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State of Iowa v. Shanna Dessinger. IA Criminal law, hearsay
The defendant in this Webster County, Iowa, case was convicted of child endangerement, and she appealed. The case was ultimately heard by the Iowa Supreme Court, which affirmed the conviction, although tremanded the case for resentencing. She argued that hearsay evidence was improperly admitted.
The defendant worked for a child care center in Fort Dodge. A key witness in the case was a seventeen-year-old co-worker who had just started the job that day. She testified that she was working in the room adjacent to the one where the defendant was working, and saw the defendant grab a four-year-old child by the neck in a choking motion, and then push the child to the ground. She testified that the child started screaming and crying, "I'm sorry." She immediately went to her supervisor to report the incident.
She and the supervisor asked the child what happened, and the child showed. The defendant objected on the grounds of hearsay. The district court, Judge Angela L. Doyle, ruled that any words the child used could not be stated, but that she could describe the child's conduct. She testified that the child grabbed the supervisor by the neck and engaged in lifting. She testified that she would characterize this as choking.
The defendant testified and denied the allegations.
The high court turned first to the hearsay issue. After addressing whether the issue had been preserved for appeal, it turned to whether the child's nonverbal demonstration was within the definition of hearsay. It ruled that it was, since it was intended as an assertion, "a clear attempt to illustrate what the defendant had allegedly done." It then went on to hold that it did not fit into the "present sense" exception to the hearsay rule.
The court did hold, however, that the hearsay was within the "excited utterance" exception. Even though there was some lapse of time, the court held that this was not dispositive, and cited cases in which delays of up to two days might still qualify. It also noted that it would allow a greater time lapse in the case of children. It also held that the mere fact that the utterance was in response to questioning did not disqualify it.
Under the totality of the circumstances, the court held that the exception applied. FIrst, the time lapse was relatively short, since it was clear that the child was still under stress from the incident. The court noted that the child was still crying and whimpering at the time. For this reason, testimony about her demonstration was admissible.
The defendant also argued that the evidence violated the confrontation clause, but the court held that the evidence was not preserved.
No. 18-2116 (Iowa Apr. 23, 2021).
Please see the original opinion for the court's exact language.
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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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