State of Iowa v. Lawrence Eugene Walker

IN THE SUPREME COURT OF IOWA

No. 18–0457

Filed November 22, 2019

STATE OF IOWA,

Appellee,

vs.

LAWRENCE EUGENE WALKER,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Scott County, John D.

Telleen (trial) and Patrick A. McElyea (sentencing), Judges.

Lawrence Walker appeals his conviction for sexual abuse in the

second degree and lascivious acts with a child. DECISION OF COURT OF

APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.

Mark C. Smith, State Appellate Defender (until withdrawal), and Nan

Jennisch, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Timothy M. Hau, Assistant

Attorney General, Mike Walton, County Attorney, and Kimberly Shepherd,

Assistant County Attorney, for appellee.

2

McDONALD, Justice.

Following a jury trial, Lawrence Walker was convicted of sexual

abuse in the second degree, in violation of Iowa Code section 709.3 (2016),

and lascivious acts with a child, in violation of Iowa Code section

709.8(1)(a) and (c). In this direct appeal, Walker raises three evidentiary

issues. The first relates to the exclusion of evidence. The second relates

to the allegedly erroneous admission of certain hearsay testimony. The

third also relates to the allegedly erroneous admission of certain hearsay

testimony, but the third issue is raised within the framework of a claim of

ineffective assistance of counsel.

I.

The offense conduct occurred in June 2016. On the night at issue,

Walker babysat his four-year-old niece, E.W., her eight-year-old brother,

J.W., and another child. At some point in the evening, Walker took E.W.

upstairs to her parents’ bedroom. He cuddled in bed with her. He removed

her underwear, removed his pants, put her on his lap, bounced her up

and down, and rubbed the child’s genitals with his hand.

The next day E.W. made statements to her mother that prompted

an emergency room visit. At the emergency room, sexual assault nurse

examiner Elsa Durr-Baxter interviewed E.W. and E.W.’s mother

separately. E.W.’s statements to Durr-Baxter inculpated Walker for sexual

abuse of E.W. Durr-Baxter conducted a physical and forensic examination

of E.W. Division of Criminal Investigation (DCI) tests of the samples

showed the presence of a sperm cell in E.W.’s external anal swab and

foreign DNA in the crotch of E.W.’s underwear and on her back. The

samples were too weak for reliable comparison to an individual for

matching purposes.

3

Durr-Baxter referred E.W. to Dr. Barbara Harre, a physician at the

Child Protection Response Center. A little more than two weeks after the

night at issue, Dr. Harre met with E.W. and her mother. Dr. Harre

interviewed them separately. Dr. Harre conducted a medical exam of E.W.

During the exam, E.W. made statements inculpating Walker for sexual

abuse. Dr. Harre testified she asked E.W. if there had been anything about

Walker that made her uncomfortable. E.W. stated, “Larry doing this” and

then made a bouncing motion. E.W. stated Walker’s underwear was off

and he took her underwear off. Dr. Harre testified E.W. said she was “on

his crotch” at that time. Dr. Harre asked E.W. if Walker touched her on

other parts of her body. E.W. indicated Walker touched her with his

fingers between her legs and it hurt.

Approximately a week after E.W’s appointment with Dr. Harre,

Detective Maureen Hammes conducted a video-recorded interview with

Walker. Walker initially denied any wrongdoing, but then he admitted to

the offense conduct. Walker admitted to taking E.W. upstairs and laying

in bed with her. He said he took off her panties and took off his pants. He

said he “cuddled with her.” He later admitted he put E.W. on his lap while

in the bed. He admitted to rubbing his hand against E.W.’s vagina. Walker

was arrested and charged thereafter.

The jury found Walker guilty as charged, and Walker timely filed this

appeal. The court of appeals affirmed Walker’s convictions, and we

granted Walker’s application for further review.

II.

A.

We turn to Walker’s first evidentiary challenge. At trial, Walker

sought to admit evidence concerning the victim’s eight-year-old brother,

J.W. Specifically, Walker wanted to introduce into evidence statements

4

the parents allegedly made that J.W. may have been a victim of sexual

abuse. According to defense counsel, the mother also stated that she

observed J.W. “engaged in staring at E.W.’s body,” that she wanted the

siblings clothed when they were together, and that she “found it necessary

to separate” them. Walker contended the evidence was relevant to show

E.W. learned age-inappropriate sexual information from J.W. or J.W.—

rather than Walker—was the abuser. The State moved in limine to exclude

the evidence. The district court granted the State’s motion, concluding the

evidence was not relevant. The district court also concluded if the evidence

was relevant, it was only marginally relevant but was unduly prejudicial,

likely to confuse the issues, and excluded by Iowa Rule of Evidence 5.412.

Our review is for an abuse of discretion. See State v. Tipton, 897

N.W.2d 653, 691 (Iowa 2017) (“The district court rulings on relevance of

evidence are reviewable for abuse of discretion, as are challenges to the

admission of evidence under Iowa Rule of Evidence 5.403.”); State v.

Mitchell, 568 N.W.2d 493, 497 (Iowa 1997) (applying abuse of discretion

standard to rulings regarding rule 5.412). “An abuse of discretion occurs

when the trial court exercises its discretion ‘on grounds or for reasons

clearly untenable or to an extent clearly unreasonable.’ ” Tipton, 897

N.W.2d at 690 (quoting State v. Buenaventura, 660 N.W.2d 38, 50 (Iowa

2003)).

It is arguable whether the evidence is even relevant. Evidence is

relevant when “[i]t has any tendency to make a fact more or less probable

than it would be without the evidence” and “[t]he fact is of consequence in

determining the action.” Iowa R. Evid. 5.401. It is certainly true “that a

child victim’s sexual knowledge [that] resulted from an encounter with

someone other than the defendant may be relevant and material to a

defendant’s defense of mistaken identity or false accusation.” State v. Cecil

5

J., 913 A.2d 505, 512 (Conn. App. Ct. 2007); see State v. Clarke, 343

N.W.2d 158, 162–63 (Iowa 1984) (overturning the district court’s decision

to allow evidence of a complainant’s sexual history at trial because the

defendant did not have evidence of a previous sexual encounter, nor did

he show that the “complainant would more likely have fantasized” the sex

act if there had been a previous sexual encounter). However, there must

be some evidence of a prior encounter with someone other than the

defendant.

Here, Walker failed to make an offer of proof establishing there was

in fact an encounter between J.W. and E.W. Instead, at best, the record

reflects the parents had concerns J.W. may have been a victim of sexual

abuse. There is no evidence J.W. sexually abused E.W. or otherwise had

an encounter with E.W. The defendant’s argument is simply speculation.

See State v. Gorman, 468 S.W.3d 428, 432 (Mo. Ct. App. 2015) (affirming

decision to exclude evidence of other abuse to establish mistaken identity

where it was mere speculation).

Even if the evidence were marginally relevant, the district court did

not abuse its discretion in excluding the evidence on the ground that it

was unduly prejudicial. Walker contends the evidence falls outside the

scope of rule 5.412. Where evidence falls outside the scope of rule 5.412,

the evidence may still be excluded “if its probative value is substantially

outweighed by a danger of . . . unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Iowa R. Evid. 5.403. “Under rule 5.403, the primary

focus is not upon the witness, but the interests of the defendant and the

right of the defendant to present a defense.” State v. Alberts, 722 N.W.2d

402, 411 (Iowa 2006). Here, the proposed evidence was, at best, only

marginally relevant. But the proposed evidence would have merely

6

confused the issues, misled the jury, and created multiple trials within the

trial. Under the defendant’s theory of relevance, the jury would have had

to determine whether J.W. had been sexually abused. Then the jury would

have had to determine whether J.W. had some sort of encounter that

would have provided E.W. with age-inappropriate sexual information or

would have caused E.W. to confuse abuse at the hands of her eight-year-

old brother with abuse at the hands of her twenty-six-year-old uncle. We

cannot say the district court’s decision was clearly untenable or clearly

unreasonable. See Tipton, 897 N.W.2d at 691.

If Walker had made an offer of proof establishing a sexual encounter

between J.W. and E.W., the proposed evidence would have fallen within

the scope of rule 5.412. Under rule 5.412, a victim’s “other sexual

behavior” includes any sex act, regardless of the act’s consensual or

nonconsensual nature. See State v. Jones, 490 N.W.2d 787, 790 (Iowa

1992) (holding that rule 412 (now rule 5.412 as amended in 2016) “clearly

encompasses prior sexual abuse perpetrated upon the victim”), overruled

on other grounds by State v. Plain, 898 N.W.2d 801 (Iowa 2017). Where a

defendant seeks to offer evidence excepted from rule 5.412, “the defendant

must[] . . . [f]ile a motion to offer the evidence at least 14 days before trial.”

Iowa R. Evid. 5.412(c)(1)(A).

Here, the district court found the defendant failed to file a timely

motion and held the evidence was inadmissible. The defendant does not

contest the finding. Nor does the defendant seek to excuse his failure to

timely file notice. See id. (requiring fourteen-day notice “unless the court

determines that the evidence is newly discovered and could not have been

obtained earlier through the exercise of due diligence, or that the evidence

relates to an issue that has newly arisen in the case, and the court sets a

7

different time”). The district court’s decision was not clearly untenable or

clearly unreasonable. See Tipton, 897 N.W.2d at 691.

For these reasons, we conclude the district court did not abuse its

discretion in excluding Walker’s evidence regarding J.W.

B.

Walker next contends the district court erred in allowing Dr. Harre

to testify about E.W.’s statements regarding sexual abuse and identifying

Walker as the abuser. Our review is for the correction of legal error. See

State v. Smith, 876 N.W.2d 180, 184 (Iowa 2016) (“Although we normally

review evidence-admission decisions by the district court for an abuse of

discretion, we review hearsay claims for correction of errors at law.”); State

v. Jordan, 663 N.W.2d 877, 879 (Iowa 2003); State v. Long, 628 N.W.2d

440, 447 (Iowa 2001) (en banc). While reviewing the district court’s

decision for legal error, the court “give[s] deference to the district court’s

factual findings.” Long, 628 N.W.2d at 447 (stating correction of legal error

standard includes deference to factual findings).

As a general rule, hearsay testimony is inadmissible. See Iowa R.

Evid. 5.802. There are numerous exceptions to the general rule, however.

At issue here is the medical diagnosis or treatment exception. See id.

r. 5.803(4). A statement falls within the medical diagnosis or treatment

exception if the statement:

(A) Is made for—and is reasonably pertinent to—medical

diagnosis or treatment; and

(B) Describes medical history, past or present symptoms or

sensations, or the inception or general cause of symptoms or

sensations.

Id. r. 5.803(4). “The rationale for the exception is that statements made

by a patient to a doctor for purposes of medical diagnosis or treatment are

‘likely to be reliable because the patient has a selfish motive to be

8

truthful.’ ” Smith, 876 N.W.2d at 185 (quoting 5 Jack B. Weinstein &

Margaret A. Berger, Weinstein’s Federal Evidence § 803.06[1], at 803–42

(Mark S. Brodin ed., 2d ed. 2015)).

In State v. Tracy we held that a child-declarant’s identification of an

abuser during treatment with a healthcare professional would fall within

the exception when “the declarant’s motive in making the statement [was]

consistent with the purposes of promoting treatment” and was of the type

“reasonably relied on by a physician in treatment or diagnosis.” 482

N.W.2d 675, 681 (Iowa 1992) (quoting United States v. Renville, 779 F.2d

430, 436 (8th Cir. 1985)). Although testimony of this type is frequently

admitted into evidence, there is no categorical rule allowing such

testimony. See Smith, 876 N.W.2d at 188 (rejecting the state’s argument

“that statements of identity by victims of domestic abuse should be

categorically admissible because such statements are now commonly

admitted in cases of child abuse”).

Instead, . . . the trial court must, as with other statements

made during medical diagnosis and treatment, apply the test

we adopted in Tracy to determine whether the statements

made in that case should fall within this exception to the

hearsay rule.

Id. at 188–89. “The State, as the proponent of the evidence, has the

burden” to establish the testimony comes within the exception to the rule.

See id. at 189.

With respect to the first element of the Tracy test, there was

sufficient evidence to establish E.W.’s “motive in making the statement[s]

[was] consistent with the purposes of promoting treatment.” Tracy, 482

N.W.2d at 681. In cases of child sexual abuse, ascertaining the identity of

the abuser is important for medical purposes because the child’s age

prevents her from implementing self-care and because parents are often

9

ill-equipped to elicit the abuser’s identity. See Gail S. Goodman et al.,

Children’s Eyewitness Memory: The Influence of Cognitive and Socio-

Emotional Factors, 19 Roger Williams U. L. Rev. 476, 506–07 (2014)

(“Supportive interviewers are needed who, while maintaining neutrality,

can help maltreated children regulate anxieties, insecurities, and

emotions, so that the interviewer can obtain the most accurate memory

reports possible. . . . This may be especially true for maltreated children,

who may lack trust and self-confidence as well as suffer from trauma-

related symptoms, such as symptoms of PTSD, dissociation, or

depression.”).

The evidence shows E.W.’s mother took E.W. to see Dr. Harre for the

purposes of treatment. There is no evidence the purpose of the visit was

to create evidence or otherwise bolster the State’s case. Dr. Harre took

precautions to ensure E.W. felt comfortable in the setting and unpressured

to say anything in particular. Dr. Harre testified she interviewed the child

separately from the mother, subtly observed the child’s developmental

stage, and asked open-ended questions. Dr. Harre explained to the child

in age-appropriate terms the purpose of the appointment. Dr. Harre

explained she cares for kids who have injuries to their bodies and also

injuries like hurt feelings. The record shows E.W. understood Dr. Harre’s

role. Dr. Harre testified E.W. expressed she was comfortable with doctors

except when they give her shots. From there, Dr. Harre began a review-

of-symptoms approach, checking to see “how the child [was] doing overall.”

This is sufficient foundation to meet the first part of the Tracy test. See,

e.g., State v. Tornquist, 600 N.W.2d 301, 305–06 (Iowa 1999) (concluding

“that the circumstances surrounding [the child]’s statements to [the

medical provider] indicated that they were responses in a dialogue initiated

for purposes of diagnosis or treatment”), overruled on other grounds by

10

State v. DeCamp, 622 N.W.2d 290 (Iowa 2001); State v. Neitzel, 801 N.W.2d

612, 622 (Iowa Ct. App. 2011) (stating the district court did not err in

finding the first prong was met when a nurse explained her role in talking

to the child about things that may have hurt or scared the child).

With respect to the second part of the Tracy test, we conclude the

State established E.W.’s statements were of a type that are “reasonably

relied on by a physician in treatment or diagnosis.” Tracy, 482 N.W.2d at

681 (quoting Renville, 779 F.2d at 436). Dr. Harre met with E.W. for

healthcare purposes. Dr. Harre testified she offers “comprehensive

medical assessments for concerns about medical, behavioral,” and

emotional needs of children. She conducted a mental and physical

examination of E.W. according to her standard protocol. Further,

Dr. Harre testified E.W. was still her patient at the time of the trial.

Statements made by patients “in connection with diagnosis or treatment

of emotional trauma” can fall within the exception, so long as the

statements are made to professionals “sufficiently qualified by training and

experience to provide that diagnosis and treatment.” State v. Hildreth, 582

N.W.2d 167, 169 (Iowa 1998).

Walker contends the purpose of the visit was not for medical

diagnosis because there was an eighteen-day delay between the assault

and E.W.’s appointment with Dr. Harre. We disagree. Under the

circumstances, the delay is not material. In the case of sexual abuse, the

victim may suffer from and seek treatment for “emotional and

psychological injuries” in addition to physical injuries caused by the

abuse. Smith, 876 N.W.2d at 186. The emotional and psychological

injuries may linger longer than the physical injuries. Given this fact, an

eighteen-day delay between the incident and appointment is of short

duration. Or, at least it is not a sufficiently long delay to conclude E.W.’s

11

appointment with Dr. Harre served no medical purpose. See, e.g., In re

J.C., 877 N.W.2d 447, 457 (Iowa 2016) (noting, in Confrontation Clause

analysis, child interview with Dr. Harre was not primarily for testimonial

purposes but for medical treatment and citing similar testimony).

Walker’s reliance on the Maryland case of Coates v. State is

misplaced. 930 A.2d 1140, 1163 (Md. Ct. Spec. App. 2007), aff’d, 950

A.2d 114, 124 (Md. 2008). Coates is readily distinguishable. In Coates,

there was a fourteen-month delay between the offense conduct and the

appointment, no active medical concern, and a finding of an investigatory

purpose. Id. In addition, Maryland has specifically rejected the more

liberal two-part test we adopted in Tracy. See Cassidy v. State, 536 A.2d

666, 688 (Md. Ct. Spec. App. 1988) (stating “Maryland has rejected” the

two-part test).

E.W.’s statements to Dr. Harre meet the requirements of medical

statements for the purpose of diagnosis or treatment; the district court did

not err in allowing the testimony at trial.

C.

In his third claim, Walker contends his counsel was ineffective in

failing to object to nurse Durr-Baxter’s testimony recounting E.W.’s and

E.W.’s mother’s statements identifying Walker as the abuser. He contends

his counsel was also ineffective and further compounded the error by

eliciting additional damaging hearsay testimony from Durr-Baxter on

cross-examination. Pursuant to State v. Macke, 933 N.W.2d 226, 235

(Iowa 2019), we have the authority to decide Walker’s claim of ineffective

assistance of counsel on direct appeal.

To establish his claim of ineffective assistance of counsel, Walker

must show his trial counsel failed to perform an essential duty and

counsel’s failure resulted in constitutional prejudice. See State v. Webster,

12

865 N.W.2d 223, 231 (Iowa 2015). To establish constitutional prejudice,

the defendant is required to show “that counsel’s errors were so serious as

to deprive the defendant of a fair trial, a trial whose result is reliable.”

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

“It is not enough for the defendant to show that the errors had [only] some

. . . effect on the outcome of the proceeding.” Id. at 693, 104 S. Ct. at

2067. Rather, “[t]he defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068.

On de novo review, we conclude the record is sufficient to resolve

these claims on direct appeal. See State v. Tompkins, 859 N.W.2d 631,

637 (Iowa 2015) (noting ineffective-assistance claims are generally

preserved for postconviction-relief proceedings but may be addressed on

direct appeal when the record is sufficiently developed). We elect to bypass

the question of whether counsel breached a duty in any of the particulars

raised and instead focus on the question of whether the defendant has

established constitutional prejudice.

We conclude Walker failed to establish constitutional prejudice.

There was overwhelming evidence of his guilt. See State v. Carey, 709

N.W.2d 547, 559 (Iowa 2006) (“The most important factor under the test

for prejudice is the strength of the State’s case.”); State v. Bumpus, 459

N.W.2d 619, 627 (Iowa 1990) (determining prejudice did not result given

overwhelming evidence of guilt). Further, Durr-Baxter’s testimony was

merely cumulative of properly admitted testimony. See State v. Schaer,

757 N.W.2d 630, 638 (Iowa 2008) (holding defendant did not establish

Strickland prejudice where the challenged testimony was merely

cumulative and the prosecutor’s case was strong). E.W. testified regarding

Walker’s conduct. There were some minor inconsistencies in her

13

testimony, however, the inconsistencies were immaterial given her age.

See Hildreth, 582 N.W.2d at 170 (“[A]ny inconsistencies in [the victim]’s

testimony were minor and attributable to her young age. . . . ‘[A] person

should not be able to escape punishment for such a disgusting crime

because he has chosen to take carnal knowledge of an infant too young to

testify clearly as to the time and details of such shocking activity.’ ”

(Citation omitted.) (quoting State v. Rankin, 181 N.W.2d 169, 172 (Iowa

1970))). Dr. Harre testified about E.W.’s statements to her regarding

Walker touching E.W. The physical evidence showed a sperm cell in E.W.’s

underwear. Finally, Walker confessed to the conduct. His confession was

recorded. A DVD of the confession was admitted into evidence. Even if

counsel had breached an essential duty in not objecting to Durr-Baxter’s

testimony, the admission of the testimony does not amount to

constitutional prejudice.

III.

For the foregoing reasons, we affirm the decision of the Court of

Appeals and Walker’s convictions and sentences.

DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

All justices concur except Appel, J., and Wiggins, C.J., who concur

specially.

14

#18–0457, State v. Walker

APPEL, Justice (concurring specially).

I concur in most of the opinion in this case but have a somewhat

different view on the evidentiary issues in this case.

Walker sought to introduce evidence tending to show (1) that J.W.,

a brother of the victim, had been sexually abused at some point; (2) that

J.W. would stare inappropriately at the victim’s, E.W.’s, body; and (3) that

their mother was sufficiently concerned that she wanted to separate the

children and make sure that they had clothes on when they were together.

The point of the testimony was to suggest that to the extent E.W. had been

the victim of sexual abuse, it was her brother J.W., and not Walker, who

was the perpetrator of the crime.

The majority’s narrow application of relevance in this case is

concerning, as is its potential to be inappropriately applied in future cases.

Under Iowa Rule of Evidence 5.401(a), “Evidence is relevant if: (a) It has

any tendency to make a fact more or less probable than it would be without

the evidence; and (b) The fact is of consequence in determining the action.”

Iowa R. Evid. 5.401 (emphasis added). Evidence of prior sexual abuse has

consistently been found to be relevant in cases where a defendant seeks

to show that the alleged victim’s sexual knowledge comes from another

source or that another individual perpetrated the crime. See State v.

Jacques, 558 A.2d 706, 708 (Me. 1989) (“Where the victim is a child, as in

this case, the lack of sexual experience is automatically in the case without

specific action by the prosecutor. A defendant therefore must be permitted

to rebut the inference a jury might otherwise draw that the victim was so

naive sexually that she could not have fabricated the charge.”); State v.

Grovenstein, 530 S.E.2d 406, 411 (S.C. Ct. App. 2000) (holding “that

evidence of a child victim’s prior sexual experience is relevant to

15

demonstrate that the defendant is not necessarily the source of the victim’s

ability to testify about alleged sexual conduct”); State v. Pulizzano, 456

N.W.2d 325, 333 (Wis. 1990) (“Evidence of [a] prior sexual assault is

probative of a material issue, to show an alternative source for sexual

knowledge . . . .”). Under the theory that someone else was the perpetrator

of the crime, the evidence Walker sought to admit passes the test of

relevance. This evidence may not be powerful evidence, but it marginally

tends to suggest that someone else living in the household may have been

the perpetrator of the sexual abuse and not Walker.

Although relevant, such evidence is still subject to Iowa Rules of

Evidence 5.412 and 5.403. I do not view this potential testimony as barred

by Iowa Rule of Evidence 5.412. To the extent the evidence was offered to

show a prior sexual assault by J.W., the rape shield law might apply. But

to the extent the evidence tended to show that J.W. and not Walker was

the perpetrator of the crime for which Walker was charged, it is not

evidence of “other sexual behavior” of E.W. As noted by Walker, “if sexual

abuse actually occurred it suggests a different perpetrator and the jury is

free to conclude that it’s possible that a 4 year old would confuse who the

perpetrator actually was.” Evidence admitted under this theory is outside

the scope of Iowa Rule of Evidence 5.412.

That said, the remaining question is whether the evidence is

admissible under Iowa Rule of Evidence 5.403, which provides in relevant

part that evidence may be excluded if its probative value is “substantially

outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Iowa R. Evid. 5.403. The

district court concluded that the evidence, though marginally relevant,

would mislead the jury, was highly prejudicial, and would confuse the

16

issues. The court further held that even if the eight-year-old brother J.W.

had an interest in his sister, “that doesn’t explain what happened here.”

In order to be excluded under Iowa Rule of Evidence 5.403, the value

of the evidence must be substantially outweighed by other dangers. That

is ordinarily a very high hurdle. The district court’s determination of the

issue, however, is clothed with discretion and will be reversed only upon a

showing of clear abuse. See State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa

2001) (“The abuse of discretion standard of review applicable in this matter

recognizes that whether evidence of prior crimes should be admitted is a

judgment call on the part of the trial court.”).

In this case, I find analysis under Iowa Rule of Evidence 5.403 and

harmless error tend to merge. Walker made many pretrial incriminating

statements. He admitted putting E.W. on his lap to “cuddle” and

confirmed that he had removed her underpants. He confirmed “that he

rubbed her vagina with his hand.” When confronted with E.W.’s account

and asked if he needed help for his behavior, he nodded in agreement. In

light of the record developed, it does not appear that Walker’s rights were

substantially affected or that there has been a miscarriage of justice. See

State v. Williams, 574 N.W.2d 293, 298 (Iowa 1998) (“Not all errors require

reversal. To warrant reversal the error must have prejudiced the

defendant.”); State v. Traywick, 468 N.W.2d 452, 454 (Iowa 1991) (“When

an alleged error is not of constitutional magnitude, ‘the test of prejudice

[for harmless error] is whether it sufficiently appears that the rights of the

complaining party have been injuriously affected or that the party has

suffered a miscarriage of justice.’ ” (alteration in original) (quoting State v.

Massey, 275 N.W.2d 436, 439 (Iowa 1979))). As a result, the failure to

admit the offered evidence does not require a new trial in this case.

17

However, this is not to say that all evidence of this type will meet the

same fate. When conducting Iowa Rule of Evidence 5.403-like balancing,

a number of courts look to the similarity between the two instances and

the strength of the offered evidence. See State v. Oliver, 760 P.2d 1071,

1077 (Ariz. 1988) (en banc) (adopting a two-pronged test to determine if

the offered evidence was outweighed by the dangers enumerated in

Arizona’s corresponding evidentiary rule 403: (1) “defendant must show,

in camera, that the victim previously had been exposed to a sexual act”

and (2) “defendant must establish that the prior sexual act was sufficiently

similar to the present sexual act to give the victim the experience and

ability to contrive or imagine the molestation charge”); see also

Commonwealth v. Ruffen, 507 N.E.2d 684, 687–88 (Mass. 1987) (“If the

victim had been sexually abused in the past in a manner similar to the

abuse in the instant case, such evidence would be admissible at trial

because it is relevant on the issue of the victim’s knowledge about sexual

matters.”). But the real danger of the majority’s position is the categorical

exclusion, or diminishment, of evidence of prior sexual abuse as irrelevant

or inconsequential. See State v. Carver, 678 P.2d 842, 844 (Wash. Ct. App.

1984) (“We fail to see how prior sexual abuse visited upon very young girls

will tend to confuse the issues, mislead the jury, or cause the jury to decide

the case on an improper emotional basis.”). Courts must always remain

vigilant when balancing the interest of accuser and accused, particularly

when one or more of the parties are juveniles. On this basis, I therefore

concur in the majority’s judgment.

Wiggins, C.J., joins this special concurrence.