State of Iowa v. Kyle Robert Mall

IN THE COURT OF APPEALS OF IOWA

No. 21-1612
Filed July 26, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

KYLE ROBERT MALL,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Benton County, Justin A. Lightfoot,

Judge.

A defendant appeals his convictions of two counts each of second-degree

sexual abuse, lascivious acts with a child, and assault with intent to commit sexual

abuse. AFFIRMED.

R. Ben Stone of Parrish Kruidenier Dunn Gentry Brown Bergmann &

Messamer, LLP, Des Moines, for appellant.

Brenna Bird, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.

Heard by Bower, C.J., and Tabor and Greer, JJ.
2

TABOR, Judge.

A jury convicted Kyle Mall on two counts each of second-degree sexual

abuse, lascivious acts with a child, and assault with intent to commit sexual abuse.

He alleges seven errors: (1) the district court allowed vouching; (2) the prosecutor

engaged in misconduct; (3) the court allowed the jury to consider his statements

that were induced by promises of leniency or were otherwise involuntary; (4) the

court rejected his request for a “taint hearing” and found the children competent to

testify; (5) insufficient evidence supported the verdicts; (6) the court denied his

request for mistrial after mid-trial delays; and (7) cumulative error violated his right

to a fair trial. We find no abuse of discretion or legal error and consequently no

cumulative error, so we affirm.

I. Facts and Prior Proceedings

In March 2020, Mall lived with his wife, Sunnie, and their four-year-old twins,

daughter E.M. and son C.M. One Saturday, Sunnie heard E.M. say “Dad makes

me do things in the shower.” Sunnie didn’t tell her husband. But on Monday, after

he left for work, she asked each twin separately about the comment: “[A]ll I said

was, ‘Tell me about what you do with Dad in the shower.’ And they both said, ‘Dad

makes us suck his wiener.’ [C.M.] said, ‘Dad sucks my wiener too. It feels good.’”

Later that day, Sunnie confronted Mall about what the twins said. Mall

denied anything happened in the shower. But on Tuesday, Sunnie called the Iowa

Department of Health and Human Services1 (DHS). The DHS directed the children

1 Recent legislation combined two agencies into the Iowa Department of Health

and Human Services. But at all times during these proceedings, it was the Iowa
Department of Human Services, so we will continue to use the acronym DHS.
3

to a child protection center (CPC) where forensic interviewer Rachel Haskins

spoke to them individually. Both children disclosed that, while showering or

bathing together, Mall urged them to “suck” his “wiener.” C.M. disclosed that Mall

also “sucks my wiener” in the shower.

After the children’s interviews, DHS investigator Bethany Hosch and Belle

Plaine Police Chief Kristopher Hudson contacted Mall. Hosch asked Mall if he was

available to discuss the allegations. Mall agreed to meet at the Benton County

Sheriff’s Department. When he arrived, Hosch and Hudson took Mall to a secure

interview room, where all three talked for about forty-five minutes. Mall denied

engaging in sex acts with his children. After the interview, Mall left.

During the DHS investigation, Sunnie recounted an incident from the

summer of 2019. She explained it was common for the children to shower with

their father. That June, C.M. emerged from the bathroom wearing a towel. He

came into the kitchen and “asked [E.M.] to suck his wiener,” then he asked Sunnie

“to suck his wiener.” Sunnie spoke with the children separately. They said a child

at their daycare may have “showed his wiener to the other kids.” Sunnie alerted

their daycare provider, who denied anything like that happened.

After assessing the children’s statements and other evidence, the State

charged Mall with two counts of sexual abuse in the second degree in violation of

Iowa Code section 709.3(1)(b) (2020); two counts of lascivious acts with a child in

violation of 709.8(1)(a)–(c); and two counts of assault with intent to commit sexual

abuse in violation of Iowa Code section 709.11(3).

Before trial, Mall moved to suppress statements he made in his interview

with Hosch and Hudson. He also challenged the competency of the twins to testify.
4

In addition, he requested a “taint hearing” to determine whether the twins’

statements should be excluded because they were influenced by Sunnie or their

therapist. The court declined to hold a “taint hearing” but did engage with the

children to determine that they were competent to testify. The court also denied

the motion to suppress.2

Over a seven-day trial, Sunnie and the twins testified for the State, along

with Haskins, Hosch, Hudson, and the children’s therapist, psychologist Dr. Jill

Bryant. The defense called Mall, Mall’s father, and a rebuttal psychologist. The

jury found Mall guilty as charged. He now appeals.

II. Analysis

A. Vouching

Mall first claims the district court allowed impermissible vouching by the

prosecution and its expert witnesses, violating principles outlined in State v.

Dudley, 856 N.W.2d 668, 675 (Iowa 2014), State v. Brown, 856 N.W.2d 685, 687

(Iowa 2014), and State v. Jaquez, 856 N.W.2d 663, 664 (Iowa 2014). We review

those district court rulings for an abuse of discretion. Dudley, 856 N.W.2d at 675.

Dudley, Brown, and Jaquez explore the contours of Iowa Rule of

Evidence 5.702 in child sexual abuse prosecutions. That rule permits expert

opinion testimony if “specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue.” Iowa R. Evid. 5.702. So what’s

permitted? Experts may “express opinions on matters that explain relevant mental

and psychological symptoms present in sexually abused children.” Dudley, 856

2 The court did not hold a hearing on the motion to suppress, instead deciding

based on depositions given by Hudson and Hosch.
5

N.W.2d at 676 (quoting State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986)). And

what’s prohibited? Experts may not provide testimony that either directly or

indirectly renders an opinion on the credibility of a witness. Id. Such testimony

usurps the jury’s role by providing a “scientific stamp of approval” to testimony even

though the expert cannot determine when a witness is telling the truth. Id. at 677.

Mall focuses on the moment when Dr. Bryant testified that during intake

E.M. and C.M. were “a little wild” and “running around” her office but that they

“seemed honest,” despite being “not interested in talking.” The State concedes

that this statement constituted vouching. It was not the kind of testimony that

helped the jury understand behavioral trends in victims of sexual abuse. Id. at 676.

Rather, Dr. Bryant’s statement that these children “seemed honest”

commandeered the role of the jury to make credibility assessments.

But this case was unlike Dudley, Brown, and Jaquez—where the district

courts allowed the problematic testimony. Here, the court sustained objections to

Dr. Bryant’s comment and instructed the jury to disregard it. The court properly

exercised its discretion in addressing the expert’s testimony that vouched for the

honesty of the twins.

Mall next relitigates his motion for mistrial.3 In denying that motion, the court

reasoned that the expert’s vouching was isolated and stricken from the record.

3 The State challenges error preservation, arguing Mall did not move for a mistrial

when the grounds first became apparent. See State v. Cornelius, 293 N.W.2d 267,
269 (Iowa 1980). Mall moved for mistrial a day after Dr. Bryant testified. The State
did not object to the motion as untimely. See DeVoss v. State, 648 N.W.2d 56, 63
(Iowa 2002) (“Because error preservation is based on fairness, we think both
parties should be bound by the rule.”). Because the delay was not great and the
district court ruled on the issue, we find that Mall preserved error for appeal.
6

It was a single statement and was not extensive. It was
promptly addressed. The jury was told to disregard it. In fact, we
never heard what the kids actually said to her that she thought was
true. She never testified as to what the kids said. . . . [H]er testimony
really didn’t move the needle in this case. She really didn’t testify to
much that I can see from my notes.

Because the court’s rationale was supported by the record and legally sound, we

find no abuse of discretion.

But Mall doesn’t stop there. He chronicles ten more instances of alleged

vouching that he claims violated his right to a fair trial under Dudley. First, he

points to this passage from the State’s opening statement: “These are good kids.

In fact, they’re great kids. . . . [T]hey’re everything that we hope and dream of in

our young people in this country.” Defense counsel objected. And the court

directed the State to “go ahead and move along.”

Because this statement came from the prosecutor and not an expert

witness, it does not fall under the prohibitions in Dudley and its companion cases.

Those cases sought to prevent experts from providing a “scientific stamp of

approval” to victim testimony. See Dudley, 856 N.W.2d at 677. They did not

address allegations of vouching by the State. We find this allegation is better

analyzed under Mall’s claim of prosecutorial misconduct. That same distinction

applies to Mall’s other vouching claims involving questions posed by the State

which drew objections.4 Because the court sustained Mall’s objections, no

vouching testimony reached the jury.

4 Mall identified several other instances of the prosecutor’s questions allegedly

soliciting vouching testimony from lay witnesses: (1) The prosecutor asked Sunnie
if she spoke with the prosecutor about whether to file charges against Mall; (2) The
prosecutor asked C.M. on redirect if he “still promis[es] to tell the truth”; (3) The
prosecutor asked Mall in cross-examination why C.M. would give such a detailed
7

In fact, Mall points us to just one example where the district court overruled

his objection to expert testimony. Mall interjected when the State asked Haskin,

the CPC interviewer, if she could “discuss whether or not it’s common for children

to not disclose sexual abuse right away.” The court allowed Haskin to testify that

“it’s not uncommon for children to delay reporting.” That statement did not

constitute impermissible vouching. Experts are allowed to “express opinions on

matters that explain relevant mental and psychological symptoms present in

sexually abused children.” Id. at 676. Delayed reporting is one such matter, and

Haskin phrased her response in general terms.

Mall objected again when the State asked Haskin if “there [is] an

expectation that a child disclosing child abuse or sex abuse will have the same

story every time they talk about it?” The court sustained the objection based on

the wording of the inquiry. The State rephrased its question, asking if it was

“common for children to have different versions of their abuse when they retell . . .

what happened to them at a later date?” Mall did not renew his objection. And

Haskin responded: “Sometimes details will change between . . . who the child is

telling. There will still be those consistent pieces of information, but sometimes

things will change.” Despite not objecting to the State’s rephrasing, Mall argues

on appeal that Haskin’s response constituted impermissible vouching.

We disagree. The State’s question related to the general behavior

displayed by children who are victims of abuse, and Haskin offered no details to

expand the question’s scope. Haskin’s response fell within the category of expert

report if it was false; and (4) The prosecutor again asked Mall if he agreed the
children’s reports were highly detailed.
8

testimony intended to “assist the jury in understanding some of the seemingly

unusual behavior child victims tend to display.” See id. at 675.

After analyzing the challenged statements, we conclude that Mall was not

subjected to any instances of impermissible vouching. So the district court did not

abuse its discretion in denying Mall’s motion for mistrial.

B. Prosecutorial Misconduct

Mall next claims prosecutorial misconduct deprived him of a fair trial. The

State contests error preservation. We begin by assessing whether Mall preserved

his vouching challenges to the prosecutor’s opening statement and questions to

witnesses. As noted above, the district court sustained Mall’s objections on each

occasion. But Mall didn’t move for a mistrial. Thus, he cannot obtain a new trial

based on these instances of prosecutorial misconduct. See State v. Krogmann,

804 N.W.2d 518, 526 (Iowa 2011).

Mall also alleges the prosecutor engaged in misconduct by asking an

argumentative question during his cross examination. The question focused on

sexual abuse Mall’s wife suffered as a child. As background, the State moved

pretrial to exclude testimony on that topic. The district court denied the motion,

believing Sunnie’s abuse could be relevant. Still, the court recognized that the

probative value of that evidence could be outweighed by the risk of unfair

prejudice, so the court left the door open for the State to object at trial. And the

prosecutor did lodge frequent objections during Mall’s direct testimony. But the

court overruled most of them.

Then, to begin its cross-examination, the State asked Mall: “[T]his is a fair

statement, isn’t it? You’re willing, before this jury this week, to re-victimize your
9

wife’s past sexual abuse in an attempt to get acquitted?” Mall objected that the

question was argumentative, and the court sustained that objection. Mall did not

move for mistrial or seek any other curative measure. So his sustained objection

did not preserve his prosecutorial misconduct claim. See id. at 526. Thus, we

decline to reach the merits of his appellate argument.

C. Admissibility of Mall’s Interview

Mall also seeks a new trial based on the admission of his video-recorded

interview with DHS investigator Hosch and police chief Hudson. He raises three

grounds for exclusion. First, he contends it was a custodial interrogation and they

should have given him Miranda warnings. See Miranda v. Arizona, 384 U.S. 436

(1966). Second, he asserts Hosch and Hudson made promises of leniency in

exchange for his confession—rendering his statements involuntary. Finally, he

contends his statements were generally involuntary under the totality of

circumstances.

The parties agree Mall preserved error on the issues of promissory leniency

and general involuntariness through his motion to suppress. But the State asserts

that he did not properly raise the Miranda claim. Mall mentioned that issue in the

caption of the motion, but didn’t discuss it elsewhere. And the district court didn’t

rule on it. Without argument or ruling, we cannot review this claim. See Lamasters

v. State, 821 N.W.2d 856, 863 (Iowa 2012).

1. Promissory leniency

We turn to the promise-of-leniency claim. We review that claim for

correction of legal error. State v. Polk, 812 N.W.2d 670, 674 (Iowa 2012) (applying

common law evidentiary test). But under the totality-of-circumstances test arising
10

under the Fifth Amendment, our review is de novo. State v. Madsen, 813 N.W.2d

714, 722 (Iowa 2012).

We first analyze whether the interviewers dangled promises of leniency that

improperly induced Mall to make incriminating statements. Confessions induced

by threats or promises cannot be admitted into evidence. Polk, 812 N.W.2d at

674. For this analysis, we depart from the federal totality-of-the-evidence

approach and start with the common law evidentiary test to determine whether

Mall’s statements were the product of promissory leniency. See Madsen, 813

N.W.2d at 726. Specifically, we look for promises that would create a “fair risk”

that Mall would falsely confess. See id. We reject statements improperly induced

to any degree. Id.

Mall argues that Hosch and Hudson repeatedly promised therapeutic

intervention for both himself and his children. He claims those assertions

presented “a perceived avenue of escape from prosecution . . . if only he would

confess.” Further, he contends that Hosch and Hudson overreached by implying

that the twins could only receive proper treatment if he confessed.

It’s true that an interviewer crosses the line by creating the false impression

that treatment is an alternative to punishment if the suspect confessed. State v.

Howard, 825 N.W.2d 32, 41 (Iowa 2012). But the State counters that the

references to therapy here did not rise to the level of promissory leniency noted in

Howard. And the State emphasizes that the rule is not intended to bar interviewers

from discussing therapy. See State v. Wilson, No. 16-0555, 2017 WL 936125, at

*3 (Iowa Ct. App. Mar. 8, 2017). In the State’s view, the interviewers offered

nothing specific to Mall in exchange for his confession.
11

After reviewing the recorded interview, as well as the depositions of both

Hudson and Hosch, we agree with the State. The record does not show that the

investigators induced Mall to believe there was a legal advantage to confessing.

Neither Hosch nor Hudson crossed the line to impermissibly promise Mall leniency

if he admitted sexually abusing his children.

Hosch first. In her deposition, she described her interviewing technique as

“open-ended,” allowing subjects to “explain things in their words.” This approach

is evident when Hosch opened the interview by asking Mall to explain his

understanding of the allegations. In the same vein, Hosch told Mall she was “just

trying to understand.” She prefaced many of her questions with the phrase: “if you

did something.” Overall, her interrogation of Mall did not imply that he would gain

any “special” benefit from confessing. See Madsen, 813 N.W.2d at 726. Hosch

described the healing process generally and provided examples from her work as

a DHS employee. But even when Hosch mentioned therapy for C.M. and E.M.,

she did not condition that help on Mall’s confession. And she provided the

disclaimer that a decision about whether Mall could see the twins would be “out of

her hands” once the assessment period ended.

Hudson next. We acknowledge that some of the police chief’s admonitions edged

closer to that fine line of promissory leniency. Specifically, Hudson told Mall that

“healing for those kids starts with you coming clean in here” and “if, for nothing

else but the benefit of your kids, you need to tell us what happened.” He also told

Mall that “part of this thing hinges on you.” These statements sound similar to

language criticized in Madsen and Polk—urging a suspect to “come clean” and

tying that cleansing to some unattainable advantage. See id.; Polk, 812 N.W.2d
12

at 676. And, as shown in his deposition, Hudson did not have the power to divert

a suspect from criminal charges to sex-offender treatment. But when viewed in

context, Hudson’s statements did not imply that power. In fact, Hudson disclaimed

any guarantee that he could keep Mall out of prison, saying that decision was “not

up to us.” What’s more, Hudson did not suggest treatment as an alternative to

prison. See Howard, 825 N.W.2d at 41. So we join the district court in rejecting

Mall’s claim of promissory leniency.

2. General involuntariness

Finding no promises of leniency, we next examine whether Mall’s

statements were involuntary under the totality-of-circumstances test. See State v.

Payton, 481 N.W.2d 325, 328–29 (Iowa Ct. App. 1992) (examining factors related

to actions of both the suspect and interviewers). These factors include the

suspect’s age, prior experience with the criminal process, influence of drugs,

mental capacity, ability to understand and respond to questions, use of a Miranda

warning, length of interview, use of deception, physical and emotional reactions to

the questions, and any physical punishment. Id. We assess these factors before

deciding whether the interviewers impaired Mall’s capacity for self-determination.

See State v. Hodges, 326 N.W.2d 345, 347 (Iowa 1982). The State bears the

burden to prove voluntariness by a preponderance of the evidence. State v.

Cullison, 227 N.W.2d 121, 127 (Iowa 1975).

Mall contends that, under the totality of the circumstances, his statements

were involuntary. He points to his “naivete” in the criminal arena and Hosch’s use

of deception. This deception, according to Mall, involved implying that he “might

see his kids again if he confessed.”
13

The State denies that Mall’s capacity for self-determination was overborne

during the interview. See Payton, 481 N.W.2d at 328–29. As the State notes, Mall

was an adult, employed, and did not appear to be under the influence of drugs,

and there were no forms of deprivation or physical punishment present. The State

also highlights that Mall understood the inquiries, checked his emotions, and

formulated responses—even asking his own questions about being charged.

Furthermore, the interview lasted less than an hour.5

We agree with the State that, weighing all of the pertinent factors, Mall’s

statements were voluntary. We don’t discount Mall’s inexperience in criminal

settings. Nor that his emotions may have impacted the interview; Mall was tearful

and claimed he lacked sleep. Indeed, Hudson stated in his deposition that Mall

was “nervous and distraught” during the interview. On top of that, Mall was not

given Miranda warnings. But despite those circumstances, we find Mall’s

statements reflected his “free and unconstrained choice” to speak with authorities.

See id. at 328. He was responsive to the interviewers’ requests for information

and appreciated the consequences of his statements. See Countryman, 572

N.W.2d at 558. After our de novo review, we affirm the district court’s denial of the

motion to suppress on this constitutional basis.

3. Harmless error

Finally, as the State argues, even if Mall’s statements were involuntary, any

error in their admission was harmless. For promissory leniency, we apply the test

5 Our supreme court has found that suspects’ statements were voluntary after

much longer interviews. See, e.g., State v. Countryman, 572 N.W.2d 553, 558
(Iowa 1997) (three hours); State v. Brown, 341 N.W.2d 10, 16 (Iowa 1983) (two
and one-half hours).
14

for non-constitutional harmless error. See Howard, 825 N.W.2d at 41 (stating that

error is not cause for reversal unless a substantial right is affected). Because Mall

maintained his innocence throughout the interview, its ultimate admission carried

little force. Even his most incriminating statements did not admit wrongdoing; he

said, “If I were to say something, it would ruin my life.” And under the constitutional

standard for harmless error, the State is able to show that the jury’s verdict was

“surely unattributable” to the admission of Mall’s non-confession. See State v.

Peterson, 663 N.W.2d 417, 430–431 (Iowa 2003).

D. Competency of Child Witnesses

Mall next contends the district court abused its discretion by determining the

twins were competent witnesses. And he complains the court should have granted

his request for a “taint hearing” to determine whether their testimony was

influenced by their mother or other adults in whom they confided. We review

rulings on competency for an abuse of discretion. State v. Brotherton, 384 N.W.2d

375, 377 (Iowa 1986).

On the question of holding a “taint hearing,” the State quips: “[N]o Iowa case

discusses such a creature.” Indeed, Mall’s request emanates from a New Jersey

case, State v. Michaels, 642 A.2d 1372 (1994). That case recognized that “the

use of coercive or highly suggestive interrogation techniques can create a

significant risk that the interrogation itself will distort the child’s recollection of

events, thereby undermining the reliability of the statements and subsequent

testimony.” Michaels, 642 A.2d at 1379. The New Jersey court determined a

pretrial “taint hearing” was needed to ensure the reliability of child witnesses

because they had been subject to “repeated, almost incessant” interviews
15

conducted by untrained investigators using suggestive techniques. Id. at 1382.

The Michaels court acknowledged that “assessing reliability as a predicate to the

admission of in-court testimony is a somewhat extraordinary step,” but suggested

it had some precedent in federal and New Jersey cases. Id. at 1381.

As the State explains on appeal, the Michaels approach has received a

“mixed reception” from other jurisdictions. See State v. Bumgarner, 184 P.3d

1143, 1151 (Or. Ct. App. 2008) (criticizing taint hearings as conflating the

competency of child witnesses with the reliability of their potential testimony). In

fact, most jurisdictions that have considered the issue “have rejected the Michaels

approach on the ground that existing procedures that address the competency and

credibility of witnesses are adequate to deal with concerns regarding child

testimony.” See Reece v. State, 103 A.3d 1076, 1088 (Md. Spec. App. 2014)

(collecting cases).

Today we take the majority position. The district court did not abuse its

discretion in declining to hold a hearing that has no root in our rules, statutes, or

case law. As the State suggests, such a gatekeeping step would usurp the jury’s

exclusive role in determining witness credibility. See State v. Brimmer, 983

N.W.2d 247, 256 (Iowa 2022); see also State v. Cahill, 972 N.W.2d 19, 34 (Iowa

2022) (“It was not the district court’s job to decide on witness credibility prior to

trial.”). As the trial unfolded, the jury had a full opportunity to assess the reliability

of the twins’ testimony; they watched both CPC interviews and heard testimony

from interviewer Haskins, as well as critiques of her interview technique. The jury

also heard testimony from Sunnie and the child’s therapist. On this record, a novel

pretrial “taint hearing” was unwarranted.
16

That settled, we turn to the more customary question: Were the children

competent to testify? As a reminder, they were four years old when the allegations

arose and six years old by the time of trial. Mall contends they were not competent

to testify, pointing to alleged inconsistencies and contradictions between their

depositions and CPC interviews.6

In addressing his contention, we note that the competency of a witness “is

not disproved by . . . mere testimonial inconsistency.” Brotherton, 384 N.W.2d at

378 (cleaned up for readability). We presume witnesses are competent unless

shown otherwise. Iowa R. of Evid. 5.601. A challenge to the competency of a

child witness invokes three questions: (1) Is the child mentally capable of

understanding the questions being asked? (2) Is the child able to formulate

intelligent answers and communicate impressions and recollections regarding the

incident about which the child is to testify? and (3) does the child understand the

responsibility to tell the truth? State v. Andrews, 447 N.W.2d 118, 120 (Iowa 1989).

Andrews clarified: “This three-part test does not materially differ from the traditional

measure of a witness’s competency: ‘(1) the mental capacity to understand the

nature of the questions put and to form and communicate intelligent answers

thereto and (2) the moral responsibility to speak the truth, . . . .’” Id. at 120–21

(internal citations omitted).

6 Mall’s argument relies on Iowa Rule of Evidence 5.104(a), which addresses

“whether a witness is qualified, a privilege exists, or evidence is admissible.” In
Cahill, the supreme court noted rule 5.104(a) “is not a substantive rule of evidence.
the relevant substantive rule is Iowa Rule of Evidence 5.601. It states that ‘[e]very
person is competent to be a witness unless a statute or rule provides otherwise.’”
972 N.W.2d at 34. We apply that rule. Mall also relies on due process and fair
trial rights under the federal and state constitutions.
17

To gauge the credibility of E.M. and C.M., the court watched their CPC

interviews, considered their depositions as well as Sunnie’s deposition, and

reviewed the report of the defense expert witness—Dr. Katherine Jacobs, a clinical

psychologist. Critically, the court spoke in chambers with each twin individually,

along with their guardian ad litem.7 After that thorough preparation, the court

concluded that both E.M. and C.M. were competent to testify:

[T]he children were overall very articulate for their age and clearly
understood what was being asked. They formulated intelligent
responses to each question. Both children also demonstrated, in
their depositions, that they would not simply agree with whatever an
adult suggested. . . . [Giving examples.] C.M. and E.M. were
listening carefully to what was being asked, did not simply agree with
the adult doing the questioning, and provided responsive answers to
the questions. This all militates in favor of finding C.M. and E.M.
competent to testify.
Additionally, in their conversations with the undersigned in
chambers, both children (who were then [six] years old) showed that
they clearly understood questions that were asked. Both C.M. and
E.M. demonstrated that they knew the difference between truth and
falsity, and that they knew it was important to tell the truth.
The [c]ourt easily concludes that both children are competent
under the factors outlined in Andrews.

After our independent review of the record, we find the court did not abuse

its discretion in concluding the children were competent to testify. We agree with

7 In advance, both parties submitted proposed questions for the court to ask the

children. Mall vaguely complains about the court declining to ask some of his
questions. The court’s ruling explains some of Mall’s most desired questions
sought answers where the children would have no personal knowledge or that
presumed events the children denied occurred. The court declined to ask those
questions as they would likely confuse the children and would not have furthered
its Andrews analysis. Mall’s claim is underdeveloped on appeal and amounts to
no more than a passing mention, so we consider it waived. See Midwest Auto. III,
LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 431 n.2 (Iowa 2002) (holding
random mention of an issue without elaboration or supporting authority fails to
preserve the claim).
18

Mall that there were inconsistencies8 in their rendition of the events between their

CPC interview and their deposition. And we also agree both twins had difficulty

maintaining their concentration during their CPC interview, which occurred nearly

two years before trial. But those facts do not mean they could not understand the

attorneys’ questions or the responsibility to speak truthfully at the time of trial. See

Brotherton, 384 N.W.2d at 378 (noting testimonial inconsistency “is a matter

directed to the weight to be afforded the witness’ testimony by the jury”). Their in-

chambers conversation with the judge showed that both E.M. and C.M. could

comprehend the questions put to them. They responded appropriately and

displayed the intelligence to carry on relatively complex discussions, consistent

with their age. We, like the district court, note their ability to correct the questioner’s

mistakes as they arose. The court also reasonably assessed their understanding

of the moral responsibility to tell the truth. Both children identified when the judge

lied and expressed disapproval of lying. We thus conclude the court’s decision

was neither unreasonable nor untenable.

E. Sufficiency of the Evidence

Mall also contests the sufficiency of the evidence to convict him,

complaining “[t]he State’s entire case rests on the testimony of the twins.” The

State offered no DNA or physical evidence of sexual abuse. He also argues that

the State “apparently deliberately” did not investigate the incident at the daycare a

few months before the twins’ disclosures. He further notes the State did not search

his phone or internet history for any interest in child sexuality.

8 Mall’s briefing on this issue does not identify the specific inconsistencies. But he
points to more specific facts in his sufficiency challenge, discussed below.
19

“We review sufficiency of the evidence claims for correction of errors at law.”

State v. Crawford, 974 N.W.2d 510, 516 (Iowa 2022). We consider whether, when

taken in the light most favorable to the State, the verdicts are supported by

substantial evidence. Id. Evidence is substantial if it would convince a rational

trier of fact that Mall is guilty beyond a reasonable doubt. See id. “[A] defendant

need not file a motion for judgment of acquittal to challenge the sufficiency of the

evidence on direct appeal.” State v. Crawford, 972 N.W.2d 189, 198 (Iowa 2022).

For the jury to find Mall guilty of two counts of sexual abuse in the second

degree, it had to find both:

1. On or about the calendar year 2019 through late March
2020, . . . [Mall] performed a sex act with [each child.]
2. [Mall] performed the sex act with [each child] while the child
was under the age of 12 years.

To find Mall guilty of lascivious acts with E.M., the State had to prove:

1. On or about the calendar year 2019 through late March
2020, . . . [Mall], with or without E.M.’s consent, did permit or cause
E.M. to fondle or touch the defendant’s genitals or pubes.
2. [Mall] did so with the specific intent to arouse or satisfy the
sexual desires of [Mall] or E.M.
3. [Mall] was then 16 years of age or older.
4. E.M. was then under the age of 14 years.

To find Mall guilty of lascivious acts with C.M., the State had to prove:

1. On or about the calendar year 2019 through late March
2020, . . . [Mall], with or without C.M.’s consent, did:
a. fondle or touch the pubes or genitals of C.M.; or
b. permit or cause C.M. to fondle or touch [Mall’s] genitals or
pubes.
2. [Mall] did so with the specific intent to arouse or satisfy the
sexual desires of [Mall] or C.M.
3. [Mall] was then 16 years of age or older.
4. C.M. was then under the age of 14 years.
20

And finally, to prove two counts of assault with intent to commit sexual assault, the

State had to show:

1. On or about the calendar year 2019 through late March
2020, . . . [Mall] assaulted [each child.]
2. [Mall] did so with the specific intent to commit a sex act by
force or against the will of [each child.]

The instruction also said, “[An] [a]ssault is committed when a person does an act

which is meant to result in physical contact which will be insulting or offensive to

another person, when coupled with the apparent ability to do the act.”

When reviewing for substantial evidence, “[i]t is not our place ‘to resolve

conflicts in the evidence, to pass upon the credibility of witnesses, to determine the

plausibility of explanations, or to weigh the evidence; such matters are for the jury.’”

Brimmer, 983 N.W.2d at 256 (citation omitted). “It is also for the jury to decide

which evidence to accept or reject.” Id. So the jury could find proof of the

allegations within the CPC interviews and testimony, despite some

inconsistencies.

During his CPC interview, which the court played for the jury, Haskin asked

four-year-old C.M. a series of questions about whether he had gotten “touches” on

his “wiener.”9 At first, he said no. But shortly after that, he explained his father

washed him with soap in the shower and “after that he sucks my wiener,” specifying

that Mall used “his mouth” and “his tongue.” C.M. physically demonstrated how

his father would bend down on one knee while doing so. C.M. said that his father

“likes me sucking his wiener forever.” The boy also shared his father’s admonition

9 Both children used the word “wiener” to refer to a penis.
21

not to tell Sunnie. C.M. consistently told Haskin that E.M. was not present while

this happened, nor did he see anyone touching E.M.’s “pee pee.”10

At trial, six-year-old C.M. testified he and his father would be sitting in the

bathtub taking a bath when his father “was sucking my wiener.” C.M. further

testified he “sucked” his “dad’s wiener right by where his pee comes out of.” The

boy’s testimony also described sexual contact between his hand and his father’s

penis. C.M. demonstrated what the sucking and hand movement looked like. He

further testified his father told him not to tell anyone.

In her CPC interview, E.M. said no one had “touche[d her] pee pee” or her

bottom. But she also said “my dad him want him suck his wiener.” When asked

“has someone sucked dad’s wiener?” E.M. answered “[C.M.] and me.” Haskin

said, “tell me about sucking dad’s wiener,” and E.M. responded “he lets us” and

that it happened “in the tubbie” where “he’ll let us play with it.” When asked what

she “sucks his wiener with,” she gestured to her mouth and said “him likes it . . . he

tells us I like it.” She agreed with C.M. that “him don’t want mom to know.”

At trial, E.M. testified to “sucking my dad’s wiener” in the bathtub. According

to her testimony, sometimes it happened during a bath and sometimes during a

shower. Demonstrating, she explained that his “wiener” would go in her mouth.

She also testified her father would be sitting down in the tub. And she testified he

told her to “[k]eep it a secret.” If she told, she was afraid she would get in trouble.

The State also called Haskin, the CPC interviewer, as a witness. She

explained her interview methodology and gave general information about delayed

10 Both children used the word “pee pee” to refer to female genitals.
22

disclosure and other common aspects of child sexual abuse. On cross-

examination, she agreed that Sunnie had explained her concerns before the

interview. Haskin also responded to criticism that she “skew[ed] the interview” by

repeating certain words. She explained she embraces the terms the child uses

and asks follow-up questions. She denied defense allegations that her interview

technique was suggestive.

The jury also heard testimony from the children’s therapist, Jill Bryant.11

The psychologist detailed her intake procedure, agreeing that she was aware there

were allegations of sexual abuse. She testified she and Sunnie held those initial

conversations outside the presence of the children. She explained the process of

play therapy and what she discussed with the children. She described the rapport

she built with both children. But Dr. Bryant did not give extensive testimony about

what, if anything, the children told her during their therapy sessions.

The defense called rebuttal witness Dr. Jacobs. She testified based on her

professional experience that false memories can occur in therapeutic settings.

And she discussed the suggestibility of children. She opined that the CPC

interview was flawed in terms of Haskin’s interviewing technique. Jacobs criticized

Haskin for bringing the children’s attention to particular terms and making them

more salient through repetition. In Jacobs’s view, the children were unreliable

reporters.

The defense also called Shelley Drahos, the childcare provider. She

testified to Sunnie’s report that C.M. said something sexually inappropriate at

11 Dr. Bryant was no longer their therapist by the time of trial.
23

home that he had heard at her daycare. Drahos agreed to pay closer attention to

the children’s conversations. After the accusations against Mall came out, Drahos

recalled someone from the DHS contacting her. But that person only spoke with

her for about five minutes about Sunnie’s report. They did not contact her again.

Taking the stand in his own defense, Mall denied the sex acts the children

reported. He believed, “This is two kids talking. This is something they saw or

heard . . . we’ll find out it was all just hearsay, talk, or whatever.”

On appeal, Mall does not focus on any specific elements of the six offenses

that he believes the State did not prove. Instead, he urges a general denial of the

children’s version of events. Mall argues there were too many inconsistences in

the children’s testimony for a reasonable fact finder to find him guilty.12 But the

jury is free to credit or reject testimony as it sees fit. See State v. Musser, 721

N.W.2d 758, 761 (Iowa 2006). Under that proposition, the jury could have

discounted Jacobs’s criticism of the CPC interview. It could have also rejected

Mall’s suggestion that Sunnie and Bryant unduly influenced the children into

making false accusations. And despite discrepancies between their CPC

interviews and trial testimony, the jury could have believed the core of the

children’s allegations.

12 Mall asserts the children gave “hopelessly inconsistent and confusing”
testimony, but identifies only a few relatively minor inconsistencies. For example,
unlike his CPC interview, C.M. testified at trial that the first person to talk to him
about “sucking wieners” was Mall. That testimony contradicted C.M.’s 2019 story
about another child at daycare. Mall also pointed out that E.M. testified she and
C.M. were together while she was “sucking her dad’s wiener”—which differed from
C.M.’s testimony. And E.M. testified her father was sitting in the bathtub, which
Mall asserts is “physically impossible, given the dimensions of the bathtub.”
24

Mall also complains that the State failed to adequately investigate the

daycare as the source of the twin’s exposure to sexual matters.13 But contrary to

Mall’s complaint, substantial evidence cases do not place an affirmative duty on

the prosecution to “rule out every hypothesis” other than guilt. See State v.

Bentley, 757 N.W.2d 257, 262 (Iowa 2008). As it happened, the jurors heard

Sunnie’s recollection of the children saying in 2019 that a playmate at daycare had

exposed “his wiener” to the other children. They heard the twins’ later denials or

lack of memory of that incident. Again, the jurors were free to use that information

in assessing the credibility of the children’s allegations against Mall.

The same is true for Mall’s concern that law enforcement did not check his

cell phone or computer browser history for images that would “corroborate” his

interest in child pornography. Defense counsel cross-examined Chief Hudson on

this point: “So if a person is arrested and charged with six separate alleged crimes

of child abuse, are you telling this jury that would not offer you any probable cause

to obtain a warrant to check phones and computers?” Hudson responded:

Maybe a more seasoned sex crimes investigator, not a police chief
that handles all kinds of different things. I didn’t feel at the time I had
probable cause. There was nothing alleged by the alleged victims in
this case that cell phones were used or cameras were used or that
any type of pornography was shown to them or anything; so I didn't
consider it.

The State was not required to offer that kind of “corroborating” evidence to

prove the sex crimes charged. The testimony of the alleged victims was enough.

13 Mall testified that when Sunnie confronted him with the children’s allegations his

thoughts went to what C.M. had said “six months prior from the daycare. So, in
my mind, I automatically started connecting the dots to that as kind of the only
viable option.”
25

See Iowa R. Crim. P. 2.21(3); see also State v. Hildreth, 582 N.W.2d 167, 170

(Iowa 1998) (holding that testimony of alleged rape victim was “by itself sufficient

to constitute substantial evidence of defendant’s guilt”). The children’s testimony

was generally consistent with their CPC interviews—their father had them perform

sex acts on him in the shower or bath. And in C.M.’s case, allow Mall to perform

sex acts on him. Those sex acts included the children fondling or touching Mall’s

genitals with their hands, putting his penis in their mouths, and putting C.M.’s penis

into Mall’s mouth. See Iowa Code § 702.17 (defining sex acts).

What’s more, both children testified their father told them not to tell their

mother. They expressed fear about telling anyone what was happening, believing

they would get in trouble. The jury could reasonably conclude Mall instructed the

twins not to tell because the acts were performed with the specific intent of

arousing or satisfying his sexual desires. Taken together with all reasonable

inferences and in the light most favorable to the State, we conclude there is

substantial evidence to support the jury’s verdicts. See State v. Mathis, 971

N.W.2d 514, 518 (Iowa 2022) (reinforcing “deference to the jury’s resolution of

disputed factual issues”).

F. Trial Delay

Mall also challenges the district court’s denial of his motion for mistrial after

a mid-trial delay for two unrelated medical emergencies. On the second day of

trial, Sunnie took the witness stand, followed by the children, C.M. and E.M. The

trial recessed at just after 5:00 p.m. Only then: bad luck. First, the county

attorney’s mother suffered a stroke, causing him to ask for a one-day recess.

Second, that delay was extended by another half-day when the judge’s son
26

underwent emergency surgery. Mall asserts he was prejudiced by these delays

because they came just after the twins’ testimony, leaving “this jury out with the

last words in their ears [being from] the two children.”

Before addressing the merits, we consider the State’s error-preservation

challenge. The State agrees that Mall timely moved for a mistrial based on the

first delay. But not so on the second one—waiting for two days after the extended

recess to renew his motion for mistrial. As the State points out, a party seeking a

mistrial must do so when the grounds first become apparent. See State v. Gibb,

303 N.W.2d 673, 678 (Iowa 1981).

During oral arguments, Mall’s counsel offered no reason for not renewing

his mistrial motion before the trial resumed on the afternoon of day four.14 Instead,

counsel asserted that the original motion covered both delays. The record does

not support that assertion. In fact, the court told Mall that if the delay went beyond

a day, he could renew his motion. Yet we choose to bypass error preservation

and consider the impact of both delays. See State v. Taylor, 596 N.W.2d 55, 56

(Iowa 1999) (opting to overlook “serious preservation-of-error problems and affirm

on the merits”).

We review mistrial motions for an abuse of discretion. State v. Wade, 467

N.W.2d 283, 285 (Iowa 1991). While district courts have broad leeway in ruling on

these motions, abuse of discretion may be shown when the record lacks support

14 The impetus for the second mistrial motion was Dr. Bryant’s vouching testimony.

Mall asked counsel to “incorporate the prior motion for mistrial on the delay issues
again.” The court responded: “the motion is still denied.”
27

or logic for the determination made. State v. Hunt, 801 N.W.2d 366, 373 (Iowa Ct.

App. 2011).

Mall believes the court abused its discretion because the trial recess

followed the children’s testimony. He describes their testimony as “emotional

evidence” that marked “the pinnacle of the State’s case.” He contends he was

prejudiced by the jury having an extra day and one-half to ponder “those words

and images” invoked by the twins’ testimony. Mall adds that the delay extended

the trial past the expected five days, causing the jurors to feel rushed in their

deliberation.

The State responds that the delay was not unreasonable given the level of

preparation by both sides, and such emergencies are not unheard-of during trial.

The State also argues that the jury admonition was appropriate.15 As for the

prejudice claimed by Mall, the State contends it would be speculation to assume

what the jurors thought of the children’s testimony.

Granting a mistrial is proper when an impartial verdict could not have been

reached due to “obvious procedural error.” State v. Newell, 710 N.W.2d 6, 32

(Iowa 2006). But even in the face of error, a jury admonition may suffice to “deal

with the problem.” State v. Hamilton, 335 N.W.2d 154, 161 (Iowa 1983).

To set the scene, the county attorney—who was trying the case alone—

emailed the court around midnight (after the second day of trial) to let the judge

15 Following the decision to take the one-day recess, both parties discussed and

agreed to an instruction to the jury that, generally, the delay was “unforeseen” and
“not the fault of either parties.” When the trial resumed the next day, the judge
provided an explanation to the jury about the cause of the late start, explaining his
son’s medical emergency and that the delay was not the fault of either party.
28

know that his mother was rushed to intensive care at University Hospitals in Iowa

City after suffering a major stroke. The next morning, the county attorney called

into a hearing asking for a one-day recess: “If I could have one day, I can be back

in the saddle, so to speak, tomorrow. I don’t think I’m in good enough shape to do

it today on a half-hour sleep if that makes sense.” Defense counsel was

sympathetic to the prosecutor’s situation, but on behalf of his client resisted the

recess. The court granted the county attorney’s request, reasoning: “[W]e don’t

know what the jury thought about the testimony of the children. We don’t know

that there’s any prejudice simply by a one-day recess.” The court then denied

Mall’s motion for a mistrial on the same rationale.

We find the district court’s ruling was reasonable under the circumstances.

See State v. Brewer, 247 N.W.2d 205, 211 (Iowa 1976) (noting that discretion to

rule on a mistrial motion “presupposes the trial court has a choice to determine

between competing considerations”). As the court found, Mall cannot substantiate

his conjecture that his case was prejudiced by the jury having extra time to mull

the children’s testimony.16 Nothing indicates how the jury processed that evidence.

Our calculus is the same for the second delay. Mall cannot show he was

prejudiced by an extra half-day recess based on the judge’s family emergency. As

the court noted, trial breaks are not uncommon as, for example, when courts

adjourn for the weekend. Delays, both expected and unexpected, are not cause

for a mistrial unless they influence the jury’s verdict. See United States v. Horne,

16 In fact, on appeal, Mall calls their testimony “hopelessly confusing and
contradictory.” If that were true, the delay would not have harmed his defense.
29

755 F.2d 691, 692 (8th Cir. 1985) (denying motion for mistrial after court took an

early recess due to a sick juror).

One last point. The admonition—agreed to by the parties—served to dispel

any doubt that the jurors may have had about the cause of the delays. We

recognize such admonitions as an appropriate response to possible prejudice.

Brotherton, 384 N.W.2d, at 381. For these reasons, Mall is not entitled to a new

trial based on the day and a half delay.

G. Cumulative Error

Finally, Mall asserts that the cumulative effect of the trial errors warrants

relief. See State v. Carey, 165 N.W.2d 27, 36 (Iowa 1969). When we “find merit

in each of defendant’s assigned errors” but “none alone is sufficient to require a

new trial,” we may determine “the cumulative effect has been to deprive the

defendant of a fair trial.” Id. Because we have found no merit in any of Mall’s

appeal claims, we find no accumulation of error has deprived him of a fair trial.

AFFIRMED.