling on the motion for new trial. In contrast,

in this case, the record does not affirmatively demonstrate error. Instead, the

record is silent on the district court’s rationale for denying the motion.

       Where, as here, the district court does not provide any reason for denying

the motion for new trial, the controlling case is State v. Maxwell, 743 N.W2.d 185
                                         11

(Iowa 2008). In Maxwell, the district court denied the defendant’s motion for new

trial without explanation. See 743 N.W.2d at 192 (“The court after reviewing the

file hereby DENIES the defendant’s Motion for Judgment of Acquittal and Motion

for New Trial.”). As in this case, the defendant claimed “the district court erred by

failing to state its reasons for denying his motion for new trial and created a

situation where this court is left with nothing to review.” Id. The supreme court

concluded the district court should state its reasons for denying the motion. See

id. However, the supreme court concluded the district court’s failure to provide its

reasons for denying the motion did not require remand where the record was

adequate to review the decision on the merits. See id. at 193 (“Because Maxwell’s

motion raised the issue in the district court, we are allowed to review the record to

determine whether a proper basis exists to affirm the district court’s denial of

Maxwell’s motion for new trial. In doing so, we review the trial court’s ruling for an

abuse of discretion.”). We reiterate the supreme court’s admonition in Maxwell: It

is better practice for the district court to provide a statement of reason or reasons

for its ruling on a motion for new trial. As in Maxwell, however, we conclude the

record is adequate to review the district court’s denial of the motion for new trial

and remand is not necessary.

       We now address the second aspect of Barrett’s claim—the district court’s

ruling on the merits of the motion. While we have already concluded the district

court must determine on remand whether a new trial is warranted for the failure to

disclose exculpatory information, we are still obligated to address the district

court’s ruling on the motion for new trial on the record already made.
                                         12


       Where, as here, the jury is instructed without objection, the instructions are

the law of the case for determining whether the verdict is contrary to the weight of

the evidence. See State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009); State v.

Phipps, No. 17-1653, 2018 WL 4638351, at *2 (Iowa Ct. App. Sept. 26, 2008).

Here, the jury was instructed the State was required to prove the following: first,

between January 1, 2010, and January 31, 2016, the defendant performed a sex

act with the child; second, the defendant performed the sex act while the child was

under the age of twelve. The jury instructions defined a “sex act” as sexual contact

by penetration of the penis into the anus, between the mouth of one person and

the genitals of another, between the genitals of one person and the genitals or

anus of another, and between the finger or hand of one person and the genitals or

anus of another.

       Our review of the record indicates the greater weight of the evidence

supports the jury’s verdict that the defendant performed a sex act with the child

while the child was under the age of twelve. The record shows the child first

disclosed the sexual abuse in July 2016 to his therapist. Prior to disclosing the

sexual abuse to his therapist in July 2016, the child had treated with other

therapists for several years for anger management. The child denied he told any

of these prior therapists about the sexual abuse. He testified he was embarrassed

and did not fully understand the abuse was wrong. He testified he thought the

contact was bad but that it also felt good. The child also denied telling anyone else

about the abuse prior to July 2016, including his parents, his stepmother, and his

siblings and half-siblings.
                                           13


          After the child disclosed the sexual abuse, his therapist referred the matter

to the local sheriff’s department and the department of human services. The

sheriff’s department, in turn, referred the matter to a forensic interviewer at Project

Harmony, an organization that specializes in helping sexually abused children.

During his first interview at Project Harmony, the child disclosed some of the

conduct. However, he failed to disclose all of it and failed to provide details. The

interviewer requested a second interview to clarify and follow-up on several items.

In the second interview, the child revealed more incidents of abuse and greater

detail.

          It is unnecessary to document each incident of sexual abuse in detail, but

the record shows the child testified regarding several specific instances of abuse.

There were some minor inconsistencies in the child’s initial reports of abuse and

his trial testimony. However, the child’s core accusations of sexual abuse have

not changed since the time of the initial disclosure.          The child has always

maintained Barrett sexually abused him on multiple occasions and in multiple ways

over a lengthy period of time. While the child provided greater detail regarding the

abuse over time, he has never retreated from his accusations of abuse. Minor

inconsistencies in the accuser’s pretrial statements and testimony are generally

not enough to establish the district court abused its discretion in denying a motion

for new trial. See State v. Kissell, No. 16-0887, 2017 WL 6032585, at *2 (Iowa Ct.

App. Nov. 22, 2017) (explaining minor inconsistencies “pale in comparison to . . .

consistent testimony regarding the fundamental facts of the abuse”); State v.

Blaise, No. 14-1818, 2015 WL 5285984, at *1 (Iowa Ct. App. Sept. 10, 2015)

(“[Defendant] complains that the child’s testimony contained inconsistencies and
                                          14


therefore lacks probative weight. While there are inconsistencies in the testimony,

the district court implicitly found the victim’s testimony credible, which supported

the verdict.”); Stevenson, 2005 WL 2369809, at *2 (“While the record certainly

supports that [the sexual abuse victim’s] testimony was subject to certain

inconsistencies and that her credibility reasonably may have been questioned,

these observations are insufficient for this court to conclude the district court

abused its discretion in denying [Defendant’s] motion.”).

       In reaching our conclusion, we acknowledge there was also contrary

evidence. The defendant testified on his own behalf. He adamantly denied

abusing the child. The child’s father and stepmother testified on Barrett’s behalf.

They testified Barrett would have had only limited opportunities to be alone with

the child to perpetrate the abuse. They testified they would be comfortable leaving

their other children in Barrett’s care. However, based on the record made during

this trial, this is not the extraordinary case in which the evidence preponderates

heavily against the verdict. See Ellis, 578 N.W.2d at 658-59; State v. Murphy, No.

17-0978, 2018 WL 3472040, at *6 (Iowa Ct. App. July 18, 2018) (stating it is an

“extraordinary case where the evidence preponderates heavily against the verdict”

and affirming denial of motion for new trial).

       The district court did not abuse its discretion in denying the defendant’s

motion for new trial based on the existing trial record. We caution that nothing in

this opinion is intended to comment on the determination of whether Barrett is

entitled to a new trial following the disclosure of the exculpatory records set forth

above. That determination is for the district court in the first instance.
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                                         III.

       The district court abused its discretion in denying Barrett’s discovery

request for the child’s mental-health and counseling records. The district court did

not abuse its discretion in denying the defendant’s motion for new trial on the trial

record made. We conditionally affirm the defendant’s conviction and remand this

matter for disclosure of the exculpatory records pursuant to section 622.10(4) and

for a determination of whether the defendant is entitled to a new trial.

       CONVICTION CONDITIONALLY AFFIRMED AND REMANDED.
