State v. Flores

1

State of Iowa, Appellee, v. Nelson Carlos Flores, Appellant.

No. 21-1676

Supreme Court of Iowa

January 26, 2024

Submitted October 11, 2023

On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Crawford County, Zachary Hindman, Judge.

The defendant seeks further review of a court of appeals decision affirming his convictions for sexual abuse of a child.

Tyler D. McIntosh (argued) and Christopher J. Roth of Roth Weinstein, LLC, Omaha, Nebraska, for appellant.

Brenna Bird, Attorney General, and Benjamin Parrott (argued) Assistant Attorney General, for appellee.

OPINION

Waterman, Justice.

In this appeal, we revisit the recurring issue of the admissibility of video recordings of forensic interviews of child sex abuse victims. Our recent decisions have addressed the admissibility of such videos under several exceptions to the hearsay rule.^[1] But in today's case, the district court admitted the video under the rule of completeness, Iowa Rule of Evidence 5.106. The defendant was charged with eleven counts of sexual abuse of his girlfriend's daughter beginning when she was age nine. The State called the child as a witness at the jury trial and mentioned her forensic interview during its direct examination. Defense counsel cross-examined the child about inconsistencies between her trial testimony and select portions of her prior statements in the recorded forensic interview. The State on redirect offered the video into evidence. Over the defendant's hearsay objection, the district court admitted the video for the limited purpose of deciding whether the interview statements "were inconsistent with the testimony given at trial" in evaluating the child's credibility. The district court relied on State v. Austin, 585 N.W.2d 241, 243-44 (Iowa 1998) (allowing forensic interview video into evidence under prior version of the rule of completeness after defense counsel "opened the door" by using "very specific points" from a summary of the interview which, if "[t]aken out of the context of the entire interview," would have allowed the jury to "conclude[] that [the child's] statements at the interview were inconsistent with her testimony at trial"). The jury found the defendant guilty on all sexual abuse counts.

The defendant appealed, raising multiple issues, and we transferred the case to the court of appeals, which affirmed his convictions. The court of appeals distinguished Austin because "the State rather than the defense opened the door." Without deciding whether the video was correctly admitted under rule 5.106, the court of appeals determined that any error in admitting the video was harmless because the State established overwhelming evidence of the defendant's guilt. We granted the defendant's application for further review.

On our review, we affirm the district court under Austin and rule 5.106. The rule of completeness applies regardless of which party opens the door. The defense extensively cross-examined the child by asking her about specific statements she made during her forensic interview, highlighted inconsistencies with her trial testimony, and implied that the defendant had touched her only once and only in a certain manner. Yet, other portions of the interview-not asked about during cross-examination-were more consistent with her trial testimony about other incidents. The defendant objected to allowing the video into evidence, but he did not challenge the court's ruling that the entire video would be allowed if he opened the door under rule 5.106. On this record, we conclude that the district court did not abuse its discretion by allowing the jury to view the video to put into context the statements from the interview elicited during cross-examination as part of evaluating the child's credibility. We let the court of appeals decision stand as final on the other issues raised in the defendant's appeal and affirm his convictions.

I. Background Facts and Proceedings.

In 2016, Nelson Carlos Flores lived with his girlfriend Wendy H., their son E.H., and Wendy's nine-year-old daughter W.R. Flores is not W.R.'s biological father. One morning after her mother left for work, W.R. awoke to find Flores touching her vagina over her clothes. Flores moved his hand under her clothes before he raped W.R. vaginally and anally. She screamed while this was happening. W.R. later told her mother and grandmother, who disbelieved her after Flores denied raping her. But Wendy took W.R. to a hospital in Denison, where the child told a nurse that Flores raped her; the nurse called the police. W.R. was taken to Omaha for a forensic interview at Project Harmony, a child advocacy center. This 2016 interview was videotaped and later became the focus of this appeal.

Flores was questioned by the police, and a no-contact order was entered. Flores was arrested in June 2016 and charged with sexual abuse in the second degree, in violation of Iowa Code sections 709.1, 709.3(1)(b), and 903B.1 (2016); lascivious acts with a child, in violation of sections 709.1, 709.8(1)(a), 709.8(2)(a), and 903B.1; and assault with intent to commit sexual abuse, in violation of sections 709.11 and 903B.2. Flores was released on bond and waived his right to a speedy trial. His criminal case was delayed at his request a dozen times over the next several years.

Meanwhile, W.R. moved in with her grandmother, but frequently stayed with her mother, half brother, and Flores despite the no-contact order. The adult family members began pressuring W.R. to deny the rape and say she made it all up. They threatened W.R. to recant her story, telling her that otherwise she would be sent to foster care, someone (or Flores) would hurt her, and she would never see her family again. W.R. recanted. In 2019, Flores reached a tentative plea agreement with the State, but further proceedings were continued several more times before Flores rejected the State's plea offer.

Flores's no-contact order remained in effect. Yet W.R. returned to living at her mother's home with Flores, and he raped her multiple times in 2020 when she was age fifteen. In September of that year, W.R. reported the abuse at school and moved in with a great-aunt. The State brought additional charges against Flores in 2021, and his cases were consolidated for trial. Proceedings were delayed several more times while Flores was in federal custody for immigration violations and changed lawyers, and a final time on the State's motion, over his objection after he had withdrawn his waiver of his right to a speedy trial. The jury trial finally commenced on August 17, 2021, on eleven charges of sexual abuse.

Before trial, the State filed a motion for an advance ruling that the 2016 forensic interview was admissible under the residual exception to the hearsay rule. See Iowa R. Evid. 5.807. The district court initially granted the motion, concluding the child's prior recantation made her video-recorded statements "necessary" within the meaning of that rule and as "a prior consistent statement necessary to rebut any claim of newly fabricated evidence." See Iowa R. Evid. 5.801(d)(1)(B). Flores then moved in limine to exclude the 2016 interview as hearsay and outside the foregoing exceptions. The district court changed its prior ruling to find the video inadmissible under rule 5.807 and deferred ruling under rule 5.801(d)(1)(B). During trial, the court informed the parties that it would focus on whether the video was admissible under the rule of completeness if the defense used portions of the recorded statements for impeachment. The court stated it would "wait to see what the cross-examination show[ed]" before ruling on the video's admissibility.

The State called W.R., now age sixteen, to testify in person. She testified that she was in court because Flores raped her. She described his sexual abuse from age nine to fifteen. As the court of appeals later observed, W.R. "provided a detailed, anatomically-specific description of multiple sex acts." The prosecutor's direct examination elicited W.R.'s testimony about Flores pressuring her to recant and to remain silent after later sexual assaults, and her Project Harmony 2016 interview at age nine. On cross-examination, defense counsel vigorously probed inconsistencies between W.R.'s 2016 statements and her trial testimony on a variety of topics, including where, when, and how often he abused her, and specifics of what he did to her. At the conclusion of W.R.'s testimony, the court ruled that the 2016 video was not admissible "as substantive evidence" under rule 5.801(d)(1)(B). But the court, relying on Austin, allowed the video into evidence under rule 5.106 "for purposes of assessing [W.R.'s] credibility" and instructed the jury accordingly. The hour-long video was played for the jury, except for a four-minute gap.^[2]

The jury also heard testimony from family members, several law enforcement witnesses, and Amy Cirian-the forensic interview program manager at Project Harmony. Cirian reviewed the 2016 forensic interview of W.R. and two later interviews, and she testified that the interviewers followed proper procedures. She observed no "red flags" for coaching or other problems with the interviews. The defense called a medical expert who examined W.R. and found no physical signs that W.R. had been sexually abused.

Following the five-day trial, the jury found Flores guilty on all eleven counts of sexual abuse. The district court denied Flores's posttrial motions for acquittal or new trial. He was sentenced to prison for up to thirty-five years, with a 70% mandatory minimum on several of the convictions. Flores appealed, raising six grounds for reversal: (1) the district court erred in finding good cause to grant the State's ...