                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1479
                             Filed October 28, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JERME DAVID HOPWOOD,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Wapello County, E. Richard

Meadows, Judge.



      Defendant appeals his convictions on five counts of second-degree sexual

abuse, five counts of incest, and one count of indecent exposure. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Tyler J. Buller,

Assistant Attorneys General, and Gary Oldenburger, County Attorney, for

appellee.

      Considered by Danilson, C.J., Tabor, J., and Miller, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                        2



MILLER, Senior Judge.

      Defendant Jerme Hopwood appeals his convictions on five counts of

second-degree sexual abuse, five counts of incest, and one count of indecent

exposure. We determine the district court did not err in concluding a videotape of

the interviews with one of the child victims at the Child Protection Center was

admissible under Iowa Rule of Evidence 5.807. We also determine Hopwood

has not shown he received ineffective assistance because counsel did not object

to the instructions on the ground the charges against him for second-degree

sexual abuse and incest were not sufficiently differentiated.          We affirm

Hopwood’s convictions.

I.    Background Facts & Proceedings

      Hopwood was separated from his wife and he had visitation with his two

young daughters, A.H. and E.H., every weekend. On October 2, 2011, after a

discussion about “bad touch,” A.H., who was then eight years old, told a school

counselor Hopwood had touched her “where you go to the bathroom.” When

E.H., who was then seven years old, was informed of A.H.’s statements she said,

“But he said he would stop.”

      Videotaped interviews were conducted of A.H. and E.H. at the Child

Protection Center. E.H. stated that on multiple occasions Hopwood had touched

her genitals with his hand. A.H. stated Hopwood had taken off her pants and

touched her genitals with his hand. A.H. stated that in one incident Hopwood

touched her genitals with his penis. She drew an anatomically correct picture of
                                           3



a penis with color crayons during the interview. In a second interview A.H. stated

Hopwood touched her private place with his “wiener” more than one time.

       Hopwood was charged with five counts of second-decree sexual abuse

(three counts involving A.H. and two involving E.H.), in violation of Iowa Code

section 709.3(2) (2011), a class “B” felony; five counts of incest (three counts

involving A.H. and two involving E.H.), in violation of section 726.2, a class “D”

felony; and one count of indecent exposure, in violation of section 709.9, a

serious misdemeanor.

       The State filed a motion requesting that A.H. and E.H. be permitted to

testify via closed-circuit television. The children’s counselor stated measures

were necessary to protect them from the trauma caused by testifying in the

presence of Hopwood. The court granted the motion. Thus, the children were

able to be questioned and cross-examined, but they were not in the same room

as Hopwood.

       The State also filed a motion seeking a ruling on the admissibility under

Iowa Rule of Evidence 5.807 of the videotape from the interviews at the Child

Protection Center.1 The children had been deposed on November 16, 2012, and

stated they did not remember many of the facts of the case. Hopwood argued

the videotape was inadmissible hearsay. A hearing was held on the motion, but

the court did not rule on the admissibility of the videotaped interviews at that

time, stating it would reserve ruling until after the children had actually testified.



1
   For purposes of the motion, the prosecutor and defense counsel worked together to
produce one videotape that contained portions of the two interviews with A.H. and the
interview with E.H.
                                       4



      The criminal trial commenced on June 4, 2013. E.H. stated Hopwood

would take her clothes off and touch her private spot with his hand. She stated

he moved his hand around and this happened more than one time. A.H. testified

Hopwood would touch her “private place.” She stated sometimes he took her

clothes off and sometimes her clothes would be on. She also stated he moved

his hand around and this happened more than one time. A.H., however, did not

remember talking to anyone at the Child Protection Center.

      The State requested to show the jury the videotaped interviews of A.H.,

but did not seek to introduce the videotape of the interview of E.H. Because A.H.

testified she did not remember some of the events she testified to in the

videotape, the State argued there was “no other available avenue” to introduce

the evidence. The district court ruled the videotape of A.H. met the requirements

of trustworthiness, materiality, necessity, was the most probative evidence

available, and the State gave adequate notice it intended to introduce the

videotape. Hopwood requested that if the videotape of A.H.’s interviews were

admitted then the videotape of E.H.’s interview should be admitted as well. The

court granted this request. The compiled videotape, which had been created for

purposes of the motion in limine, was shown to the jury. The State then rested.

The court denied Hopwood’s motion for judgment of acquittal.

      Hopwood testified and denied inappropriate contact with the children. At

the close of all evidence, Hopwood renewed his motion for judgment of acquittal,

which was again denied by the court. When questioned by the court about the

jury instructions, defense counsel stated, “I have no objections to the present
                                         5



instructions.”   During closing arguments the prosecutor described the facts

applicable to each count of the trial information, differentiating the charges.

Defense counsel did not discuss the individual charges, but made a general

denial, stating, “The State maintains those things happened. My client maintains

they did not.” The jury found Hopwood guilty of each of the charges against him.

       Hopwood filed a combined motion for judgment of acquittal and for a new

trial, claiming (1) the court erred in admitting the videotape of A.H., (2) the facts

did not support the jury’s verdicts, (3) during closing arguments the prosecutor

made an incorrect reference to a statement by Hopwood’s ex-wife, and (4) the

court should have granted his motion for judgment of acquittal. The court denied

the motions. The court also denied Hopwood’s motion for merger. Hopwood

was sentenced to fifty years in prison. He now appeals his convictions.

II.    Admission of Videotape

       Hopwood claims the district court erred in admitting the videotape of the

interviews of A.H. He asserts the videotape does not come within the residual

exception found in rule 5.807 because the testimony in the videotape was not

trustworthy or necessary, and did not serve the interests of justice. He also

asserts the admission of the videotape was prejudicial to his defense.

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

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

matter asserted.” State v. Neitzel, 801 N.W.2d 612, 621 (Iowa Ct. App. 2011).

“Hearsay is not admissible except as provided by the Iowa Constitution, by

statute, by other rules of evidence, or rules of the Iowa Supreme Court.” State v.
                                          6



Hildreth, 582 N.W.2d 167, 169 (Iowa 1998) (citing Iowa R. Evid. 5.802). We

review the district court’s decision to admit or exclude hearsay evidence for the

correction of errors of law. Neitzel, 801 N.W.2d at 621.

      An exception to the hearsay rule is found in Iowa Rule of Evidence 5.807,

the residual exception, which provides:

              A statement not specifically covered by any of the
      exceptions in rules 5.803 or 5.804 but having equivalent
      circumstantial guarantees of trustworthiness is not excluded by the
      hearsay rule if the court determines that (A) the statement is offered
      as evidence of a material fact; (B) the statement is more probative
      on the point for which it is offered than any other evidence which
      the proponent can procure through reasonable efforts; and (C) the
      general purposes of these rules and the interests of justice will best
      be served by admission of the statement into evidence. However,
      a statement may not be admitted under this exception unless the
      proponent of it makes known to the adverse party sufficiently in
      advance of the trial or hearing to provide the adverse party with a
      fair opportunity to prepare to meet it, the proponent’s intention to
      offer the statement and the particulars of it, including the name and
      address of the declarant.

      In order for evidence to be admissible under the residual exception, it

must meet the requirements of: (1) trustworthiness; (2) materiality; (3) necessity;

(4) service of the interests of justice; and (5) notice. State v. Rojas, 524 N.W.2d

659, 662-63 (Iowa 1994). A court should make explicit findings on each of the

five requirements.   State v. Brown, 341 N.W.2d 10, 14 (Iowa 1983).            “[T]he

residual exception to the hearsay rule may be used to admit statements made by

a child sex abuse victim when the requirements of the exception are met.”

Rojas, 524 N.W.2d at 663.

      A.     Trustworthiness. Some indications of trustworthiness are whether

the interviewer asked the child “open-ended, non-leading questions,” the child’s
                                         7



memory of details, whether the child’s descriptions are beyond the experience of

an average child of that age, the consistency of the child’s statements, and the

child’s demeanor. Id.

       The district court properly considered these elements in its ruling:

               Regarding trustworthiness, the Court finds the interviewer
       established what it meant to tell the truth with [A.H.], that the
       interviewer used non-leading questions and not the sort of
       questions that would prompt a false statement.
               [A.H.]’s answers included details about where the abuse
       occurred as well as what happened. Her description reflected her
       innocence. Her responses and descriptions suggested she was
       actually recalling events as opposed to saying what someone had
       told her or making it up as she was going along.
               Her statements were consistent.
               As the jurors are able to do during her in-court testimony,
       they will also be able to observe her testimony and monitor her
       demeanor, seeing and hearing how the questions were asked and
       what [A.H.] said in response. And I’m referring specifically to the
       video here.
               The Court’s conclusion is that the video recording of [A.H.]’s
       interview meets the requirement of trustworthiness.

       We note the Iowa Supreme Court has stated, “the videotape is more

reliable than many other forms of hearsay because the trier of fact could observe

for itself how the questions were asked, what the declarant said, and the

declarant’s demeanor.” Id. We conclude the district court did not err in finding

the videotape met the requirement of trustworthiness.

       B.     Materiality.   Hopwood did not challenge the evidence on the

ground of materiality during the criminal trial, and acknowledges this in his

appellate brief. The district court addressed the issue, finding the evidence was

material.
                                        8



      C.      Necessity.    In Neitzel, 801 N.W.2d at 623, we stated, “The

admission of the evidence was necessary because [the child] was of a young

age when the abuse occurred and unable to testify to the abuse years later,

making the close-in-time video recitation from [the child], the most probative

evidence of the abuse that occurred.” See also Rojas, 524 N.W.2d at 663 (“Also,

because the statement was the best direct evidence implicating Rojas as [the

child’s] abuser, it was the most probative evidence linking Rojas to the crime.”);

State v. Kone, 562 N.W.2d 637, 638 (Iowa Ct. App. 1997) (finding a taped

interview met the requirement of necessity because the witness had later

recanted, making the taped interview “the only means by which the State could

introduce the information it had received”). The requirement of necessity is not

met if the State has available to it other witnesses who could testify to the same

statements. See State v. Metz, 636 N.W.2d 94, 100 (Iowa 2001).

      The district court found the videotaped interviews of A.H. were necessary,

as they were the most probative evidence available. The court noted A.H. was

very uncomfortable testifying in court and she “stated that she did not remember

many facts about prior proceedings, and she couldn’t remember pertinent facts

related to the abuse alleged in the charges that we’re trying here in court.” This

was in “significant contrast to her demeanor and memory of facts and the details

shown in the video.” The court concluded, “Under the circumstances, the Court

finds that the videotape of [A.H.]’s interview is the most probative evidence

available and that the State has made reasonable efforts to get in sufficient

testimony.”
                                          9



         During the criminal trial A.H. testified she could not remember many of the

incidents and details she had related during her videotaped interviews. Because

she was unwilling or unable to testify about certain incidents, the videotape was

the most probative evidence about these incidents. See Neitzel, 801 N.W.2d at

623. We find no error in the court’s conclusion the requirement of necessity had

been met.

         D.    Interests of Justice. Admitting evidence serves the interests of

justice where appropriate showings of reliability and necessity have been made

and the admission of the evidence advances the goal of truth-seeking. Rojas,

524 N.W.2d at 663. The district court stated, “Since the evidence is trustworthy,

material, and is the most probative evidence available, it is in the interests of

justice that it be admitted.    It advances the goal of seeking truth in judicial

proceedings.” We find no error in this statement.

         E.    Notice.   Hopwood does not dispute that notice was adequately

given.

         After considering each of the five requirements for admissibility of

evidence under the residual hearsay exception, rule 5.807, we find no error in the

court’s conclusion the videotape of A.H.’s interviews at the Child Protection

Center was admissible. The evidence met the requirements of trustworthiness,

necessity, and the admission of the evidence served the interests of justice. As

noted, Hopwood did not challenge the introduction of the evidence on the

grounds of materiality or notice. Because we find no error in the admission of the

videotape we do not address the issue of prejudice.
                                        10



III.   Ineffective Assistance

       Hopwood has raised claims of ineffective assistance by defense counsel.

We review claims of ineffective assistance of counsel de novo.        Ennenga v.

State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) the attorney failed to perform

an essential duty, and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A defendant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

       A.    Confrontation Clause. Hopwood claims he received ineffective

assistance because defense counsel did not object to the admission of the

videotape based upon the Confrontation Clause. “Where the declarant whose

testimony the state wishes to introduce is present at trial, gives his sworn

testimony at trial, and is subject to cross-examination by the defense as

happened in petitioner’s trial, the Confrontation Clause is satisfied.” State v.

Froning, 328 N.W.2d 333, 336 (Iowa 1982) (citation omitted); see also Crawford

v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct. 1354, 1369 n.9, 158 L. Ed. 2d

177, 197 n.9 (2004). These are the facts in this case. We will not find counsel

ineffective for failing to raise a meritless issue. State v. Smothers, 590 N.W.2d

721, 724 (Iowa 1999).

       B.    Jury Instructions.     Hopwood contends defense counsel should

have objected to the instructions because they did not sufficiently differentiate

between the offenses. The trial information did not differentiate between the five
                                         11



counts of second-degree sexual abuse except to specify three of the counts

involved A.H. and two involved E.H. Likewise, the five counts of incest in the trial

information were differentiated only by specifying three counts involved A.H. and

two involved E.H. The jury instructions also did not differentiate between the

charges except to provide whether the count applied to charges involving A.H. or

E.H. The jury was instructed, “You must determine whether the defendant is

guilty or not guilty separately on each count.”

       The better practice is to differentiate the marshaling instructions where

possible.   State v. See, 805 N.W.2d 605, 607 (Iowa Ct. App. 2011).               In

considering a defendant’s claim of ineffective assistance when defense counsel

did not object to identical marshaling instructions on three counts of second-

degree sexual abuse, we determined the defendant could not show prejudice

because (1) the minutes of evidence combined with discovery provided the

defendant with adequate notice he was charged with three distinct and different

types of acts, (2) the jury heard testimony during the criminal trial about three

separate incidents, (3) the jury was instructed to make a separate decision on

each count, and (4) during closing arguments the prosecution and defense “were

in complete agreement in relating each of the three separate and distinct alleged

acts of sexual abuse to each of the three separate marshaling instructions.” Id.

We concluded the defendant “had adequate notice of what he was to defend

against, he was not exposed to any danger of double jeopardy, and there existed

no reasonable probability of jury confusion.” Id.
                                            12



        In the present case, during closing arguments the prosecutor differentiated

out the counts as follows: (I) penis to genital contact with A.H.; (II) hand to genital

contact with A.H. on Black Hawk Road, when she was in kindergarten; (III) hand

to genital contact with A.H. on Church Street; (IV) hand to genital contact with

E.H. before he stopped for a period of time; (V) hand to genital contact with E.H.

after he stopped for awhile; (VI) incest relating to count I; (VII) incest relating to

count II; (VIII) incest relating to count III; (IX) incest relating to count IV; (X) incest

relating to count V; (XI) indecent contact by exposing his penis to A.H.

        From the minutes of evidence Hopwood was aware the State alleged he

had engaged in hand to genital contact with A.H. and E.H. on multiple occasions

and at least one incident of genital to genital contact with A.H. The videotape of

the interviews of A.H. and E.H. at the Child Protection Center was available to

Hopwood and would have further elucidated the factual allegations against him.

A.H. stated the incidents began when she was in kindergarten and continued

until she told a counselor at school while she was in second grade. She stated

there had been hand to genital contact and penis to genital contact. E.H. stated

the incidents started at the beginning of second grade, stopped for awhile when

she told Hopwood to stop, then began again and continued until A.H. told the

counselor at school. E.H. described hand to genital contact.

        During the trial A.H. again testified the incidents began when she was in

kindergarten and continued until she was in second grade.                   She testified

Hopwood touched her genitals with his hand, and this happened more than one

time.   E.H. testified Hopwood touched her genitals with his hand, and this
                                       13



occurred more than once. As noted above, the videotape from the interviews at

the Child Protection Center was admitted into evidence, and so the jury saw the

evidence outlined above from the videotape as well.       The children’s mother

testified that when she separated from Hopwood in 2007 he lived on Black Hawk

Road, then in August 2008 he moved to Church Street.

      We first note Hopwood’s arguments on this ground do not apply to the

offense of indecent exposure because he was only charged with one count of

indecent exposure. Because he is not challenging this conviction on the ground

of ineffective assistance of counsel, we determine his conviction for indecent

exposure should be affirmed.

      We also determine Hopwood has not shown he received ineffective

assistance because counsel did not object to the instructions on the ground the

charges against him for second-degree sexual abuse and incest were not

sufficiently differentiated. Through discovery and testimony at trial Hopwood was

aware of the different claims against him.    The jury was instructed to make

separate decisions on each of the charges.         Additionally, the prosecutor

specifically discussed the factual basis for each count, making sure the jury was

aware how each count differed from the others.       The evidence supports the

prosecutor’s distinctions between the charges.     We note that during closing

arguments defense counsel did not discuss each count, but rather made a

general denial of the claims. As in See, we determine Hopwood “had adequate

notice of what he was to defend against, he was not exposed to any danger of
                                       14



double jeopardy, and there existed no reasonable probability of jury confusion.”

See id.

      We affirm Hopwood’s convictions for five counts of second-degree sexual

abuse, five counts of incest, and one count of indecent exposure.

      AFFIRMED.
