State of Iowa v. Andrew Joseph Harrison ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0784
Filed April 12, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ANDREW JOSEPH HARRISON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Paul D. Miller,
Judge.
A criminal defendant appeals his conviction for second-degree sexual
abuse. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Thomas J. Ogden, Assistant Attorney
General, for appellee.
Heard by Vaitheswaran, P.J., and Schumacher and Ahlers, JJ.
2
SCHUMACHER, Judge.
Andrew Harrison appeals his conviction for second-degree sexual abuse,
raising five arguments. He claims there is insufficient evidence to support his
conviction. He argues the victim’s out-of-court statements should have been
excluded from trial because the statements were hearsay. He contends the court
improperly denied his attempt to strike a juror for cause. He asserts the court gave
an improper jury instruction pertaining to the victim’s absence from trial. Finally,
he alleges the court improperly allowed some statements from an expert witness.
We find the conviction is supported by substantial evidence. The court properly
admitted the victim’s statements and denied Harrison’s motion to strike the juror
for cause. Harrison did not preserve his objection to the challenged jury
instruction. The expert testimony was admissible. We affirm.
I. Background Facts and Proceedings
Andrew Harrison lived in the same apartment building as C.T. and her three
children—two sons, ages twelve and nine, and a daughter, H.T., who was three
years old. C.T. generally utilized daycare for the children while she worked. But
her job required her to work one evening a week and every-other weekend, times
when her daycare was not open. On those days, C.T. left the children with friends
and neighbors.
One of those neighbors, Harrison, offered to babysit. C.T. testified that
Harrison would sometimes watch H.T. alone at his apartment while the two older
children were left unattended at C.T.’s apartment. Harrison justified this location
decision as giving the older children “a break” from their sister.
3
On July 15, 2018, C.T. dropped H.T. off at Harrison’s apartment around nine
in the morning because she had to work. Her sons were with other family
members. C.T. returned to pick up H.T. around six-thirty in the evening. C.T.,
H.T., and the two other children then ran some errands, including dropping an item
off at a friend’s home.
During the drive to the friend’s home, the family chatted, a “typical catching
up on their day conversation.” Then, unprompted, H.T. stated, “I played with
Drew’s dick today.”1 C.T. testified that the older children had taught H.T. the word
“dick,” and that she was not supposed to use the word. The older children laughed
at H.T.’s statement and C.T. chastised them. C.T. sent the older children into the
friend’s home once they arrived and walked over to H.T.’s side of the vehicle. C.T.
testified that H.T. was very quiet, timid, and would not make eye contact—behavior
that was highly unusual for her.
C.T. testified that she continued to undertake the planned errands because
she did not want to make the children think something was wrong. The family
arrived at a store. While there, the older children went to the restroom. C.T. used
the opportunity to speak to H.T. C.T. testified that she asked H.T. if Harrison had
touched her anywhere else. H.T. responded by saying he had also “licked her
down there,” gesturing to her genital area.
C.T. then dropped the older children off with a family friend and took H.T. to
the hospital. An examination by a pediatrician did not find any acute injuries. The
pediatrician did not examine H.T.’s genitals, explaining that such examination was
1 C.T. testified that the children refer to Harrison as Drew.
4
best left to someone more specifically trained. The hospital referred H.T. to the
Child Protection Center at St. Luke’s Hospital. C.T. was told not to change H.T.,
bathe her, or allow her to wipe after using the restroom prior to the examination.
H.T. arrived at the Child Protection Center the next day around one in the
afternoon. While there, staff performed two swabs for DNA. One swab covered
the area around H.T.’s vagina. The second covered the area around her anus,
including the bottom part of her buttocks. A buccal swab was also taken to obtain
a known sample of H.T.’s DNA. The swabs were sent to the Division of Criminal
Investigation (DCI) lab for testing. Police obtained a buccal swab from Harrison
after the execution of a search warrant.
A DCI criminalist, Ryan Petruccelli, testified at trial about the tests
performed on the swabs and H.T.’s underwear. After shining a blacklight on H.T.’s
underwear, Petruccelli identified four areas that fluoresced. He screened the
underwear for seminal fluid via the AP presumptive test, which was negative. He
then performed the P30 test, which suggested high levels of a protein common in
seminal fluid. The protein is also common in urine. That test was faintly positive.
As a result, Petruccelli performed a sperm search, which was negative.
Petruccelli also performed DNA tests. H.T.’s DNA was found on both sets
of swabs and her underwear. DNA analysis identified Harrison’s DNA on the inside
of H.T.’s underwear.2 Harrison’s and H.T.’s DNA were found at a ratio of about
1:5, meaning Harrison’s DNA was about five times more common than H.T.’s.
2 The record is somewhat unclear on the implication of that test. Petruccelli
testified that the chance of DNA randomly matching that profile was 1 in 3.19
million. However, he then clarified that there are “approximately thirty zeroes” in
3.19 million.
5
Petruccelli testified that the ratio indicated the DNA likely came from a fluid.
Harrison’s DNA was also identified in the anal swab.3 The vaginal swab contained
DNA that likely came from a male, but was inconclusive.
Petruccelli testified to several aspects of DNA that can complicate analysis.
First, he makes no determination of how the DNA gets on the items he tests. He
testified that DNA can be moved via transfer. He also testified that the amount of
DNA left somewhere is not indicative of the amount of contact that occurred.
Instead, individuals and substances shed DNA at different rates.
Trial began on March 30, 2021. H.T. did not testify, having been found not
competent to testify by the judge prior to trial. Harrison objected to the mother’s
testimony involving the statements H.T. made to her on July 15, which the court
overruled. During jury selection, one juror indicated he would have a “tough time”
with this case because the juror had young children. Harrison sought to strike the
juror for cause, but the court denied the motion. Harrison used a peremptory strike
on that juror. An expert witness, Dr. Meidlinger, testified for the State. Some of
his testimony discussed “grooming” behaviors of sexual offenders.
The jury found Harrison guilty of second-degree sexual abuse.4 Harrison
now appeals.
II. Hearsay Statements
Harrison challenges the admissibility of two statements H.T. made to her
mother. He claims both are inadmissible hearsay. In the first statement, H.T. told
her mother, “I played with Drew’s dick today.” In the second statement, H.T. said,
3 The chance of DNA randomly matching that profile was about 1 in 1.4 quadrillion.
4 This offense was enhanced to a class “A” felony due to a previous conviction.
6
he had also “licked her down there,” and gestured to her genitals. Hearsay—an
out of court statement used to prove the truth of the matter asserted—is generally
inadmissible unless an exclusion or exception applies. See Iowa Rs.
Evid. 5.801(c); 5.802. “We review hearsay rulings for correction of errors at law
and will reverse the admission of hearsay evidence as prejudicial unless the
contrary is shown.” State v. Dudley, 856 N.W.2d 668, 674 (Iowa 2014).
A. Excited Utterance
The district court ruled both of H.T.’s statements were admissible pursuant
to the excited utterance exception. See Iowa R. Evid. 5.803(2) (defining an excited
utterance as, “A statement relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused”). To determine if that
exception applies, we consider:
(1) the time lapse between the event and the statement, (2) the
extent to which questioning elicited the statements that otherwise
would not have been volunteered, (3) the age and condition of the
declarant, (4) the characteristics of the event being described, and
(5) the subject matter of the statement.
State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999). “The court must consider all
the factors to determine if the statements are admissible.” Dudley, 856 N.W.2d at
679.
Our supreme court has recently had an opportunity to address the excited
utterance exception involving a child. State v. Dessinger, 958 N.W.2d 590, 601
(Iowa 2021) (collecting cases). In review of Dessinger and applying the Atwood
factors, we conclude both challenged statements from H.T. qualify as excited
utterances.
7
We first consider the time between the purported abuse and H.T.’s
statements. It is not clear from the record the exact time of day the sexual abuse
occurred. H.T. did not disclose the abuse until the evening when the family was
running errands. But it is clear from the record that the abuse occurred on the
same day as the child reported it. Harrison asserts the child could not be acting
under the stress of the abuse because of the time gap. We reject that argument.
A “[l]apse of time alone will not ordinarily preclude the application of the excited-
utterance exception.” Atwood, 602 N.W.2d at 782.“[S]tatements made hours and
even days after the event have been admissible.” Dessinger, 958 N.W.2d at 601.
Moreover, “[t]he time-lapse allowed for statements by a child may be more likely
to be on the high-end of the range permitted.” Id. This is particularly true when
the child makes the statements “to a parent or other safe adult, at the soonest
possible time after the abuse occurred.” Dudley, 856 N.W.2d at 680. H.T. made
the first statement when the family started to generally discuss their day. That was
likely her first opportunity to inform her mother of what happened. The time gap
between the criminal act and the child’s statement was short. We turn to the other
factors.
The second Atwood factor concerns “the extent to which questioning elicited
the statements that otherwise would not have been volunteered.” 602 N.W.2d at
782. “A statement in response to questioning ‘does not automatically disqualify it
as an excited utterance.’” Dessinger, 958 N.W.2d at 602 (quoting State v. Harper,
770 N.W.2d 316, 320 (Iowa 2009)). “But, questions asked to children may be
particularly suspect because they could be ‘calculated to elicit information which
would otherwise have been withheld.’” Id. (citation omitted). H.T.’s first statement
8
was spontaneously given—asking about a child’s day is not likely to elicit a
statement that they would not otherwise have made.
Her second statement was made after her mother inquired if Harrison “had
touched her anywhere else.” Courts have upheld the admissibility of statements
given in response to general questions. See, e.g., id. (“Asking a child ‘what
happened’ does not seriously undercut application of the excited utterance
exception if the child is still under stress from that event.”). But, when a child
requires “more than one prompting question before [they] made the statements,”
the statement is less likely to constitute an excited utterance. Dudley, 856 N.W.2d
at 680.
We have also considered the age and condition of H.T., the characteristics
of the event being described, and the subject matter of the statement. We
conclude that applying the Atwood factors leads to the conclusion that both
statements of three-year-old H.T. qualify as excited utterances. The court properly
admitted both statements.
B. Residual Hearsay
While the trial court admitted both statements under the excited utterance
exception, we also address the State’s argument that H.T.’s statements were
alternatively admissible under the residual hearsay exception. See Iowa R.
Evid. 5.807. We recognize this ground was not ruled upon by the district court.
Nevertheless, “[w]e consider the applicability of exceptions in criminal cases even
when not urged at trial as there is no point in reversing a conviction when the
evidence will be admissible at retrial in any event.” Dessinger, 958 N.W.2d at 599.
The residual hearsay exception is used “sparingly.” State v. Liggins, 978 N.W.2d
9
406, 431 (Iowa 2022). We examine the statement using five factors, all of which
must be met: (1) trustworthiness, (2) materiality, (3) necessity, (4) service of the
interest of justice, and (5) notice. Id.“In evaluating trustworthiness, we may consider both the trustworthiness of
the declarant and the credibility of the witness reporting the statement.” Id. at 432.
H.T.’s mother asked an open-ended, non-leading question. See State v. Rojas,
524 N.W.2d 659, 663 (Iowa 1994). H.T. responded by describing an action a three-
year-old would not ordinarily know about, suggesting its credibility. The statement
was not vague. See Liggins, 978 N.W.2d at 432. The statement was made soon
after the event occurred. See id. (finding a comment made thirty years ago was
not trustworthy). And nothing suggests improper motive by either H.T. or her
mother.
Next, the statements were both material and necessary. Harrison was
charged with second-degree sexual abuse. The State needed to prove a sex act
occurred between Harrison and H.T. Her statements describing the acts are highly
relevant to establishing a sex act occurred. It was also necessary. H.T. was
determined to be not competent to testify. The only way the State could introduce
her account of the abuse was via out-of-court statements to her mother. See State
v. Skahill, 966 N.W.2d 1, 12 (Iowa 2021) (“On the issue of necessity, the key
commonality between [two cases finding out-of-court statements were necessary]
was that the most probative evidence, the victim’s account of the alleged sexual
abuse, would not have been presented to the jury simply by having the victim
testify.”). Her out-of-court statements were the most probative evidence available
detailing her experiences.
10
Finally, Harrison had ample notice the State was seeking the admission of
H.T.’s statements. The court ruled they were admissible in its order on a motion
in limine prior to trial. Admitting the statements also promotes the interest of
justice—“[t]he appropriate showing of reliability and necessity were made, and
admitting the evidence advances the goal of truth-seeking expressed in Iowa Rule
of Evidence 5.102.” State v. Neitzel, 801 N.W.2d 612, 623 (Iowa 2011) (quoting
Rojas, 524 N.W.2d at 663). We determine H.T.’s statements were also admissible
under the residual hearsay exception.
III. Sufficiency of the Evidence
Harrison challenges the sufficiency of the evidence to support his
conviction. In particular, he alleges there is insufficient evidence he committed a
sex act with H.T.5 We review such claims for correction of errors at law. State v.
Sandford, 814 N.W.2d 611, 615 (Iowa 2012). We view all the evidence in the
record in the light most favorable to the State. Id. We will uphold a verdict if it is
supported by substantial evidence. Id. “Evidence is considered substantial if,
when viewed in the light most favorable to the State, it can convince a rational jury
5 The jury instructions informed the jury:
Concerning element number 1 of Instruction No. 14 “sex act”
means any sexual contact between two persons:
1. By penetration of the penis into the vagina or anus.
2. Between the mouth of one person and the genitals of
another.
3. Between the genitals of person and the genitals or anus of
another.
4. Between the finger or hand of one person and genitals of
another person.
5. Or by the use of artificial sex organs or substitutes thereof
in contact with the genitalia or anus.
You may consider the type of contact and the circumstances
surrounding it in deciding whether the contact was sexual in nature.
11
that the defendant is guilty beyond a reasonable doubt.” Id. “Inherent in our
standard of review of jury verdicts in criminal cases is the recognition that the jury
[is] free to reject certain evidence, and credit other evidence.” Id. (quoting State v.
Nitcher, 720 N.W.2d 547, 556 (Iowa 2006)).
Substantial evidence supports the conviction. H.T.’s statements that she
“played with Drew’s dick” and that he performed oral sex on her indicate Harrison
performed a sex act. H.T.’s comment about Harrison licking her genitals is
particularly probative because it shows a knowledge of acts well beyond what an
average three-year-old would know. Those statements were supported by the
DNA evidence obtained from the inside of H.T.’s underwear and the anal swab.
Petruccelli testified that the DNA found in H.T.’s underwear was at a concentration
indicating that it likely came from a bodily fluid. And the presence of DNA inside
her underwear cuts against Harrison’s theory of DNA transferring from his
apartment to her as she played during the day. Finally, the jury could properly
consider Harrison’s prior behavior, including isolating H.T. from her siblings while
babysitting her in the past. While circumstantial, that conduct could be viewed as
grooming behavior, in line with Dr. Meidlinger’s testimony. Substantial evidence
supports the verdict.
IV. Motion to Strike Juror 20
Harrison claims the court wrongly denied his request to strike a juror for
cause, forcing him to use a peremptory challenge. As a result, he contends the
composition of the jury violated his right to an impartial jury. See U.S. Const.
amend. VI, XIV; Iowa Const. art. I, §10. “We review the district court’s rulings on
12
challenges to potential jurors for cause for abuse of discretion.” State v. Jonas,
904 N.W.2d 566, 570 (Iowa 2017).
Because of the COVID-19 pandemic, jury selection began with a written
questionnaire. In response to one question that asked if there was anything else
the prospective juror wanted to tell the court, Juror 20 responded, “I have 3 young
kids. Oldest is 12. I would do my best to remain impartial, but crimes of this nature
really bother me.” During voir dire, the juror expressed, “I don’t know if I’m not
going to draw comparisons to my own child and how I would feel, but as I would
say, I would try to do my best” to follow the court’s instructions. After being asked,
“[A]re you saying right now you believe you have formed an opinion?” the juror
responded, “I guess so. Yes.” Harrison moved to strike the juror pursuant to Iowa
Rule of Criminal Procedure 2.18(5)(k), which the court denied. Harrison
subsequently asked for an additional peremptory strike, which the court also
denied.
We need not decide whether the court abused its discretion when it denied
Harrison’s motion to strike because Harrison cannot demonstrate it resulted in
prejudice. When a court wrongly denies a motion to strike, the defendant must
establish prejudice occurred in order to warrant reversal. State v. Neuendorf, 509
N.W.2d 743, 746 (Iowa 1993). “In the absence of some factual showing that this
circumstance resulted in a juror being seated who was not impartial, the existence
of prejudice is entirely speculative.” Id. Actual prejudice is not needed, however,
in certain circumstances.
Specifically, in order to show prejudice when the district court
improperly refuses to disqualify a potential juror under Iowa Rule of
Criminal Procedure 2.18(5)(k) and thereby causes a defendant to
13
expend a peremptory challenge under rule 2.18(9), the defendant
must specifically ask the court for an additional strike of a particular
juror after his peremptory challenges have been exhausted. Where
the defendant makes such a showing, prejudice will then be
presumed.
Jonas, 904 N.W.2d at 583 (emphasis added).
Harrison did not ask to strike a specific juror. As a result, Jonas does not
apply. See id. Still, he asks us to extend the holding of Jonas to this case and
presume prejudice exists. We decline to do so. This court is not in a position to
extend supreme court precedent, particularly when the supreme court has clearly
ruled on the matter. See State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App.
1990).
As a result, Harrison must make some factual showing that a biased juror
was seated. See Neuendorf, 509 N.W.2d at 746. He fails to do so. On appeal,
Harrison asserts that he would have struck Juror 28, who indicated the juror had
family members who were victims of sexual abuse. However, he does not make
any showing that Juror 28 was prejudiced against him or otherwise incapable of
rendering a fair decision. See Jonas, 904 N.W.2d at 575. We determine there
was no abuse of discretion by the trial court.
V. Jury Instructions
Harrison contends the district court included an improper jury instruction
informing the jurors that, “You may not consider the unavailability of H.T. for any
purpose whatsoever.” Harrison claims this was improper because it suggested
that jury could not weigh H.T.’s credibility in light of her unsworn statements. We
review jury instruction claims for correction of errors at law. Alcala v. Marriott Int’l,
Inc., 880 N.W.2d 699, 707 (Iowa 2016).
14
The State asserts this court need not address Harrison’s claim because it
is not preserved for our review. “We have repeatedly held that timely objection to
jury instructions in criminal prosecutions is necessary in order to preserve any error
thereon for appellate review.” State v. Davis, 951 N.W.2d 8, 16 (Iowa 2020)
(citation omitted). Those objections must be to the instructions “in their final form,”
and include “requesting instructions and voicing specific exception in the event
they are refused.” Id. (citation omitted).
Throughout the proceedings, counsel for both parties and the court
discussed the propriety of several potential instructions on H.T.’s absence from
trial. However, each discussion ended with the matter being tabled for another
day. On the final day of trial, the district court informed Harrison’s counsel that it
denied their proposed instruction on the issue. Instead, the court proposed its own
instruction. Immediately after the court informed defense counsel that it was
denying counsel’s proposed instruction, defense counsel informed the court, “We
can use the Court’s instruction.” When asked again if there were any objections
to the proposed instruction, defense counsel responded, “Your Honor, we’re okay
with that.” And the court clarified one last time if defense counsel was agreeing to
the instruction, with the following exchange:
COUNTY ATTORNEY: I just want to make sure the defendant
is actually requesting that instruction.
THE COURT: Or agreeing to it.
COUNTY ATTORNEY: Okay.
THE COURT: You are agreeing to my instruction?
DEFENSE COUNSEL: To that instruction, yes, Your Honor.
THE COURT: Thank you.
Harrison’s counsel never lodged a formal objection to the final instruction.
This case is substantially analogous to State v. Welch, 507 N.W.2d 580 (Iowa
15
1993). Prior to the completion of the defendant’s case, there was a short, informal
discussion outside the presence of the jury between counsel and the court
concerning the appropriateness of an instruction on aiding and abetting. Welch,
507 N.W.2d at 584. Later, the court presented the attorneys with a proposed set
of instructions which included an aiding-and-abetting instruction. Id. At that time,
defense counsel was given an opportunity to make any objections to the
instructions on the record. Id. Defense counsel did not voice any objection to the
instruction on aiding and abetting. Id. The court determined the informal
discussion over jury instructions was insufficient to preserve error because of the
lack of a specific objection to the instructions in their final form. Id.As in Welch, defense counsel expressed their misgivings over various
instructions leading up to and during trial. However, they did not specifically object
to the instruction in its final form. Indeed, they informed the court three separate
times that they accepted that instruction. In the absence of a specific objection to
the instruction, error was not preserved. See id. Harrison had the obligation to
specifically object to the instruction in its final form. He failed to do so. As a result,
error is not preserved.
Harrison asks us to abandon our traditional rules of error preservation in
this case. In particular, he asserts the district court had an affirmative duty to
properly instruct the jury. In support of that proposition, Harrison cites to Shams
v. Hassan, 905 N.W.2d 158 (Iowa 2017). In that case, our supreme court held that
once a party proposes instructions on a matter that is relevant to the case, even if
technically inaccurate, the proposal puts the district court on notice for the need of
16
a proper instruction on the issue. Shams, 905 N.W.2d at 169. Thus, the court’s
failure to include an instruction on the issue was error. Id.
However, Hassan is inapt. That case dealt with the omission of an
instruction entirely. Id. In contrast, an instruction was given in this case. As
Hassan explains, “Had the court advised the parties of a statute-of-limitations
instruction that it intended to give, this would have immediately shifted the burden
to the parties to identify specific objections to that instruction, as opposed to simply
identifying the need for an instruction on” the issue. Id. This is not a case where
an instruction was warranted but none was given.
VI. Expert Testimony
Harrison claims some testimony by the State’s expert witness, Dr.
Meidlinger, was not relevant and should have been excluded from trial. In
particular, Dr. Meidlinger explained his experience performing evaluations of
sexual offenders. After a relevance objection by Harrison that was overruled, Dr.
Meidlinger testified,
It entails everything that’s involved in standard psychological
evaluation, that is, review of relevant documents, interview with the
person, having a complete psychological testing, and then putting
that together to form of a report. The thing that is different in a sex
offender report is that you also follow some actuarial information
that’s designed for the purpose of predicting their chance of re-
offending.
So the people want to know in sex offender evaluation is the
person—this person re-offending, and what level of care, treatment,
and incarceration do they need to—to rehabilitate them and protect
the public?
On appeal, Harrison asserts the testimony was not relevant and unduly
suggested to the jury that Harrison posed a risk of re-offending. We review
evidentiary claims for an abuse of discretion. Dudley, 856 N.W.2d at 675.
17
First, we decline to consider Harrison’s claim as it pertains to any unfair
prejudice the testimony may have caused. Harrison’s objection at trial was limited
to relevance, not its prejudicial impact. Because the district court did not consider
or rule on the prejudicial effect the testimony may have had, we cannot consider
that portion of Harrison’s claim. See Meier v. Senecaut, 641 N.W.2d 532, 537
(Iowa 2002).
Evidence must be relevant in order to be admissible at trial. Iowa R. Evid.
5.402. Evidence is relevant if it has any tendency to make a fact that is of
consequence in determining the action more or less probable than it would be
without the evidence. Iowa R. Evid. 5.401. In order to establish a particular
witness can provide expert testimony, they must have some qualification “as an
expert by knowledge, skill, experience, training, or education.” Iowa R. Evid.
5.702.
Dr. Meidlinger’s testimony was relevant to establishing his qualifications as
an expert on grooming behaviors of sexual offenders. Dr. Meidlinger testified that
he was a clinical psychiatrist. But that by itself may not make him qualified to
discuss behaviors frequently seen in sex offenders. By testifying about his work
performing psychological evaluations of sex offenders, Dr. Meidlinger was
providing the basis for his knowledge about those kinds of behaviors. That he has
spoken with and evaluated sexual offenders in the past makes his testimony about
their behavior more credible because it establishes the origins of his knowledge.
And explaining what an evaluation of a sex offender entails informs the jury about
the type of information he would be obtaining from those offenders.
18
The testimony was relevant. The district court did not abuse its discretion in
admitting it.
AFFIRMED.