State of Iowa v. Marvin Lee Heggebo

IN THE COURT OF APPEALS OF IOWA
No. 17-1194
Filed December 19, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARVIN LEE HEGGEBO,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,
Judge.
Marvin Heggebo appeals from his conviction and sentence for second-
degree sexual abuse. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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DANILSON, Chief Judge.
Marvin Heggebo appeals from his conviction and sentence for second-
degree sexual abuse following jury trial. Heggebo contends the trial court erred in
admitting statements the child witness made to her mother and in admitting the
video recording of the daughter’s interview at the Child Protection Center.
Because we conclude the statements and video were properly admitted, we affirm.
I. Background Facts and Proceedings.
Heggebo was charged with second-degree sexual abuse, in violation of
Iowa Code section 709.3(1)(b) (2015), after he was accused of abusing a four-
year-old child while he was babysitting the child and her brother. The children’s
father arranged for Heggebo to watch the children while the children’s mother went
to a job interview. The mother dropped the children off at Heggebo’s house and
left for her job interview.
When the mother returned to pick up the children, she walked into the house
and did not see anyone. The mother called out for the children, the bathroom door
swung open, and the children came out of the bathroom. The mother saw
Heggebo sitting naked on the toilet. The mother told the children, “You don’t go in
the bathroom with [Heggebo]. You don’t go in the bathroom with anybody.”
Heggebo quickly shut the bathroom door and said nothing.
The daughter did not seem eager to greet her mother. Initially, the daughter
refused to come to her mother. When the daughter finally did come to her mother,
the mother noticed a clear substance around the daughter’s mouth. The mother
asked her daughter what the substance was, but the daughter looked away and
said nothing. The mother touched the substance and smelled it. The mother
3
described the substance as an odorless, sticky “glob of clear fluid,” that looked like
semen.
Heggebo came out of the bathroom wearing only shorts just as the mother
was telling the children to put on their coats. The mother took the children outside
to her vehicle, secured her son in his car seat, and then spoke with her daughter.
The mother assured her daughter she was not in trouble but told her, “You need
to tell mommy what’s on your face.” Her daughter did not respond. The mother
then asked, “Will you please tell mommy what that is?” Then, her daughter replied
it was “pee” on her face. The mother asked, “What did [Heggebo] do to put that
‘pee’ on your face?” Pointing at her own mouth, the daughter responded that
Heggebo touched his “pee pee” and that “it” went into her mouth.
The mother called and told the children’s father what happened, and he
advised her to take the children home. The father then called the mother back and
asked her to bring the children to him at work so he could look at the substance on
their daughter. The mother drove to the father’s work, and the father spoke with
his daughter briefly about the incident. The father thought his daughter was
unusually quiet and withdrawn.
At some point, the mother contacted the police, and a police officer arrived
at the father’s work. The family went to the police station where the mother was
interviewed and swabbed for forensic evidence.1 The family then went to the
hospital, and the daughter underwent a physical examination. During the exam,
the daughter told the nurse practitioner that Heggebo had touched his “pee pee”
1
The mother was swabbed because she had touched the substance on her daughter’s
face.
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to her mouth and that “pee” had gotten on her face. The daughter underwent a
sexual-assault forensic examination. Later DNA testing did not detect any of
Heggebo’s DNA on either the mother or her daughter.
After the physical examination, the daughter was taken to the Child
Protection Center (“CPC”) at the hospital where a forensic interviewer spoke with
her about the incident. This interview was video-recorded. The daughter told the
CPC interviewer that she and her brother were at Heggebo’s house. She said
Heggebo was “sitting on the potty” in the bathroom, and he tried to take out his
“pee pee” and pulled down his pants. Several times, the daughter said Heggebo
was “naughty.” When the interviewer asked the daughter to describe Heggebo’s
“pee pee,” she responded that it looked like a “pee pee” and was “for going potty.”
The daughter indicated Heggebo told her to play with his “pee pee” using her
mouth, and she confirmed her mouth touched it. The daughter told the interviewer
that Heggebo “squished it”—his “pee pee”—“with [her] mouth.” When asked if
anything came out of his “pee pee,” the daughter answered “pee.”
Meanwhile, the police went to Heggebo’s house to execute a search
warrant. Heggebo answered the door wearing only shorts. The police seized
Heggebo’s shorts because the shorts had apparent semen stains on them.
Heggebo was eventually arrested in connection with the alleged sexual assault.
Penile swabs were collected from Heggebo. The penile swab revealed seminal
fluid but no spermatozoa, and tests showed the stains from the shorts contained
both seminal fluid and spermatozoa.
The daughter’s mother testified at trial about her observations made when
she arrived at Heggebo’s house. She also testified as to what her daughter told
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her. Heggebo objected to the mother testifying as to the daughter’s statements.
The district court determined these statements fell within the hearsay exception for
present sense impressions under Iowa Rule of Evidence 5.803(1). The court also
determined the statements fell within the hearsay exception for excited utterances
under rule 5.803(2).
At the time of trial, approximately fifteen months after the alleged abuse, the
daughter was five years old. The daughter testified she remembered being in the
bathroom with Heggebo but did not remember what had happened. She
remembered telling her mother Heggebo’s “pee” was on her face, but she did not
remember how it got there. She remembered a doctor wiped the “pee” off her face,
but she did not know where the “pee” came from. She gave inconsistent answers
about whether she remembered talking to doctors or talking in the room with the
camera. She did not remember telling the CPC interviewer Heggebo had touched
her with his “pee pee.”
Because the daughter could remember very little, the State sought to
introduce the video recording of the CPC interview. Heggebo objected to the
admission of the video, but the court ultimately admitted the recorded interview
under rule 5.807’s residual hearsay exception. The video of the interview was
played for the jury.
Heggebo did not testify at trial, and the defense presented no other
evidence. The jury found Heggebo guilty. Heggebo filed motions in arrest of
judgment and for new trial, and the court denied both following a hearing on the
motions. The court imposed the statutory sentence carrying a mandatory minimum
term and special sentence. Heggebo appeals.
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II. Scope and Standard of Review.
We review the admission of an exhibit or testimony challenged as hearsay
for the correction of legal error. See State v. Plain, 898 N.W.2d 801, 810 (Iowa
2017).
III. Discussion.
A. Witness’s Statements to Mother.
1. Present Sense Impression.
Heggebo contends the present sense impression exception to the hearsay
rule does not apply to the daughter’s statements to her mother because there is
no indication in the record how much time had elapsed between the incident in
Heggebo’s bathroom and the daughter’s statements to her mother. The State
disagrees there was a significant time break such that the statements would no
longer have the guarantees of trustworthiness.
Hearsay is “a statement that: (1) The declarant does not make while
testifying at the current trial or hearing; and (2) A party offers into evidence to prove
the truth of the matter asserted in the statement.” Iowa R. Evid. 5.801(c). The
daughter’s statements to her mother are not admissible unless they qualify under
an exception to the rule against hearsay. See Iowa R. Evid. 5.802 (“Hearsay is
not admissible unless any of the following provide otherwise: the Constitution of
the State of Iowa; a statute; these rules of evidence; or an Iowa Supreme Court
rule.”).
The present sense impression exception found in rule 5.803(1) provides
that “[a] statement describing or explaining an event or condition, made while or
immediately after the declarant perceived it” is not barred by the hearsay rule. The
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phrase “immediately thereafter” has been interpreted to mean a time within which
it is unlikely that the declarant had an opportunity to form a purpose to misstate the
declarant’s observations. See Fratzke v. Meyer, 398 N.W.2d 200, 205 (Iowa Ct.
App. 1986). The present sense impression exception is based upon the theory
“that substantial contemporaneity of event and statement negate the likelihood of
deliberate or conscious misrepresentation.” State v. Flesher, 286 N.W.2d 215, 217
(1979) (quoting the Advisory Committee Note, Fed. R. Evid. 803).
When the mother arrived at Heggebo’s house to retrieve her children, the
children were inside a closed bathroom with Heggebo. When the mother called
out to the children, the children came out of the bathroom where Heggebo was
sitting—naked—on the toilet. The daughter had what appeared to be semen on
her face. These facts strongly suggest the abuse had recently occurred.
The daughter’s statements to the mother occurred after the mother had
taken the children to her vehicle and placed the son in his car seat. Considering
there was apparent semen on the daughter’s face when the mother arrived, and
the fact Heggebo was still naked, the amount of time that had elapsed between
the abuse and the statements was essentially however long it took the mother to
put on the children’s coats, take them to her vehicle, and place them inside. This
brief passage of time does not render the statement non-contemporaneous. See
Fratzke, 398 N.W.2d at 206 (concluding statements made fifteen to twenty minutes
between a car accident and subsequent statement were substantially
contemporaneous and within the ambit of the present sense impression
exception).
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We agree with the district court that the daughter’s statements were made
“immediately thereafter” perceiving the events, as that phrase is understood under
the rules of evidence. We find it extremely unlikely the four-year-old declarant had
an opportunity to form a purpose to misstate her observations. See id. at 205. The
court did not err in admitting the statements under the present sense impression
exception.
2. Excited Utterance.
Even if the daughter’s statements were not admissible under the present
sense impression exception, the statements are admissible under the excited
utterance exception.
An excited utterance is “[a] statement relating to a startling event or
condition made while the declarant was under the stress of the excitement caused
by the event or condition.” Iowa R. Evid. 5.803(2). The application of the exclusion
lies largely within the discretion of the trial court, which should 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 critical question is
whether the statement was “made under the influence of the excitement of the
incident rather than upon reflection or deliberation.” Id.Heggebo contends the excited utterance exception does not apply because
the daughter’s statements were “not spontaneous in reaction to a startling event
but rather responses to persistent questioning by her mother.”
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Our supreme court has permitted the use of the excited utterance exception
in cases where the declarant was responding to a question, so long as the
questions were “not calculated to elicit information which would otherwise have
been withheld.” State v. Brown, 341 N.W.2d 10, 13 (Iowa 1983) (quoting State v.
Watson, 242 N.W.2d 702, 704 (Iowa 1976)). “[T]he fact that a statement was
prompted by a question does not automatically disqualify it as an excited
utterance.” State v. Harper, 770 N.W.2d 316, 320 (Iowa 2009); see also Atwood,
602 N.W.2d at 782–83 (determining a statement in response to the question “what
happened?” was an excited utterance). We also note that in Watson, a rape victim
who was “still suffering from her harrowing experience” was asked, “What’s the
matter?” 242 N.W.2d at 704. The court stated such a question “was the most
natural one under the circumstances” and not intended to elicit information that
may have otherwise been withheld. Id. We believe the mother’s questions here
were also the natural questions to ask and were neither suggestive nor implying
any wrongdoing, startling event, or condition.
Here, the daughter did not seem eager to greet her mother. Initially, the
daughter refused to come to her mother. The mother asked her daughter about
the substance on the daughter’s face, but the daughter did not initially answer.
The mother testified she “kept asking [the daughter] if she would tell me what it
was.” After taking the daughter to the car, the mother assured the daughter she
was not in trouble and asked her again about the substance on her face. The
daughter refused to answer. The mother asked, “Will you please tell mommy what
that is?” and the daughter answered that the substance was “pee.” The mother
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asked, “What did [Heggebo] do to put that pee on your face?” The daughter
answered Heggebo touched his “pee pee” and “it” went into her mouth.
Under these circumstances, we conclude the statements were excited
utterances despite responding to the questions from the mother. As discussed
above, the amount of time between the startling event and the statements was
brief. The mother asked the daughter several times what the substance was
before the daughter answered, and asked once how the substance got on the
daughter’s face. The daughter was four years old, and the mother testified the
daughter was “acting standoffish” and “not her normal demeanor.” This abnormal
behavior, which we would describe as being distraught, disturbed, or perhaps in
shock, supports the conclusion the daughter was under the influence of a startling
event. Based on the characteristics of the event, subject matter of the daughter’s
statements, and the other surrounding circumstances, we conclude these were not
statements made upon “reflection or deliberation.” See Atwood, 602 N.W.2d at
782. The court did not err in admitting the statements under the excited utterance
exception.
B. Video of CPC Interview.
Heggebo also contends the court erred in admitting the video of the CPC
interview. The court admitted the recorded interview under the residual hearsay
exception under Iowa Rule of Evidence 5.807. 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. See State v. Rojas, 524 N.W.2d 659, 662–63 (Iowa 1994); see
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also Iowa R. Evid. 5.807 (formerly rule 803(24)). Heggebo challenges the
trustworthiness, necessity, and service of the interests of justice.
1. Trustworthiness.
Heggebo contends the recorded interview is untrustworthy because the
statements were not made under oath; there was no indication the daughter had
an ability to distinguish between the truth and a lie and she was not asked about
those concepts; and several times during the interview the daughter referred to
Heggebo as “naughty” or a “bad guy,” indicating she may have been coached.
The district court found the recorded interview was trustworthy. The court
noted the daughter described matters within her personal knowledge; the interview
took place within the same day of the alleged incident; the interviewer asked non-
leading questions, and many of the daughter’s statements were spontaneous;
there was no evidence of improper motive on the daughter’s part to make any
statements; the daughter’s demeanor during the interview; and the daughter’s
statements were consistent with testimony from the mother.
It has been noted “videotape is more reliable than many other forms of
hearsay because the trier of fact [can] observe for itself how the questions were
asked, what the declarant said, and the declarant’s demeanor.” Rojas, 524
N.W.2d at 663. We agree with the district court the interview has sufficient
circumstantial guarantees of trustworthiness for the same reasons cited by the
court.
2. Necessity.
Heggebo contends admission of the interview was not necessary because
there was other available evidence regarding the sexual abuse. Namely, Heggebo
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cites the mother’s testimony about her observations and about the daughter’s
statements. Heggebo also cites testimony from medical personnel about
statements the daughter made during her physical examination that Heggebo
touched his “pee pee” with her mouth and that something come out of the “pee
pee” “right on my face.” Heggebo also argues the interview was not necessary
because the daughter’s trial testimony was consistent with the statements she
made to her mother, medical personnel, and the CPC interviewer.
A statement is “necessary” if it is “more probative on the point for which it is
offered than any other evidence that the proponent can obtain through reasonable
efforts.” See Iowa R. Evid. 5.807(a)(3).
The court concluded the recorded interview was necessary because the
child witness’s recollection was insufficient due to her young age. The daughter
did testify at trial, but she did not remember what had happened in the bathroom,
she did not remember how the “pee” got on her face, she did not remember where
the “pee” came from, she gave inconsistent answers about whether she
remembered talking to doctors or in the room with the camera, and she did not
remember telling the CPC interviewer Heggebo had touched her with his “pee
pee.”
The mother testified as to her observations, including the fact the children
were with a then-naked Heggebo in the bathroom when the mother arrived. She
testified there was a sticky, clear fluid on the daughter’s face that she thought
looked like semen. The mother testified the daughter told her Heggebo’s “pee”
was on her face, Heggebo touched his “pee pee,” and “it” went into her mouth.
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The nurse’s testified the daughter told her Heggebo touched his “pee pee”
“to her mouth.” The nurse asked if anything came out of the “pee pee” and the
daughter answered, “Yes, right on my face.”
During the interview, the daughter told the interviewer Heggebo touched his
“pee pee” with her mouth. The daughter told the interviewer Heggebo tried to play
with his “pee pee.” The daughter said Heggebo tried to push his “pee pee” out of
his pants before he took his pants off. The daughter repeatedly said Heggebo
“squished it [his “pee pee”] with [her] mouth.” She told the interviewer Heggebo
told her “to play with his pee pee” with her mouth.
There is some overlap in the mother’s testimony, the nurse’s testimony, and
the statements the daughter made in the CPC interview. But, we conclude the
district court did not err in determining the video of the CPC interview is more
probative on the issue of whether Heggebo committed sex abuse than either the
testimony of the mother or of the nurse, and is thus, “necessary.” See State v.
Neitzel, 801 N.W.2d 612, 623 (Iowa Ct. App. 2011) (concluding the admission of
a child’s videotaped interview was necessary under rule 5.807 because of the
child’s young age when the abuse occurred and inability of the child to testify to
the abuse at made the close-in-time video recitation the most probative evidence
of the abuse that occurred); see also State v. Olds, No. 14-0825, 2015 WL
6510298, *7-8 (Iowa Ct. App. Oct. 28, 2015) (concluding CPC interview recording
was admissible, noting the interviews were completed by an expert forensic
interviewer shortly after the allegations surfaced and well before the trial; the
interviewer followed all the proper procedures for the forensic interviews; the
interview was videotaped, allowing the trier of fact to observe for itself how the
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questions were asked, what the declarant said, and the declarant’s demeanor; and
there was no known reason for fabrication).
3. Service of the Interests of Justice.
Lastly, Heggebo contends admission of the CPC interview does not serve
the interests of justice. Heggebo bases this argument upon his contention
admission of the CPC interview was not necessary. Evidence serves the interests
of justice where “[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].” Rojas, 524 N.W.2d at 663. Because the court did not
err in concluding the statements were trustworthy and necessary, we conclude
admitting the recorded interview serves the interests of justice.
IV. Conclusion.
Finding no error in the admission of the mother’s statements and the video
of the CPC interview, we affirm Heggebo’s conviction and sentences.2
AFFIRMED.
2
Finding no error in the admission of the challenged evidence, we do not address
Heggebo’s or the State’s arguments regarding harmless error.