STATE OF IOWA, Plaintiff-Appellee, vs. RODNEY ALLEN DAVIS, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-312 / 06-0059
Filed June 13, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RODNEY ALLEN DAVIS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Gary G. Kimes,
Judge.
Rodney Allen Davis appeals his judgment and sentence for indecent acts
with a child. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth Reynoldson, Assistant
Attorney General, Wayne Reisetter, County Attorney, and Sarah Pettinger,
Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Eisenhauer and Baker, JJ.
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MAHAN, P.J.
Rodney Allen Davis appeals his judgment and sentence for indecent acts
with a child. He argues the district court erred when it refused to allow expert
testimony concerning factors consistent with both true and false sexual abuse
allegations. We affirm.
I. Background Facts and Proceedings
Davis was charged with two counts: indecent acts with a child in violation
of Iowa Code section 709.12(2) (2003) and second-degree sexual abuse in
violation of sections 709.1 and 709.3. The charges arose from allegations that
Davis touched his nephew’s penis while his nephew was napping. At a bench
trial, Dr. William Bernet testified on behalf of the defense concerning factors
relating to true and false allegations of sexual abuse by children. During direct
examination, Dr. Bernet testified to factors relevant to the case indicating the
truth or falsity of the nephew’s account. He was then asked,
COUNSEL: Sir, did you consider factors in this case—and I
know you are not offering a final opinion and I don’t want you to—
but factors consistent with true allegations of sexual abuse and
factors consistent with false allegations? BERNET: Yes. I did try
to take all of the information that was given to me and then I used
an outline that I have used in other situations in which I tried to
identify factors that are one way or the other that are consistent
with the true or false allegations.
Counsel then asked what factors were consistent with a true allegation in the
case. The court sustained the State’s objection the question called for comment
on the victim’s credibility. Davis was allowed to enter into evidence Dr. Bernet’s
report considering all the factors. The district court ultimately determined Davis
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was guilty of count I, indecent acts with a child. He was found not guilty of
second-degree sexual abuse. Davis appeals.
II. Standard of Review
We review the admissibility of expert testimony for abuse of discretion.
State v. Rodriquez, 636 N.W.2d 234, 245 (Iowa 2001). We give the district court
wide discretion concerning the appropriateness of the proposed testimony’s
subject matter. State v. Spilger, 508 N.W.2d 650, 652 (Iowa 1993).
III. Merits
Davis concedes expert testimony directly expressing an opinion on the
credibility of a witness is not admissible. See State v. Allen, 565 N.W.2d 333,
338 (Iowa 1997). He argues Dr. Bernet would have testified to objective factors
used to determine the truth or falsity of a child’s allegations of sexual abuse.
According to Davis, if he had been allowed, Dr. Bernet would have then applied
those factors to this case. We conclude the latter crosses that “fine but essential
line” between testifying to opinions that are helpful to the factfinder in determining
credibility and actually commenting on another witness’s credibility. See State v.
Hulbert, 481 N.W.2d 329, 332 (Iowa 1992); State v. Myers, 382 N.W.2d 91, 9798 (Iowa 1986). Dr. Bernet’s application of the factors to the case would have
been a comment on the veracity of the complaining witness, and thus an opinion
on Davis’s guilt. See Myers, 382 N.W.2d at 98. The district court did not abuse
its discretion in excluding the testimony.
Even if we concluded the district court abused its discretion, we would
have to find the ruling was harmless. See State v. McKettrick, 480 N.W.2d 52,
60 (Iowa 1992). Such testimony would have been cumulative for three reasons.
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See State v. Halstead, 362 N.W.2d 504, 508 (Iowa 1985).
First, during his
testimony, Dr. Bernet identified and explained all but two of the factors he
considered relevant to the case.
Second, he actually did apply several of the factors to the case.
For
example, Dr. Bernet testified to the mistakes he believed the forensic interviewer
made while interviewing Davis’s nephew. Counsel then asked, “Did the fact [the
interviewer] did not elicit a free narrative in your opinion affect the reliability of
[the nephew’s] account that day?”
Dr. Bernet answered, “Well, I think that
interviews that are not correctly performed create unreliable information.”
Dr. Bernet continued to expound on the problems with the forensic interview.
Counsel asked, “Do you think taken as a whole those criticisms tend to make the
account of [the nephew] less reliable than if [the interviewer] had corrected all
those problems?” Dr. Bernet answered, “Well, yes. I think not only do they make
the account given to her less reliable but unfortunately they make all future
accounts unreliable.” Counsel asked whether Dr. Bernet thought the nephew
was suggestible, and he responded in the affirmative.
He also testified he
thought the nephew had been influenced by parental suggestion. When asked
about the possibilities of a false report, Dr. Bernet stated, “For instance,
sometimes a parent who hears some initial information misinterprets the
information and attaches significance to it that is not correct and I think that that
may have happened here.” Dr. Bernet also addressed innocent lying by children
who believe they are in trouble. He then stated,
And in this case [the allegation] first arose in this situation where
[the nephew] said something that was considered naughty, when
he said that statement . . . his mother was upset and she scolded
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him. She said never say that again. Don’t talk like that. And he
was in a little bit of trouble. And according to the accounts that I
reviewed, later that evening or a little while after that, [the nephew]
comes to his mother and says to her somebody touched me. . . .
And that’s exactly what happened here because, of course, the
mom said to him . . . if somebody touched you, you’re not in
trouble.
Finally, the defense entered into evidence Dr. Bernet’s report, in which he
applied his factors to the case.
We therefore conclude the opinion defense
counsel attempted to elicit was cumulative and the ruling excluding it was
harmless. See Halstead, 362 N.W.2d at 508.
The district court’s ruling is affirmed.
AFFIRMED.
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