Opinion
23-0256
03-27-2024
STATE OF IOWA, Plaintiff-Appellee, v. ROSALIO QUIROZ, Defendant-Appellant
Gary Dickey of Dickey, Campbell, &Sahag Law Firm, PLC, Des Moines, for appellant. Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.
Appeal from the Iowa District Court for Muscatine County, Stuart P. Werling, Judge.
The defendant appeals his conviction for second-degree sexual abuse.
Gary Dickey of Dickey, Campbell, &Sahag Law Firm, PLC, Des Moines, for appellant.
Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.
Considered by Greer, P.J., Schumacher, J., and Blane, S.J. [*]
BLANE, Senior Judge
Rosalio Quiroz appeals his conviction for second-degree sexual abuse. He contends the district court erred and abused its discretion in admitting hearsay and expert bolstering evidence and substantial evidence does not support the verdict. We reject his claims and affirm.
I. Background facts and proceedings
Based on E.A.'s testimony, the jury could find the following facts:
In summer 2019, E.A. was nine years old. She lived with her mother and four siblings. She was very close with her Aunt Jazmin and her cousins, especially eight-year-old D.R. She and D.R. spent weekends at their grandmother's house. Their grandmother would go to work from early in the morning until the afternoon around 4:00 p.m. Her grandmother's husband, Quiroz, would sometimes be at home and sometimes go to work. E.A. and D.R. would play in the house, ride their bikes, and watch TV.
There were about three weeks left in the summer when Quiroz began doing things that made E.A. uncomfortable such as sitting too close to her on the couch and squeezing her thigh with his hand. These things always happened while E.A.'s grandmother was at work. One day E.A. was lying on her stomach on her grandparents' bed watching their TV. Quiroz returned home from work and came to his room to change clothes. Quiroz pulled E.A.'s legs to the edge of the bed and took down her shorts but left her underwear on. He placed his penis in contact with E.A.'s buttocks in a "slapping manner" until she felt a "watery," "gooey, slimelike substance" on her skin. Quiroz then told her to go to the bathroom and wipe it off. When she did, she observed it was "white," but she did not know what ejaculate was at that time.
Two weeks later, E.A. was showing Quiroz a sequined shirt she was wearing when he put his mouth over her genitals over her clothes and bit her. On another occasion, E.A. fell asleep on the couch and, in the early morning hours while her grandmother was showering and getting ready for work, Quiroz sat down on the couch without pants or underwear. E.A. saw his hands moving with a "forward-and-back motion" on his penis until she felt the same substance on her blanket. On several other occasions, Quiroz stood next to her bed, pulled off her blankets and clothing, and did the same thing, after which she found the substance on her blankets and skin. She always pretended to be asleep. Another time, Quiroz left his bedroom door open while he masturbated. E.A. and D.R. had asked Quiroz for something to eat, and Quiroz said to E.A., "I can go faster if you help me." Yet another time, E.A. was on her grandparents' bed, and Quiroz took off her shorts and underwear and put his fingers on or in her vagina.
After these incidents, which happened over several months, E.A. experienced emotional changes-she did not want to spend weekends at her grandmother's house anymore, she was increasingly angry and sad, and she was rude and disrespectful to others. She also had behavioral changes-she began wetting the bed, which she had never done before, and sleeping in "super tight spaces" like an area between two couches and behind the bathroom door.
In December of that year, she was spending the night at her Aunt Jazmin's house while her mother went out with friends. When her aunt took her home, an unknown couple were sleeping naked in E.A.'s bed. E.A. testified, "I . . . freaked out. I was crying hysterically. I was screaming at everybody. I was mad, and I was upset. And I wouldn't stop crying." E.A.'s extreme emotional reaction prompted Jazmin to ask her some questions. Jazmin asked, "Was that the first time that you have ever seen a naked body?" E.A. started crying and disclosed that she had seen her grandfather naked.
E.A.'s mom and aunt contacted police, and E.A. participated in an interview with the child protection center (CPC). During her interview with forensic interviewer Rebecca Valladares, E.A. held back some information about what happened. But after seeing a counselor for therapy services, she was able to "open up more." In August of the next year, she expressed some of her concerns to her aunt asking, "Because of what happened, did I lose my virginity?" After discussing it with E.A.'s mother, E.A. went back to the CPC for a second interview with Valladares. During that interview, she drew on a diagram of a child's body to further explain Quiroz's actions. Those drawings were admitted at trial.
The State charged Quiroz with a single count of second-degree sexual abuse. See Iowa Code § 709.3(1)(b) (2019). At trial, E.A. gave the bulk of the testimony, but D.R., Jazmin, and Valladares also testified. Quiroz presented no evidence. The jury found Quiroz guilty as charged. He appeals.
II. Analysis A. Sufficiency of the evidence
Quiroz contends there was insufficient evidence to support the jury's verdict. We review Quiroz's claim of insufficient evidence for correction of errors at law. See State v. Crawford, 974 N.W.2d 510, 516 (Iowa 2022). We consider whether substantial evidence supports the verdicts, viewing the evidence in the light most favorable to the State. See id. Evidence is substantial if it would convince a rational trier of fact that Quiroz is guilty beyond a reasonable doubt. See id.
The jury was instructed to find Quiroz guilty of second-degree sexual abuse if he "performed a sex act with E.A." and she was "under the age of 12 years" at the time. A sex act can include sexual contact between "the mouth of one person and the genitals of another," between "the finger or hand of one person and the genitals or anus of another person," or "[e]jaculation onto the person of another."
Quiroz's contention is that there was no corroborating evidence for E.A.'s testimony. We agree with the State's response: credible witness testimony requires no corroboration. See Iowa R. Evid. 2.21(3); see, e.g., State v. Donahue, 957 N.W.2d 1, 10-11 (Iowa 2021); State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998); State v. Knox, 536 N.W.2d 735, 742 (Iowa 1995). And E.A.'s testimony provides ample evidence for a rational trier of fact to find beyond a reasonable doubt that Quiroz performed sex acts on her not just once but many times-when he put his mouth or finger on her genitals or when he touched his penis until she felt a substance that the jury could reasonably conclude was ejaculate. Substantial evidence supports the verdict.
Since 1975 our supreme court has recognized that corroboration of a rape victim's testimony is not necessary. State v. Feddersen, 230 N.W.2d 510, 515 (Iowa 1975) ("In eliminating the requirement of corroboration of a rape victim's testimony, the legislature rejected this concept as a discredited anachronism. We now do likewise.").
B. Evidentiary objections
Quiroz contends several witnesses were permitted to give hearsay evidence over his objection. And he contends the forensic interviewer improperly bolstered E.A.'s testimony.
Generally, "[w]e review evidentiary rulings for an abuse of discretion." State v. Fontenot, 958 N.W.2d 549, 555 (Iowa 2021). But "[w]e review rulings on hearsay objections for correction of errors at law." State v. Flores, 2 N.W.3d 287, 292 (Iowa 2024). "Hearsay is a statement the declarant makes other than while testifying at the current trial that is offered 'to prove the truth of the matter asserted in the statement.'" Fontenot, 958 N.W.2d at 555 (quoting Iowa R. Evid. 5.801(c)(2)). "'Statement' means a person's: (1) [o]ral assertion or written assertion; or (2) [n]onverbal conduct, if intended as an assertion." Iowa R. Evid. 5.801(a). "Hearsay is generally inadmissible unless the rules of evidence, Iowa Constitution, or an Iowa Supreme Court rule provide otherwise." Fontenot, 958 N.W.2d at 555 (citing Iowa R. Evid. 5.802). Nonconstitutional error in admitting hearsay is reversible "only if the error affects a substantial right of the party." Iowa R. Evid. 5.103(a). We presume the error is prejudicial "unless the record affirmatively establishes otherwise." State v. Newell, 710 N.W.2d 6, 19 (Iowa 2006) (citation omitted). The evidence is not prejudicial "if substantially the same evidence is properly in the record." Id.
1. D.R.
During his testimony, D.R. had the following exchange with the prosecutor:
Q. All right. At some point during that period of time, was there something that you saw, [D.R.], that really disturbed you? A. Yes.
Q. All right. Set the stage and tell us what was going on. A. [E.A.] told me that Rosalio would be inappropriately touching her and-
DEFENSE COUNSEL: Your Honor, I'm gonna object. The witness is offering hearsay. I'm not sure if it was asked for, but I would object to hearsay.
THE COURT: [Prosecutor]?
PROSECUTOR: Your Honor, [E.A.] has already testified to this particular fact, so we have had the author of that statement in court who's provided that testimony, and so in that context, we're not dealing with a third-party statement that is being offered without that third party coming into court and testifying.
THE COURT: The Court finds that the statement is not offered for the truth of it. It's essentially foundational to explain this witness's interaction with the Defendant and the witness from yesterday. So the objection is overruled.
Quiroz asserts the court erred because "there is no exception to the hearsay statements from declarants who have testified earlier at trial." We pass over whether a statement made by the declarant earlier in the trial is even hearsay and find, if erroneously admitted, the record affirmatively establishes Quiroz was not prejudiced by the admission. See, e.g., Hildreth, 582 N.W.2d at 170. E.A. already made multiple statements about Quiroz's touching being inappropriate and uncomfortable. In addition, the question merely "set the stage" for D.R. to recount his own experience witnessing Quiroz "rubbing his groin against [E.A.'s] butt," so any prejudicial effect was negligible compared to the magnitude of all the other evidence. The record affirmatively establishes that Quiroz was not prejudiced by D.R.'s repetition of the statement.
2. Aunt
Quiroz next asserts the following statements by E.A.'s Aunt Jazmin responding to questions about the second CPC interview were hearsay:
Q. In relation to that timeframe, set the stage for this conversation between you and [E.A.] and what caused additional concerns for you. A. Okay. So she was over at my house again. We were going to the park.... She was walking kind of slow....
She was behind. So I'm like, okay, she probably wants to talk again. And then-so then just I usually start asking about how she's doing, how her friends are, whatever.
. . . I started to ask her how her friends were doing, just basic conversation, and then she said that she-
DEFENSE COUNSEL: Your Honor, I object. Hearsay.
PROSECUTOR: Your Honor, it's not being offered to prove the truth of the matter asserted. It's being offered to explain the course of action this witness would have taken.
THE COURT: For those reasons, the objection is overruled.
WITNESS: Okay. So she asked me-she said she had a question. I said, "Just ask anything. Go ahead." She said, "Am I still a virgin?"
Q. Okay. Were you shocked by that? A. I was incredibly shocked by that, and I told her-I just reassured her. I said, "Yes. You're a virgin." I said, "That's when you choose to engage with somebody else." I said, "And I don't think any of this was of your choosing ...."
Q. Sure. From there, then, did [E.A.] open up and share anything else with you? A. She just said that she didn't know if she was penetrated or not. She said she didn't know what the difference was or what it would feel like.
Q. Okay. Given this question, did that prompt you to take action? A. Yes. I told her mother, and we also reported that to [law enforcement.]
Q. By virtue of what had transpired, was there a second interview that was set up over at the [CPC]? A. Yes.
Quiroz argues the statements were not necessary to explain the course of action Jazmin took because it was not a legitimate issue in the trial. Jazmin's testimony that E.A. asked the question "Am I still a virgin?" is not hearsay. A question is not an assertion and therefore is not offered for its truth. See State v. Weaver, 608 N.W.2d 797, 805 (Iowa 2000) ("In this case the victim's inquiry about her sister was not hearsay because it was not an assertion."). And we agree with the State's position that the testimony went directly to the responsive conduct that followed and "was important to establish that the second interview happened organically, not as a practice run for her trial testimony or something initiated by the police or prosecutors."
Even if the aunt testified to inadmissible hearsay, again, we find the record affirmatively shows the statement was not prejudicial to Quiroz because E.A. already recounted the conversation with her aunt in her own testimony and its prejudicial effect was trivial compared to the strength of the rest of the evidence. See Hildreth, 582 N.W.2d at 170.
3. Forensic psychologist
Next, Quiroz contends several statements by forensic interviewer Valladares were both hearsay and inappropriate expert bolstering of E.A.'s testimony. Experts may not provide testimony that either directly or indirectly renders an opinion on the credibility of a witness. State v. Dudley, 856 N.W.2d 668, 676 (Iowa 2014). Experts "cannot accurately opine when a witness is telling the truth." Id. at 677. But they may "express opinions on matters that explain relevant mental and psychological symptoms present in sexually abused children." Id. at 676. This rule prevents an expert witness from providing a scientific "stamp of approval" to victim testimony. Id. at 677.
The State asked Valladares about the first and second CPC interviews:
Q. Yes. What is it that you established during the course of your interview with [E.A.]? A. Can you use different words when you rephrase?
Q. Yeah. Absolutely. All right. What did [E.A.] report to you? There we go. A. Yes. I will refer to my report. And so-
DEFENSE COUNSEL: Your Honor, I'm gonna object if the witness is just going to recount hearsay from the previous witness that has testified and read from her report.
PROSECTOR: Okay. All right.
THE COURT: [Prosecutor]?
PROSECUTOR: Your Honor, my response is [E.A.] has testified as to the allegations. I think, really, in terms of the State's objective at this point, it's not being offered to prove the truth of the matter asserted but to establish that the child did participate in this interview process and did disclose various forms of abuse.
THE COURT: Objection is overruled. PROSECUTOR: Okay. ....
Q. Sure. During this second interview, did [E.A.] share additional details of what had occurred between her and her grandfather? A. Yes.
Q. All right. Now, in this interview, what did she disclose?
DEFENSE COUNSEL: Your Honor, calls for hearsay. ....
PROSECUTOR: Your Honor, it's just to establish that the child-the child's already testified about what has happened, but just to establish that what [E.A.] had testified to was matters that she relayed in the second interview.
DEFENSE COUNSEL: Your Honor, the State is attempting to dice between the two interviews by having this witness quote statements made out of court by a third party that's not a witness.
THE COURT: Objection is overruled.
After the first objection, Valladares testified E.A. told her about the uncomfortable behavior of Quiroz, the incident on her grandparents' bed, and Quiroz masturbating in his room. Without objection, Valladares testified E.A. did not disclose the incidents involving Quiroz's use of his mouth and finger on her genitals until the second interview. She explained that additional disclosures justified a second interview. Then, after the second objection, she gave substantially the same information. Other than describing what events E.A. disclosed in the first versus the second interview, Valladares gave general information about the events and did not add new details. As with the other objections, we find the record affirmatively establishes Quiroz was not prejudiced by the admission of this cumulative testimony. See State v. Skakill, 966 N.W.2d 1, 16 (Iowa 2021) (holding the State can overcome the presumption of prejudice by showing wrongly admitted evidence was cumulative); c.f. State v. Elliott, 806 N.W.2d 660, 670 (Iowa 2011) (cautioning that cumulative evidence can still be prejudicial to substantive rights if "the only real purpose for admitting [it] is to bolster that witness's credibility").
Quiroz further asserts "the prosecutor's repeated use of E.A.'s hearsay statements bolster her credibility through more reliable witnesses," including Valladares. When expert witnesses are called, the danger is that they may inappropriately influence the jury by expressing opinions about whether the child witness is telling the truth, vouching for or bolstering the witness's testimony. See Dudley, 856 N.W.2d at 767-77. But Quiroz does not point to any statement in Valladares's testimony that constitutes an opinion on E.A.'s truthfulness-she only repeated what E.A said and testified to. And the challenged testimony was offered to explain the different disclosures during two separate interviews. There was no improper vouching, so the district court did not abuse its discretion.
Quiroz does not explain how he preserved error on the vouching or bolstering claim. His trial objections focus on hearsay and Valladares's reliance on her written report. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal."). Although the State explained it would "address error preservation at the beginning of each [evidentiary argument] section," it did not do so. We bypass the error preservation concerns.
III. Conclusion
We find substantial evidence supports the jury's verdict. And we find no merit in any of Quiroz's hearsay challenges. Finally, we find the forensic interviewer did not offer bolstering or vouching testimony, so the district court did not abuse its discretion by allowing it. We affirm Quiroz's conviction for second-degree sexual abuse.
AFFIRMED.
[*] Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2024).