State of Iowa v. Timothy M. Fontenot ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0295
Filed June 3, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TIMOTHY M. FONTENOT,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Patrick R. Grady,
Judge.
Timothy Fontenot appeals his convictions on two counts of indecent contact
with a child. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Considered by Bower, C.J., Mullins, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
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SCOTT, Senior Judge.
In July 2016, allegations surfaced that Timothy Fontenot had been
inappropriately touching eleven-year-old H.N. In the coming days the child
underwent a medical evaluation and a forensic interview, which was recorded.
Fontenot was ultimately charged by trial information with two counts of second-
degree sexual abuse as to H.N.1 In February 2018, the State filed its notice of
intent to present the video of the child’s forensic interview as evidence under the
residual hearsay exception or, in the event the defense made a charge of
fabrication or action from a recent improper influence or motive in testifying, as a
prior consistent statement with the declarant’s testimony. See Iowa Rs. Evid.
5.801(d)(1)(B) (prior consistent statement), .807 (residual exception). In
December, the State amended its trial information to include two additional counts
of indecent contact with a child as to H.N. The matter proceeded to a jury trial.
At trial, H.N. testified Fontenot first “did something bad to” her when she
was six or seven during a camping trip in Minnesota, when he “rubb[ed] up and
down [her] leg.” The alleged inappropriate touching continued at the child’s home
in Marion, Iowa, when the child testified she was seven or eight and Fontenot
would rub her with his hand. The child testified Fontenot directed her to not tell
anyone about the encounters. After a year or two, Fontenot began touching the
child’s “private spot.” This continued until the child was eleven. H.N. testified the
last occurrence involved Fontenot rubbing her “private spot” under her underwear,
and on one occasion he inserted his fingers. The child also testified Fontenot
1He was also charged with two counts of indecent contact with a child as to
another child, E.M.
3
bought her items so he could have extra “tickle time”—which is what Fontenot
called the inappropriate touching episodes—with her. H.N. generally testified
Fontenot touched her both over and under her clothing more times than she could
count.
On cross-examination, defense counsel highlighted inconsistencies
between H.N.’s testimony and her prior statements in her forensic interview and
February 2018 deposition. Later in the trial, the State requested admission of the
video of H.N.’s forensic interview. The State argued the video was admissible
under the residual exception to the rule against hearsay. Alternatively, the State
argued defense counsel’s cross-examination of the child amounted to a charge
that the child recently fabricated her allegations or acted from a recent improper
influence or motive in testifying, and the child’s statements in the video therefore
did not amount to hearsay. The court allowed the video to be admitted. Ultimately,
the jury found Fontenot guilty of two counts of indecent contact with a child as to
H.N.2
Fontenot now appeals his convictions, claiming the video of the forensic
interview amounted to hearsay and the district court erred in allowing its admission.
Appellate review of challenges to the admission of evidence on hearsay grounds
is for correction of errors at law. In re Det. of Tripp, 915 N.W.2d 867, 873 (Iowa
2018); State v. Juste, 939 N.W.2d 664, 674 (Iowa Ct. App. 2019). “This standard
of review extends to determining whether statements come within an exception to
the general prohibition on hearsay evidence.” State v. Russell, 893 N.W.2d 307,
2 The jury could not reach verdicts on the sexual-abuse counts, which were later
dismissed. The jury found Fontenot not guilty of indecent contact with E.M.
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314 (Iowa 2017). Improper admission of hearsay evidence “is presumed to be
prejudicial unless the State shows the contrary,” which may be established by
“proving the error was harmless beyond a reasonable doubt.” State v. Huser, 894
N.W.2d 472, 495 (Iowa 2017).
Fontenot argues the video contains hearsay and was therefore
inadmissible. Hearsay is inadmissible except as provided by the Iowa Constitution,
a statute, the rules of evidence, or a supreme court rule. Iowa R. Evid. 5.802.
Hearsay is any out-of-court “statement” made by the “declarant” while not testifying
at the current trial or hearing that is offered “into evidence to prove the truth of the
matter asserted in the statement.” Iowa R. Evid. 5.801(c). The term “statement”
means a person’s oral or written assertion, or “[n]onverbal conduct, if intended as
an assertion.” Iowa R. Evid. 5.801(a). The term “declarant” means “the person
who made the statement.” Iowa R. Evid. 5.801(b).
However, certain statements are not hearsay. See Iowa R. Evid. 5.801(d).
A declarant-witness’s prior statement is not hearsay if the declarant-witness
“testifies and is subject to cross-examination about a prior statement, and the
statement” “[i]s consistent with the declarant’s testimony and is offered to rebut an
express or implied charge that the declarant recently fabricated it or acted from a
recent improper influence or motive in so testifying.” Iowa R. Evid. 5.801(d)(1)(B).
One scholar has laid out the elementary requirements for admissibility as follows:
To be admissible under Rule 5.801(d)(1)(B), the party seeking to
admit the prior consistent statement must establish the following four
elements: (1) the declarant must testify at trial and be subject to
cross-examination concerning the prior statement; (2) there must be
an express or implied charge of recent fabrication or improper
influence or motive against the declarant; (3) the prior statement
must be consistent with the declarant’s challenged in-court
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testimony; and (4) the prior consistent statement must be made
before the alleged motive to fabricate or improper influence arose.
7 Laurie Kratky Doré, Iowa Practice Series: EvidenceTM § 5.801:7 (Nov. 2019
update) (footnotes and citations omitted).
Fontenot only appears to challenge the fourth element. He argues because
the statements contained in the video occurred after H.N.’s allegations of
inappropriate touching, they do not fit the exception. “Our supreme court adopted
the rule ‘that a witness’s prior consistent statement is admissible as nonhearsay to
rebut a charge of recent improper motive under Iowa rule of evidence
[5.]801(d)(1)(B) only if the statement was made before the alleged improper motive
to fabricate arose.’” Juste, 939 N.W.2d at 674 (quoting State v. Johnson, 539
N.W.2d 160, 165 (Iowa 1995)). The statement must occur before the allegation of
motive to fabricate arose, not before the initial report of alleged abuse. See id.
The implicit allegation of recent fabrication arose during defense counsel’s cross-
examination of H.N. or, at the very earliest, during H.N.’s February 2018
deposition, both of which unquestionably occurred after H.N. made her statements
in the forensic interview. The defense’s cross-examination of H.N. implied a
fabrication of H.N.’s version of the facts and occurred after her forensic interview
and, therefore, the fourth element is satisfied. See, e.g., State v. Crawley, No. 11-
0466, 2012 WL 470174, at *4 (Iowa Ct. App. Feb. 15, 2012); State v. Wells, 522
N.W.2d 304, 309 (Iowa Ct. App. 1994).
While somewhat unclear, Fontenot also appears to lodge a challenge to the
establishment of the third element, that the prior statement be consistent with the
declarant’s challenged in-court testimony. He claims the video included
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statements that were inconsistent with H.N.’s trial testimony. Specifically, in her
trial testimony, H.N. agreed Fontenot never touched her breasts, but in the forensic
interview she stated Fontenot placed his hand under her shirt and sports bra and
started touching, squeezing, and rubbing her “private spot up here,” referring to
her chest area, two days earlier. He also claims the video contained information
not contained in H.N.’s testimony, that Fontenot variously touched his penis over
his pants while he touched H.N. and conversation H.N. had with Fontenot and the
other alleged victim. But the jury was instructed that witness statements made
before trial that it found “inconsistent with the witness’s testimony during the trial
could only be used “as a basis for disregarding all or any part of the witness’s
testimony during the trial.”3 In other words, the jury was instructed H.N.’s prior
inconsistent statements could not be used as substantive evidence but only as a
tool to assess H.N.’s credibility as a witness during trial. Cf. State v. Kramer, No.
16-2048, 2018 WL 346454, at *9 (Iowa Ct. App. Jan. 10, 2018) (“Insofar as the
admitted portion contained more than prior consistent statements, we note the
district court clearly articulated the purpose for which the [evidence] was admitted
and its intention to restrict the evidence to such use.”). We presume the jury
followed the court’s direction that it could only use the conflicting or additional
information as a credibility assessment tool, see State v. Sanford, 814 N.W.2d 611,
620 (Iowa 2012); State v. Hanes, 790 N.W.2d 545, 552 (Iowa 2010), and the
evidence was therefore not inadmissible hearsay because it was not being
considered for the truth of the matter asserted. See Iowa R. Evid. 5.801(c)(2).
3Defense counsel objected to this instruction at trial, but it is not challenged on
appeal.
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Presuming the jury followed the instruction, we are also unconvinced the
complained-of evidence had any prejudicial effect on the jury’s verdict. The
instruction, coupled with the inconsistent statements in the video, served to
Fontenot’s benefit rather than his detriment.
We conclude the bulk of the forensic interview video was properly admitted
as non-hearsay prior consistent statements and Fontenot suffered no prejudice
from the admission of the inconsistent statements contained in the video of the
interview. As such, we affirm Fontenot’s dual convictions of indecent contact with
a child.
AFFIRMED.