The conviction was affirmed by the Iowa Supreme Court. State v. Watson, 242 N.W.2d 702 (Iowa 1976). Since this action was commenced, named respondent David Scurr ceased serving as warden of the Iowa State Penitentiary and he has been replaced by Crispus Nix, who is automatically substituted as a respondent under the provisions of Fed.R.Civ.P. 25(d)(1).

An out-of-court utterance is not hearsay unless it contains an assertion of fact and is offered to prove the truth of that assertion. State v. Watson, 242 N.W.2d 702, 704 (Iowa) filed May 19, 1976; State v. Miller, supra; rule 801, Federal Rules of Evidence. Such an assertion comes within the hearsay rule because it rests for its value on the credibility of the out-of-court asserter.

See State v. Stevens, 289 N.W.2d 592, 596 (Iowa 1980) ("This [excited utterance] exception to the hearsay rule applies generally in criminal prosecutions when the statement is made under the influence of the excitement of the incident rather than on reflection or deliberation."). Although we have often allowed use of the "excited utterance" or "res gestae" hearsay exception despite the fact that the out-of-court declarant, like this victim, was responding to a question, the questions in those cases were "not calculated to elicit information which would otherwise have been withheld," State v. Watson, 242 N.W.2d 702, 704 (Iowa 1976). Furthermore, the declarants in those cases were not "calm" but upset.

See § 688.1, the Code 1975; § 703.1, Supplement to the Code 1977. Aiding and abetting means to assent to or lend countenance or approval to a criminal act, either by active participation in it or by in some manner encouraging it. Of course, the State must prove defendant's participation or encouragement was done with knowledge of such act. State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977); State v. Watson, 242 N.W.2d 702, 706 (Iowa 1976). In reviewing these rulings we view the evidence in the light most favorable to the State, without regard to contradiction or inconsistencies and assisted by all reasonable inferences. If there is substantial support for the verdict in the record, the jury verdict is conclusive.

But, questions asked to children may be particularly suspect because they could be "calculated to elicit information which would otherwise have been withheld." State v. Brown , 341 N.W.2d 10, 13 (Iowa 1983) (en banc) (quoting State v. Watson , 242 N.W.2d 702, 704 (Iowa 1976) ); see alsoDudley , 856 N.W.2d at 680 (rejecting the exception because of the time period, thirty-six hours, and the fact that the declarant "required more than one prompting question before she made the statements"). There is some illustrative caselaw from other jurisdictions.

Second, the statement must be spontaneous and any questions asked of the child must not be “ ‘calculated to elicit information which would otherwise have been withheld.’ ” State v. Brown, 341 N.W.2d 10, 13 (Iowa 1983) (quoting State v. Watson, 242 N.W.2d 702, 704 (Iowa 1976)). Here, the child, upon the family's return home, told her mother the story.

"The defendant left the house within minutes of Mrs. Burns' arrival. Her mother asked Ann again what was the matter, and this time, as the child began to speak, her eyes filled with tears and she hesitantly related the details of the assault." In State v. Watson (1976), 242 N.W.2d 702, 704, the Iowa Supreme Court held: "The fact that Miss Berry made her statements in response to Six's inquiry asking what was wrong does not necessarily rob them of their spontaneity.

All persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense or aid and abet its commission, shall be charged, tried and punished as principals. The guilt of a person who aids and abets the commission of a crime must be determined upon the facts which show the part he or she had in it, and does not depend upon the degree of another person's guilt.See State v. Watson, 242 N.W.2d 702, 706 (Iowa 1976); State v. Wilson, 236 Iowa 429, 444-45, 19 N.W.2d 232, 239 (1945); J. Yeager R. Carlson, 4 Criminal Law and Procedure § 62 (1979). See also United States v. Frye, 548 F.2d 765, 768 (8th Cir. 1977).

The conviction was affirmed on appeal. State v. Watson, 242 N.W.2d 702 (Iowa 1976). The following postconviction events underlie this appeal.

Several of them are O'Connell, 275 N.W.2d at 202 (person assaulted told officer "that her husband had hit her real hard in the back of the head and that he struck her two or three times in the face and that he knew quite a bit about karate" — admissible); State v. Haines, 259 N.W.2d 806, 809-10 (Iowa 1977) (victim told mother the defendant had put finger in her vagina and anus and hurt her — admissible); State v. Terrill, 241 N.W.2d 16, 18-19 (Iowa 1976) (victim identified assailant to aunt as the person who had previously run her sister home — admissible); Swanson, 228 N.W.2d at 104 (victim identified assailant to police as the defendant — admissible). See also, State v. Paulsen, 265 N.W.2d 581, 586 (Iowa 1978); State v. Watson, 242 N.W.2d 702, 704 (Iowa 1976). Upon consideration of the question of spontaneity in the light of the record and the rationale of our cases, we are unwilling to say that the trial court abused its discretion in admitting Diedre's testimony.