State of Iowa v. Shanna Dessinger ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 18-2116
Filed May 13, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SHANNA DESSINGER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Angela L. Doyle,
Judge.
Shanna Dessinger appeals her conviction and sentence for child
endangerment. CONVICTION AFFIRMED, SENTENCE VACATED IN PART,
AND REMANDED FOR RESENTENCING.
Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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MAY, Judge.
Following a jury trial, Shanna Dessinger was convicted of child
endangerment. On appeal, she argues (1) hearsay was improperly admitted, (2)
her Confrontation Clause rights were violated, (3) trial counsel was ineffective, and
(4) the district court failed to make an ability-to-pay determination before imposing
court costs. We affirm Dessinger’s conviction. But we vacate the restitution
portion of the sentencing order and remand for resentencing.
I. Facts and Prior Proceedings
In May 2018, Dessinger worked at a daycare. Children were assigned to
different rooms based on their age. On May 9, Dessinger was assigned to the
four-year-olds’ room. In the adjacent room, Demetria Gully worked in the two-year-
olds. A wall separated the rooms. There was a large window in the wall.
According to Gully, she looked through the window and saw Dessinger grab a child
by the neck, strangle him, and throw him down to the ground. Gully testified that
she had a clear view of this incident and she was absolutely sure it happened. She
immediately went to the daycare supervisor, Cori Jewett, to report it.
Jewett told Dessinger to leave. Jewett and Gully talked to the child, D.A.J.,
and asked him to demonstrate what happened. He put his hands around his neck
and appeared to strangle himself. Meanwhile, D.A.J.’s father arrived to pick him
up. Both Jewett and D.A.J. told the father what happened. The father reported
the incident to the police. Officer Paul Samuelson arrived and interviewed
witnesses.
Dessinger denies any wrongdoing. Instead, she contends she told the
children to clean up after play time. D.A.J. appeared to struggle getting an apron
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off. Dessinger tried to help him. During that process, Dessinger stumbled.
Although Dessinger was able to catch herself, she concedes D.A.J. might have
fallen. But Dessinger denies strangling D.A.J. or squeezing his neck.
The State charged Dessinger with child endangerment. Prior to trial,
Dessinger filed a motion in limine and challenged D.A.J.’s competency to testify.
The district court found D.A.J. competent.
At trial, the State called Gully, Jewett, and Officer Samuelson. The State
did not call D.A.J. Dessinger testified and called a character witness.
The jury found Dessinger guilty as charged. She appeals.
II. Standard of Review
We apply different standards of review to different issues. To begin with,
we review Dessinger’s “hearsay claims for correction of errors at law.” State v.
Smith, 876 N.W.2d 180, 184 (Iowa 2016).
Dessinger’s confrontation claims are based on the Sixth Amendment of the
United States Constitution and article I, section 10 of the Iowa Constitution. So we
review those claims de novo. State v. Kennedy, 846 N.W.2d 517, 520 (Iowa 2014).
Similarly, our review of ineffective-assistance-of-counsel claims is de novo.
See State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015) (noting “[w]e review
ineffective-assistance-of-counsel claims de novo,” “because such claims are
grounded in the Sixth Amendment”). “We prefer to reserve such questions for
postconviction proceedings so the defendant’s trial counsel can defend against the
charge. However, we depart from this preference in cases where the record is
adequate to evaluate the . . . claim.” State v. Tate, 710 N.W.2d 237, 240 (Iowa
2006) (internal citation omitted).
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Finally, “[w]e review restitution orders for correction of errors at law.” State
v. Albright, 925 N.W.2d 144, 158 (Iowa 2019).
III. Analysis
A. Hearsay
Dessinger first argues the district court erred in admitting hearsay.
Dessinger identifies the following instances of hearsay: (1) Gully’s testimony about
D.A.J.’s out-of-court demonstration, (2) Jewett’s testimony about D.A.J.’s out-of-
court demonstration, (3) Jewett’s testimony about D.A.J.’s out-of-court verbal
statements, and (4) Officer Samuelson’s testimony about D.A.J.’s out-of-court
verbal statements.
We must first address error preservation. Dessinger objected to Gully’s
testimony about D.A.J.’s demonstration. So she properly preserved error on her
first hearsay claim.
As to her other three hearsay claims, however, Dessinger did not object at
trial. But she contends her objection to Gully’s testimony also preserves error
concerning Jewett’s testimony about the same demonstration, as well as testimony
by Jewett and Officer Samuelson regarding D.A.J.’s verbal statements. We agree
in part.
In State v. Kidd, our supreme court explained: “Once a proper objection has
been made and overruled, an objector is not required to make further objections
to preserve his [or her] right on appeal when a subsequent question is asked
raising the same issue. Repeated objections need not be made to the same class
of evidence.” 239 N.W.2d 860, 863 (Iowa 1976) (emphasis added); accord Gacke
v. Pork Xtra, L.L.C., 684 N.W.2d 168, 181 (Iowa 2004) (“Here Pork Xtra’s attorney
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had previously objected to two witnesses’ testimony concerning the contents of the
questionnaires and these objections had been overruled by the trial court. The
defendant was not required to repeat its objection when DeWit was questioned
concerning the content of the same questionnaires. Therefore, error was not
waived.” (emphasis added)).
This principle has some application here. During Gully’s testimony, the
court overruled the defense’s hearsay objection to Gully’s testimony about her
“observations” of D.A.J.’s demonstration. And the court made it sufficiently clear
that additional objections to the same sort of evidence would be “to no avail.” See
Kidd, 239 N.W.2d at 863. So we believe the defense preserved error as to both
Gully’s and Jewett’s testimony about D.A.J.’s non-verbal demonstration.
The same is not true, however, as to testimony about D.A.J.’s verbal
statements. The court did not overrule objections to that testimony. Rather, when
Gully testified about D.A.J.’s verbal statement, the court sustained the defense’s
objection. And, as Professor Doré explains, “[t]he exception pertaining to
objections to a class of evidence is . . . inapplicable where an objection is
sustained. When this occurs, a proper objection must be interposed when the
similar evidence is introduced.” 7 Laurie Kratky Doré, Iowa Practice Series:
Evidence § 5.103:4 (Nov. 2019 update) (footnote omitted). So the defense was
required to object to any further efforts to introduce D.A.J.’s verbal statements. By
failing to do so, the defense waived hearsay arguments as to Jewett’s and Officer
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Samuelson’s testimony regarding D.A.J.’s verbal statements.1 See State v.
Tangie, 616 N.W.2d 564, 568–69 (Iowa 2000).
So we turn to the only preserved issue—whether testimony about D.A.J.’s
demonstration was inadmissible hearsay. Hearsay is an out-of-court statement
that is “offer[ed] into evidence to prove the truth of the matter asserted in the
statement.” Iowa R. Evid. 5.801(c).2 A statement may be an oral assertion, a
written assertion, or nonverbal conduct intended to be an assertion. Iowa R.
Evid. 5.801(a); accord State v. Mueller, 344 N.W.2d 262, 264–65 (Iowa Ct. App.
1983) (noting testimony regarding some nonverbal conduct is hearsay). Hearsay
is usually inadmissible unless an exception applies. See Iowa Rs. Evid. 5.802,
5.803, 5.804.
As a starting point, we conclude D.A.J.’s demonstration was a “statement”
because he was trying to communicate what Dessinger did to him. See Iowa R.
Evid. 5.801(a)(2) (noting “[n]onverbal conduct, if intended as an assertion,” is
considered a statement under the rule). And it appears the statement was offered
“to prove the truth of the matter asserted,” namely, that Dessinger strangled D.A.J.
Iowa R. Evid. 5.801(c).3 During Gully’s testimony, the following colloquy occurred:
1 Alternatively, Dessinger raises an ineffective-assistance claim to bypass error
preservation. We discuss all of Dessinger’s ineffective-assistance claims below.
2 But see Iowa R. Evid. 5.801(d) (identifying some out-of-court statements, such
as admissions by a party opponent, “that are not hearsay” even when offered for
the truth of the matter asserted).
3 As Professor Mauet and Justice Wolfson explain:
It is a mistake, for both judges and lawyers, to begin any analysis of
an out-of[-]court statement with an assumption that hearsay is
implicated and then to search for an applicable hearsay exception.
There are too many kinds of out-of-court statements that are not
hearsay. Hearsay is an out-of-court statement that is offered for its
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Q. Now, . . . you indicated . . . that [D.A.J.] showed you what
happened to him? A. Yes. I actually told [Jewett] what happened,
but we all were right there.
Q. So you observed it? A. Yes.
Q. Could you tell us what you observed?
....
Q. . . . . Could you tell us what you observed [D.A.J.]
demonstrating? A. He grabbed [Jewett] by her neck . . .
....
Q. Okay. Would you characterize that as a choking. A. Yes.
So we readily conclude that testimony about D.A.J.’s demonstration was
hearsay. See State v. Galvan, 297 N.W.2d 344, 347 (Iowa 1980).
The State contends, however, that either the present-sense-impression or
the excited-utterance exception applies. See Iowa R. Evid. 5.803(1), (2). The
State concedes these exceptions were never raised before or ruled on by the
district court. So the State asks this court to “allow substantial leeway when
considering alternate theories of admissibility.” See DeVoss v. State, 648 N.W.2d
56, 62 (Iowa 2002) (noting general rule that we will not affirm on grounds not raised
before trial court but noting an exception applicable to “evidentiary rulings, whether
the error claimed involved rulings admitting evidence or not admitting evidence”).
But Dessinger claims the record does not support application of either exception.
See State v. Cagley, 638 N.W.2d 678, 681 (Iowa 2001) (noting the “proponent of
the hearsay evidence[] has the burden of proving it falls within an exception to the
hearsay rule”).
truth. When an out-of-court statement is offered for any relevant
purpose other than proving its truth, it is not hearsay.
Thomas A. Mauet & Warren D. Wolfson, Trial Evidence § 6.3 (7th ed. 2020); see
also id. at § 6.2 (“Any analysis of an out-of-court statement must begin with this
question: What is the purpose for offering the statement?”).
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We assume without deciding Dessinger is correct. Even so, we find the
testimony about D.A.J.’s demonstration was merely cumulative. Therefore, even
if no exception applies, admission of the testimony cannot justify reversal.
“[A]dmission of hearsay evidence over a proper objection is presumed to be
prejudicial error unless the contrary is affirmatively established.” State v. Elliott,
806 N.W.2d 660, 669 (Iowa 2011) (alteration in original) (citation omitted). “The
contrary is affirmatively established if the record shows the hearsay evidence did
not affect the jury’s finding of guilt.” Id. “One way to show the tainted evidence did
not have an impact on the jury’s verdict is to show the tainted evidence was merely
cumulative.” Id.
As Dessinger acknowledges, the substance of D.A.J.’s demonstration was
the same as D.A.J.’s verbal assertions. And, as explained, Jewett and Officer
Samuelson testified without objection about D.A.J.’s verbal statements. So we find
testimony about D.A.J.’s demonstration was merely cumulative. See id.; accord
State v. McGuire, 572 N.W.2d 545, 547 (Iowa 1997) (“The erroneous admission of
hearsay testimony is presumed to be prejudicial unless the contrary is established
affirmatively; however, the court will not find prejudice if substantially the same
evidence has come into the record without objection.”).
B. Confrontation Clause
Dessinger next argues her Confrontation Clause rights were violated. She
mentioned this issue in her motion in limine and challenge to D.A.J.’s competency.
But she admits no objections were made at trial. And the record shows the district
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court never ruled on the issue. We find error was not preserved. 4 See Tangie,
616 N.W.2d at 568–69 (finding a Confrontation Clause claim waived because,
despite the assertion in the motion in limine, the court did not rule on the issue and
no objection was made at trial); see also State v. Vuong, No. 02-2097, 2003 WL
22701354, at *2 (Iowa Ct. App. Nov. 17, 2003) (“Because he did not raise the
confrontation issue to the district court, we conclude Vuong has failed to preserve
error on the issue.”).
C. Ineffective-Assistance Claims
Next, Dessinger claims her trial counsel was ineffective in three ways.5
First, as a fallback position to bypass error preservation issues, Dessinger
contends trial counsel was ineffective for failing to raise hearsay objections
concerning D.A.J.’s verbal statements. See State v. Fountain, 786 N.W.2d 260,
263 (Iowa 2010) (“Ineffective-assistance-of-counsel claims are an exception to the
traditional error-preservation rules.”).
But competent trial attorneys may have valid strategic reasons to forgo
some meritorious objections. Those reasons are not always obvious on direct
appeal. So “[w]e prefer to reserve such questions for postconviction proceedings
4 Alternatively, Dessinger raises an ineffective-assistance claim to bypass error
preservation. We discuss all of Dessinger’s ineffective-assistance claims below.
5 We recognize Iowa Code section 814.7 was recently amended to provide in
pertinent part: “An ineffective assistance of counsel claim in a criminal case shall
be determined by filing an application for postconviction relief” and “shall not be
decided on direct appeal from the criminal proceedings.” See 2019 Iowa Acts ch.
140, § 31. In State v. Macke, however, our supreme court held these amendments
“apply only prospectively and do not apply to cases pending on July 1, 2019.” 933
N.W.2d 226, 235 (Iowa 2019). Therefore, we conclude the amendments “do not
apply” to this case, which was pending on July 1, 2019. See id. Because the
amendment is inapplicable, we need not address Dessinger’s alternative argument
of applying plain error review.
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so the defendant’s trial counsel can defend against the charge.” Tate, 710 N.W.2d
at 240. “This is particularly true where the challenged actions of counsel implicate
trial tactics or strategy which might be explained in a record fully developed to
address those issues.” State v. Rubino, 602 N.W.2d 558, 563 (Iowa 1999); see
State v. Nuno, No. 17-1963, 2019 WL 1486399, at *5–6 (Iowa Ct. App. Apr. 3,
2019). We believe that is the case here. So we preserve this claim.
Similarly, Dessinger claims counsel’s failure to raise Confrontation Clause
objections constituted ineffective assistance. From this record, however, we
cannot “discern the difference between improvident trial strategy and ineffective
assistance.” State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006). We preserve
this claim as well. See id.
Finally, Dessinger alleges counsel was ineffective for failing to object to
Officer Samuelson’s opinion testimony regarding the credibility of the allegation
that D.A.J. had been abused. This record does not tell us why trial counsel chose
not to object. See State v. Clay, 824 N.W.2d 488, 500–01 (Iowa 2012) (“Until the
record is developed as to trial counsel’s state of mind, we cannot say whether trial
counsel’s failure to object implicated trial tactics or strategy.”). We preserve this
claim as well.
D. Reasonable-Ability-to-Pay Determination
Finally, Dessinger contends the district court improperly ordered her to pay
court costs and correctional fees. Under Iowa Code section 910.2(1)(a)(3) (2018),
the district court may only order restitution for court costs, which includes
correctional fees, after finding the defendant has a reasonable ability to pay. See
Albright, 925 N.W.2d at 159. The district court did not make an ability-to-pay
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determination as required. We vacate the restitution portion of the sentencing
order and remand for resentencing consistent with Albright. See id. at 158–62.
IV. Conclusion
We affirm Dessinger’s conviction. But we vacate the restitution portion of
her sentencing order and remand for resentencing.
CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND
REMANDED FOR RESENTENCING.