State of Iowa v. Jonas Dorian Neiderbach

IN THE SUPREME COURT OF IOWA

No. 11–1082

Filed August 23, 2013

STATE OF IOWA,

Appellee,

vs.

JONAS DORIAN NEIDERBACH,

Appellant.

Appeal from the Iowa District Court for Polk County, Douglas F.

Staskal, Arthur E. Gamble, and Artis I. Reis, Judges.

Defendant appeals from his convictions for child endangerment.

AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED

WITH INSTRUCTIONS.

Gary D. Dickey Jr. and Angela L. Campbell of Dickey & Campbell

Law Firm P.L.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant

Attorney General, John P. Sarcone, County Attorney, and Steven M.

Foritano, Nan M. Horvat, and Jeffrey K. Noble, Assistant County

Attorneys, for appellee.

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WATERMAN, Justice.

A Polk County jury found Jonas Neiderbach guilty of six counts of

child endangerment, and the district court imposed a fifty-year prison

sentence. The victim is his son, E.N., who was less than seven weeks old

when he suffered a broken arm, fifteen rib fractures, and a permanent

brain injury over a three-week period. The victim’s mother, Jherica

Richardson, pled guilty to child endangerment and is serving a twenty-

year prison sentence. Jonas appeals his convictions on numerous

grounds. For the reasons that follow, we vacate his convictions as to two

counts for the baby’s broken ribs because we find the evidence

insufficient. We also find the district court erred in denying Jonas’s

motion for an in camera review of Jherica’s mental health records under

Iowa Code section 622.10(4) (Supp. 2011), a statute we uphold today as

constitutional in State v. Thompson, 836 N.W.2d 470, 490 (Iowa 2013).

We affirm the district court on all other issues. We remand the case for

the district court to perform an in camera review and for further

proceedings consistent with this opinion.

I. Background Facts and Proceedings.

“We recite the facts in the light most favorable to the verdict.”

State v. Garcia, 616 N.W.2d 594, 595 (Iowa 2000). E.N. was born on

May 27, 2009. His parents, Jonas and Jherica, were age twenty at that

time and living with Jonas’s parents, Jon and Mary Neiderbach.

Although E.N. was full term and appeared healthy overall, he spent the

first four days following his birth in the neonatal intensive care unit

(NICU) because his physicians feared he may have aspirated fecal matter

in utero. In addition to this potentially life-threatening concern, E.N. was

born with the umbilical cord wrapped around his neck, exhibited tremor

activity, and did not feed well. E.N. also tested positive for marijuana at

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birth, which triggered a notification to the Iowa Department of Human

Services (DHS).

The new parents brought baby E.N. home to the Neiderbach

residence. In light of the positive marijuana test, DHS provided the

family with a visiting nurse who came to the house on a biweekly basis to

check on the baby and to answer questions. E.N. was seen by either the

visiting nurse or his pediatrician four times during the first two weeks

after he left the hospital and appeared healthy at each visit.

On the evening of June 13, E.N. vomited or coughed up a small

amount of blood. The next morning, Jonas and Jherica took him to a

clinic. The baby was diagnosed with acid reflux and was prescribed

Zantac. The visiting nurse came to check in on E.N. three days later,

and he appeared normal with the coughing and vomiting of blood

resolved.

Five days later, on June 18, E.N. was taken to the hospital again—

this time for a broken arm. That morning, Jonas, Jherica, and E.N.

returned from Jonas’s paper route with the baby asleep. E.N. awakened

crying. Jherica handed him to Jonas and left the room to prepare a

bottle. She heard the baby’s cries escalate to a scream and returned to

find E.N. lying on the bed with his right arm above his head and his left

arm limp beside him. Jonas stood over the baby. Jonas told Jherica

that E.N.’s arm became pinned behind his back as Jonas laid him on the

bed and that he had heard a pop. Jherica checked whether E.N. could

grasp her finger with his hand and found that he could not.

Jonas and Jherica took E.N. to the emergency room where the

attending physician determined that the baby had a spiral fracture of his

humerus, the upper arm bone. E.N. was hospitalized overnight to be

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examined for other signs of abuse. The hospital reported the injury to

DHS.

DHS notified Detective Tim Tyler of the Des Moines Police

Department who came to the hospital with two DHS workers to interview

the attending physician, Jonas, and Jherica. Jonas repeated the story

he had told Jherica and the doctor. Jonas and Jherica were separately

instructed that going forward there would be a safety plan in place under

which Jonas would not be allowed alone with E.N.

After his discharge from the hospital on June 19, E.N. was seen by

his pediatrician, Dr. Eric Andersen. Aside from his broken arm, E.N.

appeared to be in good health. He had gained two pounds since his last

visit and remained calm during the examination. Dr. Lynn Lindaman,

E.N.’s pediatric orthopedic surgeon, saw E.N. again on June 26 for a

follow-up appointment for his broken arm. Dr. Lindaman found E.N.’s

arm to be healing in good alignment.

E.N. was next seen by a physician on July 8, when Jonas and

Jherica rushed him to the hospital after he stopped breathing. That

afternoon, Jonas, Jherica, and E.N. had returned home from errands,

including visiting Jonas’s father and Jherica’s mother, Connie

Richardson, at work. Jon, Connie, and their coworkers noted E.N.

appeared healthy that day. E.N. was sleeping when they returned home;

however, he soon awakened crying. Jherica tried to feed the baby, but

he was not taking his bottle. Jherica handed E.N. to Jonas while she

went outside to smoke a cigarette.

Jherica was outside when she heard E.N.’s crying stop abruptly,

within three to five minutes after she had handed the infant to Jonas. As

she returned inside, Jonas was walking down the stairs holding E.N.

Jonas was crying; E.N. was still. Jonas told Jherica that E.N. had

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stopped breathing. Jherica noticed a yellowish substance oozing from

E.N.’s mouth. Jherica cleared his mouth as best she could, but the baby

did not resume breathing. Jherica called her mother to ask what to do

and was told to take E.N. to the hospital. Jherica returned to the living

room and saw Jonas shaking E.N. while saying, “Why aren’t you f______

breathing?” Jherica yelled at Jonas to stop and told him that they

should take E.N. to the hospital. Jonas initially refused to go to the

hospital, mentioning it was the “third time,” but Jherica convinced him

to go together.

Jonas and Jherica strapped E.N. into his car seat and drove to the

emergency room at Blank Children’s Hospital. Upon arrival they told

Dr. Carlin that E.N. had screamed, started gasping, and then stopped

breathing altogether. E.N.’s physicians diagnosed the baby with

subdural hematomas on both sides of his brain, fifteen rib fractures

(some old and some new), and the broken arm. They also found a

hypoxic ischemic injury, which is damage to the brain due to lack of

oxygen. Dr. Tracy Ekhardt, E.N.’s pediatric critical care specialist,

determined E.N.’s “brain injury was due to a force to his head” and that

“[t]he explanation that [she] got from the family was not consistent with

the amount of force that would be needed to cause that damage to his

head.”

E.N. was hospitalized seven weeks and then was transferred to a

nursing home for children with special needs, where he spent the next

five months. Jherica’s sister, Shannon Nelson, and Shannon’s husband

adopted E.N. in November 2009. E.N. remains unable to move his legs

and can only barely move his arms. He can move his head side to side,

but cannot hold his head up on his own. E.N. is also unable to

communicate verbally, has a feeding tube in his stomach, and a

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tracheostomy tube that requires regular suctioning. Doctors expect no

significant improvement in E.N.’s condition.

The State’s initial trial information, filed August 26, charged Jonas

and Jherica with eight counts of child endangerment, in violation of Iowa

Code section 726.6 (2009), and one count of multiple acts of child

endangerment, in violation of section 726.6A. On January 21, 2010,

Jherica reached a plea agreement, under which she pled guilty to child

endangerment causing serious injury, child endangerment causing

bodily injury, and neglect of a dependent person. The plea colloquy

shows she admitted to smoking marijuana with the baby in utero, to

leaving E.N. alone with Jonas in violation of the safety plan, and to

failing to get medical care for E.N. after being told he had broken ribs.

Jherica agreed to testify for the State at Jonas’s trial. In exchange, the

State agreed to recommend that Jherica receive a total sentence of

twenty years in prison.

The State amended its trial information on March 11, to drop

Jherica as a codefendant and eliminate one count of child endangerment.

The jury trial began May 4, 2011. During trial, the State dismissed two

more counts. The balance of the case was submitted to the jury on

May 18. On May 20, after two days of deliberation, the jury found Jonas

guilty on all six remaining counts. The district court sentenced Jonas to

fifty years in prison.

Jonas appealed, and we retained his appeal. Additional facts and

procedural history will be provided in the discussion of specific issues

below.

II. Issues Raised on Appeal.

Jonas raises the following issues on appeal: (1) whether the district

court erred by failing to dismiss counts two through six as lesser

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included offenses of count one pursuant to Iowa Rule of Criminal

Procedure 2.6(1) or by failing to grant his motion to sever those counts;

(2) whether the district court violated Jonas’s due process rights by

refusing to issue a subpoena for Jherica’s mental health records sought

as exculpatory evidence under State v. Cashen, 789 N.W.2d 400 (Iowa

2010), and Iowa Code section 622.10(4) (Supp. 2011); (3) whether

Jonas’s July 8 statement to Detective Kelly acknowledging he shook the

baby should have been suppressed because she interfered with his

attorney–father’s attempt to represent him; (4) whether the district court

abused its discretion by admitting into evidence photographs and video

of E.N. taken eighteen months after his injuries; (5) whether the district

court erred by allowing expert testimony describing medical studies on

shaken-baby injuries with reported confessions by caregivers; (6)

whether the district court abused its discretion by limiting the cross-

examination of Jherica as to her prior inconsistent statements on mental

health treatment; (7) whether the prosecutor misstated expert testimony

requiring a new trial; (8) whether the district court erred by submitting

the aiding and abetting instruction; (9) whether the weight of the

evidence was contrary to the jury’s verdicts on counts three and six; and

(10) whether the evidence was sufficient to support the convictions on

counts four and five.

III. Scope of Review.

Our review of motions to dismiss is for correction of errors at law.

In re Det. of Stenzel, 827 N.W.2d 690, 697 (Iowa 2013). We review a trial

court’s denial of a defendant’s motion to sever for abuse of discretion.

State v. Elston, 735 N.W.2d 196, 198 (Iowa 2007).

We review constitutional issues de novo. See State v. Pearson, 804

N.W.2d 260, 265 (Iowa 2011) (“We review de novo a district court’s

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refusal to suppress statements allegedly made in violation of

constitutional safeguards.”); State v. Wells, 738 N.W.2d 214, 218–19

(Iowa 2007) (reviewing de novo defendant’s claim that admission of

hearsay testimony violated his Sixth Amendment right to confront a

witness against him). Discovery rulings challenged on constitutional

grounds are reviewed de novo. Cashen, 789 N.W.2d at 405 (“Because the

issues in this case rest on constitutional claims involving Cashen’s due

process right to present a defense, our review is de novo.”).

Nonconstitutional challenges to discovery rulings are reviewed for abuse

of discretion. Id. (“Ordinarily, we review discovery orders for an abuse of

discretion.”).

We review the district court’s evidentiary rulings for abuse of

discretion. State v. Huston, 825 N.W.2d 531, 536 (Iowa 2013).

“Although we generally review the district court’s admission of hearsay

evidence for errors at law, ‘when the basis for admission of hearsay

evidence is the expert opinion rule . . . we will employ an abuse of

discretion standard.’ ” Stenzel, 827 N.W.2d at 697 (quoting Kurth v. Iowa

Dep’t of Transp., 628 N.W.2d 1, 5 (Iowa 2001)).

Our review of allegations of prosecutorial misconduct is for abuse

of discretion. State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011). We

review whether there was sufficient evidence to warrant submission of a

jury instruction for correction of errors at law. See State v. Smith, 739

N.W.2d 289, 293 (Iowa 2007). We review a district court’s ruling as to

whether a verdict was contrary to the weight of the evidence for abuse of

discretion. State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003). We review

challenges to the sufficiency of the evidence for correction of errors at

law. State v. Hearn, 797 N.W.2d 577, 579 (Iowa 2011).

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IV. Dismissal or Severance of Counts Two Through Six

Pursuant to Iowa Rule of Criminal Procedure 2.6(1).

A. Motion to Dismiss. Jonas appeals the district court’s denial

of his motion to dismiss counts two through six. The State’s amended

trial information filed April 29, 2011, charged Jonas with these six

counts of child endangerment:

Count 1: Multiple acts of child endangerment in

violation of Iowa Code section 726.6A.

Count 2: Child endangerment resulting in a brain

injury on July 8, 2009, in violation of Iowa Code section

726.6(1).

Count 3: Child endangerment resulting in a broken

arm on June 18, 2009, in violation of Iowa Code section

726.6(1).

Count 4: Child endangerment causing rib fractures

from June 17–30, 2009, in violation of Iowa Code section

726.6(1).

Count 5: Child endangerment causing rib fractures

from July 1–8, 2009, in violation of Iowa Code section

726.6(1).

Count 6: Child endangerment by willfully depriving a

child of health care for fractured ribs between July 2–8,

2009, in violation of Iowa Code section 726.6(1).

Jonas contends the State’s trial information violates Iowa Rule of

Criminal Procedure 2.6(1), which states:

Two or more indictable public offenses which arise from the

same transaction or occurrence or from two or more

transactions or occurrences constituting parts of a common

scheme or plan, when alleged and prosecuted

contemporaneously, shall be alleged and prosecuted as

separate counts in a single complaint, information or

indictment, unless, for good cause shown, the trial court in

its discretion determines otherwise. Where a public offense

carries with it certain lesser included offenses, the latter

should not be charged, and it is sufficient to charge that the

accused committed the major offense.

Jonas focuses on the last sentence of the rule, which prohibits charging

lesser included offenses along with the major offense. Jonas argues the

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State’s trial information violates this rule because it would be “impossible

to commit the greater offense of Child Endangerment under [Iowa Code

section] 726.6A . . . without also committing the offenses set forth in

Counts 2 through 6.” See State v. McNitt, 451 N.W.2d 824, 825 (Iowa

1990) (“A lesser offense is necessarily included in the greater offense if

the greater offense cannot be committed without also committing the

lesser.”). The State concedes the child endangerment offenses charged in

counts two through six are lesser included offenses of the multiple acts

of child endangerment charged in count one. See State v. Hickman, 576

N.W.2d 364, 367 n.1 (Iowa 1998).

The district court, however, reached a different conclusion based

on its reading of two decisions by our court of appeals: State v. Flanders,

546 N.W.2d 221 (Iowa Ct. App. 1996), and State v. Arends, No. 03–0420,

2004 WL 1159730 (Iowa Ct. App. May 26, 2004) (unpublished opinion).

In Flanders, the court of appeals considered whether second-degree

sexual abuse was a lesser included offense of first-degree kidnapping.

546 N.W.2d at 224. The defendant had been convicted of one count of

second-degree sexual abuse and one count of first-degree kidnapping.

Id. The court noted that, although sexual abuse can be a lesser included

offense of kidnapping, it may not be in every case. Id. at 224–25. This is

because “[t]he lesser-included offense analysis addresses situations

where multiple charges apply to a single occurrence. Where the alleged

acts occur separately and constitute distinct offenses, there can be no

complaint one is a lesser-included offense of the other.” Id. at 224.

Thus, if the State alleged the “defendant had committed at least two

separate and distinct acts of sexual abuse, and only one of those acts

formed the basis for the kidnapping charge,” then only one of the sexual

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abuse charges would be a lesser included offense of the kidnapping

charge. Id. at 225.

The district court seized on this language and Arends, which the

district court interpreted to hold that “where defendant was charged with

Multiple Acts of Child Endangerment and supporting evidence is

presented that a child was injured on at least three separate occasions,

the lesser included analysis does not apply.” The district court, however,

misapprehended the holding of Arends. The Arends court did not

consider whether individual child endangerment counts are lesser

included offenses of a charge of multiple acts of child endangerment;

rather, that court considered whether “the crime of child endangerment

is a lesser included offense of involuntary manslaughter.” 2004 WL

1159730, at *5.

We agree that “[t]he lesser-included offense analysis addresses

situations where multiple charges apply to a single occurrence. Where

the alleged acts occur separately and constitute distinct offenses, there

can be no complaint one is a lesser-included offense of the other.”

Flanders, 546 N.W.2d at 224. In the present case, however, the major

offense and the lesser included offenses involve overlapping acts.

Section 726.6A provides that a person is guilty of a class “B” felony

if that person

engages in a course of conduct including three or more acts of

child endangerment as defined in section 726.6 within a

period of twelve months involving the same child . . . , where

one or more of the acts results in a serious injury to the

child . . . or results in a skeletal injury to a child under the

age of four years . . . .

Iowa Code § 726.6A (2009) (emphasis added). Thus, one element of this

offense requires the State to prove the defendant committed three or

more acts of child endangerment under section 726.6. Although the

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three or more acts supporting a section 726.6A charge “must be

separated by time and place so that each incident is separate and

distinct,” State v. Yeo, 659 N.W.2d 544, 550 (Iowa 2003), the individual

child endangerment offenses are not also separate and distinct from the

multiple-acts offense.

For example, imagine a scenario in which the state charges a

defendant with one count of multiple acts of child endangerment and

three counts of child endangerment causing a broken arm, broken leg,

and a brain injury.1 The state proves the acts causing the broken arm,

broken leg, and brain injury were “separated by time and place so that

each incident is separate and distinct.” Although the three lesser

offenses are separate and distinct from each other, that does not mean

that they are separate and distinct from the multiple-acts offense they

support. They, in fact, are not. Under this hypothetical, the state could

not prove the defendant committed multiple acts of child endangerment

without also proving the defendant committed each of the three counts of

child endangerment. See McNitt, 451 N.W.2d at 825 (“A lesser offense is

necessarily included in the greater offense if the greater offense cannot

be committed without also committing the lesser.”). The same is true in

this case.2 Accordingly, the individual counts of child endangerment

1For the sake of simplicity, we assume the state also meets the other

requirements of section 726.6A.

2Although it is true that the State was not required to prove Jonas committed all

five of the individual counts of child endangerment to prove he committed multiple acts

of child endangerment, we do not believe the analysis should differ simply because this

case involved more than three charges of child endangerment under section 726.6. See

Iowa Code § 726.6A (noting it applies when “[a] person . . . engages in a course of

conduct including three or more acts of child endangerment as defined in section 726.6

within a period of twelve months” (emphasis added)).

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alleged in counts two through six are lesser included offenses of the first

count’s charge of multiple acts of child endangerment.

Thus, applying the last sentence of rule 2.6(1), the five lesser

included offenses alleged in counts two through six should not have been

charged because “it [was] sufficient to charge that the accused committed

the major offense.” See Iowa R. Crim. P. 2.6(3). In any event, the district

court would be required “to instruct the jury, not only as to the public

offense charged but as to all lesser offenses of which the accused might

be found guilty under the indictment and upon the evidence adduced.”

Id. r. 2.6(3).

The State contends to require it to charge a defendant with only

the multiple acts of child endangerment would be “cumbersome,

confusing, and of no practical value” because

[the court] would have had to instruct the jurors to consider

Neiderbach’s guilt under Count 1—which would require

instructions on all the underlying offenses, and would also

require jury findings concerning all those offenses. Further,

the court would have had to instruct that, if the jurors

acquitted Neiderbach under Count 1, they should determine

Neiderbach’s guilt of the underlying offenses—which would

require the jurors to reconsider issues they already decided.

We fail to see how these practical considerations differ from any other

circumstance when a defendant is charged with a major offense and is

instructed on lesser included offenses. Taking this case as an example,

on count two Jonas was charged with child endangerment causing

serious injury in violation of Iowa Code section 726.6(5). The jury was

also instructed under count two as to two lesser included offenses—child

endangerment causing bodily injury in violation of Iowa Code section

726.6(6) and child endangerment in violation of Iowa Code section

726.6(7). These lesser included offenses would have required the jury to

reconsider issues it had already decided in determining whether Jonas

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was guilty of the major offense—for example, whether he caused E.N.’s

injury. This interpretation gives effect to all of the language in rule

2.6(1). Accordingly, we hold the district court erred in not dismissing

counts two through six of the trial information as lesser included

offenses. Only the major offense under section 726.6A should be

charged.

We now turn to consider whether this error prejudiced the

defendant. “When a nonconstitutional error is claimed, as in this case,

the test is whether the rights of the objecting party have been ‘injuriously

affected by the error’ or whether the party has ‘suffered a miscarriage of

justice.’ ” State v. Parker, 747 N.W.2d 196, 209 (Iowa 2008) (quoting

State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004)). This case involves

multiplicity, which is “the charging of a single offense in more than one

count.” United States v. Langford, 946 F.2d 798, 802 (11th Cir. 1991).

Two concerns arise from multiplicitous counts: “First, the defendant may

receive multiple sentences for the same offense. Second, a multiplicitous

indictment may improperly prejudice a jury by suggesting that a

defendant has committed several crimes—not one.” Id. In Langford, the

Eleventh Circuit held a defendant had been charged with multiplicitous

counts. Id. at 804. The defendant argued the three counts should be

reversed because they had “improperly prejudiced the jury by suggesting

that the defendant committed not one but several crimes.” Id. The

court, however, emphasized that “[t]he principal danger . . . is . . . that

the defendant may receive multiple sentences for a single offense.” Id.

Significantly, the Eleventh Circuit held the defendant had not been

prejudiced by the multiplicitous indictment, even though he had actually

received sentences on all three counts because those sentences were to

run concurrently. Id. at 804–05.

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We agree that the primary risk of prejudice arising from a

multiplicitous indictment is that a defendant could receive multiple

sentences for a single offense. In this case, however, no such prejudice

resulted because the district court merged his convictions on counts two

through six into count one and sentenced him on that one count. Jonas

was found guilty of separate acts that were chargeable as separate

crimes under section 726.6, but when combined, also violated section

726.6A. Under these circumstances, there was no unfair appearance

that he had committed “not one but several crimes.” Accordingly, we

hold Jonas was not prejudiced.

B. Motion to Sever. Jonas also appeals the district court’s denial

of his motion to sever counts two through six. All the counts involved

the same victim and acts occurring within several weeks. A defendant in

some circumstances may be entitled to a severance to avoid prejudice

from the jury hearing evidence inadmissible on one count coming in to

prove another count. That is not the situation here. Count one, which

includes counts two through six as lesser included offenses, could not be

severed. The State was entitled to offer evidence on each act to prove the

multiple-acts crime in count one. Accordingly, we hold the district court

did not abuse its discretion in denying Jonas’s motion to sever.

V. The Request for Jherica’s Mental Health Records.

A. Applicability of Section 622.10(4). On July 20, 2010, Jonas

filed a motion to compel production of Jherica’s mental health records

under the protocol set forth in Cashen. The district court denied Jonas’s

motion on the grounds that Cashen only applies when the defendant

requests the mental health records of the victim, is claiming self-defense,

and is inapplicable to efforts to obtain a codefendant’s mental health

records. During the pretrial proceedings in this case, the legislature

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passed Senate File 291, which took effect upon its enactment on

March 30, 2011. See 2011 Iowa Acts ch. 8. Senate File 291 amended

section 622.10 by adding the following subsection:

4. a. Except as otherwise provided in this subsection,

the confidentiality privilege under this section shall be

absolute with regard to a criminal action and this section

shall not be construed to authorize or require the disclosure

of any privileged records to a defendant in a criminal action

unless either of the following occur:

(1) The privilege holder voluntarily waives the

confidentiality privilege.

(2)(a) The defendant seeking access to privileged

records under this section files a motion demonstrating in

good faith a reasonable probability that the information

sought is likely to contain exculpatory information that is

not available from any other source and for which there is a

compelling need for the defendant to present a defense in the

case. Such a motion shall be filed not later than forty days

after arraignment under seal of the court. Failure of the

defendant to timely file such a motion constitutes a waiver of

the right to seek access to privileged records under this

section, but the court, for good cause shown, may grant

relief from such waiver.

(b) Upon a showing of a reasonable probability that

the privileged records sought may likely contain exculpatory

information that is not available from any other source, the

court shall conduct an in camera review of such records to

determine whether exculpatory information is contained in

such records.

(c) If exculpatory information is contained in such

records, the court shall balance the need to disclose such

information against the privacy interest of the privilege

holder.

(d) Upon the court’s determination, in writing, that

the privileged information sought is exculpatory and that

there is a compelling need for such information that

outweighs the privacy interests of the privilege holder, the

court shall issue an order allowing the disclosure of only

those portions of the records that contain the exculpatory

information. The court’s order shall also prohibit any

further dissemination of the information to any person, other

than the defendant, the defendant’s attorney, and the

prosecutor, unless otherwise authorized by the court.

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b. Privileged information obtained by any means other

than as provided in paragraph “a” shall not be admissible in

any criminal action.

Iowa Code § 622.10(4) (Supp. 2011).

Jonas renewed his motion seeking Jherica’s mental health records

pursuant to the procedure set forth in the statute. The renewed motion

included the same offer of proof contained in Jonas’s original motion for

production under the Cashen protocol; however, Jonas later

supplemented his offer of proof on April 25. The district court again

denied Jonas’s motion.

On appeal, Jonas argues section 622.10(4) is unconstitutional

because Cashen set the constitutional floor for requests of mental health

records. In Thompson, 836 N.W.2d at 482, decided today, we reject a

facial challenge to the constitutionality of section 622.10(4) and hold the

statute supersedes the Cashen protocol. We note that, if Jonas’s right to

exculpatory evidence trumped the statutory procedure protecting

privileged mental health records, as he claims, the same logic would

allow Jonas access to Jherica’s privileged communications with her

lawyer to see if she admitted guilt in a way that could help establish his

innocence. Yet, courts would not allow a codefendant to pierce the

attorney–client privilege of another defendant to look for exculpatory

evidence. Cf. Wemark v. State, 602 N.W.2d 810, 815–16 (Iowa 1999)

(discussing attorney–client privilege in the context of criminal cases,

including the general prohibition on the disclosure of client’s confidential

communications). Clearly, the legislature is entitled to protect

communications between attorneys and clients, just as it may impose

procedures governing the disclosure of other records privileged under

section 622.10. These privileges serve important purposes that foster

and protect necessarily confidential communications. See id. at 815

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(noting justification of attorney–client privilege is to encourage

“unrestrained communication by clients”); see also McMaster v. Iowa Bd.

of Psychology Exam’rs, 509 N.W.2d 754, 758–59 (Iowa 1993) (discussing

same purpose for psychotherapist–patient privilege). Accordingly,

although Thompson involved the victim’s mental health records and

Jherica is a codefendant, we reject Jonas’s constitutional challenge for

the same reasons expressed in that opinion. See Thompson, 836 N.W.2d

at 481.

Furthermore, because this amendment to the statutory privilege

found in section 622.10 is procedural, it applies retroactively. See State

v. Godfrey, 775 N.W.2d 723, 724 (Iowa 2009) (per curiam); State ex rel.

Leas, 303 N.W.2d 414, 419–20 (Iowa 1981) (applying amendment to

statutory physician–patient privilege retroactively as procedural and

rejecting argument that amendment changed defendant’s substantive

rights in manner precluding retrospective application). In Godfrey, the

district court ordered the state to disclose the home addresses of its

witnesses in a criminal proceeding. 775 N.W.2d at 724. We granted the

state’s application for discretionary review of the pretrial order and

transferred the case to the court of appeals, which affirmed the order. Id.

We then granted the state’s application for further review, but before

deciding the appeal, we adopted Iowa Rule of Criminal Procedure

2.11(12), which governs disclosure of trial witnesses. Id. We noted:

The new provisions do not relate to the substantive elements

of the crimes charged, but pertain only to the procedure for

adjudicating the criminal charges leveled against a

defendant. Consequently, the amendment is applied

retrospectively and resolves the dispute raised on appeal.

Id. Similarly, the 2011 amendment to section 622.10 did not change the

substantive elements of the criminal charges against Jonas, but rather

19

altered the procedure for seeking records privileged under section

622.10. Although the amendment was enacted after the first ruling

denying Jonas access to Jherica’s records, we hold the statute applies

retroactively and governs our review of that ruling as well as the

subsequent ruling. See id.

Thus, we now turn to consider whether the district court correctly

applied the statute in this case.

B. Application of Section 622.10(4). Jonas argued Jherica’s

postarrest behavior provided grounds to compel access to her mental

health records. This behavior included her emotionless call to a funeral

home to report her son had died and inquire about prices, flashing her

breasts in jail, and suggesting she should be in a “psych ward” in July

2009. Jonas also argued his access to her records was supported by her

history of smoking marijuana during her pregnancy, her demonstrated

pattern of dishonesty, and her admitted frustration while taking care of

her newborn son. The State and Jherica resisted.

On April 28, the day after an unreported hearing, the district court

denied Jonas’s motion in a ruling filed under seal. The court found that

though Jonas had “demonstrated the possibility that [Jherica]’s mental

health records contain exculpatory evidence, the defendant has not

demonstrated a reasonable probability that they contain exculpatory

information.” The district court noted that because Jherica’s records

were “very time and situation limited” they were unlikely to contain

exculpatory evidence. Jherica was first diagnosed with depression in her

early teens and then was diagnosed again at the jail after E.N.’s injuries.

The district court rejected as unpersuasive “the statements, incidents

and behaviors” defendant identified in support of his contention that the

records would contain exculpatory evidence. The district court also

20

refused to allow defendant to access the records on the basis that there

was a “mere possibility that [Jherica] said something to a mental health

professional that inculpates herself and exculpates the defendant.” On

this point, the court observed, “If that were a ground for permitting

disclosure, it would have to be allowed in every case. Clearly, that is not

what the legislature intended.”

The district court identified two circumstances particular to this

case that lead it to this conclusion: “the defendant already knows much

about [Jherica]” and “had access to [her] pre-incarceration medical

records.” Finally, the district court concluded Jonas had not established

a compelling need for the mental health records because he “already

ha[d] information suggesting reasons why [Jherica] might harm the baby

and that could suggest she was trying to keep such harm a secret.”

The district court specifically found that Jonas had failed to

establish the information sought was not available from any other

source:

[G]iven the importance of the privacy interest that is at stake

here, and the fact that the statute specifically places the

burden on the defendant to show that there is no other

source for the information sought, the court does not believe

that a defendant is allowed under the statute to obtain

another person’s mental health records without first

exhausting every other source from which there is a

reasonable possibility that the same information could be

obtained. At least in this case, there is a reasonable

possibility that the defendant could obtain the information he

seeks merely by deposing [Jherica]. And, even if he cannot

do that, there is an equally strong possibility, given the

circumstances just discussed, that by taking the deposition

he would at least be able to make a stronger case for

obtaining her mental health records under the requirements

of SF 291.

(Emphasis added.)

21

On our de novo review, we find the district court erred in failing to

conduct an in camera inspection of Jherica’s mental health records.

Jherica was a codefendant charged with endangering the same victim,

baby E.N. Her credibility was a central issue in the case. Her testimony

put E.N. in Jonas’s arms when the baby stopped breathing. She and

Jonas concocted matching stories to tell at the hospital, giving a version

of what happened that was at odds with the baby’s life-threatening

injuries. Jherica also gave inconsistent statements contradicted by her

trial testimony. Significantly, she behaved strangely in jail, by stating

she should be in “a psych ward,” baring her breasts, and falsely saying

her son was dead while asking, without emotion, about burial costs. She

pled guilty to three counts of child endangerment, albeit without

admitting to personally inflicting the baby’s injuries. Jonas’s defense

strategy included raising reasonable doubt whether certain injuries may

have been inflicted by Jherica instead of him. The district court made no

finding that Jonas’s motion was made in bad faith to intimidate or deter

her testimony or for any other improper reason. We conclude Jonas

“demonstrate[d] in good faith a reasonable probability that the

information sought [in Jherica’s records] is likely to contain exculpatory

evidence . . . and for which there is a compelling need for [Jonas] to

present a defense” within the meaning of section 622.10(4)(a)(2)(a).

The district court denied his motion in part because it found Jonas

failed to show that “the information is not available from any other

source,” as required under the statute. Iowa Code § 622.10(4)(a)(2)(a).

Specifically, the district court found Jonas failed to meet this

requirement because he failed to depose Jherica. Under the

circumstances of this case, we disagree that his failure to depose Jherica

was fatal to his motion to obtain her mental health records. Jherica may

22

have made admissions to a mental health counselor that she would

forget or deny in an adversarial interrogation. Statements memorialized

by a neutral therapist would likely be more credible than Jherica’s self-

serving assertions as a hostile witness. Indeed, noted commentators

have recognized that “[e]ven the taking of a deposition from a hostile

witness may not provide the substantial equivalent of the information the

witness has given to a party to whom he or she is not hostile.”

Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, 8 Federal

Practice and Procedure § 2025, at 544 & n.23 (3d ed. 2010) (citing Fed. R.

Civ. P. 26(b)(3) advisory committee’s note). Her records may very well

have enabled defense counsel to more effectively cross-examine her at

trial or assisted counsel’s preparation for her deposition.

Accordingly, we reverse the district court’s ruling denying Jonas’s

motion for an in camera review of Jherica’s mental health records and

remand the case for the district court to conduct that review pursuant to

section 622.10(4)(a)(2). If the district court finds no exculpatory evidence

on that review, Jonas’s remaining convictions shall remain affirmed. If

exculpatory evidence is found, the district court shall proceed as directed

in section 622.10(4)(a)(2)(c) and (d) and determine whether Jonas is

entitled to a new trial.3

3This multistep procedure is similar to that prescribed in cases remanded for

in camera reviews to determine whether exculpatory evidence was withheld in violation

of the disclosure requirements in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10

L. Ed. 2d 215 (1963). For example, in State v. Johnson, we concluded the district court

erred by denying defendant’s motion to produce a list of names of those who witnessed

the alleged crime and their statements. 272 N.W.2d 480, 485 (Iowa 1978). We

remanded for an in camera review and directed that “[i]f it is found that exculpatory

material was withheld from the defendant, then a new trial shall be granted. If not, the

judgment shall stand affirmed.” Id. (citing prior Iowa cases using this procedure). The

United States Supreme Court also has directed such a procedure in the Brady rule

context. See Pennsylvania v. Ritchie, 480 U.S. 39, 58, 107 S. Ct. 989, 1002, 94

L. Ed. 2d 40, 58 (1987). The Ritchie Court held the defendant was entitled to have the

23

VI. Defendant’s July 8 Statements to Detective Kelly.

A. Facts and Procedural Background. Late in the evening on

July 8, the hospital notified Detective Lori Kelly of the Des Moines Police

Department that a baby had been brought in with a brain injury. When

Detective Kelly arrived at the hospital, she learned that the victim, E.N.,

“was in very serious condition and may not make it.” Detective Kelly

interviewed four people that night: Jon, Mary, Jherica, and Jonas, in

that order. Greg Sweem, a DHS on-call worker, and Sergeant Lori Neely

were present during all of the interviews.

After Detective Kelly finished interviewing Jherica sometime

around 2 a.m., she asked Jonas to join her in a private room for an

interview. Jonas agreed and walked towards the room. Jon interjected,

“I’m not comfortable with my son, Jonas, being interviewed.” He asked

to be present during his son’s interview and told Detective Kelly, “I’m

acting as his attorney.” Detective Kelly asked Jon whether he was

licensed to practice law in Iowa, and he confirmed that he was. Detective

Kelly told Jon it would not be possible for him to sit in on the interview

because he was a witness. But, she “told both Jon and Jonas that, of

course, [Jonas] was welcome to have any attorney that he wanted . . .

‘any attorney in the world except for Jon Neiderbach.’ ” Jonas said

nothing during that exchange.

________________________________

trial court conduct an in camera review of the victim’s counseling records possessed by

a state agency. Id. On remand, the defendant was to receive a new trial if the records

“contain[] information that probably would have changed the outcome of his trial.” Id.

Conversely, if the records “contain no such information, or if the nondisclosure was

harmless beyond a reasonable doubt, the lower court will be free to reinstate the prior

conviction [previously vacated by the state appellate court].” Id.; see also State v.

Garcia, 302 P.3d 111, 121 (N.M. Ct. App. 2013) (citing Ritchie in remand for trial court’s

in camera review of victim’s mental health records, with new trial to be granted only

upon determination that defendant had been prejudiced by improper exclusion of the

records in first trial).

24

Jon repeated that “he was not comfortable with Jonas being

interviewed at 2:00 in the morning.” Detective Kelly explained she only

planned to ask Jonas the same questions she had asked him, his wife,

and Jherica. Detective Kelly then looked directly at Jonas and said, “It’s

up to you whether you speak with us or not. It’s your decision.” At that

time, Detective Kelly noted she had “made it clear that his father was not

going to be present [for the interview].” Jonas “said he was willing to

speak with [them] and followed [them] into the room.”

The interview ended about thirty minutes later when Jon barged

into the room, “saying that that was enough, that [they] didn’t need to

ask any other questions.” At that time, Detective Kelly and Jonas were

discussing whether Jonas had ever shaken E.N., “even if it was an

attempt to get him to get his attention or to get him to breathe after he

had gone limp . . . .” Significantly, Jonas had just answered affirmatively

when his father entered the room to end the interview.

On September 1, 2010, Jonas filed a motion to suppress the

statements he made during this interview. Jonas claimed Detective Kelly

had violated his right to counsel and that her deception as to whether his

father could represent him as an attorney rendered his confession

involuntary. The district court held a suppression hearing on October 1.

Detective Kelly and Jon testified.

Detective Kelly testified that she denied Jon’s request to be present

during her interview of Jonas because she considered Jon “a potential

suspect, just like everybody else who had been in contact with [E.N.]”

Detective Kelly added:

I knew that was not something that the Court would allow.

It was absurd to me that he would be able to represent his

son in a case simply because he is also involved. He’s a

witness. He’s a potential suspect.

25

Detective Kelly explained that she considered Jon to be a suspect at that

time because “[t]here were four people who lived with the child, who had

several injuries, and experience and research shows that most cases

involve the caretakers, and Jon was one of them.”

Jonas was not in custody during the interview and was free to

leave at any time. No claim is made on appeal that the interview was

custodial. Detective Kelly testified that during her interactions with

Jonas, he never invoked his right to an attorney or his right to remain

silent, and he never asked to end the interview. The interview was not

recorded.

Although Jon admitted that he had not been formally retained as

an attorney by his son, Jon testified that approximately two and one-half

years prior he had represented his son in a criminal matter. Jon also

testified that he had recently given Jonas legal advice during the

investigation of E.N.’s broken arm.

The district court denied Jonas’s motion to suppress on

October 18:

Detective Kelly correctly informed Jon Neiderbach that he

could not act as his son’s lawyer during the criminal

investigation because Jon was also a suspect, a witness and

an employee of the DHS. The Iowa Rules of Professional

Conduct prohibit representation where there is a significant

risk that the representation will be limited by the personal

interest of the attorney. Iowa R. of Prof’l Conduct

§ 32:1.7(a)(2); see also Iowa R. of Prof’l Conduct § 32:3.7

(stating the general prohibition against being an advocate at

a trial when the lawyer is likely to be a necessary witness).

Jon had a clear conflict of interest as a potential suspect and

witness in the case. Since he had not been ruled out as a

suspect, Detective Kelly properly determined he could not sit

in on the interview of another suspect in the same case.

The district court also found that Detective Kelly informed Jonas that it

was his choice whether to speak with her. The district court concluded

26

Jonas “knowingly, voluntarily and intentionally waived his right to

remain silent.” The district court also ruled Detective Kelly had not

violated Jonas’s right to counsel because that right could only be invoked

by Jonas, and thus, “Jon Neiderbach had no standing to assert these

rights on behalf of his adult son.” Finally, the district court determined

“[t]he police did not knowingly or intentionally frustrate the defendant’s

opportunity to meet with an attorney before or during the non-custodial

interview at the hospital.”

B. Analysis. Upon our de novo review of the record, we conclude

the district court correctly found Jonas’s statement to Detective Kelly

was voluntary and that he waived any right to counsel he may have had.

Jon was not the right lawyer for his son the night of July 8, 2009. Jon

was a witness as one of four adults residing in the home where his

grandson, E.N., had been injured repeatedly in recent weeks and that

very day. Jon was also a suspect at this initial stage of the investigation.

So, too, was Jon’s wife, Mary, the victim’s grandmother. A lawyer who is

personally involved as a witness, a closely related family member, and a

potential suspect in a matter police are investigating may have conflicting

motives to deflect blame. Such a lawyer should not be representing

another suspect interviewed by the police. See Iowa R. of Prof’l Conduct

§ 32:1.7(a)(2) (“[A] lawyer shall not represent a client if the representation

involves a concurrent conflict of interest [that] . . . exists if . . . there is a

significant risk that the representation . . . will be materially limited . . .

by a personal interest of the lawyer.”). We need not decide whether Jon

was ethically precluded from representing Jonas the night of July 8

because we decide this issue on another ground.

27

In Johnson v. Zerbst, the United States Supreme Court discussed

the test for assessing whether a defendant has waived his constitutional

right to an attorney:

“[C]ourts indulge every reasonable presumption against

waiver” of fundamental constitutional rights and . . . we “do

not presume acquiescence in the loss of fundamental rights.”

A waiver is ordinarily an intentional relinquishment or

abandonment of a known right or privilege. The

determination of whether there has been an intelligent

waiver of right to counsel must depend, in each case, upon

the particular facts and circumstances surrounding that

case, including the background, experience, and conduct of

the accused.

304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 68 L. Ed. 1461, 1466 (1938)

(footnotes omitted); see also State v. Hilpipre, 242 N.W.2d 306, 309 (Iowa

1976) (“It is well settled an individual may legally waive his or her

constitutional rights. But the State must prove by a preponderance of

evidence such was knowingly, voluntarily and intelligently done.”).

We will first address whether Jonas acted voluntarily in waiving

his right to counsel and giving the interview. In State v. Madsen, we

applied the totality-of-the-circumstances test to determine whether

statements defendant made during a noncustodial interview were

voluntary. 813 N.W.2d 714, 722–23 (Iowa 2012). Under this test,

“statements are voluntary if the defendant’s will is not overborne or his

capacity for self-determination is not critically impaired.” Id. at 722. The

factors to be considered in determining whether defendant’s statements

were voluntary include:

“[D]efendant’s age; whether defendant had prior experience

in the criminal justice system; . . . whether deception was

used; whether defendant showed an ability to understand

the questions and respond; the length of time defendant was

detained and interrogated; defendant’s physical and

emotional reaction to interrogation; whether physical

punishment, including deprivation of food and sleep, was

used.”

28

Id. at 722–23 (quoting State v. Payton, 481 N.W.2d 325, 328–29 (Iowa

1992)).

At the time of the interview, Jonas, age twenty, was an adult.

According to his father’s testimony at the suppression hearing, Jonas

had some prior experience with the criminal justice system, although the

extent of that experience is not contained within the record. Jonas does

not allege Detective Kelly used any deception in taking his statement.

Detective Kelly told Jonas he could have “any attorney in the world

except for Jon Neiderbach.” Jonas never requested any lawyer, and

when told it was his choice whether to give the interview, he chose to

proceed.

The interview began at 2 a.m., after Jonas had been at the hospital

for about twelve hours under emotionally difficult circumstances with the

life of his baby in the balance. Yet, he makes no claim that he was too

fatigued to waive any right. The police did not detain him for any period

preceding the interview. We conclude that even if Jonas had a right to

have Jon represent him that night, Jonas knowingly and voluntarily

waived that right and that Jon acquiesced by allowing the interview to

proceed without telling Jonas to remain silent or to await the arrival of

another lawyer. We also find that Jonas’s statement to Detective Kelly

was made voluntarily. Detective Kelly specifically told Jonas, “It’s up to

you whether you speak with us or not. It’s your decision.” She said that

with Jon present. Jonas chose to proceed without counsel. We affirm

the district court’s ruling denying Jonas’s motion to suppress the

statement he made to Detective Kelly.

VII. The January 2011 Video and Photograph.

A. Facts and Procedural Background. Jonas moved in limine to

exclude from evidence a nearly five-and-a-half minute video and a

29

photograph of E.N. taken in January 2011, eighteen months after he

sustained the injuries on July 8, 2009. The DVD shows E.N. having his

tracheostomy tube cleaned and suctioned. E.N. had several seizures

during the video. Jonas argued the video was irrelvant and even if

relevant, “its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury.”

Specifically, Jonas argued “the video is clearly intended to arouse the

jury’s sense of horror and provide an instinct to punish.” His appellate

brief describes the video as “heart-wrenching.” On April 27, the district

court heard argument on the motion in limine. The State argued it

intended to offer the video to show “the seriousness of the injuries to

[E.N.] and clearly the condition that he was in . . . after [those] injuries.”

The court did not rule on the motion before the State sought to

admit the photograph and video at trial on May 5. During the State’s

direct examination of Shannon regarding E.N.’s current health condition,

the district court admitted the video and photograph into evidence over

defense counsel’s renewed objection. The video was played for the jury

while Shannon answered questions about it. The prosecution did not

mention the video during closing arguments.

B. Analysis. We must decide whether the district court abused

its discretion by allowing the video and photograph into evidence. See

Huston, 825 N.W.2d at 536 (noting evidentiary rulings under Iowa Rule

of Evidence 5.403 are reviewed for abuse of discretion). Our court has

long recognized photographs are not inadmissible simply because they

are “gruesome or may tend to create sympathy . . . if there is just reason

for their admission.” State v. Hummell, 228 N.W.2d 77, 83 (Iowa 1975);

accord State v. Coburn, 315 N.W.2d 742, 746 (Iowa 1982) (affirming

ruling allowing into evidence “grisly” photos that were “a fair and

30

accurate depiction” of the child–victim’s condition). “Trial courts have

discretion in determining whether the value of pictures as evidence

outweighs their grisly nature.” State v. Hickman, 337 N.W.2d 512, 516

(Iowa 1983); see also Iowa R. Evid. 5.403.

We disagree with Jonas’s contention that the January 2011 video

and photograph were irrelevant. Evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would

be without the evidence.” Iowa R. Evid. 5.401. The State charged Jonas

with child endangerment causing serious injury for the brain injury E.N.

sustained on July 8. The State was required to prove beyond a

reasonable doubt that E.N. suffered a “serious injury.” See Iowa Code

§ 726.6(1), (5) (2009). Iowa Code section 702.18 defines a “serious

injury,” in part, as a “[b]odily injury which . . . [c]auses protracted loss or

impairment of the function of any bodily member or organ.” Id.

§ 702.18(1)(b)(3). Jonas did not stipulate that E.N. suffered a serious

injury. The video and photograph depicted E.N.’s condition before trial

and reflected the long-term effects of the injuries E.N. had sustained

eighteen months earlier. The video and photograph are relevant to the

issue of the victim’s serious injury.

We next consider whether the video and photograph were

nonetheless inadmissible under rule 5.403. See State v. Henderson, 696

N.W.2d 5, 10 (Iowa 2005) (“Even relevant evidence may be excluded,

however, if its probative value is substantially outweighed by the danger

of unfair prejudice.”). To determine whether evidence should be excluded

under rule 5.403, we apply a two-part test. Huston, 825 N.W.2d at 537.

“First, we ‘consider the probative value of the evidence.’ Second, we

balance the probative value ‘ “against the danger of its prejudicial or

31

wrongful effect upon the triers of fact.” ’ ” Id. (quoting State v. Cromer,

765 N.W.2d 1, 8 (Iowa 2009)). Evidence is unfairly prejudicial when it

“appeals to the jury’s sympathies, arouses its sense of

horror, provokes its instinct to punish, or triggers other

mainsprings of human action [that] may cause a jury to base

its decision on something other than the established

propositions in the case.”

Henderson, 696 N.W.2d at 10–11 (quoting State v. Plaster, 424 N.W.2d

226, 231 (Iowa 1988)). But, in a sense, all powerful evidence is

prejudicial to one side. The key is whether the danger of unfair prejudice

substantially outweighs the evidence’s probative value, as we noted in

Huston:

[T]he purpose of all evidence is to sway the fact finder.

In child abuse cases, much evidence will be at least

somewhat prejudicial. Exclusion is required only when

evidence is unfairly prejudicial [in a way that] substantially

outweighs its probative value. “Unfair prejudice” is the

undue tendency to suggest decisions on an improper basis,

commonly though not necessarily, an emotional one.

Huston, 825 N.W.2d at 537 (citations and internal quotation marks

omitted).

The video of E.N. depicted the ongoing care that he needs and the

lasting effects of his injuries. Video evidence is highly effective. “Courts

of other jurisdictions have dealt with the issue of the prejudicial nature

of day-in-the-life videos and have frequently admitted them into

evidence.” Eckman v. Moore, 876 So. 2d 975, 983 (Miss. 2004). Jonas

does not claim the video of E.N. is misleading or deceptive or that it

inaccurately depicts E.N.’s condition. See id. at 984 (“In order for the

video to have the least amount of prejudicial value, the video must

portray ordinary, day-to-day situations.”). Rather, Jonas argues the

video was unnecessary and inflamed the jury. The video’s impact on the

jury results from the nature of E.N.’s condition, which is fairly depicted.

32

We do not find the video’s probative value is substantially outweighed by

unfair prejudice. Just as trial courts have discretion to admit into

evidence autopsy or crime scene photographs showing a murder victim,

even if the cause of the victim’s death is undisputed, so too may district

courts allow video accurately depicting an injured child’s condition, even

if other evidence establishes the seriousness of the injury. The

prosecution has leeway in what evidence to use to prove injuries, subject

to the district court’s discretion under rule 5.403.

In Rodriguez v. State, the Texas Court of Appeals held video of the

victim’s current condition was admissible, rejecting the criminal

defendant’s challenge under Texas Rule of Evidence 403. 352 S.W.3d

548, 555 (Tex. Ct. App. 2011). The appellate court noted the video had

“some probative value in showing that [the victim] suffered a serious

bodily injury” as was required for the conviction. Id. at 553. The court

noted the defendant had not stipulated that the victim’s injuries were

serious. Id. Rodriguez, like Jonas, argued the video should have been

excluded under rule 403 because medical records and testimony

established the requisite serious bodily injury and that the video was

cumulative and prejudicial. Id. at 554. The Rodriguez court disagreed,

stating, “Despite the existence of other evidence to document [the

victim]’s injuries, the recording communicates that [his] injuries were

serious in a non-technical way that is capable of being easily understood

by laymen.” Id. Moreover, the video “reflected no more than what the

jury would see” if the victim had appeared in the courtroom. Id. at 555.

The same is true for the video of E.N.

We hold the district court did not abuse its discretion by allowing

into evidence the January 2011 video and photograph of E.N.

33

VIII. Expert Testimony on Shaken Baby Studies with

Confessions by Caregivers.

Jonas challenges expert testimony discussing medical journal case

studies of documented brain injuries in which caregivers confessed to

shaking the infant–victims. Jonas contends the expert testimony

violated the Confrontation Clause and rules against hearsay. The

testimony of two experts for the State is at issue.

Defense counsel first objected to the testimony of Dr. Wilbur

Smith. While explaining the cause of E.N.’s head injuries, Dr. Smith

described the historical underpinnings of the acceleration–deceleration

theory. One case history discussed a nanny’s admission that she

thought it was appropriate to violently shake babies. Jonas’s counsel

objected to the statement as hearsay, which should have been excluded

from evidence because he did not “have the opportunity to question the

nanny to see if it was a coerced interrogation.”

Jonas’s counsel later objected to similar testimony from the State’s

expert, Dr. Carole Jenny. Dr. Jenny described a study that compared

injuries suffered by children who were known to have been shaken with

the injuries of children whose caregivers denied that they had shaken

them. Defense counsel objected to the following testimony from

Dr. Jenny:

Q. Can you talk to us a little about kind of the type of

force or what you might expect to see if you were an

independent observer watching this event. A. I can say that

people who have seen babies being beaten or shaken report

it to be extremely disturbing. There are good reports that

have been documented, as well as multiple, multiple

confessional reports of people who have been involved with

abusing children and causing head injury.

It is not something that happens in the course of

normal parenting. It is not something that is, you know,

holding the baby and patting them on the back. It is a

violent act as reported by the people who do it and the

people who see it.

34

MR. DICKEY: Your Honor, I will object. That is

hearsay.

THE COURT: Overruled.

Q. Doctor, let me ask you this: Have there been

published studies, in fact, in the American Academy of

Pediatrics dealing or comparing admissions or statements by

a perpetrator and the injuries that were seen in those

particular cases? A. Yes.

Q. Were those consistent with what those individuals

were saying?

MR. DICKEY: Objection, Your Honor. This is hearsay.

May I approach?

THE COURT: Yes.

(OFF THE RECORD)

THE COURT: The objection is overruled and for the

same reasons that similar objection was overruled last week

with the Court, of course, permitting the defendant at the

break to make whatever record the defendant thinks is

appropriate. Mr. Foritano.

Mr. FORITANO: Thank you, Your Honor.

Q. Dr. Jenny, I am not sure where I left off. Let me

ask you this: Have there been studies comparing statements

by perpetrators that discuss the violent shaking and/or

shaking and impact, that compare the injuries or looked at

the injuries suffered by those infants? A. The most recent

study was by Adamsbaum. She looked at 189 cases, I

believe, that were adjudicated, that had gone through the

courts. There were 28 people who admitted to hurting a

child. All of them admitted to shaking. Some of them

admitted to impacting the baby as well.

They found that when they compared the injuries in

the confession cases with the injuries in cases where people

who hadn’t confessed, that they were comparable, the babies

were injured in the same way.

Q. We are talking about that same type of

acceleration/deceleration injury? A. Well, yes, the injury

result, the subdurals and subarachnoids, the brain damage.

It was similar in both groups.

Q. Those were published in journals typically relied on

in the medical field? A. That article was published in the

journal called Pediatrics, which is the journal of the American

Academy of Pediatrics, which is the most prestigious journal

in the field of pediatrics in the world.

35

(Emphasis added.) In overruling Jonas’s objection to the testimony of

Drs. Jenny and Smith, the district court stated:

I do not believe that the matters that you are objecting to

violate either the hearsay rule or your client’s Sixth

Amendment rights. I do not believe they amount to anything

that would be considered testimonial. They are matters that

experts rely on.

Dr. Smith’s testimony is basically the same as

[Dr. Jenny’s] testimony in terms of how they formed opinions

about mechanisms of these injuries and so forth.

You are certainly entitled to ask these witnesses

whether it is possible that the underlying information that

was relied on, such as confessions of individuals about how

they treated a child, whether they considered the reliability

of those confessions. In other words, did anybody consider

whether all of these or some of these confessions were

coerced or were not voluntary or whatever.

So I do not believe—beyond that, the matters are

general in nature. I mean, they are not testifying about

particular incidents that have any relationship to this

particular case other than that this is how they studied

these type of injuries and their opinions about how they

happen.

So I do not believe that this testimony violates, again,

either the hearsay rule or your client’s Sixth Amendment

right.

(Emphasis added.)

We begin our analysis with Iowa Rule of Evidence 5.703, which we

have said allows

an expert [to] base his or her opinion on facts or data that

are not admissible in evidence so long as they are “of a type

reasonably relied upon by experts in the particular field in

forming opinions or inferences upon the subject.”

Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 182 (Iowa 2004) (quoting

Iowa R. Evid. 5.703). We recently noted that “rule 5.703 is intended to

give experts appropriate latitude to conduct their work, not to enable

parties to shoehorn otherwise inadmissible evidence into the case.”

Stenzel, 827 N.W.2d at 705. Dr. Jenny testified that the Adamsbaum

36

study was published in the journal Pediatrics, which she described as

the “most prestigious journal in the field of pediatrics in the world.” She

identified Pediatrics as a journal “typically relied on in the medical field.”

Significantly, however, she never testified that the facts and data in the

Adamsbaum study derived from police interrogations were “of a type

reasonably relied upon by experts” in her field, as required under rule

5.703. Iowa R. Evid. 5.703; accord Stenzel, 827 N.W.2d at 705 (“Rule

5.703 requires that the facts and data be viewed as reasonably reliable

by experts in ‘the particular field.’ ”). Nor does the State claim her

testimony regarding the Adamsbaum study was admissible under the

learned treatise exception to the hearsay rule. See Iowa R. Evid.

5.803(18). Accordingly, we conclude the district court erred by

overruling Jonas’s hearsay objections to the experts’ testimony regarding

that study as well as the nanny case study.

Nevertheless, “[w]e only find reversible error when the admission of

improper evidence affects a party’s substantial rights.” Stenzel, 827

N.W.2d at 708. “ ‘The admission of hearsay evidence “is presumed to be

prejudicial error unless the contrary is affirmatively established.” ’ ” Id.

(quoting Gacke, 684 N.W.2d at 183). A lack of prejudice may be

established when similar information is properly admitted through

another expert witness. See Gacke, 684 N.W.2d at 183. We find that

occurred here.

Dr. Smith testified, without objection, as follows:

Q. Can you tell us what that mechanism [of brain

injury] is, and then maybe we can talk a little bit more about

the studies? A. Sure. I did also misstate. The doctor was

Guthkelch, not Geddes, was involved.

But the—there are a number of studies which have

evolved to make it clear that severe acceleration of the head,

particularly if it is off axis—in other words, instead of being

straight back and forth, the head flops from side to side—

37

that that can cause a severe brain injury. Those are

mainstream studies which are widely accepted.

....

There have been a number of studies, including one

that we did where we looked at Iowa kids with this problem,

and we found about half of the time we could find evidence

of an impact, half of the time we couldn’t. There probably is

some validity to the impact making it even worse, but in my

belief you can certainly do it just by straight

acceleration/deceleration, shaking the baby with the head

off axis.

(Emphasis added.) Dr. Smith thus testified that there are “mainstream

studies which are widely accepted” establishing the causation theory that

he was advocating. This testimony did not contain any reference to the

nanny or the twenty-eight defendants accused of a crime from the

Adamsbaum study. Moreover, he testified without objection to a third

study—an Iowa study—that showed that impact was not always found in

cases involving brain-injured children. Dr. Smith stated that the rapid

shaking of a baby’s head causes the blood vessels of the brain to rip,

causing subdural hemorrhaging. He further testified that when a baby’s

temporal tip is moved back and forth against the skull, the tissue is

injured. Dr. Smith testified that E.N. had both of these types of injuries.

Based upon this record, we conclude that there is no reversible

error resulting from the admission of Dr. Jenny’s testimony regarding the

Adamsbaum study or Dr. Smith’s testimony about the nanny case study.

The hearsay testimony was brief, and there was ample, properly admitted

evidence from which the jury could conclude that impact was not

required to inflict brain injuries.

We next address Jonas’s Confrontation Clause objection under the

Sixth Amendment to the United States Constitution and article I, section

10 of the Iowa Constitution. The threshold question in a Confrontation

Clause analysis is whether the evidence is “testimonial.” See Crawford v.

38

Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177,

203 (2004). The Crawford Court held that a statement given by the

defendant’s spouse during a police interrogation and read into evidence

against him at trial was testimonial. Id. at 68, 124 S. Ct. at 1374, 158

L. Ed. 2d at 203 (“Whatever else the term covers, it applies at a minimum

to prior testimony at a preliminary hearing, before a grand jury, or at a

former trial; and to police interrogations.”). The State argues that the

anecdotal “confessions” in the Adamsbaum study were simply referenced

to support expert opinion testimony, not for the truth of the matters

asserted. Jonas argues that the case histories with anecdotal

confessions referred to by the State’s experts were offered for the “truth”

of the proposition that “shaking alone can cause enough force to cause a

traumatic brain injury.” Because Jonas lacked the opportunity to cross-

examine the persons in the underlying case histories who “confessed” to

shaking the babies whose injuries were studied, he argues the

Confrontation Clause prohibited expert testimony referring to those

studies. Jonas relies on concurring and dissenting opinions in Williams

v. Illinois to support his Confrontation Clause claim. 567 U.S. ___, 132

S. Ct. 2221, 183 L. Ed. 2d 89 (2012). In Williams, four dissenters and

Justice Thomas disagreed that the Confrontation Clause had been

avoided because the expert’s testimony regarding the basis of her opinion

was offered for a purpose other than the truth of the matter asserted.

See id. at ___, 132 S. Ct. at 2256–59, 183 L. Ed. 2d at 129–33

(Thomas, J., concurring); id. at ___, 132 S. Ct. at 2268–70, 183 L. Ed. 2d

at 142–45 (Kagan, J., dissenting). Because we have concluded above

that any error in admitting the testimony regarding the nanny case study

or Adamsbaum study was harmless, we need not decide whether the

39

testimony was offered for its truth or if it would be considered

“testimonial” for purposes of the Confrontation Clause.

IX. The Limitation on Cross-Examination.

During the cross-examination of Jherica, defense counsel asked

Jherica whether she was under the care of a physician, psychologist, or

psychiatrist while she was in jail. Defense counsel sought to impeach

Jherica with an inconsistent statement she made to the judge during her

guilty plea. The State objected. After hearing Jonas’s offer of proof on

the issue, the trial court sustained the State’s objection, stating as

follows:

I think the collateralness of it comes in in this sense, that it

has only relevance in challenging the witness’s credibility. I

think there are limits to what you can do in the way of

impeaching witnesses to challenge their credibility.

You can’t find anything that you could then ask a

witness about and then prove that she made an inconsistent

statement about it at some time in the past.

....

The suggestion of this question, although you could

impeach her with her prior inconsistent statement and her

guilty plea, comes too close to suggesting that psychiatric

issues are a substantive issue in this case. They aren’t.

There has been no foundation laid which would make

them an issue. Its probative value, therefore, in—as it

reflects on her credibility is outweighed by its potential for

prejudice.

....

. . . I think its probative value in challenging her

credibility is limited. Its potential for prejudice is great. And

I, therefore, am not going to allow it.

We agree and conclude the district court did not abuse its

discretion in limiting the cross-examination of Jherica on this collateral

issue.

It is well settled . . . the right to impeach by prior

inconsistent statements is not without limit. The subject of

40

the inconsistent statement, if it is to be admissible, must be

material and not collateral to the facts of the case.

State v. Hill, 243 N.W.2d 567, 571 (Iowa 1976).

X. Alleged Prosecutorial Misconduct.

A. Background Facts and Procedural History. Jonas’s

allegation of prosecutorial misconduct relates to his claim that the

prosecutor mischaracterized the testimony of one of his expert witnesses,

Dr. Francis Blankenberg. Dr. Blankenberg testified, in relevant part, as

follows:

Q. The subdural hematomas and the subarachnoid

hematomas are the result of the acceleration and

deceleration and the shearing of the bridging veins, right?

A. Yes, that is the usual teaching. Yes.

Q. That is the mainstream – A. That is the

mainstream opinion, yes.

Q. That is what you observed, right? A. Yes.

Q. When you have that kind of an injury, that sudden

deceleration to the brain, that can cause the hypoxic

ischemic injury? A. Not necessarily.

Q. But it certainly could, right? A. There is a big

debate about whether that actually can occur as an isolated

finding.

The central areas of the brain that are in question that

were—that suffered a severe hypoxic injury, that is not

typical for child abuse, per se. That is very consistent,

however, with complete cessation of blood flow or oxygen for

a period of four to five minutes.

....

Q. You can certainly get edema from the

acceleration/deceleration injuries, right? A. You wouldn’t

expect pure edema. It would have to be some degree of

hemorrhage or intraparenchymal and shear injury which is

manifested on MR by hemorrhage. And sometimes CTs can

be sensitive enough to pick it up, but MR is more sensitive.

Q. Edema is swelling, right? A. Correct.

Q. You get that with acceleration/deceleration

injuries, right? A. No. You have to injure the microvasc,

which are in myelin fibers. So you have to disrupt different

parts of the brain in order to get “edema.” But a lot of it is

mostly shearing of white matter and blood vessels inside the

41

brain that has to be occurring first, and then secondarily you

get edema.

....

Q. You were also asked about

acceleration/deceleration injuries. You use a couple of

terms that I think we need to explain. You used the term

mass effect. A. Correct. Let’s put it this way: If you have

acceleration/deceleration injury—and let’s talk about the

brain itself, not the surrounding bridging veins. If you have

severe acceleration/deceleration injuries, you tear the white

matter tracks up along with the white matter, along with the

blood vessels on the white matter tracks, that tends to cause

hemorrhage. Sometimes the hemorrhages are not easily

seen on CT, though a lot of times they are.

But certainly on MR you would see signs of bleeding

on the sequences they provided had they had that kind of

injury to the brain itself.

....

Q. You also used—and I don’t know if I am going to

pronounce this correctly—intraparenchymal?

A. Intraparenchymal, meaning inside the brain.

Q. Why would that be indicative of

acceleration/deceleration? A. If you had intraparenchymal

hemorrhages, where the white matter meets the gray matter is

a weak area when you are in that particular motion. That is

where you get tearing.

Q. Did you observe that on [E.N.]? A. No.

(Emphasis added.) The alleged misrepresentation occurred first during

the State’s cross-examination of another of defense counsel’s expert

witnesses, Dr. Ronald Uscinski:

Q. Would it change your opinion at all if Doctor

Blankenberg said on Friday that the injuries to [E.N.] were

the result of acceleration/deceleration injuries?

MR. DICKEY: Objection, that’s a mischaracterization of

Doctor Blankenberg’s testimony.

THE COURT: Once again, jurors, you are the judges of

the facts. You have to remember what other witnesses said

so overruled.

A. And your question is again?

Q. My question is would it change your opinion if

Doctor Blankenberg testified on Friday that [E.N.]’s injuries

were a result, the subdurals, were a result of an

42

acceleration/deceleration injury? A. Would it change my

opinion? No, it wouldn’t change my opinion.

Q. That the subdurals were caused by shearing of the

bridging veins. A. Again, it would not change my opinion.

Jonas alleges the prosecutor misrepresented Dr. Blankenberg’s

testimony again during closing arguments when he said,

“Dr. Blankenberg . . . acknowledged that [E.N.]’s injuries were as a result

of the acceleration and the deceleration of the brain and causing those

bridging veins to sheer.” Defense counsel again objected to the State’s

characterization of Dr. Blankenberg’s testimony. The prosecutor then

interjected stating, “That is exactly what he said, and you remember.”

The court interrupted, admonishing the jurors that they “are the judges

of the facts . . . [and] of what the witnesses said.” The prosecutor then

said, “You rely on your memories for what his testimony was. That is

what he said was the mechanism for those injuries.” Defense counsel

did not request a mistrial after the court overruled either of his

objections.

B. Analysis.

1. Preservation of error. We first consider the State’s claim that

Jonas waived error by failing to request a mistrial after the court

overruled his objections. The State relies on two cases: Krogmann, 804

N.W.2d 518, and State v. Dahlstrom, 224 N.W.2d 443 (Iowa 1974). Both

cases are distinguishable because, here, the district court overruled the

objections by Jonas’s counsel, while in Krogmann and Dahlstrom, the

objections were sustained.

In Krogmann, we held defendant did not preserve a claim for

prosecutorial misconduct when he failed to move for a mistrial after “the

district court sustained the objection and the question was withdrawn.”

804 N.W.2d at 526. This is because “the district court had no reason to

43

believe that [the defendant] wanted anything further done with respect to

the prosecutor’s improper question.” Id. That rationale does not apply

when the defendant’s objection is overruled. Dahlstrom similarly held

error was not preserved when defendant failed to move for a mistrial after

the court sustained his objection. 224 N.W.2d at 449. We noted that “it

is the duty of the party aggrieved to timely voice objection to give the trial

court opportunity to rule on the matter since [it] occupies a position of

vantage and [its] conclusion is entitled to much weight.” Id. That duty is

satisfied by the objection. A motion for a mistrial would be futile when

the district court has overruled the objection to the statements giving rise

to the grounds for a mistrial.

Our court has previously held that defense counsel need not move

for a mistrial to preserve error on a claim of prosecutorial misconduct

when “he promptly objected to the [prosecutor’s] statement . . . [and]

[t]he objection was overruled.” State v. Phillips, 226 N.W.2d 16, 19 (Iowa

1975). Phillips is controlling here. Counsel need not move for a mistrial

after an objection to the misstatement is overruled. Accordingly, we hold

error was preserved in this case.

2. Merits. “To prevail on a claim of prosecutorial misconduct, the

defendant must show both the misconduct and resulting prejudice.”

Krogmann, 804 N.W.2d at 526. In assessing whether retrial is warranted

when prosecutorial misconduct is alleged, we consider the following:

“ ‘(1) the severity and pervasiveness of misconduct; (2) the

significance of the misconduct to the central issues in the

case; (3) the strength of the State’s evidence; (4) the use of

cautionary instructions or other curative measures; (5) the

extent to which the defense invited the misconduct.’ ”

Id. (quoting State v. Boggs, 741 N.W.2d 492, 508–09 (Iowa 2007)). Of

these factors, the most important factor we consider is the strength of

44

the State’s evidence. Id. Although prejudice may result from an isolated

incident of prosecutorial misconduct, “ ‘[o]rdinarily a finding of prejudice

results from [p]ersistent efforts to inject prejudicial matter before the

jury.’ ” Id. (quoting State v. Webb, 244 N.W.2d 332, 333 (Iowa 1976)).

The State on appeal does not argue that the prosecutor correctly

characterized Dr. Blankenberg’s testimony, but does argue lack of

prejudice. The district court made no finding that the prosecutor

mischaracterized the expert testimony and indeed overruled the

objections of defense counsel who argued the testimony was

mischaracterized. We affirm the district court on grounds that Jonas

failed to meet his burden to show prejudice requiring a new trial. Several

experts affirmatively testified E.N.’s brain injuries were consistent with

either an impact or acceleration–deceleration mechanism. The jury

heard the testimony of all the experts. The jury also heard defense

counsel’s objection during the cross-examination. The prosecutor’s

closing argument again drew an objection, and the court admonished the

jurors to rely on their own recollection of the testimony. The jury was

also instructed that what lawyers argue is not evidence. Prosecutors

who misstate testimony risk harming their own credibility with the jury.

Cf. Krogmann, 804 N.W.2d at 526–27 & n.10 (observing prosecutor’s

inappropriate comment was just as likely to offend the jury rather than

score points for the state). We admonish all trial counsel to scrupulously

avoid misstating or embellishing expert testimony on medical causation

issues.

Yet, the district court was better positioned than an appellate court

reviewing a cold transcript to determine whether any misstatements by

the prosecutor prejudiced the defendant:

45

It is axiomatic that a trial court is better equipped than

appellate courts can be to determine whether prejudice

occurs. This is because the trial court is a firsthand

observer of both the alleged misconduct and any jury

reaction to it.

State v. Anderson, 448 N.W.2d 32, 34 (Iowa 1989). Jonas has cited no

case on point holding a new trial was required because the prosecutor

misstated an expert’s testimony. Accordingly, we hold that the district

court did not abuse its discretion by denying Jonas a new trial on this

issue.

XI. Aiding and Abetting and Alternative-Theory Jury

Instructions.

Jonas appeals the trial court’s submission of aiding and abetting

instructions on counts one, two, and five. Jonas also appeals the trial

court’s submission of the alternative-theory jury instruction, which

allowed the jury to convict even if the jurors did not agree as to whether

Jonas acted as a principal or as an aider or abettor. Jonas contends the

evidence was insufficient to submit those instructions. We only address

whether the court properly submitted these instructions as to counts one

and two, however, because as is discussed in division XIII of this opinion,

we hold the evidence insufficient to support count five.

It is well established that

“[t]o sustain a conviction on the theory of aiding and

abetting, the record must contain substantial evidence the

accused assented to or lent countenance and approval to the

criminal act either by active participation or by some manner

encouraging it prior to or at the time of its commission.”

State v. Spates, 779 N.W.2d 770, 780 (Iowa 2010) (quoting State v.

Tangie, 616 N.W.2d 564, 574 (Iowa 2000)). The State may prove the

defendant participated in the crime by either direct or circumstantial

evidence. Hearn, 797 N.W.2d at 580. “ ‘Knowledge is essential; however,

46

neither knowledge nor presence at the scene of the crime is sufficient to

prove aiding and abetting.’ ” Id. (quoting State v. Barnes, 204 N.W.2d

827, 828 (Iowa 1972)). We have previously held that “ ‘[e]vidence of a

defendant’s presence, companionship, and conduct before and after the

offense is committed may be enough from which to infer a defendant’s

participation in the crime.’ ” Id. at 581 (quoting State v. Lewis, 514

N.W.2d 63, 66 (Iowa 1994)).

On July 8, the day E.N. suffered his brain injury, two people were

in the Neiderbach home—Jonas and Jherica. Initially, Jherica told the

hospital physician, her mother, Jonas’s mother, and Detective Kelly that

she was in the room with Jonas when E.N. stopped breathing. Jonas

and Jherica told a mutually consistent story that failed to explain E.N.’s

injuries: E.N. screamed, started gasping, and then turned blue. Jherica

later recanted this story and testified that Jonas was alone with E.N.

when he stopped breathing. Jherica also told detectives she may have

shaken E.N. after he stopped breathing, but later testified she never

shook E.N. “ ‘[T]he jury [is] free to reject certain evidence, and credit

other evidence.’ ” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012)

(quoting State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006)). Given the

evidence that Jonas and Jherica were both present when the offense was

committed and that they colluded with each other to explain E.N.’s

condition, a reasonable jury could have concluded that Jonas aided and

abetted Jherica in committing an act that resulted in E.N.’s brain injury.

Accordingly, the court’s submission of the aiding and abetting

instruction and alternative-theory instruction for counts one and two are

affirmed. For the reasons discussed in division XIII of this opinion, we

hold the court erred in giving the instruction as to count five.

47

XII. Weight of the Evidence.

Jonas also appeals the district court’s denial of the part of his

motion for a new trial that alleged the verdicts on counts three and six

were contrary to the weight of the evidence presented at trial.4 We

accord the district court “broad discretion in ruling on a motion for new

trial.” Reeves, 670 N.W.2d at 202. We reverse the district court only if it

has abused its discretion. Id. In Reeves, we stated:

On a weight-of-the-evidence claim, appellate review is

limited to a review of the exercise of discretion by the trial

court, not of the underlying question of whether the verdict

is against the weight of the evidence. [Commonwealth v.]

Widmer, 744 A.2d [745,] 753 [(Pa. 2000)]; see also United

States v. Ashworth, 836 F.2d 260, 266 (6th Cir. 1988)

(appellate court neither sits to judge credibility of witnesses

nor to reweigh the evidence; rather appellate court is limited

to examining the evidence produced at trial to determine

whether the district court’s determination that the evidence

does or does not “preponderate heavily against the verdict” is

a clear and manifest abuse of discretion).

Id. at 203. For each challenged count, we summarize the evidence

presented and analyze whether the district court abused its discretion in

determining that the evidence does not preponderate heavily against the

verdict.

A. Count Three—Broken Arm.

1. Summary of testimony. Jonas and Jherica took E.N. to the

emergency room on June 18 for what turned out to be a broken arm.

Dr. Selover, the treating pediatrician, recounted Jonas’s version of how

the injury occurred as follows:

Father related a history that the baby was hungry and was

crying. He was sitting on a bed holding the baby. Mother

went to another room to make a bottle for the baby.

4Jonas’s motion also challenged the jury’s verdict as to count two, but he does

not appeal the denial of his motion for new trial as to that count.

48

While waiting for Mom to make the bottle, the baby

was still crying. Dad set the baby down onto the bed. At the

time he set the baby on the bed, he related that he heard a

“snap,” the baby cried harder, and he discovered that there

was an injury to the baby.

....

. . . Father said that the baby put his arm behind his

back as he set the child down onto the bed.

Several other witnesses testified Jonas told them a similar story.

Although none of the State’s physician witnesses were willing to

rule out the possibility that E.N.’s arm had been broken in the manner

Jonas described, they all agreed that his version was highly unlikely.

Dr. Smith, an expert witness for the State, emphasized that “[i]t would be

so unusual you could probably publish it as a case report because it is

not—certainly would be at variance with most thoughts and practices.”

According to Dr. Selover, a spiral fracture resulting from setting a

baby down on a bed was unlikely, in part, because

[a] normal, healthy newborn, when you lie them down or if

you lower their head, will elicit something called a Moro

response. It is a primitive reflex where the baby’s arms will

come up in front of the baby. The legs will come as well.

Also, a normal newborn, their muscle tone is such that

they hold their arms and their legs in front of them. They

don’t put their arms behind their back.

Dr. Lindaman and the State’s two expert witnesses—Dr. Smith and

Dr. Jenny—also testified that E.N.’s Moro reflex and flexor tone made it

unlikely his arm would have been behind his back when Jonas placed

him on the bed. Dr. Selover further disputed Jonas’s account, noting it

was “unlikely that the baby’s weight alone would provide sufficient force

to fracture the baby’s arm.” This testimony was buttressed by Dr. Smith,

who noted that “[t]he humerus is a fairly strong bone. . . . It takes a good

amount of force to break that.” Dr. Jenny agreed that there would need

to be “a significant degree of force involved.”

49

When asked what the mechanism of injury would be for a spiral

fracture in an infant, Dr. Smith testified:

Usually, a twisting, wrenching force. But it is possible

somebody could hit the child in the arm; or it is possible, I

guess, that a child might be caught, like between a car or

some—you know, some hard surface and be pinned and

fracture.

The spiral fracture classically is a twist fracture. But

there is some pretty good work in the orthopedic literature

that follows the stress lines and shows that you can do it

with impact too. It is just less likely, considerably less likely,

with impact.

....

. . . Usually, it is grabbing more at the elbow and

twisting or wrenching, pulling out or in—I can’t tell which—

the arm. It takes a lot of force.

Dr. Lindaman acknowledged he had advised E.N.’s other

physicians and DHS that he believed E.N.’s injury was “consistent with

the history they had obtained and the one [he] had obtained.” He

explained, however, that at that time he was unaware flexor tone would

still be present at E.N.’s age. At trial, Dr. Lindaman testified that, in his

opinion, Jonas’s version was unlikely because [E.N.]’s flexor tone would

keep his arms in front, not behind him.

Jonas also called two expert witnesses, Dr. Blankenberg and

Dr. Errol Mortimer, who testified about E.N.’s broken arm. They agreed

it was possible for a spiral fracture to result from an arm being pinned

while an infant is laid on his back. Dr. Mortimer further testified his

opinion would be unaffected by the fact that a child of E.N.’s age would

exhibit the Moro reflex and flexor tone because they “really only appl[y] to

[children] when they are startled or when they are moved in a particular

way.”

While cross-examining Dr. Selover and Dr. Jenny, defense counsel

also introduced into evidence two photographs showing E.N. being held

50

with his arm dangling behind his back. Defense counsel presented

Dr. Selover with the first photograph, which he agreed did not show “a

good example of flexor muscle tone.” On redirect, however, Dr. Selover

noted that it appeared E.N. was sleeping in the photograph, which was

significant because “[a] sleeping baby[’s muscles] will, of course, be

relaxed . . . [whereas in] [a]n awake baby, the muscles are active,

engaged.” Defense counsel confronted Dr. Jenny with the second

photograph, which showed E.N. being held by his grandmother.

Dr. Jenny admitted E.N. was “not exhibiting flexor tone at that point.”

But, Dr. Jenny reiterated that an infant who was being laid down, as

opposed to being held as was depicted in the photograph, would exhibit

the Moro response and flexor tone and thus would lift his arms up in

front of him.

2. Analysis. Jonas argues the weight of the evidence presented

does not support his conviction for child endangerment under the third

count. The jury instruction read as follows:

1. On or about June 18, 2009 the defendant:

a. knowingly acted in a manner that created a

substantial risk to E.N.’s physical health or safety; or

b. by an intentional act or series of intentional acts,

used unreasonable force: (i) that resulted in E.N.

suffering a broken arm; or (ii) with the specific intent

of causing a serious injury to E.N.

2. When he committed the act(s) the defendant was E.N.’s

parent.

3. As a result of the defendant’s acts, E.N. suffered a serious

injury.

Jonas’s challenge focuses on the first element of the instruction.

Jonas argues the State failed to rebut his version of how E.N.’s arm was

broken, given that he consistently provided the same explanation for the

injury to several people and Dr. Lindaman testified that it was possible

51

for E.N. to have suffered a spiral fracture had his arm been pinned

behind his back, as Jonas described. Jonas also claims the two photos

of E.N. showing his arm “dangling to the side and down below his back”

“flatly refuted” the State’s expert testimony that Jonas’s story was

inconsistent with the involuntary physical responses of an infant E.N.’s

age. Finally, Jonas emphasizes that “the prosecution never offered any

alternative explanation for the injury.” We disagree.

The jury heard from four physicians who testified that the presence

of flexor tone and the Moro reflex in an infant E.N.’s age substantially

undermined Jonas’s explanation for the cause of E.N.’s broken arm

because it made it unlikely E.N.’s arm would have been behind his back

when he was laid down on the bed. Dr. Smith, Dr. Selover, and

Dr. Jenny also testified that it would have taken a great deal of force to

break E.N.’s arm. And, contrary to Jonas’s assertion on appeal, the

State’s expert witness, Dr. Smith, described the mechanisms that usually

cause spiral fractures in an infant’s arm—one of which was “grabbing

[E.N.’s arm] . . . at the elbow and twisting or wrenching.” Considering all

of the evidence in the record, we cannot say the evidence preponderates

heavily against the jury’s verdict finding Jonas guilty of child

endangerment causing serious injury under this count.

Accordingly, we hold the district court did not abuse its discretion

in denying Jonas’s motion for a new trial on count three.

B. Count Six—Failure to Seek Medical Care.

1. Summary of testimony. Jherica’s sister, Shannon, testified that

when Jonas and Jherica dropped E.N. off at her house to have her watch

him for the day on July 2 she noticed a popping on E.N.’s back:

It was just—it almost was like a joint popping, like if you

would kind of pop a knuckle, how that would feel, kind of

popping in and out of place. It was every time he would

52

exhale—or every time he would take a breath. Every inhale

and exhale it would just go “pop, pop” with that.

Shannon noted that E.N. “seemed to have some discomfort with it.”

Shannon testified she and Joe, Shannon’s cousin who first noticed the

issue, told Jonas and Jherica about the popping before they left for

Jherica’s appointment in Iowa City. Shannon recommended they bring it

to the attention of E.N.’s pediatrician at his next doctor’s appointment,

which Shannon believed was in a couple of days. According to Jherica’s

testimony, that appointment was set for some time after July 8. E.N.

was not seen by any medical professionals after Shannon raised the

issue with Jonas and Jherica on July 2 until he was rushed to the

emergency room on July 8.

Jherica testified at trial that her cousin “Joe said that it felt like it

was a broken rib.” On cross-examination, defense counsel impeached

Jherica with the following statement made in her proffer for her guilty

plea: “He told us there was something wrong, but I didn’t know it was

broken ribs.” To which Jherica responded, “He told us that there was

something wrong and it felt like broken ribs.” Defense counsel then

pointed out that Jherica had affirmatively denied that she was told the

popping was from a broken rib:

Q. When you were asked: Question: “And they say—

Joe says, I have had a broken rib and that baby is in pain.

And when Shannon and Joe”—you interrupt, don’t you?

A. Yes.

Q. What do you say? A. I said, “They did not say this

was what it was while I was there.”

Defense counsel also asked Jherica about a conversation she had with

her mother while she was in jail. Jherica admitted that she had told her

mother that if she had known that E.N.’s rib was broken that she would

have taken him to the hospital. Joe did not testify at trial.

53

The day after E.N. was at Shannon’s, Jonas and Jherica left E.N.

with Jherica’s mother, Connie. E.N. became so fussy during this visit

that Connie had to return him to his parents at the Neiderbach home.

Connie noted that E.N.’s crying was “[p]retty much constant” and was

not alleviated by feeding him, changing his diaper, or her attempts at

consoling him. While Jonas’s mother, Mary, was watching E.N., after

Connie returned him to the Neiderbach home, she noticed a popping in

E.N.’s back. Connie had alerted her to it when she dropped E.N. off at

her home. Mary testified she did not believe the popping was causing

E.N. any pain and she was unaware E.N.’s ribs were broken at that time.

Jon noticed clicking in E.N.’s back a couple of days later on July 5. He

brought it up to Mary, and they generally agreed that the issue should be

raised at E.N.’s next appointment with his pediatrician, which was

scheduled for later that week.

Dr. Ekhardt, one of the physicians treating E.N. at Blank

Children’s Hospital, admitted that “[t]here is no treatment for broken

ribs”; however, she explained the treating physician “would have given

pain medicine because it is painful . . . and [would] follow him to make

sure it healed well.” Dr. Ekhardt also testified that to her knowledge E.N.

had not suffered a secondary injury from the broken ribs, such as a

punctured lung. Dr. Lindaman testified an infant would show signs of

distress or pain after suffering multiple rib fractures “for the better part

of the day and any other time that those multiple rib fractures were

moved.”

2. Analysis. Jonas claims the verdict as to count six, which

charged Jonas with child endangerment for failing to seek medical care

for E.N.’s broken ribs, is contrary to the weight of the evidence. The jury

instruction for this count required the State to prove the following:

54

1. On or about between approximately July 2, 2009

and July 8, 2009 the defendant deprived E.N. of health care

by willfully failing to take him for treatment of broken ribs.

2. At that time the defendant was E.N.’s parent.

3. At that time the defendant was reasonably able to

make provisions for E.N.’s health care.

4. The deprivation of such health care caused

substantial harm to E.N.’s physical health.

5. As a result of the deprivation, E.N. suffered a bodily

injury other than the injury for which the health care was

needed.

The jury instructions defined “bodily injury” as “physical pain, illness or

any impairment of physical condition.”

Jonas contends the weight of the evidence fails to establish he

knew or should have known E.N.’s ribs were broken and, thus, needed

medical care. Rather, Jonas argues the evidence merely “showed an

awareness of a ‘popping’ feel in E.N.’s back . . . which his sister-in-law

advised needed to be checked out.” This same popping or clicking was

also noticed by Connie, Jon, and Mary—none of whom believed the issue

required immediate medical attention. Jonas thus argues:

If the grandparents, who collectively have over one hundred

years of experience raising children, did not believe [E.N.]

was ever in need of medical care, then how could Jonas—

who had only been a father for just over a month—possibly

be expected to have known[?]

Yet, Jherica testified at trial that Joe told her and Jonas that he

believed E.N.’s ribs were broken. Although Shannon testified that she

and Joe were less specific on this point, it is not our role to judge the

credibility of witnesses on our appellate review. See Reeves, 670 N.W.2d

at 203. Rather, we only consider “whether the district court’s

determination that the evidence . . . does not ‘preponderate heavily

against the verdict’ [was] a clear and manifest abuse of discretion.” Id.

(quoting Ashworth, 836 F.2d at 266). We cannot say the evidence

55

preponderated heavily against the conclusion that Jonas knew or should

have known E.N.’s ribs were broken and the baby was in need of medical

attention.

Jonas also argues the weight of the evidence was contrary to the

verdict under this count because there is no treatment for broken ribs

and because there was no evidence that “[a]s a result of the deprivation,

E.N. suffered a bodily injury other than the injury for which the health

care was needed.” Jonas also contends there is no evidence E.N.

suffered “a separate and subsequent serious injury,” and the State failed

to prove “[E.N.] was ever in a state of pain for which [Jonas] either

directly or aided and abetted in denying him medication.”

Significantly, however, Dr. Ekhardt testified that although there is

no treatment for broken ribs, E.N. still should have been brought in to

see a physician so that the healing of his ribs could be monitored and

pain medication could be prescribed. The fact that severe pain from the

untreated rib injuries could have been alleviated by medical intervention

and medication is enough to support a conviction. See State v. McKee,

312 N.W.2d 907, 913 (Iowa 1981) (adopting the Model Penal Code

definition of bodily injury). Connie testified that E.N. was so inconsolable

the night he was with her that she was forced to return him to the

Neiderbach household, even though she tried feeding him and changing

his diaper. A reasonable jury could have inferred from the evidence that

broken ribs caused the baby’s pain.

Considering all of the evidence in the record, we cannot say the

evidence preponderates heavily against the jury’s verdict finding Jonas

guilty of child endangerment for failing to seek medical care for E.N.’s

broken ribs.

56

Accordingly, we hold the district court did not abuse its discretion

in denying Jonas’s motion for a new trial on count six.

XIII. Sufficiency of the Evidence.

Jonas contends the evidence supporting counts four and five

relating to E.N.’s broken ribs was insufficient. For these challenged

counts, we summarize the evidence presented and analyze whether it

was sufficient to sustain his conviction under each count.

When we review a challenge to the sufficiency of the evidence

supporting a guilty verdict, we consider all of the evidence in the record

“ ‘in [a] light most favorable to the State, including all reasonable

inferences that may be fairly drawn from the evidence.’ ” Sanford, 814

N.W.2d at 615 (quoting State v. Keopasaeuth, 645 N.W.2d 637, 640 (Iowa

2002)). We uphold the verdict if there is substantial evidence in the

record supporting it. Id. “Evidence is considered substantial if, when

viewed in the light most favorable to the State, it can convince a rational

jury that the defendant is guilty beyond a reasonable doubt.” Id. We

recognize that “ ‘the jury [is] free to reject certain evidence, and credit

other evidence.’ ” Id. (quoting Nitcher, 720 N.W.2d at 556).

Circumstantial evidence is equally as probative as direct evidence. State

v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011). “Evidence is not

substantial if it raises only suspicion, speculation, or conjecture.” Yeo,

659 N.W.2d at 547–48.

A. Summary of Testimony. E.N.’s rib fractures were first

discovered by physicians when the hospital did a bone survey on July 9,

the day after an unresponsive E.N. was rushed to the emergency room.

Dr. Smith testified that E.N.’s bone survey revealed fifteen separate rib

fractures, some on the same rib. Dr. Smith explained his process of

dating rib fractures:

57

When a bone breaks, like a rib, it takes about seven

days for the knitting of the bone by X-ray to begin [so] that

you can actually see something called callus, which is the

body’s healing attempt at the fracture.

If you have a rib fracture with no callus about it, then

that rib fracture could have happened immediately, or it

could have happened anywhere in the preceding seven days.

Dr. Smith was able to identify three fractures that were “fresh, in that

zero-to-seven range.” The remaining fractures “were in the two- to four-

week range.” He estimated that the oldest rib fractures were about four

weeks old.

Dr. Smith testified that many of the rib fractures were on E.N.’s

back, which he described as important because those are “very hard to

get any other way than severe compression or squeezing.” He noted that

“[i]t is possible to break them with a direct blow, but usually it is hard

squeezing.” He also noted a number of lateral (side) rib fractures. With

regard to these fractures, he explained as follows:

As you recall, a rib is a curved structure. I am holding my

hand in a “C” shape, with the attachment to the spine here

where my right hand is and the attachment to breast bone

where my index finger is (indicating). So if you squeeze

hard, you are going to put maximum stress right where my

thumb joins my index finger. Those are called lateral rib

fractures. That is where they snap.

Dr. Jenny gave similar testimony regarding the cause of E.N.’s rib

fractures:

The multiple rib fractures are consistent with multiple

episodes of having excessive pressure applied to the chest,

squeezing the chest. It is actually hard to break baby ribs

because they are very flexible.

If you punch a baby in the chest, they don’t break.

But if you squeeze real hard—it is kind of like squeezing a

beer can—they break at the sides and the back. When it

squeezes shut, it pops at the sides and pops at the back. It

takes excessive pressure to cause that degree of fractures.

Those fractures are very painful.

58

During both time periods identified by the State under counts four

and five—June 17 to June 30, 2009, and July 1 to July 8, 2009—E.N.

was alone with a number of different adult caregivers, including Jherica,

Jon, Mary, Shannon, and Connie. Jherica testified Jonas had no

previous experience caring for babies and that he would become

“impatient” when feeding E.N. because of issues with the bottle. When

E.N. would cry, Jonas would pick him up and “kind of accelerate his

voice,” telling E.N. “there is no need to cry,” or to “stop crying.” Jherica

believed this scared E.N. When Jonas was unable to console E.N., he

would get “frustrated” and “would just pass him off to the next person,

whether that [was Jherica] or one of his parents.” Jherica testified that

she never saw Jonas do anything that would have broken E.N.’s ribs.

B. Count Four Analysis—Older Rib Fractures. Jonas argues the

State presented insufficient evidence to sustain his conviction under

count four. The fourth count of the trial information charged Jonas with

child endangerment for causing the older rib fractures. The jury

instruction required the State to prove:

1. On or about between approximately June 17, 2009

and June 30, 2009 the defendant:

a. knowingly acted in a manner that created a

substantial risk to E.N.’s physical health or safety; or

b. by an intentional act or series of intentional acts,

used unreasonable force: (i) that resulted in E.N.

suffering a broken rib or ribs; or (ii) with the specific

intent of causing serious injury to E.N.

2. When he committed the act(s), the defendant was

E.N.’s parent.

3. As a result of the acts, E.N. suffered a serious

injury.

Jonas argues the State failed to present “a scintilla of evidence . . . that

puts Jonas in proximity with E.N. from June 17th to June 30th from

59

which it can be inferred that Jonas committed an act resulting in broken

ribs.” Jonas relies on Hickman, in which we held “[t]he three separate

acts required under [Iowa Code section 726.6A] should be established

with enough precision to enable a jury to be satisfied beyond a

reasonable doubt of a time and place where each of the three acts

occurred.” 576 N.W.2d at 368. We subsequently clarified that

this 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.

Yeo, 659 N.W.2d at 550. We then noted as follows:

This approach is consistent with the language of the

statute, as well as our general rule that the State is not

required to prove the precise time and place of a crime. It is

also compatible with the very nature of child abuse, and the

inherent difficulty of establishing precise times and places of

abuse to children due to the frequent delay in the discovery

of the abuse, as well as other factors based on the nature of

the crime.

Id. (citations omitted).

Under this standard, we held that the state had presented evidence

sufficient to convict Yeo of each of the four separate counts of child

endangerment. Id. at 551. At trial, the witness testimony had

established Yeo was present each time the child was injured and had

committed acts of abuse that were consistent with the child’s injuries.

Id. at 549, 551; see also State v. Sayles, 662 N.W.2d 1, 3–7 (Iowa 2003)

(holding evidence sufficient because circumstantial evidence established

that child–victim was uninjured immediately before being left in the care

of the defendant); State v. Watkins, 659 N.W.2d 526, 537 (Iowa 2003)

(holding evidence sufficient when state proved the nonaccidental injuries

were inflicted while the child–victim was in the exclusive care of the

defendant).

60

The State’s evidence in this case, unlike that in Yeo, fails to meet

the sufficiency threshold. A number of people aside from Jonas had

been alone with E.N. during the time frame E.N.’s older rib fractures

occurred, including Jherica; her mother, Connie; and sister, Shannon, as

well as Jonas’s parents, Jon and Mary. The State presented no evidence

establishing Jonas was alone with E.N. when the rib injuries occurred or

that anyone saw Jonas squeeze E.N.

In its brief, the State appears to rely on a propensity argument in

defending the sufficiency of the evidence under this count:

Neiderbach had no patience with [E.N.]’s crying and [E.N.]

was crying, and Neiderbach was alone with him, just before

[E.N.] suffered the two injuries that can be specifically

dated—the broken arm and the brain injury. Rational jurors

could find that it was Neiderbach who squeezed [E.N.] and

broke his ribs between approximately June 17 and June 30.

Normally, however, “evidence of one crime cannot be used to prove

another crime occurred.” State v. White, 668 N.W.2d 850, 853 (Iowa

2003).

The evidence presented by the State at trial does little more than

“raise[] . . . suspicion, speculation, or conjecture” that Jonas broke the

baby’s ribs. Yeo, 659 N.W.2d at 548. We conclude the evidence was

insufficient to support his conviction under count four.

C. Count Five Analysis—Fresh Rib Fractures. Jonas argues the

State presented insufficient evidence to sustain his conviction under

count five. The fifth count charged Jonas with child endangerment for

causing or aiding and abetting another who caused the new rib fractures.

The jury instruction required the State to prove:

1. On or about between approximately July 1, 2009

and July 8, 2009 the defendant:

61

a. knowingly acted in a manner, or aided and abetted

another in acting in a manner, that created a

substantial risk to E.N.’s physical health or safety; or

b. by an intentional act or series of intentional acts,

used unreasonable force: (i) that resulted in E.N.

suffering a broken rib or ribs; or (ii) with the specific

intent of causing a serious injury to E.N., or aided and

abetted another in doing so.

2. When he committed, or aided and abetted, the

act(s), the defendant was E.N.’s parent.

3. As a result of the acts, E.N. suffered a serious

injury.

As with count four, Jonas’s challenge to his conviction on count

five centers on the first element of the jury instruction. Jonas

specifically argues the State presented insufficient evidence to establish

when E.N.’s fresh rib injuries occurred so as to allow a reasonable jury to

conclude beyond a reasonable doubt that Jonas committed an act

causing those injuries or aided and abetted another to do so.5 We agree.

Although this count differs from the previous count in that Jonas

could be convicted if he either committed the act himself or aided and

abetted the person who did, the evidence was insufficient under either

theory. Several other people were alone with E.N. during this time

period, including Jherica, Jon, Mary, Shannon, and Connie. The State

did not present any evidence, direct or circumstantial, proving Jonas

caused the fresh rib injuries or aided or abetted someone who did.

5Jonas also argues the State failed to prove the fresh rib fractures were caused

by a mechanism other than the one that caused E.N.’s brain injuries. The State

contends Jonas did not preserve this argument for appeal because “Neiderbach did not

complain [at trial] that the acts causing the fresh fractures (Count 5) were not proven to

be separate and distinct from those causing the brain injury (Count 2).” “To preserve

error on a claim of insufficient evidence for appellate review in a criminal case, the

defendant must make a motion for judgment of acquittal at trial that identifies the

specific grounds raised on appeal.” State v. Truesdell, 679 N.W.2d 611, 615 (Iowa

2004). Because we hold the evidence was insufficient under Jonas’s first argument, we

decline to address whether Jonas preserved his second argument for appeal.

62

Accordingly, we conclude the evidence is insufficient to support his

conviction on count five.

XIV. Conclusion.

We vacate the convictions on counts four and five because the

evidence was insufficient to prove Jonas inflicted E.N.’s rib injuries. We

reverse the order denying Jonas’s motion for an in camera review of

Jherica’s mental health records. We remand the case to allow the

district court to conduct that review pursuant to Iowa Code section

622.10(4)(a)(2) (Supp. 2011) to determine whether her records contain

exculpatory information. We affirm on all other issues. If no exculpatory

evidence is found, Jonas’s convictions on counts one, two, three, and six

are affirmed, and the district court shall resentence Jonas. If

exculpatory evidence is found, then the district court shall proceed as set

forth in section 622.10(4)(a)(2)(c) and (d) to determine whether Jonas is

entitled to a new trial.

AFFIRMED IN PART AND REVERSED IN PART; CASE

REMANDED WITH INSTRUCTIONS.

All justices concur except Cady, C.J., who concurs specially, and

Appel, Wiggins, and Hecht, JJ., who separately concur specially.

63

#11–1082, State v. Neiderbach

CADY, C.J. (concurring specially).

I concur in the majority opinion, but write separately to express my

view that the statutory standard for judicial review of confidential records

under Iowa Code section 622.10(4) (Supp. 2011) should be given its

definition through the application of facts on a case-by-case basis. As

this case and State v. Thompson, 836 N.W.2d 470, 484 (Iowa 2013),

illustrate, the facts are what should breathe meaning into the

“reasonable probability” standard, and this standard will continue to

gain greater clarity in the future as additional cases continue to give it

shape.

64

#11–1082, State v. Neiderbach

APPEL, Justice (concurring specially).

For the reasons expressed below, I conclude the judgment of the

district court must be vacated to allow for an in camera inspection of

Jherica Richardson’s mental health records under Iowa Code section

622.10(4) (Supp. 2011). I write separately, however, to express my views

on the important issues raised in this case and in the companion case of

State v. Thompson, 836 N.W.2d 470 (Iowa 2013), also decided today. As

will be demonstrated below, the legal issue in these cases with respect to

the new statute is not whether the legislature’s solution is “better” than

the approach of this court in State v. Cashen, 789 N.W.2d 400, 407–10

(Iowa 2010), but only whether the legislature’s approach is constitutional

on its face. See State v. Mauti, 33 A.3d 1216, 1229 (N.J. 2012) (stating

that where the legislature has enacted a privilege, the court’s “own

conclusions about what would be better policy are simply of no

consequence”); see also Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.

___, ___, 132 S. Ct. 2566, 2600, 2608, 183 L. Ed. 2d 450, 464, 499

(2012) (noting it is not the Court’s role to pass upon the wisdom of the

Federal Affordable Care Act’s requirement that individuals pay a tax if

they do not obtain health insurance, but rather only upon its

constitutionality). Although the challenged provisions of the new statute

may be constitutionally problematic in some applications, I conclude the

statute is facially constitutional when interpreted as explained below.

I also write to more thoroughly explore the issue of whether the

photograph and video depicting the medical condition of E.N. were

properly admitted into evidence. I conclude this evidence was properly

admitted. In addition, I write to elaborate on the question of the

admission through expert testimony of hearsay evidence found in

65

published journal articles. I conclude admission of this evidence was

improper.

I. Issues Surrounding Production of Mental Health Records in

Criminal Cases.

A. Introduction.

1. Positions of the parties. Neiderbach claims the district court

erred in denying his request to review Jherica’s mental health records.

According to Neiderbach, Jherica’s “long stretch of postnatal bizarre

behavior and depression” warranted investigation of her records.

Neiderbach asserts there may be evidence in the records “that would

affect her ability either to perceive events accurately or to credibly testify

in court or [that] may establish motive.” Neiderbach claims the failure to

produce the mental health records violates the Due Process Clauses of

the Iowa and United States Constitutions and his right to effectively

cross-examine witnesses.6

Neiderbach relies upon our holding in Cashen, where we outlined a

protocol related to the production of mental health records in criminal

trials. 789 N.W.2d at 407–10. We required production of mental health

records in a criminal trial when the defendant shows “a reasonable basis

to believe the records are likely to contain exculpatory evidence tending

to create a reasonable doubt as to the defendant’s guilt.” Id. at 408.

Once a defendant made this showing, we required mental health records

6The parties address the issues in this case as involving due process under the

United States and Iowa Constitutions. There is a question whether documents in the

possession of a private party implicate standard due process protections. When mental

health records are in the hands of a private party, courts have applied a due-process-

type analysis under the Confrontation Clauses of State and Federal Constitutions. See,

e.g., Burns v. Delaware, 968 A.2d 1012, 1024–25 (Del. 2009); State v. Kelly, 554 A.2d

632, 635–36 (R.I. 1989). I regard Neiderbach’s argument that the district court ruling

violated his right to effectively cross-examine witnesses as raising a claim under the

Confrontation Clause of the Sixth Amendment to the United States Constitution and

article I, section 10 of the Iowa Constitution.

66

to be produced under a protective order designed to safeguard the

confidentiality of the records. Id. at 408–09. We rejected in camera

inspection of the records, explaining that the court “cannot foresee what

may or may not be important to the defendant.” Id. at 409.

Neiderbach recognizes that after our decision in Cashen, the

legislature amended Iowa Code section 622.10 by adding a new

subsection. See 2011 Iowa Acts ch. 8, § 2 (codified at Iowa Code

§ 622.10(4) (Supp. 2011)). Among other things, the new subsection

provides that before discovery of mental health records the defense must

show “a reasonable probability that the information sought is likely to

contain exculpatory information.” Iowa Code § 622.10(4)(a)(2)(a).

Second, the new subsection provides that a defendant seeking

production of mental health records must show the information “is not

available from any other source.” Id. Once the defendant has shown “a

reasonable probability that the privileged records sought may likely

contain exculpatory information that is not available from any other

source,” the court must conduct an in camera inspection of the

documents to determine whether the records contain exculpatory

information. Id. § 622.10(4)(a)(2)(b). Neiderbach attacks each of these

provisions as a violation of the Cashen principles and his rights to due

process and confrontation under the Iowa and Federal Constitutions.

Neiderbach further claims the district court improperly applied

section 622.10(4)(a)(2)(a) to the facts of this case. Neiderbach notes that,

among other things, he presented evidence to the district court that

Jherica smoked marijuana during her pregnancy, that she had

demonstrated a pattern of dishonest conduct, that she admitted

frustration while taking care of her newborn son, that she flashed her

breasts two days after her son’s traumatic brain injury, that she

67

threatened to starve herself to get out of jail, and that she called a

funeral home to report that her son had died and inquire about services

and prices even though he was alive. Neiderbach argues the district

court’s conclusion that this evidence did not meet the statutory

threshold for production of mental health records was contrary to

Anfinson v. State, 758 N.W.2d 496, 505–06 (Iowa 2008), where we found

there was a possible nexus between postpartum depression and

infanticide. Neiderbach also cites cases noting a witness’s mental

condition at the time of events about which he or she testifies can impact

credibility. See East v. Scott, 55 F.3d 996, 1003 (5th Cir. 1995) (noting

mental health records can cast doubt on the accuracy of a witness’s

testimony); United States v. Lindstrom, 698 F.2d 1154, 1160 (11th Cir.

1983) (“Certain forms of mental disorder have high probative value on

the issue of credibility.”).

The State responds by attacking the Cashen protocol, arguing it

improperly balances a “defendant’s statutory or rule-based interest in

discovery” with a “patient’s qualified constitutional right to privacy in

mental health records.” In any event, the State further asserts the

challenged provisions of section 622.10(4)(a)(2) are constitutional.7

According to the State, Neiderbach failed to show a reasonable

probability that the mental health records sought were likely to contain

exculpatory information and, instead, showed only a possibility that the

records might contain exculpatory information. In addition, the State

7Niederbach’s constitutional challenge is limited to the threshold requirement for

production, the role of evidence “available from any other source,” and the in camera

review of mental health records under sections 622.10(4)(a)(2)(a) and 622.10(4)(a)(2)(b).

This case does not involve a facial or as-applied constitutional challenge to section

622.10(4)(a)(2)(c), which requires the district court to balance the need for disclosure

against the privacy interest if the records contain exculpatory evidence. I express no

view on any issue that might arise under section 622.10(4)(a)(2)(c).

68

contends Neiderbach failed to show the information sought was

unavailable from other sources. Finally, the State asserts that to the

extent Neiderbach has met his burden on the question of production of

mental health records, the in camera inspection provision of section

622.10(a)(2)(b) is constitutional under Pennsylvania v. Ritchie, 480 U.S.

39, 57–58, 107 S. Ct. 989, 1001–02, 94 L. Ed. 2d 40, 57–58 (1987), and

because a defendant will have to identify the information sought with

reasonable specificity, enabling the district court to better find potentially

exculpatory evidence.

2. Evidentiary privilege and the right of a criminal defendant to

“every man’s evidence.” As was noted by the Supreme Judicial Court of

Massachusetts, “when relevant evidence is excluded from the trial

process for some purpose other than enhancing the truth-seeking

function, the danger of convicting an innocent defendant increases.”

Commonwealth v. Bishop, 617 N.E.2d 990, 994 (Mass. 1993), abrogated

on other grounds by Commonwealth v. Dwyer, 859 N.E.2d 400, 414

(Mass. 2006). In a similar vein, the United States Supreme Court has

said that “disclosure, rather than suppression, of relevant materials

ordinarily promotes the proper administration of criminal justice.”

Dennis v. United States, 384 U.S. 855, 870, 86 S. Ct. 1840, 1849, 16 L.

Ed. 2d 973, 984 (1966). Thus, while the issues surrounding the

production of mental health records in this case may appear merely

procedural on the surface, they are actually much more important than

that. As Justice Frankfurter observed, “The history of American freedom

is, in no small measure, the history of procedure.” Malinski v. New York,

324 U.S. 401, 414, 65 S. Ct. 781, 787, 89 L. Ed. 1029, 1037 (1945).

In this case, we must determine whether our procedures related to

the production of mental health records in a criminal case will

69

adequately and reliably allow a defendant access to probative information

that could bear on his possible conviction and subsequent long term of

incarceration. The suppression of important evidence bearing on the

truth or the innocence of a defendant in a criminal trial and the refusal

to look for available exculpatory evidence in the name of furthering other

social goals raise serious questions regarding the rights to due process

and confrontation, to say the least, and in their extreme forms, represent

the underpinning of show trials and the criminal justice systems of

totalitarian regimes. On the other hand, unnecessary disclosure of

mental health records is inconsistent with the legislative policy behind

privilege statutes and our recognition of the privacy interests of mental

health patients. See McMaster v. Iowa Bd. of Psychology Exam’rs, 509

N.W.2d 754, 758–59 (Iowa 1993).

Looking broadly at modern legal developments, the arc of the

caselaw seeks to ensure a defendant has access to evidence sufficient to

provide a fair trial. See, e.g., Ritchie, 480 U.S. at 57–58, 107 S. Ct. at

1001–02, 94 L. Ed. 2d at 57–58 (holding due process requires that a

statutory privilege give way to in camera inspection of exculpatory

evidence); Davis v. Alaska, 415 U.S. 308, 318–20, 94 S. Ct. 1105, 1111–

12, 39 L. Ed. 2d 347, 354–56 (1974) (holding juvenile records made

confidential by statute admissible to show witness bias); Chambers v.

Mississippi, 410 U.S. 284, 298–302, 93 S. Ct. 1038, 1047–49, 35 L. Ed.

2d 297, 310–13 (1973) (holding a defendant’s right to present witnesses

in his own defense permitted the defendant to present hearsay testimony

under the exception for declarations against a declarant’s penal interest

notwithstanding Mississippi’s failure to recognize such an exception);

Washington v. Texas, 388 U.S. 14, 16–17, 22, 87 S. Ct. 1920, 1922,

1925, 18 L. Ed. 2d 1019, 1021–22, 1025 (1967) (holding a criminal

70

defendant’s right to have compulsory process for obtaining witnesses in

his defense trumped a state statute prohibiting persons charged or

convicted as coparticipants in the same crime from testifying on each

other’s behalf even if they would have given relevant and material

testimony).

3. Importance of the doctrine of constitutional avoidance to the

interpretation of legislative acts. As noted, the legislature codified a

protocol for the production of mental health records in response to our

Cashen decision. The new statute seeks to modify the Cashen protocol

in several key respects, including substituting in camera inspection of

documents for production of documents to the parties under the control

of protective orders.

Legislative enactments are entitled to great respect and may be

held constitutional even if the court disagrees with the policy choices of

the legislature. At the same time, however, the legislature cannot deprive

a criminal defendant of his or her constitutionally protected right to due

process. Under one principle of constitutional avoidance, we seek to

interpret a legislative enactment in a fashion that avoids constitutional

problems. Simmons v. State Pub. Defender, 791 N.W.2d 69, 74 (Iowa

2010); State v. Nail, 743 N.W.2d 535, 539–40 (Iowa 2007); State v.

Wiedrien, 709 N.W.2d 538, 542 (Iowa 2006); State v. Kueny, 215 N.W.2d

215, 216–17 (Iowa 1974); see also Ashwander v. Tenn. Valley Auth., 297

U.S. 288, 348, 56 S. Ct. 466, 483, 80 L. Ed. 688, 712 (1936) (Brandeis,

J., concurring) (“ ‘When the validity of an act of the Congress is drawn in

question, and even if a serious doubt of constitutionality is raised, it is a

cardinal principle that this Court will first ascertain whether a

construction of the statute is fairly possible by which the question may

be avoided.’ ” (quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S. Ct. 285,

71

296, 76 L. Ed. 598, 619 (1932))). This principle is an important feature

of the judicial review landscape. Several state courts have applied it to

uphold statutes dealing with counseling privileges. See, e.g., People v.

Stanaway, 521 N.W.2d 557, 574–75 (Mich. 1994); Commonwealth v.

Ritchie, 502 A.2d 148, 151–54 (Pa. 1985), rev’d on other grounds by

Ritchie, 480 U.S. at 60–61, 107 S. Ct. at 1003, 94 L. Ed. 2d at 59–60. A

corollary to the doctrine of constitutional avoidance is the notion that

statutes should not be lightly found facially unconstitutional. In order to

be unconstitutional on its face, a statute must be “ ‘void for every

purpose and cannot be constitutionally applied to any set of facts.’ ” War

Eagle Vill. Apartments v. Plummer, 775 N.W.2d 714, 722 (Iowa 2009)

(quoting F.K. v. Iowa Dist. Ct., 630 N.W.2d 801, 805 (Iowa 2001)). As

explained below, application of the doctrine of constitutional avoidance

requires us to find the challenged provisions of section 622.10 facially

constitutional.

B. Reasonable Probability That the Privileged Records Sought

May Likely Contain Exculpatory Information. The first issue is the

facial constitutionality of the showing necessary before production of

mental health records is required under the new statute—namely, that

the requesting party show “a reasonable probability that the privileged

records sought may likely contain exculpatory information.” Iowa Code

§ 622.10(4)(a)(2)(b); see also id. § 622.10(4)(a)(2)(a).

At the outset, it is critical to distinguish between the appropriate

test for production and the appropriate test for disclosure of the records.

See, e.g., Bishop, 617 N.E.2d at 996–98; Goldsmith v. State, 651 A.2d

866, 877 (Md. 1995); Stanaway, 521 N.W.2d at 575; State v. Green, 646

N.W.2d 298, 309 (Wis. 2002). The test for production performs a

threshold function that opens the door to simply examining the records

72

to see if they in fact contain evidence relevant and material to the

defense. The test for disclosure is applied only after the records have

been examined and found to contain material and relevant evidence.

Any factual or legal questions surrounding the issue of whether

documents provided for in camera inspection must be disclosed to the

defendant are not now before the court and are not addressed or

determined in this case. We deal here with only the threshold test

pertaining to the production of documents.

With respect to the threshold function, there appears to be a broad

consensus that the mere existence of mental health records is not

enough to impose a constitutional requirement that they be produced in

any criminal case. See, e.g., D.P. v. State, 850 So. 2d 370, 374 (Ala.

Crim. App. 2002) (holding that “when a defendant sufficiently alleges

that privileged documents may contain evidence relevant and material to

an issue in the case, the trial court should inspect the documents in

camera before ruling on the defendant’s motion”); People v. Dist. Ct., 719

P.2d 722, 726 (Colo. 1986) (“The vague assertion that the victim may

have made statements to her therapist that might possibly differ from the

victim’s anticipated trial testimony does not provide a sufficient basis to

justify ignoring the victim’s right to rely upon her statutory privilege.”);

People v. Foggy, 521 N.E.2d 86, 91–92 (Ill. 1988) (rejecting a defendant’s

general request for an in camera inspection of counseling records

because the request did not indicate the records “would provide a source

of impeachment”); Bishop, 617 N.E.2d at 994–95 (noting a defendant

may not have access to a victim’s privileged records in all

circumstances). These cases are grounded in the notion that privacy

interests—even to the minimal extent invaded by in camera inspection by

a judge—should not be sacrificed unnecessarily on overly speculative

73

showings.8 Yet, because a defendant’s liberty interests are at stake in a

criminal trial, the standard for production cannot be too high. As noted

in Bishop, “when relevant evidence is excluded . . . for some purpose

other than enhancing the truth-seeking function, the danger of

convicting an innocent defendant increases.” 617 N.E.2d at 994.

Further, as noted in Ritchie, it is impossible to say with assurance

that medical records will contain relevant information when no side has

seen the records. 480 U.S. at 57, 107 S. Ct. at 1001, 94 L. Ed. 2d at 57.

To require a defendant to describe with particularity the relevance of

information in documents he has never seen is something of a catch-22.9

State v. Bassine, 71 P.3d 72, 76 n.9 (Or. Ct. App. 2003); accord Foggy,

521 N.E.2d at 96 (Simon, J., dissenting) (describing a requirement that

the defendant demonstrate knowledge of the contents of a mental health

record that the defendant does not have as “a perfect Catch-22”); State v.

Graham, 702 A.2d 322, 326 (N.H. 1997) (noting a requirement that the

defendant articulate the “ ‘precise nature’ of the purported contents of

the records . . . would effectively render review superfluous, as the

defendant essentially would have to obtain the information itself in order

to meet his burden”); State v. Gagne, 612 A.2d 899, 901 (N.H. 1992)

8I resist the sporting analogy to “fishing” that many courts cannot resist. The

metaphor, like all metaphors, is entertaining but often merely used to state a

conclusion rather than to provide any meaningful analysis. In fact, because the mental

health records are not available to the defense at the time of the effort to obtain their

production, there is always an element of “fishing” in the request. The fish is in the

lake, not the boat, even when the most compelling request is made. It might be more

accurate to state that fishing with a baitless hook won’t do. In any event, I think it

better to leave fishing to the people who fish and for courts to employ legal analyses

rather than catchy phrases to determine the outcome of a case.

9“Catch-22” is a phrase utilized by novelist Joseph Heller to describe “a

problematic situation for which the only solution is denied by a circumstance inherent

in the problem or by a rule.” Merriam–Webster’s Collegiate Dictionary 194 (11th ed.

2003).

74

(noting trial courts, in determining whether an in camera review is

warranted, “cannot realistically expect defendants to articulate the

precise nature of the confidential records without having prior access to

them”).

The Iowa statute provides that a party must in good faith show a

“reasonable probability” that production of the mental health records

“may likely” produce exculpatory evidence. Iowa Code

§ 622.10(4)(a)(2)(b); see also id. § 622.10(4)(a)(2)(a). The phrase

“reasonable probability” has been used in a number of other statutes and

by a number of other courts in the context of establishing a threshold

requirement for the production of mental health records. See, e.g., State

v. Pinder, 678 So. 2d 410, 417 (Fla. 1996) (“To obtain in camera review of

confidential communications or records . . . a defendant must first

establish a reasonable probability that the privileged matters contain

material information necessary to his defense.”); Commonwealth v. Fuller,

667 N.E.2d 847, 855 (Mass. 1996) (“A judge should undertake an in

camera review of [privileged records] only when a defendant’s motion for

production of the records has demonstrated a good faith, specific, and

reasonable basis for believing that the records will contain exculpatory

evidence which is relevant and material to the issue of the defendant’s

guilt.”), abrogated by Dwyer, 859 N.E.2d at 414; see also Stanaway, 521

N.W.2d at 574 (permitting in camera inspection upon “a showing that the

defendant has a good-faith belief, grounded on some demonstrable fact,

that there is a reasonable probability that the records are likely to

contain material information necessary to the defense”). As

commentators have explained, terms such as “reasonable probability” in

mental health records statutes are extremely elastic and subject to

judicial interpretation. See Clifford S. Fishman, Defense Access to a

75

Prosecution Witness’s Psychotherapy or Counseling Records, 86 Or.

L. Rev. 1, 40 (2007) [hereinafter Fishman]. As noted by one court, a

reasonable probability “lies somewhere between ‘mere possibility’ and

‘more likely than not.’ ” State v. Blake, 63 P.3d 56, 61 (Utah 2002)

(quoting State v. Knight, 734 P.2d 913, 920 (Utah 1987)).

To adequately protect a criminal defendant’s rights to due process

and confrontation, the statute must be interpreted in a fashion that

provides adequate opportunity for a party to uncover evidence relevant to

actual guilt or innocence in a criminal proceeding. Cf. California v.

Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532, 81 L. Ed. 2d 413,

419 (1984) (noting that due process requires “that criminal defendants

be afforded a meaningful opportunity to present a complete defense,”

which includes access to exculpatory evidence). As a result, while the

term “reasonable probability” in the statute requires a showing more

than the mere fact that mental health records of a witness or accuser

exist, all that is required is some plausible theory founded in

demonstrable fact that suggests the information in the mental health

records might well prove helpful to the defense. As noted by the New

Hampshire Supreme Court:

The threshold showing necessary to trigger an in camera

review is not unduly high. The defendant must meaningfully

articulate how the information sought is relevant and

material to his defense. To do so, he must present a

plausible theory of relevance and materiality sufficient to

justify review of the protected documents, but he is not

required to prove that his theory is true. At a minimum, a

defendant must present some specific concern, based on

more than bare conjecture, that, in reasonable probability,

will be explained by the information sought.

State v. Hoag, 749 A.2d 331, 333 (N.H. 2000) (quoting Graham, 702 A.2d

at 325–26). Other state courts agree with this approach. See Burns v.

State, 968 A.2d 1012, 1025 (Del. 2009) (holding “a defendant need only

76

make a ‘plausible showing’ that the records sought are material and

relevant”); Green, 646 N.W.2d at 310 (noting the Wisconsin standard for

production “is not intended . . . to be unduly high for the defendant”). At

least one court, however, has concluded that because of the nature of the

crime and the importance of potential impeachment, a defendant

charged with sexual abuse of a minor is constitutionally entitled to an in

camera inspection of records to determine whether the records contain

exculpatory information. State v. McGill, 539 S.E.2d 351, 355 (N.C. Ct.

App. 2000).

The plausible theory of relevance standard is consistent with the

United States Supreme Court’s approach in United States v. Valenzuela-

Bernal, 458 U.S. 858, 871–74, 102 S. Ct. 3440, 3448–49, 73 L. Ed. 2d

1193, 1205–07 (1982), where the Court held a defendant could not show

the government violated his rights to due process and compulsory

process by deporting alien witnesses absent some “plausible showing

that the testimony of the deported witnesses would have been material

and favorable to his defense.” See also Washington, 388 U.S. at 23, 87 S.

Ct. at 1925, 18 L. Ed. 2d at 1025 (holding a state cannot arbitrarily

prohibit a defendant from exercising his Sixth Amendment right to

compulsory process when the evidence is relevant and material to his

defense). When in doubt, the district court should tip the balance

toward production of mental health records to preserve the criminal

defendant’s constitutional rights to due process and confrontation.10

10Courts have ordered production in camera under statutes similar to Iowa’s in a

wide variety of settings. See, e.g., State v. Gagne, 612 A.2d 899, 900–02 (N.H. 1992)

(holding the defendant made a plausible showing that he was entitled to privileged

records where, among other things, he asserted the records might reveal a victim’s prior

inconsistent statements and the extent to which state counselors may have participated

in preparing the victims for trial); In re L.J.P., 637 A.2d 532, 538 (N.J. Super. Ct. App.

Div. 1994) (holding the defendant’s showing that records might indicate the victim

77

To avoid constitutional problems under the United States and Iowa

Constitutions, the phrase “reasonable probability” in section

622.10(4)(a)(2) should be construed to require only a plausible showing

that exculpatory evidence may likely be uncovered when the records are

produced. Based upon the above interpretation, section 622.10(4)(a)(2)’s

reasonable probability threshold meets constitutional muster under the

Due Process and Confrontation Clauses of the United States and Iowa

Constitutions.

C. Information That Is Not Available From Any Other Source.

The next issue is the facial constitutional challenge to the provision of

the new statute regarding other sources of information. Iowa Code

section 622.10(4)(a)(2)(a) indicates production need not occur unless the

evidence “is not available from any other source.” Not all evidence,

however, is equal. And not all evidence saying the same thing has equal

________________________________

recanted her allegations was sufficient to require production); People v. McCray, 958

N.Y.S.2d 511, 518 (App. Div. 2013) (holding production was appropriate where the

victim had a history of mental illness, had been the victim of sexual abuse on three

prior occasions, and had attempted suicide during the three months preceding trial);

State v. Shiffra, 499 N.W.2d 719, 724 (Wis. Ct. App. 1993) (holding production was

required where a witness’s “psychiatric difficulties might affect both her ability to

accurately perceive events and her ability to relate the truth”), abrogated on other

grounds by State v. Green, 646 N.W.2d 298, 309–10 (Wis. 2002) (heightening slightly

Shiffra’s threshold requirement from a showing that records “may be necessary to a

determination of guilt or innocence” to a good faith showing of “a specific factual basis

demonstrating a reasonable likelihood that the records contain relevant information

necessary to a determination of guilt or innocence and is not merely cumulative to other

evidence available to the defendant”); see also State v. Middlebrooks, 840 S.W.2d 317,

333 (Tenn. 1992) (holding that the defendant made a plausible case that records from a

psychiatric hospital might be relevant in determining the veracity of a witness’s

testimony because the records “pertained to the mental instability of a witness that

existed within a reasonable time before the testimony was given,” but that the district

court’s error in denying production was harmless in light of the appellate court’s review

of the records), superseded by statute on other grounds, Tenn. Code § 39–13–204(i)(7)

(Supp. 1995), as recognized in State v. Stout, No. 02C01–9812–CR–00376, 2000 WL

202226, at *27 (Tenn. Crim. App. Feb. 17, 2000). Once again, however, it must be

stressed that these cases involve the production of documents for in camera inspection

and not disclosure of the documents to the defense.

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persuasive power. Thus, when we consider whether information is

available from “any other source,” particularly in light of the due process

concerns present in a criminal defense, we must consider both the

content and persuasive power of the evidence. See Stanaway, 521

N.W.2d at 577 n.44 (rejecting the notion that evidence is unnecessary

because it is cumulative and explaining that cumulative evidence

contained in counseling files may be quite probative); Utah v. Worthen,

177 P.3d 664, 673 (Utah 2008) (rejecting the belief that cumulative

nature of information in mental health record deprives the record of its

independent probative value); State v. Shiffra, 499 N.W.2d 719, 724 (Wis.

Ct. App. 1993) (noting the probability that the quality and probative

value of the information in mental health records “may be better than

anything that can be gleaned from other sources”), abrogated on other

grounds by Green, 646 N.W.2d at 309–10.

In considering content and persuasive power, medical or mental

health records occupy a special place in the evidentiary pantheon and

are generally superior to the recalled memory of an interested witness for

multiple reasons. First, jurors tend to believe that which is written over

that which is spoken. Richard H. Underwood, Logic and the Common

Law Trial, 18 Am. J. Trial Advoc. 151, 194 (1996) (citing Irving Younger,

The Art of Cross-Examination 25 (1976)). Second, the mental health

records are contemporaneously generated. See Jencks v. United States,

353 U.S. 657, 667, 77 S. Ct. 1007, 1013, 1 L. Ed. 2d 1103, 1111 (1957)

(“Every experienced trial judge and trial lawyer knows the value for

impeaching purposes of statements of the witness recording the events

before time dulls treacherous memory.”). Third, the medical records

themselves are usually generated by trained observers who are unbiased

regarding the issues in litigation. Ark. Blue Cross-Blue Shield, Inc. v.

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Tompkins, 507 S.W.2d 509, 512 (Ark. 1974) (citing expert testimony that

“it is traditional in medicine that the medical record is the key to what is

happening to the patient and that great stock is placed in that record as

truly and clearly reflecting what happens to the patient as to the care

being given”). Fourth, medical records frequently contain information

unknown to the patient, including detailed diagnoses, com

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