In the Interest of C.W., Minor Child, C.W.

IN THE COURT OF APPEALS OF IOWA

No. 16-1677
Filed November 8, 2017

IN THE INTEREST OF C.W.,
Minor Child,

C.W.,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Floyd County, Karen Kaufman

Salic, District Associate Judge.

The child appeals the juvenile court’s order adjudicating him delinquent for

sexual abuse in the second degree. REVERSED AND REMANDED.

Judith O’Donohoe of Elwood, O’Donohoe, Braun, White, L.L.P., Charles

City, for appellant.

Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee.

Heard by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
2

POTTERFIELD, Judge.

The child appeals the juvenile court’s order adjudicating him delinquent for

sexual abuse in the second degree. The child claims: (1) the State failed to

prove a sexual act occurred, (2) counsel was ineffective for failing to object to

leading questions, (3) counsel was ineffective for failing to object to hearsay

testimony, (4) counsel was ineffective for failing to object to prior-acts evidence,

(5) counsel was ineffective for failing to object to impermissible vouching

testimony, (6) counsel was ineffective for failing to object to lack of foundation,

(7) counsel was ineffective for failing to argue the statute was unconstitutionally

vague, and (8) counsel was ineffective for failing to argue the statute violated

C.W.’s equal protection and due process rights. Because counsel elicited

vouching testimony from State’s witnesses, which prejudiced the juvenile, we

reverse and remand for a new trial.

I. Background Facts and Proceedings.

On February 18, 2016, the State filed a petition for delinquency against

C.W., claiming he sexually abused E.W., in violation of Iowa Code sections 709.1

and 709.3 (2016). C.W. denied the allegations in the State’s petition.

On May 9, an adjudicatory hearing took place. Testimony revealed the

following facts related to the State’s petition alleging delinquent acts. E.W. and

her siblings attended daycare at C.W.’s parents’ home in 2014. At the time, E.W.

was nine years old. On one occasion, C.W. and E.W. were sitting on the couch

watching television. E.W.’s siblings were sitting in between them but eventually

moved to the floor. C.W. moved to E.W.’s side of the couch and touched her

buttocks with his hand.
3

On a separate occasion, E.W., E.W.’s sibling, and C.W. were sitting on a

bed in C.W.’s room playing a game. C.W. was at the head of the bed, and E.W.

was sitting near the foot of the bed. C.W. moved to E.W.’s location and touched

E.W.’s buttocks and vagina with his hand.

Approximately one year later, following a Take Charge of Your Body

presentation, E.W. reported to a teacher that C.W. touched her and her siblings

on the vagina—although E.W. later testified that she was the only one touched

by C.W. The teacher testified about E.W.’s demeanor during her reporting of the

events, stating “[E.W.] was calm but she was also pretty quiet, I guess, she just

seemed . . . down a little bit, not her perky self.” The teacher reported the event

to the school counselor per school procedures.

The school counselor testified E.W. told the counselor that C.W. had

touched E.W.’s vagina. She initially reported to the counselor that the touching

was underneath her clothes—although E.W. later testified the touching was over

the clothes. The counselor stated E.W. was “nervous, uneasy . . . and not sure

of what was going to happen.” The counselor reported the events to the Iowa

Department of Human Services (DHS) and E.W.’s parents.

The school counselor also testified about her experience with children

reporting sexual abuse. She stated that children do not always understand

certain types of touching are inappropriate. It is common for children to report an

event after they see the Take Charge of Your Body presentation, and “several

different students,” including E.W., made a disclosure after the March

presentation. In response to cross-examination by C.W.s counsel, the counselor

stated she is not aware that any children with whom she has worked in her
4

twenty-seven years of experience have made false allegations about sexual

abuse. The counselor testified regarding her experience and knowledge about

circumstances underlying false reports of sexual abuse among children in

general, explaining those circumstances did not apply to E.W. She stated:

I suppose there would be getting attention. In this kind of an
instance, if I had had several kids come talk to me so they would
see that it was a time to get attention, but that wasn’t what
happened. This was like the first child out of the classroom that
had come and talked to me so it wasn’t—I mean, she sees me for
small groups, it wasn’t like she was searching for my attention so.

The forensic interviewer testified about her interview of E.W., which the

law enforcement officer involved in the investigation observed. She stated E.W.

was “matter-of-fact” during the interview. She testified about reasons a child

might delay a truthful report and her experience with children minimizing the

events based on their relationship with the person asking about the event.

E.W. testified at the adjudicatory hearing about two incidents with C.W.

She was first asked about an uncharged encounter, not specified as to date.

The following testimony occurred during direct examination:

Q. And what do you remember happening when you were in
the room? A. We were just sitting down watching TV.
Q. And who was in the room with you besides your
sisters? A. [C.W.].
Q. Where were you sitting in the room? A. On the couch.
Q. And where was [C.W.] at? A. On the couch.
...
Q. So your sisters moved away from sitting by you? A.
Yeah.
Q. Then what happened? A. He touched me, like, he
scooted over and he touched me.
Q. And did he say anything to you? A. No.
Q. Where is it that he touched you? A. My butt.

Then, E.W. testified about the charged incident during direct examination:
5

Q. What happened while you were in his bedroom? A. We
were just playing a game.
Q. Do you remember what game you were playing? A. No.
Q. And what happened that made you uncomfortable? A.
He touched me again.
Q. And where were you at or sitting when that happened?
A. At the end of the bed.
Q. And so did he move closer to you? A. Uh-huh.
Q. And where did he touch you? A. My butt and my vagina.

A DHS social worker was called by C.W. to testify about her report of child-abuse

allegations based on E.W.’s report to DHS. The social worker was specifically

asked about E.W.’s report that C.W. also touched E.W.’s sibling and C.W.’s

sibling. Defense counsel also questioned the social worker about false reports.

C.W. was interviewed by the social worker and the law enforcement officer and

consistently denied touching E.W.

In its order finding C.W. committed the delinquent act, the juvenile court

noted it considered the separate incident where C.W. touched E.W.’s buttocks

while watching television “only for purposes of intent, motive, plan, and lack of

accident.” The juvenile court explained it was not considering the testimony as

impermissible prior-acts evidence under Iowa Rule of Evidence 5.404(b). The

juvenile court also addressed E.W.’s credibility:

In assessing credibility, the finder of fact must consider if the
witness’s testimony is reasonable and consistent with other
evidence believed by the factfinder, whether a witness has made
inconsistent statements, the witness’s appearance, conduct, age,
intelligence, memory and knowledge of the facts, and the witness’s
interest in the trial, their motive, candor, bias and prejudice.
E.W. is now 11 years old. At the time of the incident, she
was 9, and routinely in the care of [C.W.]’s mother five days a
week. There was an approximate one-year delay in E.W. making
her disclosure. As [the social worker] and [the counselor]
6

testified,[1] delay in reporting of sexual abuse may occur because a
child is told not to tell, the child may not be ready to talk about what
happened right after the event, the child is worried they won’t be
believed or be supported, the child may think it is their fault, the
child may fear they will be in trouble, or the child simply didn’t know
that what happened was wrong. The Court finds that the delay in
disclosure does not weigh against E.W.’s credibility, and in many
ways supports it.

The court wrote the varied details about whether E.W.’s siblings were involved

and whether the touching was over or under the clothes did not weigh against

E.W.’s credibility. The court also found the counselor “has not had a child make

false allegations of sexual touching” in the counselor’s twenty-seven years of

experience working with children and sexual abuse.

At disposition, the court ordered C.W. to be placed in the custody of his

parents for placement in their home and placed him on probation. C.W. appeals.

II. Standard of Review.

“Delinquency proceedings are special proceedings that serve as an

alternative to the criminal prosecution of a child.” In re A.K., 825 N.W.2d 46, 49

(Iowa 2013). We review delinquency proceedings de novo. Id. at 49–52. We

review issues both legal and factual questions under this standard. In re D.L.C.,

464 N.W.2d 881, 882 (Iowa 1991). Though we are not bound by them, we give

weight to the factual findings of the juvenile court, especially regarding the

credibility of witnesses. A.K., 825 N.W.2d at 49. Affirming the standard of de

novo review, our supreme court stated: “We note that de novo review of the

evidence may promote efficiency when there is an evidentiary error below

1
This social worker did not testify about delay in reporting, but the forensic interviewer
did testify to the list of possible reasons for delayed reporting adopted by the district
court in its adjudicatory ruling.
7

because we can review the evidence anew, without consider the inadmissible

evidence, to determine whether the State has proven the child committed the

acts beyond a reasonable doubt.” Id. at 51. We presume C.W. to be innocent,

and the State has the burden of proving beyond a reasonable doubt that he

committed the delinquent acts. Id. We review ineffective-assistance-of-counsel

claims de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).

III. Discussion.

A. Ineffective Assistance of Counsel.

C.W. claims counsel was ineffective for failing to object during E.W.’s

testimony to leading questions, testimony about another incident between C.W.

and E.W., and hearsay testimony. C.W. also claims counsel was ineffective for

allowing an expert witness to vouch for E.W. Finally, C.W. claims counsel was

ineffective for failing to challenge the criminal statute as unconstitutionally broad

and violating C.W.’s due process and equal protection rights. Because we find

counsel was ineffective for eliciting prejudicial testimony about the likelihood

E.W. made a false report, we do not reach the other claims of ineffective

assistance of counsel.

Children are entitled to effective assistance of counsel during juvenile

court proceedings. See Iowa Code § 232.11(1)(d), (f); In re M.L., 868 N.W.2d

456, 460 (Iowa Ct. App. 2015). Although juvenile proceedings are civil not

criminal, the Strickland test for ineffective assistance of counsel applies. See

M.L., 868 N.W.2d at 460; see also Strickland v. Washington, 466 U.S. 668, 687

(1984).
8

To prove a claim of ineffective assistance of counsel, C.W. must

demonstrate by a preponderance of the evidence that (1) counsel failed to

perform an essential duty and (2) C.W. suffered prejudice as a result. See State

v. Morgan, 877 N.W.2d 133, 136 (Iowa Ct. App. 2016). The claim fails if either

prong is not proved. Id. When a juvenile chooses to raise an ineffective-

assistance-of-counsel claim on direct appeal, we may either determine the record

is adequate and decide the claim or find the record is inadequate and remand the

proceedings for further development of the record. See Iowa R. App. P. 6.1004;

see also In re T.R., No. 07–1777, 2008 WL 4569896, at *1 (Iowa Ct. App. Oct.

15, 2008) (noting that limited remand to the juvenile court is an available

outcome if the record were insufficient to rule on the merits of the ineffective-

assistance claim on appeal); In re G.G., No. 04–0933, 2005 WL 2989681, at *1–

2 (Iowa Ct. App. Nov. 9, 2005) (describing the juvenile court proceedings

concerning the appellant’s ineffective-assistance claim on limited remand prior to

appeal). We find the record is adequate to address the claim of ineffective

assistance of counsel for eliciting vouching testimony here.

To prove the first prong of this claim, C.W. must show counsel’s

performance fell outside the normal range of competency. See Straw, 709 at

133. Starting “with the presumption that the attorney performed his duties in a

competent manner,” “we measure counsel’s performance against the standard of

a reasonably competent practitioner.” State v. Maxwell, 743 N.W.2d 185, 195

195–96 (Iowa 2008). Although counsel is not required to predict changes in the

law, counsel must “exercise reasonable diligence in deciding whether an issue is

‘worth raising.’” State v. Westeen, 591 N.W.2d 203, 210 (Iowa 1999) (quoting
9

State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982)). In accord with these

principles, we have held that counsel has no duty to raise an issue that has no

merit. State v. Schaer, 757 N.W.2d 630, 637 (Iowa 2008); State v. Bearse, 748

N.W.2d 211, 215 (Iowa 2008) (“Counsel cannot fail to perform an essential duty

by merely failing to make a meritless objection.”).

Under the second prong, “prejudice is shown when it is ‘reasonably

probable that the result of the proceeding would have been different.’” Schaer,

757 N.W.2d at 638 (quoting State v. Henderson, 537 N.W.2d 763, 765 (Iowa

1995)). When analyzing the prejudicial effect of several allegations of ineffective

assistance of counsel, we “look to the cumulative effect of counsel’s errors to

determine whether the [appellant] satisfied the prejudice prong of the Strickland

test.” State v. Clay, 824 N.W.2d 488, 500 (Iowa 2012).

C.W. claims portions of the experts’ opinions amounted to vouching for

E.W.’s credibility.2 Specifically, C.W. argues trial counsel should not have elicited

the counselor’s testimony regarding the counselor’s experience with false

reporting of sexual abuse by children. The State argues the expert opinions

were proper.

A witness may not directly or indirectly opine on the credibility of another

witness. See State v. Dudley, 856 N.W.2d 668, 676 (Iowa 2014). Iowa courts

“are generally committed to a liberal rule which allows opinion testimony if it will

aid the jury in screening the properly admitted evidence to ascertain the truth.”

2
Insofar as C.W. argues the testimony was irrelevant, C.W. does not develop the test for
irrelevant material or cite applicable authority. Failure to argue and cite authority waives
the appeal. Iowa R. App. P. 6.903(2)(g)(3). We decline to consider the claim of
irrelevance.
10

State v. Myers, 382 N.W.2d 91, 93 (Iowa 1986). However, this liberal rule does

not extend to opinion testimony that vouches for or bolsters the credibility of

another witness. See, e.g., Dudley, 856 N.W.2d at 676 (“We see no reason to

overturn this well-settled Iowa law prohibiting an expert witness from commenting

on the credibility of a victim in a criminal sex abuse proceeding.”); see also Iowa

R. Evid. 5.701 (limiting the opinion testimony of a lay witness). “Our system of

justice vests the [factfinder] with the function of evaluating a witness’s credibility.”

Dudley, 856 N.W.2d at 677 (citing State v. Hulbert, 481 N.W.2d 329, 332 (Iowa

1992)). “[V]eracity is not a ‘fact in issue’ subject to expert opinion.” Hulbert, 481

N.W.2d at 332.

C.W. argues that under State v. Pitsenbarger, opinions regarding the

truthfulness of child abuse reports are inadmissible. No. 14-0060, 2015 WL

1815989, at *7 (Iowa Ct. App. Apr. 22, 2015). In Pitsenbarger, the expert witness

stated five percent of abuse allegations are proven to be false and the “false

allegations within that 5 percent are shown to be in divorce or custody situations

where one parent might be coaching the other child.” Id. at *6. A panel of our

court held, “[The expert witness’s] testimony that only five percent of children lie

about sexual abuse and then usually only after coaching by an adult constitutes

indirect vouching for T.P.’s credibility.” Id. at *7.

Here, the counselor testified that she has worked with the school district

for twenty-seven years. During cross-examination by C.W.’s counsel, the

counselor was asked to describe her experience with false reporting by a child:

Q. In your experience, are there reasons why a child may
make up an allegation? A. I suppose there would be. I don’t know
that I’ve had a child talk to me about it and really not had it be true.
11

Q. Okay. A. So not that I’ve been told by a child, you know.
Q. Okay. What sort of things do you feel could be reasons
for a child making up an allegation?

(Emphasis added.) The State objected, claiming the questions were “outside this

witness’s knowledge base.” C.W.’s counsel clarified that the question was not

meant to cause the counselor to “speculate into the specific instances” and the

question was asked in general if “there is a reason why a child may make up an

allegation like this.” The court allowed the question and answer to proceed,

stating, “I don’t know that it’s relevant, but I’m going to take it at least as an offer

of proof and we’ll see where we come out with that.” The counselor answered,

stating:

I suppose there would be getting attention. In this kind of an
instance, if I had had several kids come talk to me so they would
see that it was a time to get attention, but that wasn’t what
happened. This was like the first child out of the classroom that
had come and talked to me so it wasn’t—I mean, she sees me for
small groups, it wasn’t like she was searching for my attention so.

(Emphasis added.)

Like in Pitsenbarger, the counselor testified to the likelihood of E.W.’s

truthfulness and the unlikelihood of E.W.’s attempt to report the abuse for

attention-seeking reasons. These statements are probative of E.W.’s credibility.

C.W.’s counsel followed an apparent trial strategy of challenging E.W.’s

inconsistent testimony by failing to object to the testimony of the State’s

witnesses describing E.W.’s out-of-court statements, which alleged other children

were also touched by C.W. and that the touching was under the clothes, skin to

skin. The questions to the counselor about false reporting “in general” do not

appear to be part of that trial strategy and resulted in testimony damaging to
12

C.W. Counsel’s questioning of the counselor about reasons a child might make

up an allegation led to a direct comment on the child’s credibility: “I don’t know

that I’ve had a child talk to me about it and really not had it be true.” The

comment was more egregious than the comments found to be impermissible in

recent Iowa Supreme Court precedent. See State v. Brown, 856 N.W.2d 685,

688-89 (Iowa 2014) (concluding the sentence, “This examiner agrees this

disclosure is significant and that an investigation is clearly warranted,” indirectly

conveyed to the jury that the child was telling the truth and “crossed the line and

vouched for [the child’s] credibility”); State v. Jaquez, 856 N.W.2d 663, 665 (Iowa

2014) (“By opining [the child’s] demeanor was ‘completely consistent with a child

who has been traumatized, particularly multiple times,’ [the witness] was

vouching for the credibility of the child.”). Counsel’s questioning to elicit the

vouching testimony was a breach of duty to represent C.W. effectively.

We turn to the prejudice prong of the ineffective-assistance-of-counsel

test. In sex-abuse cases where the State’s case rests on a witness’s credibility,

improper vouching is prejudicial. See, e.g., State v. Tjernagel, No. 15-1519,

2017 WL 108291, at *8 (Iowa Ct. App. Jan. 11, 2017) (finding prejudice where

“the State’s case . . . rested entirely on the credibility of the witnesses[,] . . .

[t]here was no physical evidence of the alleged abuse and no witnesses other

than the complaining witness,” and “the expert witnesses’ vouching testimony

here ‘was pervasive—not just a single statement’” (citation omitted));

Pitsenbarger, 2015 WL 1815989, at *10 (concluding “the result may have been

different if proper objections had been made to exclude the improper testimony”

because “the State’s case . . . rested entirely on the credibility of the witnesses”).
13

Here the State’s case was supported only by E.W.’s testimony, and her credibility

was at issue. Like in Pitsenbarger, the counselor’s statement was a general

conclusion about the truthfulness of children where the complaining witness’s

credibility was the fighting issue between the State and C.W. Here, the

counselor went on to say children might lie to gain attention but that E.W. was

not seeking attention, connecting her general testimony that children do not lie to

E.W.

Moreover, the error was important to the juvenile court’s finding of

delinquency. While the State argues the testimony was not prejudicial to C.W.,

the court acting as factfinder cited the counselor’s testimony twice in its

adjudicatory order. The court found, “In her 27 years in her position [the

counselor] has not had a child make false allegations of sexual touching.” Later

in its order, the juvenile court discussed the facts supporting E.W.’s credibility,

noting, “[The counselor] also testified that she’s never had a student made [sic]

allegations similar to E.W.’s, and since she had counseled students at E.W.’s

school for 27 years, it is unlikely any allegations are swirling around without her

knowledge.” The demonstration of prejudice to C.W. is strong. The State relied

on the credibility of E.W.’s testimony, and the juvenile court utilized the

counselor’s statement about false reporting to reach its determination that E.W.

was credible and C.W. was delinquent. But see State v. Prince, No. 16-1455,

2017 WL 3525152, at *2 (Iowa Ct. App. Aug. 16, 2017) (holding improper

vouching testimony was not prejudicial where the court did not rely on the

statement in making its determination of guilt). Based on the court’s reliance on

the improper testimony regarding E.W.’s credibility, there is a reasonable
14

probability the outcome of the adjudication would have been different. The

counselor’s improper vouching testimony prejudiced C.W.

B. Sufficiency of the Evidence.

C.W. claims the court erred in overruling his motion for judgment of

acquittal because the State failed to prove the charged crime. Specifically, C.W.

argues there was not enough evidence to demonstrate the sexual nature of the

touch or to prove a sexual act occurred. C.W. also claims E.W.’s testimony was

inconsistent and not credible.3 The State argues there is sufficient evidence to

support the charge of sexual abuse in the second degree because circumstances

surrounding the incident illustrate the sexual nature of the touch.

Juveniles charged with crimes are presumed innocent. “The State has the

burden of proving beyond a reasonable doubt that the juvenile committed the

delinquent act.” In re D.S., 856 N.W.2d 348, 351-52 (Iowa 2014). Appellate

review of delinquency adjudications requires heightened review for policy

reasons. “Neither statutory nor constitutional provisions guarantee juveniles the

right to a jury trial. This important distinction between adult and juvenile

proceedings favors a more in-depth appellate review of the facts supporting and

opposing an adjudication.” A.K., 825 N.W.2d at 51 (citations omitted.) “[T]he

lack of a right to jury trial renders juvenile proceedings especially vulnerable to

inaccurate fact finding and unfair resolutions because they are presided over by

a single judge.” Id. “We therefore cannot rubber stamp what has come before;

it is our task to ensure the State has come forth with the quantum and quality of

3
C.W. also argues the State failed to prove his age. The age of the alleged perpetrator
is not an element of the charged offense.
15

evidence necessary to prove each of the elements of its case.” In re R.M., No.

17-0174, 2017 WL 1278382, at *1 (Iowa Ct. App. Apr. 5, 2017).

The State charged C.W. with sexual abuse in the second degree, a

delinquent act.4 See Iowa Code §§ 232.2(12), 709.1, 709.3. To prove sexual

abuse in the second degree, the State must show C.W. (1) performed a sex act

with the victim; and (2) the victim was under the age of twelve at the time of the

sex act. Id. § 709.3(1)(b). A “sex act” includes “[c]ontact between the finger or

hand of one person and the genitalia or anus of another person.” Id. § 702.17.

The act must be sexual in nature, which “can be determined by the type of

contact and the circumstance surrounding it.” State v. Pearson, 514 N.W.2d 452,

455 (Iowa 1994). The circumstances considered would plainly include contact

“made to arouse or satisfy the sexual desires of the defendant or the victim.” Id.

For example, evidence showing a defendant “rubbed the victim’s genitalia,

placed the victim’s hand on the defendant’s genital and ejaculated” establishes

the sexual nature of the contact. See State v. Phipps, 442 N.W.2d 611, 612

(Iowa Ct. App. 1989); see also State v. Thede, No. 15-0751, 2016 WL 5930417,

at *4 (Iowa Ct. App. Oct. 12, 2016) (finding defendant making lustful comments,

providing of alcohol to the victim, purchasing lingerie and sex toys for the victim,

and discussing the victim’s sex life contributed to the sexual nature of the

contact).

In determining the sexual nature of the contact

4
“‘Delinquent act’ means: The violation of any state law or local ordinance which would
constitute a public offense if committed by an adult except any offense which by law is
exempted from the jurisdiction of this chapter.” Iowa Code § 232.2(12).
16

[o]ther relevant circumstances include but are not limited to the
relationship between the defendant and the victim; whether anyone
else was present; the length of the contact; the purposefulness of
the contact; whether there was a legitimate, nonsexual purpose for
the contact; where and when the contact took place; and the
conduct of the defendant and victim before and after the contact.

Pearson, 514 N.W.2d at 455. Contact that is incidental and nonsexual in nature

is not a sex act. See, e.g., id. (“[T]he contact between an adult and a child

bouncing on his or her lap would not be sexual in nature unless the

circumstances surrounding it suggested it was.”). The lack of an obvious sexual

motivation, however, does not preclude a finding of sexual abuse if the overall

context reveals a lascivious nature underlying the contact. See State v. Howard,

825 N.W.2d 32, 44 (Iowa 2012). Nor does the “lack of skin-to-skin contact alone

. . . as a matter of law, put defendant’s conduct outside the definition of ‘sex act.’”

Phipps, 442 N.W.2d at 613.

On our de novo review, we do not consider the inadmissible vouching

testimony described in Part A of our discussion. A.K., 825 N.W.2d at 51.5 Even

without that erroneously admitted evidence, probative on the issue of the

credibility of E.W., we find sufficient evidence the touching was sexual in nature.

In doing so, we consider the evidence of the uncharged touching as revealing a

pattern of nonaccidental touching.

5
We recognize the evidentiary issue here was raised in the context of ineffective
assistance of counsel and differs from A.K. in that respect.
17

IV. Conclusion

Counsel was ineffective for eliciting testimony that vouched for the

credibility of the child witness, and the vouching prejudiced C.W. Because this

issue is dispositive, we do not consider the other claims of error.

REVERSED AND REMANDED FOR NEW TRIAL.

Vaitheswaran, P.J., concurs. McDonald, J., dissents.
18

MCDONALD, J. (dissenting)

I respectfully dissent for two reasons. First, remand for retrial is not the

correct disposition with respect to the vouching testimony; instead, this court

should review the sufficiency of the evidence excluding the inadmissible

evidence and either affirm the adjudication or reverse the adjudication on the

merits. Second, there is insufficient evidence in support of the adjudication.

Because there is insufficient evidence to support the adjudication, I would vacate

the judgment of the district court and remand this matter for dismissal of the

delinquency petition.

“Delinquency proceedings are ‘special proceedings that serve as an

alternative’ to the criminal prosecution of a child.” In re D.S., 856 N.W.2d 348,

351 (Iowa 2014) (citation omitted). “The primary goal of juvenile proceedings is

to further the best interests of the child—not to punish but instead to help and

educate the child.” In re A.K., 825 N.W.2d 46, 51 (Iowa 2013). “We presume the

child is innocent of the charges, and the State has the burden of proving beyond

a reasonable doubt that the juvenile committed the delinquent act.” Id. at 49; see

Iowa Code § 232.47(10) (2016).

Our review of delinquency adjudications is de novo. See A.K., 825

N.W.2d at 49. In conducting de novo review of delinquency adjudications, we

afford the juvenile court little to no deference. Indeed, appellate review of

delinquency adjudications requires heightened review for policy reasons.

“Neither statutory nor constitutional provisions guarantee juveniles the right to a

jury trial. This important distinction between adult and juvenile proceedings

favors a more in-depth appellate review of the facts supporting and opposing an
19

adjudication.” Id. at 51 (citations omitted). “[T]he lack of a right to jury trial

renders juvenile proceedings especially vulnerable to inaccurate fact finding and

unfair resolutions because they are presided over by a single judge.” Id. “We

therefore cannot rubber stamp what has come before; it is our task to ensure the

State has come forth with the quantum and quality of evidence necessary to

prove each of the elements of its case.” In re R.M., No. 17-0174, 2017 WL

1278382, at *1 (Iowa Ct. App. Apr. 5, 2017).

Here, the State was required to prove C.W. (1) performed a sex act with

the victim; and (2) the victim was under the age of twelve at the time of the sex

act. See Iowa Code §§ 232.2(12), 709.1, 709.3. As relevant here, a “sex act” is

defined as “[c]ontact between the finger or hand of one person and the genitalia

or anus of another person.” Iowa Code § 702.17(3). Mere physical contact

between the finger or hand of one person and the genitalia or anus of another

person is not enough. See, e.g., State v. Pearson, 514 N.W.2d 452, 455 (Iowa

1994) (“[T]he contact between an adult and a child bouncing on his or her lap

would not be sexual in nature unless the circumstances surrounding it suggested

it was.”). Instead, the State must prove beyond a reasonable doubt the act was

sexual in nature, which “can be determined by the type of contact and the

circumstances surrounding it.” Id. The circumstances considered would plainly

include contact “made to arouse or satisfy the sexual desires of the defendant or

the victim.” Id. For example, evidence showing a defendant “rubbed the victim’s

genitalia, placed the victim’s hand on the defendant’s genital and ejaculated”

establishes the sexual nature of the contact. Id. (citing State v. Phipps, 442

N.W.2d 611, 612 (Iowa Ct. App. 1989)); see also State v. Thede, No. 15-0751,
20

2016 WL 5930417, at *4 (Iowa Ct. App. Oct. 12, 2016) (finding defendant’s lustful

comments, providing alcohol to victim, purchasing lingerie and sex toys for the

victim, and discussing victim’s sex life contributed to the sexual nature of the

contact).

In reviewing the sufficiency of the evidence to support this delinquency

adjudication, the first step is to determine what evidence should be considered in

determining whether the State met its evidentiary burden. When the district court

commits evidentiary error in admitting certain evidence, the matter should not be

remanded for retrial. Instead, because our review is de novo, we are required to

review the evidence anew without considering the inadmissible evidence. See

A.K., 825 N.W.2d at 51 (“We note that de novo review of the evidence may

promote efficiency when there is an evidentiary error below because we can

review the evidence anew, without considering the inadmissible evidence, to

determine whether the State has proven the child committed the acts beyond a

reasonable doubt.”). When an evidentiary challenge is raised via an ineffective-

assistance claim due to the failure of counsel to preserve error on the evidentiary

challenge, as is the case here, the result should not be any different. I thus

disagree with the majority’s disposition of this case. The process for resolving an

ineffective-assistance-of-counsel claim in a delinquency proceeding is for limited

remand to the district court to create a record on the claim so it can then be

resolved on direct appeal. Here, the majority resolves the claim on direct appeal.

Limited remand is thus not necessary. Because the nature of the challenge was

a challenge to the admission of certain evidence, the remedy should be to
21

disregard the challenged evidence when reviewing the sufficiency of the

evidence rather than remand for retrial.

Regardless, I also dissent because there is insufficient evidence

supporting the adjudication. E.W. is not a credible witness. E.W. initially

reported a prior incident in which C.W. touched her breasts, butt, and vagina in

the basement of C.W.’s home. She reported he put his hands under her jeans

when he touched her vagina. At trial, when testifying about this prior incident,

she testified he touched her butt over her clothes and “that was it.” 6 With respect

to the offense conduct at issue, when E.W. first reported the alleged abuse, she

reported C.W. put his hand inside her pants and underpants and touched her

vagina. E.W. also reported C.W. did this to C.W.’s sister and E.W.’s two sisters.

6
C.W. claims his counsel was ineffective in failing to object to this evidence. “Evidence
of other crimes, wrongs, or acts is not admissible to prove the character of a person in
order to show that the person acted in conformity therewith.” Iowa R. Evid. 5.404(b).
The evidence “may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Id. “In determining whether to admit prior-bad-acts evidence, we rely on a
three-step analysis.” State v. Putman, 848 N.W.2d 1, 8 (Iowa 2014). “A court must first
determine whether the evidence is relevant to a legitimate, disputed factual issue.” Id. at
9. There also “must be clear proof the individual against whom the evidence is offered
committed the bad act or crime.” Id. “If the evidence is relevant to a legitimate and
disputed factual issue, and the clear-proof requirement is satisfied, the court must
determine whether the evidence’s ‘probative value is substantially outweighed by the
danger of unfair prejudice to the defendant.’” Id. (citation omitted).
The clear proof requirement was not satisfied in this case. “In assessing whether
clear proof of prior misconduct exists, the prior act need not be established beyond a
reasonable doubt, and corroboration is unnecessary.” Id. Many of our cases state the
clear proof requirement is satisfied upon the testimony of a victim regarding the prior act.
The statement is incomplete. Each of the cases originates with State v. Jones, 464
N.W.2d 241, 243 (Iowa 1990), in which the court stated a victim’s testimony about “prior
instances of sexual abuse” can satisfy the clear proof requirement if the testimony is
“sufficiency credible and detailed.” To hold otherwise would allow a not credible witness,
as is the case here, bolster her credibility by bootstrapping a prior alleged incident of
abuse to the offense conduct at issue. In any event, we need not resolve this challenge
because there is insufficient evidence supporting the adjudication even considering the
evidence.
22

The Iowa Department of Human Services immediately initiated a child protective

services investigation with respect to C.W.’s sister. C.W. adamantly denied the

conduct. C.W.’s sister adamantly denied any sexual contact, told the investigator

E.W. was always lying, and stated she hoped she would get to play with her

brother, C.W. E.W.’s sisters also denied any sexual contact. The allegation of

sexual abuse was not confirmed. At the time of trial, E.W.’s testimony was very

different from her initial report. She testified C.W. touched her butt and vagina

over her clothes and testified C.W. did not touch her sisters. The stark contrast

between E.W.’s first version of both events and her trial testimony regarding both

events casts great doubt on the entirety of her testimony.

Even assuming there was some sort of touch, the State simply failed to

come forth with the quantum and quality of evidence sufficient to prove the

elements of its case. This is the relevant testimony:

Q. What happened while you were in his bedroom? A. We
were just playing a game.
Q. Do you remember what game you were playing? A. No.
Q. And what happened that made you uncomfortable? A.
He touched me again.
Q. And where were you at or sitting when that happened?
A. At the end of the bed.
Q. And so did he move closer to you? A. Uh-huh.
Q. And where did he touch you? A. My butt and my vagina.
Q. And was that over your clothes or under your clothes? A.
Over.
Q. Did he say anything to you during that time? A. No.
Q. And where was your sister or what was she doing? A.
She was—She fell off the bed, but she was sitting at the end of it
and she fell off.
Q. And do you remember anything else about what
happened in that bedroom? A. No.
Q. And do you remember what time of year this happened in
2014? A. No.
Q. Is there any other instance that you remember that made
you feel uncomfortable? A. No.
23

On the relevant record, the State failed to prove beyond a reasonable

doubt that C.W. committed a sex act against E.W. Although E.W. testified C.W.

touched her “vagina,” it is clear C.W. did not touch E.W.’s vagina because E.W.

testified the touching occurred over her clothes. E.W.’s testimony is best

interpreted to mean C.W. touched her butt and her vaginal area or crotch over

her clothes. The distinction is important. Without much context, sexual purpose

can be readily inferred from touching the vagina. Without additional context,

sexual purpose cannot be readily inferred, if inferred at all, from touching the butt

or crotch over clothing.

There is no context from which we can conclude beyond a reasonable

doubt that C.W. touched E.W. with a sexual purpose. Relevant considerations

include

but are not limited to the relationship between the defendant and
the victim; whether anyone else was present; the length of the
contact; the purposefulness of the contact; whether there was a
legitimate, nonsexual purpose for the contact; where and when the
contact took place; and the conduct of the defendant and victim
before and after the contact.

Pearson, 514 N.W.2d at 455. In this case, the juvenile and the victim have no

relationship from which one could infer a sexual purpose. In this case, the victim

testified her sister was in the room next to her at the end of the bed at the time of

the touching. The presence of another person in the room immediately next to

the victim militates against an inference the touching was purposeful and sexual

in nature. In this case, there is no evidence regarding the length of the contact.

Did the alleged touch last for a half-second or several minutes? In the former

case, we could infer the touch was nonsexual. In the latter case, we could infer
24

the touch was sexual. The record provides no guidance. In this case, there is no

evidence regarding the nature of the contact from which we could infer sexual

purpose. Was it a rub, pinch, punch, or poke? The record is silent. In this case,

there is no evidence regarding the purposefulness of the contact. Was the touch

intentional or accidental? With three children playing a game on a bed or in a

bedroom, it is equally likely from the testimony received that the touch was

incidental as intentional. See id. at 457 (Carter, J., concurring in part and

dissenting in part) (“I believe that it is axiomatic that any time two persons are

moving about in close proximity to one another innocent contact may occur

between sexual parts.”). In this case, the record is silent on the conduct of the

juvenile and the victim after the alleged touching incident. We can infer nothing

from their conduct. In this case, the accused is a child with some mental

limitations. Generally, “it is not justified to impute the same intent into a child’s

action that one could reasonably impute into the actions of an adult.” In re

E.R.E., 614 N.E.2d 1367, 1369 (Ill. App. Ct. 1993). The absence of any evidence

regarding these factors is fatal to the State’s case.

The State implicitly has acknowledged the paucity of the evidence in

support of the adjudication. During oral argument, the State contended once the

victim testified she was touched, it was then the defendant’s burden to provide an

innocent explanation. I respectfully disagree. While the State certainly cannot

be expected to introduce evidence to negate any and every possible nonsexual

explanation for the touch, it cannot shift its burden of coming forth with the

quantum and quality of evidence sufficient to prove beyond a reasonable doubt

that a sex act occurred. Where the sexual nature of the act is not apparent, this
25

will require the State to introduce into evidence sufficient contextual detail from

which such an inference can inescapably be drawn. It failed to do so here. See

id. (reversing delinquency adjudication of criminal sexual abuse where “there

[was] no testimony regarding the length of the alleged touching” and “the

touching allegedly occurred over the victim’s underwear and while the victim’s

pants were on”).

For the foregoing reasons, I respectfully dissent. I would vacate the

judgment of the district court and remand this matter for dismissal of the

delinquency petition.