State v. Fontenot

958 N.W.2d 549

STATE of Iowa, Appellee,

v.Timothy Michael FONTENOT, Appellant.

No. 19-0295

Supreme Court of Iowa.

Submitted November 18, 2020

Filed April 23, 2021

Martha J. Lucey, State Appellate Defender, and Ashley Stewart (argued), Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sheryl Soich (argued), Assistant Attorney General, Jerry Vander Sanden, County Attorney, and Jordan N. Schier, Assistant County Attorney, for appellee.

Christensen, C.J., delivered the opinion of the court, in which Waterman, Mansfield, and McDermott, JJ., joined. McDonald, J., filed a dissenting opinion in which Appel and Oxley, JJ., joined.

CHRISTENSEN, Chief Justice.

In this case, over the defendant's objection, the jury was shown a video recording of a child's forensic interview where the child discussed the defendant's sexual abuse of her. This interview occurred at the time the child reported the abuse, and long before criminal charges were brought. The video was shown to the jury after defense counsel cross-examined the child at trial and suggested she had fabricated her criminal trial testimony by pointing out inconsistencies principally between her criminal trial testimony and her criminal case deposition. The district court allowed the jury to see the video only once and instructed the jury that the video could only be used as a tool to assess the child's credibility. The district court also allowed the criminal case deposition to be read to the jury. The jury ultimately found the defendant guilty of two counts of indecent contact with a child.

The defendant appealed, claiming it was error to let the jury see the interview. The court of appeals affirmed. We granted the defendant's application for further review. On our review, we now conclude the video was admissible as a prior consistent statement under Iowa Rule of Evidence 5.801(d )(1)(B). We affirm the defendant's convictions and sentence.

I. Background Facts and Proceedings.

The defendant, Timothy Fontenot, was like an uncle to H.N. His brother, Joe, was in a long-term relationship with H.N.’s mother. During the events at issue, H.N. was eleven years old and lived with her mother, Joe, and other siblings in Marion, Iowa. Fontenot was frequently around H.N. and her best friend and communicated with them on Facebook Messenger. In July 2016, H.N. and her friend discussed how Fontenot would touch them inappropriately. H.N. also told her younger sister about the inappropriate touching.

The younger sister was in bed with their mother at night and told her Fontenot had been touching H.N. When her mother spoke with H.N. that night, H.N. initially denied the allegation, but later in the same conversation, she said that Fontenot was touching her inappropriately. The next morning, July 14, 2016, Joe went to the Marion Police Department to report the allegations against his brother. H.N. was taken to a local hospital at the instruction of the police. On July 15, H.N. was taken to St. Luke's Child Protection Center (CPC), where she discussed the sexual abuse with a forensic interviewer. The interview was video recorded and lasted approximately fifty-five minutes.

In the video recorded CPC interview, H.N. spoke specifically about the most recent time Fontenot touched her. She told the interviewer they were in her brother's room on a couch while her brother sat in a chair playing video games when Fontenot rubbed her "private spot" (vagina) underneath her underwear and put his finger in her private spot. She explained he would put his hand underneath the bottom half of her shorts and underwear. She noted she would have a blanket over her and he would go underneath the blanket.

H.N. explained Fontenot first started touching her when she was seven or eight, only rubbing her pants at first before progressing to touching her private spot as she got older. She stated the first time he touched her private spot, she was ten years old and in her bedroom. H.N. said she was playing on her iPad while on her bed and Fontenot was on the floor on his knees when he touched her private spot. She noted the touching normally happened on her bed or her brother's couch, and she discussed how Fontenot would call the inappropriate touching "tickle time." She added that Fontenot gave her UGG boots to get tickle time. H.N. also explained that her phone data and Wi-Fi were on Fontenot's cellular plan instead of her parents’ plan and that he used this arrangement as a way to get "tickle time." She discussed how Fontenot would flip her and her friend up onto his shoulders, at which time he would sometimes touch their private spots.

On June 28, 2017, the State charged Fontenot with two counts of sexual abuse in the second degree, in violation of Iowa Code sections 709.1, 709.3(1)(b ), and 903B.1 (2016), with H.N. named as the victim. Fontenot was also charged with two counts of indecent contact with a child, an aggravated misdemeanor, in violation of Iowa Code sections 709.12(1) and 903B.2, as to H.N.’s friend. On February 14, 2018, about nineteen months after her videorecorded CPC interview, defense counsel took H.N.’s deposition with Fontenot present in the same room. H.N. had not reviewed her CPC interview summary or watched the recording of it. She told defense counsel Fontenot last touched her inappropriately in July of 2016. She thought that the incident occurred in her brother's room while he was playing video games. She said that a blanket was tucked in around her and that she was wearing shorts. She told defense counsel she thought something happened but wasn't sure. She thought the touching was just above her clothes, but she could not remember.

During her deposition, H.N. also described a time Fontenot touched her in her room while she was in bed. After several more questions, defense counsel came back to this incident. H.N. stated she was not sure if Fontenot touched her under her clothes or above her clothes. She told defense counsel she thought Fontenot had been touching her since she was six or seven and would rub up her thigh. She affirmed she could not remember a time when Fontenot's fingers went inside her vagina. She said he bought her UGG boots and gave her a cell phone. H.N. affirmed the inappropriate touching went on for years and happened more times than she could count in her room, her brother's room, and the living room. She noted there were times he would accidentally touch her private spot when flipping her up onto his shoulders but those times were not included in her total count of times he touched her inappropriately.

On February 28, the State filed a notice of intent to present H.N.’s CPC video interview under Iowa Rule of Evidence 5.807, the residual hearsay exception, or alternatively under Iowa Rule of Evidence 5.801(d )(1)(B), the rule excluding prior consistent statements as hearsay, if the defense claimed H.N.’s statements were fabrication. On December 17, the State filed an unresisted motion to amend the trial information to reflect two additional counts of indecent contact with a child, an aggravated misdemeanor, in violation of Iowa Code sections 709.12(1) and 903B.2, as to H.N.

Fontenot's jury trial began on December 17, 2018. H.N. took the stand as a witness for the State. Prior to trial, H.N. had not reviewed any of her statements, video recordings, or deposition. She testified Fontenot bought her items like a cell phone and UGG boots to get extra "tickle time," his term for inappropriate touching. When asked about the first time Fontenot did something bad to her, she explained she was six or seven when he rubbed her leg while on a camping trip. She testified Fontenot mostly touched her inappropriately in her bedroom or her brother's room. She said that at first, he would rub her legs, similar to the camping trip, but progressed over time to rubbing her private spot underneath her underwear. She noted Fontenot rubbed her private spot with his hand in her bedroom during the day and would not say anything to her while touching her.

She testified the last time Fontenot touched her, he rubbed her private spot with his hand. She stated he put his fingers inside her private spot once when she was in her brother's room while he was playing video games. She also explained Fontenot would sometimes put a blanket over her to touch her.

At trial, H.N. described how Fontenot would touch her and her best friend on the private spot by picking them up and putting them on his shoulders and then flipping them back down, one at a time. She testified Fontenot would "touch us like fast and then wait and then touch—like touch us back down when we were going back down." H.N. noted there were times he flipped her and did not touch her private spot and it was possible the touching was sometimes an accident. However, she affirmed she never felt it was an accident when he touched her underneath her clothing.

On cross-examination, defense counsel began by reminding H.N. of the deposition:

Q. ... And did you understand at that time that you were supposed to tell the truth? A. Yes.

Q. Because most of what you just testified to you didn't tell me on that occasion.

Defense counsel went on to emphasize apparent inconsistencies between her trial testimony and what she had previously said in both her February 14, 2018 deposition and her July 15, 2016 CPC interview. For example, he addressed the incident in her brother's room she testified to, but he asserted, "[Y]ou didn't even think that you got touched on that occasion." He also brought up an incident she discussed in the deposition, noting it "sounds a little bit like what you were talking about here today .... Except the difference was that you said you weren't sure that you were in your brother's room."

Defense counsel selectively read back sections of the deposition where H.N. said she wasn't sure on certain things. He repeatedly questioned whether H.N. understood she was to tell the truth. Parts of the questioning related...