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rejecting defendant's argument first requirement was not met because a three-year-old child lacks "selfish motive in receiving proper treatment," which guarantees the trustworthiness of the statements
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No. 2-789 / 01-1071.
Filed April 30, 2003.
Appeal from the Iowa District Court for Scott County, JOHN A. NAHRA, Judge.
Dana Woolison appeals his convictions for willful injury resulting in serious injury in violation of Iowa Code section 708.4(1) (1999) and child endangerment — multiple acts in violation of section 726.6A. AFFIRMED.
Thomas Preacher, Bettendorf, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
Heard by VOGEL, P.J., and ZIMMER and HECHT, JJ.
Dana Woolison appeals his convictions for willful injury resulting in serious injury in violation of Iowa Code section 708.4(1) (1999) and child endangerment — multiple acts in violation of section 726.6A. We affirm.
I. Background Facts and Proceedings.
Nicole Hythecker took her son, Dylan, to the doctor on November 8, 2000. Dylan's presenting injuries included discoloration of the eyes, a bruise to the jawbone, a bruise to the left temple, a scratch on the left eyelid, bruises on the chest, a distended and bruised abdomen, a bruise on the penis, an abrasion on the lower spinal column, tenderness with palpation to the head, a bite mark on the left side of the neck, and a healing burn on the right hand. After further examination, more injuries were discovered. These injuries included healing fractures of the right radial and ulnar bones, fracture of the left tibia, and a skull fracture on the right side of his head. The distended and bruised abdomen led to a diagnosis of a lacerated pancreas. Dylan was transferred to The University of Iowa Hospitals, and was eventually released on December 22, 2000.
Nicole's live-in boyfriend, Dana Woolison, was charged with willful injury and child endangerment — multiple acts. Trial was held in May, 2001, and Woolison was found guilty on both charges. He was sentenced to ten years for willful injury and fifty years for child endangerment. Woolison appeals, alleging (1) the district court erroneously admitted hearsay evidence; (2) the instructions to the jury were improper; and (3) his conviction for multiple acts of child endangerment was not supported by sufficient evidence.
II. Scope and Standards of Review.
Our review of the admission of hearsay evidence is for correction of errors at law. State v. Tornquist, 600 N.W.2d 301, 303 (Iowa 1999). Our review of challenges to jury instructions is also for errors at law. State v. Simpson, 528 N.W.2d 627, 630 (Iowa 1995). When reviewing challenges to the sufficiency of the evidence to support a jury verdict, we must examine the record in the light most favorable to the state, and will uphold the verdict unless it lacks substantial evidence to support it. State v. Hickman, 576 N.W.2d 364, 366 (Iowa 1998).
III. Admission of Hearsay.
Woolison makes two arguments regarding the district court's admission of hearsay testimony. First, he contends certain statements made by Dylan to medical personnel identifying Woolison as his abuser should not have been admitted under rule 5.803(4). He also argues Dylan's statement to his grandfather that "Dana kicked me" was erroneously admitted under rule 5.806.
Rule 5.803(4) Exception. The district court allowed, over Woolison's hearsay objections, testimony from Dylan's doctors that Dylan told them "Dana did it" and "Dana kicked me," that Dylan was afraid someone named Dana would be outside his hospital room, and that a cigarette lighter caused the burn on his right hand. The district court determined these statements, although hearsay, were admissible under rule 5.803(4) because they were made for the purpose of medical diagnosis or treatment.
The Iowa Supreme Court has adopted a two-part test to determine whether hearsay statements identifying an abuser are admissible under the medical treatment exception. "[F]irst, the declarant's motive in making the statement must be consistent with the purposes of promoting treatment and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis." State v. Tracy, 482 N.W.2d 675, 681 (Iowa 1992) (quoting United States v. Renville, 779 F.2d 430, 436 (8th Cir. 1985)). Our supreme court has determined the first prong of the test is satisfied "where a child's statements are made during a dialogue with a health care professional and are not prompted by concerns extraneous to the patient's physical or emotional problem, real or perceived." State v. Tornquist, 600 N.W.2d 301, 304 (Iowa 1999) (citations omitted). The second prong is satisfied when ascertaining the identity of the abuser is a matter that may assist in diagnosis or treatment. State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998). Woolison asserts neither prong is satisfied in this case.
Woolison contends the rationale supporting the first prong of the test — that the declarant's selfish motive in receiving proper treatment guarantees the trustworthiness of the statements — is not applicable when the declarant is a three-year old child. See Renville, 779 F.2d at 438. He argues there is a prima facie question whether a three-year old is competent, and contends the district court erred in failing to require a competency hearing before receiving the hearsay statements into evidence. Woolison, however, offers no controlling authority for this proposition. We agree with the State's assertion that the age of the hearsay declarant goes to the weight of the testimony, not its admissibility. According to Renville, the source of the two prong test, "a fact reliable enough to serve as the basis for a diagnosis is also reliable enough to escape hearsay proscription." Renville, 779 F.2d at 436 (citations omitted). Dylan's statements to his health care providers were "made during a dialogue with a health care professional" and were "not prompted by concerns extraneous to the patient's physical or emotional problem." Tornquist, 600 N.W.2d at 304. Because the doctors relied upon Dylan's statements to treat him for his injuries, we conclude the first prong of the Renville test is satisfied.
Additionally, Woolison asserts Dylan's statements to Dr. Harre should have been excluded because Dr. Harre was part of a multi-disciplinary team whose main function was investigatory. We disagree. A review of Dr. Harre's testimony and description of her job function demonstrates that she makes medical assessments, identifies illness and injury, and recommends treatment in cases such as this. She clearly qualifies as health care professional, and her conversation with Dylan was for the purpose of promoting treatment.
Woolison also challenges the rationale supporting the second prong of the Renville test. He claims it is "disingenuous at best" to contend the identity of the perpetrator is pertinent to treatment if the perpetrator is a member of the victim's household. However, because of the potentially lethal consequences of returning a child to an abusive environment, our supreme court has concluded the identity of the perpetrator is essential to the treatment of a child abuse victim and is admissible under 5.803(4). Tornquist, 600 N.W.2d at 306; Hildreth, 582 N.W.2d at 170. Because we find our supreme court's reasoning both controlling and compelling on this issue, we affirm.
Rule 5.806 Evidence. Woolison argues extensively that Larry Rieck's testimony regarding Dylan's statement, "Dana kicked me," was erroneously admitted under rule 5.806 as a prior inconsistent statement. Whether this statement was admissible under rule 5.806 or not, if the admitted hearsay is merely cumulative, we will find no prejudice to Woolison and will not reverse the district court. Hildreth, 582 N.W.2d at 170. As in Hildreth, testimony regarding the same statement by Dylan had been properly admitted under rule 5.803(4). Because this same information was properly admitted through the testimony of Dylan's doctors, Larry Rieck's testimony was merely cumulative and caused no prejudice to Woolison. We affirm on this issue.
IV. Jury Instructions.
Woolison contends the jury instructions were improper because they did not require the jury to find beyond a reasonable doubt the time and place of each of the three acts which would serve as the basis for the "multiple acts." He asserts State v. Hickman, 576 N.W.2d 364, 3666 (Iowa 1998) requires this. We disagree. The language Woolison points to from Hickman does not require that level of proof, and neither does the language of section 726.6A. In Hickman, the State presented testimony tending to prove the defendant repeatedly administered "whuppings" to a child, but offered no clear evidence that those occurrences led to any of the injuries diagnosed when the child was hospitalized. The language of Hickman should not be understood to require more than the plain language of the statute, which does not require exact time and place of each incident of child endangerment. Section 726.6A requires that three or more instances of child endangerment be proven with sufficient precision that the defendant may be identified as the person with custody and control over the child when he inflicted the injuries, and that the acts occur within one year. The jury instructions did require a jury to make that finding before finding Woolison guilty. We find no error with the district court's jury instructions and therefore affirm.
V. Sufficiency of the Evidence.
Woolison contends there was insufficient evidence to support his conviction for multiple acts of child endangerment. He again relies on the language of Hickman to support his argument that the evidence was not sufficient to support a finding, beyond a reasonable doubt, of the time and place of each of the three acts of child endangerment. However, Hickman's
"time and place" rule "does not mean that evidence of the precise time and place of each incident or act is required, but merely means the three or more acts must be separated by time and place so that each incident is separate and distinct."State v. Yeo, N.W.2d ___, ___ (Iowa 2003).
The jury could credit expert testimony, although disputed, that Dylan's skull fracture, radial, ulnar and tibia fractures, and pancreas laceration all took place at different times and places. When Dylan was admitted to the hospital on November 8, his skull fracture was estimated to be at least a few days, and no more than a week, old. His wrist and leg fractures were dated between two and four weeks old, and his pancreas fracture was less than twenty-four hours old. A reasonable juror could have found this evidence sufficient to prove beyond a reasonable doubt at least three separate acts of child endangerment occurred while Woolison was providing Dylan's care. Although Dylan had been at times under the supervision or control of relatives at various times during the relevant time period, there was substantial evidence to support a jury finding that the injuries were inflicted by Woolison and not by Dylan's relatives. It was Dylan's relatives who noticed Dylan's limp and reported his condition to the Department of Human Services. In addition, Dylan's mother testified that Dylan was in only Woolison's care during the last week before he was hospitalized. We conclude the record contains sufficient evidence to support the jury's verdict, and we therefore affirm.