STATE OF IOWA, Plaintiff-Appellee, vs. RICK ALAN WHITMAN, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-357 / 06-0780
Filed October 12, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RICK ALAN WHITMAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Hardin County, Kim M. Riley,
District Associate Judge.
Rick Alan Whitman appeals his conviction for indecent contact with a
child. AFFIRMED.
Charles J. Kenville and Gerald Feuerhelm, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney
General, Randall J. Tilton, County Attorney, and Harry L. Haywood III, Assistant
County Attorney, for appellee.
Heard by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MAHAN, P.J.
Defendant Rick Allan Whitman appeals his conviction for indecent contact
with a child, in violation of Iowa Code section 709.12 (2005). Specifically, he
claims:
(1) the videotaped interview with the victim admitted into evidence
constituted inadmissible hearsay, (2) the district court should have granted his
motion for new trial, (3) he was denied his constitutional right to confront
witnesses against him and have effective assistance of counsel when the trial
was permitted to proceed without an interpreter for his hearing disability, and
(4) he was denied effective assistance of counsel when trial counsel failed to
object to evidence consisting of prior bad acts and instead made reference to
those acts. We affirm.
I. Facts and Prior Proceedings
On June 4, 2005, twelve-year-old H.S. was spending the night with
Whitman’s ten-year-old daughter, L.W.
The girls were staying at Whitman’s
mother’s house where he and L.W. were living at the time. H.S. had known
Whitman and L.W. all her life and described them as a part of her family. She
had spent the night with L.W. at Whitman’s residence on numerous prior
occasions, mostly without incident.
However, once within the previous year
Whitman gave H.S. a back rub which made her feel uncomfortable because he
moved his hands too close to her breasts.
After that, H.S. turned down
Whitman’s subsequent offers for back rubs, and Whitman complied with her
refusals.
According to H.S., Whitman got home around 10:00 p.m. on June 4, 2005,
and drank one or two beers before lying on the living room floor with H.S. and
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L.W., who were preparing to watch a movie.
Both girls proceeded to give
Whitman a back rub at his request. H.S. testified Whitman then gave L.W. a
back rub before all three fell asleep on the floor after watching the movie. H.S.
testified that Whitman was lying on the floor between her and L.W. She was later
awakened by the feeling of “hands in [her] pants” touching her buttocks near her
“crotch,” inside her shorts and underwear. H.S. described the hand as rough,
and knew Whitman’s hands to be rough.
When she rolled over she saw
Whitman moving from the floor to the couch. At some point shortly thereafter
H.S. attempted to leave the residence and go home. Whitman asked her where
she was going. H.S. told him she was sick and wanted to go home. He gave her
an umbrella to protect her from the rain, hugged her, and told her “we love you.”
H.S. was sobbing and clinging to her father as her father and aunt drove
her to the police station where she was interviewed by Sergeant Michael
Littschwager that night. During the interview, H.S. continued to be upset and
crying.
Two days later H.S. was interviewed by Stacy Mitchell at the Child
Protection Center at St. Luke’s hospital in Cedar Rapids, Iowa. The interview
was videotaped. Whitman was arrested on June 21, 2005.
Whitman waived his right to a jury trial and subsequently made a motion in
limine to have the videotaped interview of H.S. excluded.
The district court
withheld its ruling until trial. At trial the district court admitted the videotape. The
district court found Whitman guilty of indecent contact with a child, an aggravated
misdemeanor in violation of Iowa Code section 709.12, and sentenced him to a
term not to exceed two years, ordered him to register with the Sex Offender
Registry, fined him $500 plus court costs, and recommended Whitman be placed
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in the Sex Offender Treatment Program at the Mount Pleasant Correctional
Facility. Whitman’s motion for a new trial and arrest of judgment was denied.
This appeal followed.
II. Standards of Review
Although a district court’s rulings on evidentiary matters are generally
reviewed for abuse of discretion, we review admission of hearsay testimony for
errors at law. State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003). “[W]e give
deference to the district court’s factual findings and uphold such findings if they
are supported by substantial evidence.” State v. Long, 628 N.W.2d 440, 447
(Iowa 2001).
We review a district court’s ruling on a motion for new trial for abuse of
discretion. State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003). To establish an
abuse of discretion, the appellant must show the district court exercised its
discretion on grounds or for reasons untenable or clearly unreasonable. Id. The
district court has broad discretion in ruling on a motion for new trial. Id. If it
determines the weight of the evidence is contrary to the verdict and a miscarriage
of justice has occurred, the verdict may be set aside and a new trial granted. Id.
(citing State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998)).
We review claims of ineffective assistance of counsel de novo. State v.
Bergmann, 600 N.W.2d 311, 313 (Iowa 1999).
III. Diagnosis or Treatment Hearsay Exception
Iowa Rule of Evidence 5.803(4) sets out the diagnosis or treatment
hearsay exception:
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Statements 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.
The Iowa Supreme Court has held that statements made by a child to a
social worker in connection with the child’s diagnosis or medical treatment may
fall within this hearsay exception if the social worker is sufficiently qualified to
provide diagnosis or treatment. State v. Hildreth, 582 N.W.2d 167, 169 (Iowa
1998) (citing United States v. Balfany, 965 F.2d 575, 581 (8th Cir. 1992)).
Mitchell testified that she has a master’s degree in counseling as well as three
and one-half years’ experience in interviewing abused children at St. Luke’s
Hospital. In addition, she testified that a doctor was assigned to H.S. who could
review the videotaped interview and do any follow-up examinations that were
required to ensure H.S.’s health. We agree with the district court that Mitchell
was sufficiently qualified to conduct the interview and assist the medical doctor in
providing a diagnosis or treatment. However, that is not dispositive of the issue.
As the district court correctly stated, for evidence to be admissible under
the medical diagnosis or treatment hearsay exception, the proponent must show
(1) the declarant’s motive in making the statement is to receive medical treatment
and (2) the content of the statement is that which is reasonably relied on by a
physician in treatment or diagnosis. State v. Tracy, 482 N.W.2d 675, 681 (Iowa
1992) (quoting United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985)).
Whitman argues that the content of the interview was not reasonably relied upon
for diagnosis or treatment and further argues the first prong has not been met.
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Whitman argues that the purpose of the interview was to aid in the
investigation of a crime rather than for purposes of diagnosis or treatment.
Although law enforcement is present and the interview is relied on in their
investigation, Mitchell testified that the interview also serves the purpose of
ensuring treatment of any physical or mental health conditions as well as to
ensure the future safety of the child. In addition, Mitchell is clearly qualified to
diagnose and treat a child abuse victim given her education and experience.
Finally, the interview took place at a hospital where medical care is the primary
service rendered. The dual purpose of medical treatment and investigation does
not defeat the admissibility of the evidence. It is what the declarant, not others,
believes is the purpose of her statements that is relevant to admitting the hearsay
under this exception. See id. There is no doubt one purpose of the interview
was to aid the criminal investigation. This is a close case, however, on whether
the sole purpose of this interview was investigatory since there is evidence to
show H.S. was emotionally upset and a proper concern may have been mental
health treatment.
We find it unnecessary to decide the hearsay issue because we agree
with the district court and the State that the videotaped interview is cumulative of
what H.S. herself testified to. We further agree that the district court’s findings
were based on what H.S. testified to in court and not what the videotape showed
or what Mitchell testified to at trial. In ruling on the motion for new trial, the
district court stated:
Here the court received the videotape as well as the testimony of
Stacie Mitchell and that evidence was basically cumulative of what
the victim [H.S.] herself testified to. And also I think that if a close
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reading of the court’s findings and conclusions is done, it will be
fairly apparent that the findings were based on what the child
testified to in court and not based on what the videotape showed or
what Ms. Mitchell testified to at the trial.
There is no prejudice to the defendant if substantially the same evidence would
be in the record in the absence of the challenged evidence. State v. McGuire,
572 N.W.2d 545, 547 (Iowa 1997). Therefore, even if the videotaped interview
was inadmissible hearsay evidence, it was cumulative and did not prejudice the
defendant.
IV. Motion for New Trial
Whitman argues his motion for new trial should have been granted.
Specifically, Whitman argues the greater weight of the evidence failed to support
the guilty verdict. Specific intent is rarely shown by direct proof. State v. Venzke,
576 N.W.2d 382, 383 (Iowa Ct. App. 1997). Specific intent can therefore be
inferred from outward acts and attending circumstances. Id. In this case, the
district court noted that it was very difficult to believe Whitman’s hand would have
inadvertently touched H.S. underneath both her shorts and her underpants. We
agree with the district court when it concluded the greater weight of the evidence
supports his conviction.
V. Ineffective Assistance of Counsel
Whitman claims he was denied effective assistance of counsel when
(1) trial was permitted to proceed without the defendant having an interpreter for
his hearing disability, violating his constitutional right to confront witnesses
against him, and (2) his trial counsel failed to object to the admission of evidence
of defendant’s prior bad acts and instead made references to it.
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To make a showing of ineffective assistance of counsel, “a defendant
must prove by a preponderance of the evidence that (1) counsel failed to perform
an essential duty, and (2) prejudice resulted therefrom.” State v. Biddle, 652
N.W.2d 191, 203 (Iowa 2002). Whitman must prove that a reasonable probability
exists that, “but for counsel’s unprofessional errors, the result of the proceedings
would have been different.” State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa
1987). An ineffective assistance of counsel claim may be disposed of if the
defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa
1997).
Ordinarily we preserve claims of ineffective assistance of counsel raised
on direct appeal for postconviction proceedings to allow full development of the
facts surrounding counsel’s conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa
1997).
“Even a lawyer is entitled to his day in court, especially when his
professional reputation is impugned.” State v. Coil, 264 N.W.2d 293, 296 (Iowa
1978). We will resolve ineffective assistance claims on direct appeal only when
the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 330
(Iowa 1998). We have reviewed the record and determined Whitman’s claims of
ineffective assistance of counsel should be preserved for possible postconviction
proceedings. We affirm Whitman’s conviction and sentence.
AFFIRMED.
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