                       IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1527
                              Filed February 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES H. EXLINE,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Greene County, James M. Drew,

Judge.



       James H. Exline appeals his convictions of second- and third-degree sexual

abuse. AFFIRMED.




       Travis M. Armbrust of Brown, Kinsey, Funkhouser & Lander, P.L.C., Mason

City, for appellant.

       Thomas J. Miller, Attorney General, and Darrel Mullins and Denise

Timmins, Assistant Attorneys General, for appellee.



       Heard by Vaitheswaran, P.J., and Doyle and May, JJ.
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VAITHESWARAN, Presiding Judge.

       James H. Exline was twice tried for second- and third-degree sexual abuse

of a child, with the first trial ending in a mistrial and the second resulting in jury

findings of guilt. On appeal, Exline argues the district court (1) abused its discretion

in allowing the jury to hear that the child died; (2) erred in admitting hearsay

evidence; and (3) abused its discretion in denying his motion to postpone the

second trial.

I.     Death of Child

       The child Exline was charged with abusing died before the State filed

charges. Prior to the first trial, Exline filed a motion in limine seeking to exclude

“[e]vidence and testimony pertaining to the unavailability of [the child] including but

not limited to the death of [the child] . . . or any of the surrounding circumstances

of her death.” At a hearing on the motion, he argued the fact and cause of her

death were irrelevant and should be excluded. The State objected on the ground

that, if the death were not disclosed, the jury would speculate as to why the State

failed to call the child as a witness. The district court ruled the State could elicit

the fact of the child’s death but not the cause.

       During the first trial, a witness mentioned the cause of the child’s death.

The district court declared a mistrial. Before the second trial, Exline moved to

exclude the witness.     The district court denied the motion and entrusted the

prosecutor with the obligation “to deal with [the witness] and make sure that she

[was] instructed” not to testify about the cause of death. At trial, the prosecutor

asked the witness to simply answer “yes” or “no” to the question of whether the

child died. The witness answered “yes.”
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       On appeal, Exline argues “allowing the jury to know that the alleged victim

was deceased without telling them how that happened or smoothing over the

reason resulted in an unfair trial.” His argument is inconsistent with the position

he took in the district court. The court questioned defense counsel about whether

the cause of the child’s death should be disclosed if the fact of her death was

disclosed. Counsel responded, “I would prefer that no explanation be given, only

that she’s deceased.” The court accepted his position.

       Exline “cannot now predicate error upon the court’s doing the very thing [he]

requested the court to do.” State v. Beckwith, 53 N.W.2d 867, 869 (Iowa 1952);

see also Kinseth v. Weil-McLain, 913 N.W.2d 55, 74 (Iowa 2018) (stating a party

with knowledge of facts who assumes a particular position in a judicial proceeding

is estopped from assuming an inconsistent position, be it in the same or different

proceedings, as long as the court accepts the position). We conclude Exline is

judicially estopped from challenging the district court’s ruling.

       This is particularly true “in the absence of any showing of prejudice.”

Beckwith, 53 N.W.2d at 869; State v. Deering, No. 14-1656, 2016 WL 1358491, at

*5–6 (Iowa Ct. App. Apr. 6, 2016). As noted, the prosecutor did not delve into the

cause of the child’s death. In closing argument, Exline’s attorney used the fact of

her death to his advantage. After noting the child “never made any statements

under oath . . . subject to cross-examination,” he went on to impugn the child’s

credibility and the credibility of witnesses who recounted her statements. Exline

made the most of the child’s absence without having to address what he conceded

was complicated causation evidence. He failed to establish he was prejudiced by

the disclosure of the child’s death.
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       Even if the doctrine of judicial estoppel did not apply and we were to reach

the merits of the court’s evidentiary ruling, we would discern no abuse of discretion

in the ruling. See State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014) (reviewing

evidentiary rulings other than hearsay rulings for an abuse of discretion). The court

considered the State’s asserted need for the testimony and Exline’s objection and

limited the testimony in accordance with Exline’s request.

II.    Hearsay Evidence

       The State planned to call a nurse as well as the child’s grandmother, friend,

and sister to testify to statements the child made. Aware of their impending

testimony, Exline sought to exclude the child’s statements on the ground they were

“hearsay” and violated “the due process clause of the Fifth Amendment of the

United States Constitution, article I, section 9 of the Iowa Constitution, the

confrontation clause of the Sixth Amendment of the United States Constitution,

[and] article I, section 10 of the Iowa Constitution.” The district court preliminarily

admitted some of the statements and later overruled trial objections to certain

witnesses’ testimony.

       On appeal, Exline reprises his assertion that the statements were “straight

hearsay . . . which the fact finder should not have heard as, not only are they

inadmissible, but they violated [his] State and Federal Constitutional rights to

confront the witnesses against him.”1 Our review of the court’s rulings is for errors

of law. State v. Walker, 935 N.W.2d 874, 878 (Iowa 2019).



1 Exline also raises a hearsay challenge to the testimony of a forensic interviewer.
Following his attorney’s trial objections, the prosecutor did not elicit hearsay
testimony from the witness. Accordingly, we need not address the testimony.
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       We begin with the nurse who examined the child following a disclosure of

possible abuse. The district court preliminarily ruled statements the child made to

the nurse were admissible under the exception to the hearsay rule for medical

diagnosis or treatment. Exline’s attorney voiced a trial objection on the ground the

statements were “hearsay, [violated the] confrontation [clauses] under the United

States and Iowa Constitutions, right to a fair trial under the United States and Iowa

due process clause, and [were] a privileged communication.” The district court

summarily overruled the objection. The nurse testified to the sex acts performed

on the child, as recounted by the child.        She also identified Exline as the

perpetrator, again as recounted by the child.

       The child’s statements to the nurse were indisputably hearsay evidence.

See Iowa R. Evid. 5.801(c)(1), (2) (stating hearsay is a statement “[t]he declarant

does not make while testifying at the current trial or hearing” that is offered “into

evidence to prove the truth of the matter asserted in the statement”). Generally,

hearsay is inadmissible. See Iowa R. Evid. 5.802. But, as the district court noted,

there are exceptions, including one for medical diagnosis or treatment. See Iowa

R. Evid. 5.803(4) (granting an exception for a statement that is “made for—and is

reasonably pertinent to—medical diagnosis or treatment” and “[d]escribes medical

history, past or present symptoms or sensations, or the inception or general cause

of symptoms or sensations”).

       Exline essentially concedes the child’s description of the sex acts performed

on her fell within the diagnosis-or-treatment exception.       He focuses on the

admission of statements identifying him as the abuser.
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       The Iowa Supreme Court recently addressed identity statements made by

a child to a physician. See Walker, 935 N.W.2d at 879–80. Applying the two-part

test set forth in State v. Tracy, 482 N.W.2d 675, 681 (Iowa 1992), the court held

“there was sufficient evidence to establish [the child’s] ‘motive in making the

statement[s] [was] consistent with the purposes of promoting treatment’” and “the

State established [the child’s] statements were of a type that are ‘reasonably relied

on by a physician in treatment or diagnosis.’” Id. at 879 (quoting Tracy, 482 N.W.2d

at 681) (alteration in original). The court affirmed the admission of the statements

for identity purposes. Id. at 880; see also State v. Smith, 876 N.W.2d 180, 186

(Iowa 2016) (“When the ‘alleged abuser is a member of the victim’s immediate

household, statements regarding the abuser’s identity are reasonably relied on by

a physician in treatment or diagnosis.’” (quoting Tracy, 482 N.W.2d at 681)).

       In this case, the State similarly established that the child’s motive in making

the statements to the nurse was consistent with the purpose of promoting

treatment and the statements were of a type reasonably relied on by a health care

provider in treatment or diagnosis. See Walker, 935 N.W.2d at 879–80. The nurse

testified she would want to know who, if anyone, abused the child, because “as an

advocate for their health and their well-being, [she] would want to ensure that a

child’s not going back to an environment in which they could continue to be hurt.”

See Smith, 876 N.W.2d at 186 (“The doctor is also often concerned about the

possibility of recurrent abuse.”). The nurse explained she would need to know

what if any acts were performed on the child to “help[] guide the exam,” and she

stated “it’s good information to know which parts of the body . . . could have been

affected . . . to make relevant recommendations for further care or treatment or
                                          7


referrals.” She explained the purpose of the visit to the child using language the

child employed, stating “first and foremost” she wanted “to make sure” they were

“on the same page.” She also highlighted the importance of not putting “words or

thoughts . . . into [the child’s] head.” See Walker, 935 N.W.2d at 880 (noting

physician used “age-appropriate terms” in explaining purpose of the visit). After

explaining her protocol, the nurse recounted the sex acts, in the child’s words.

Based on the acts described by the child, she collected specimens “to evaluate for

sexually transmitted infections” and ran tests on the specimens.

       We conclude the district court did not err in finding the child’s identification

of Exline admissible under the medical-diagnosis-or-treatment exception to the

hearsay rule. As for the confrontation clause challenge to the statements, Exline

conceded at trial that the Iowa Supreme Court resolved the issue to his detriment.

See In re J.C., 877 N.W.2d 447, 456, 458 (Iowa 2016) (“[W]e do not believe

admission of [a physician’s] testimony and report [containing out-of-court-

statements of a child] violated [a delinquent’s] rights of confrontation under the

Sixth Amendment [or article I, section 10 of the Iowa Constitution].”).

       With the child’s description of the sex acts and perpetrator properly admitted

through the nurse under the medical diagnosis-and-treatment exception, the

child’s similar statements to her grandmother and friend were cumulative. See

State v. Neitzel, 801 N.W.2d 612, 623 (Iowa Ct. App. 2011). Accordingly, we need

not address the State’s assertion that the disclosures to those individuals were

admissible under the excited-utterance or residual-hearsay exceptions to the

hearsay rule.
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       We are left with the child’s statements to her sister. The sister testified

without objection that the child told her Exline was “saying dirty things to [her].”2

On cross-examination, Exline’s attorney elicited an admission that the child “never

told her that [Exline] was doing anything to her.” But counsel did not object to the

following exchange between the prosecutor and the sister: “Q. You’re aware

that . . . [the child] did disclose to your grandma and the police that your dad had

been sexually abusing her; correct? A. Yes.” This exchange was admissible. The

testimony bolsters the identity statements the child made to the nurse.

       In sum, we conclude the admission of hearsay testimony does not require

reversal and remand for a new trial.

III.   Denial of Motion for Continuance

       Exline had the same attorney in the first and second trials. Three days

before the second trial was scheduled to begin, Exline’s attorney moved for a

continuance. The district court denied the motion. The court reasoned that the

situation was “of Mr. Exline’s making” when he “decided to accept a plea offer” and

“rejected it” at the eleventh hour.

       On appeal, Exline argues the district court abused its discretion in denying

the motion. See State v. Clark, 814 N.W.2d 551, 560 (Iowa 2012) (“We generally

review a district court’s denial of a motion for continuance for an abuse of

discretion.”). We disagree.




2 Prior to the first trial, Exline argued the sister’s testimony about what Exline said
to the child was irrelevant. The district court overruled the objection and left a
hearsay objection in abeyance. That objection was not revisited during the second
trial.
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       Exline’s attorney acknowledged he was “prepared for the trial in general”

but stated he did not have “sufficient time” to prepare for jury selection. He

asserted he “stopped doing preparation concerning the jury” after “an agreement

to resolve the case” materialized.     He cited the public defender’s practice of

declining to pay court-appointed attorneys for trial preparation under those

circumstances. In particular, he stated he did not have his investigator pursue

leads that would have aided in jury selection. Counsel did not explain the nature

of those leads and how they would assist in jury selection other than to indicate

they required searches of public records and related to a witness who was

deposed a week earlier. Nor did he explain why his previous experience selecting

a jury in the same case would not inform his selection of a second jury.

       We conclude the district court did not abuse its discretion in denying Exline’s

belated motion to continue trial.

       We affirm Exline’s judgment and sentence.

       AFFIRMED.
