State of Iowa v. Jorge Maldonado

IN THE COURT OF APPEALS OF IOWA

No. 21-1812
Filed March 8, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JORGE MALDONADO,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Chad Kepros,

Judge.

A defendant appeals his convictions for sexual abuse, challenging the

admission of a forensic interview and sufficiency of the evidence. AFFIRMED.

David R. Fiester, Cedar Rapids, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Heard by Bower, C.J., and Badding and Ahlers, JJ.
2

BADDING, Judge.

The “recurring issue of when forensic interviews of child complaining

witnesses should be admitted into evidence” under the residual hearsay exception

has reared its head again in this appeal. See State v. Skahill, 966 N.W.2d 1, 4

(Iowa 2021). Jorge Maldonado, who was convicted of sexually abusing two of his

daughters, claims that because the younger child’s testimony at trial was

sufficiently detailed, the district court erred in finding it was necessary to admit a

video of her forensic interview into evidence. He also claims there was insufficient

evidence that he performed a sex act with his daughters or that the oldest child’s

post-traumatic stress disorder is a serious injury. We affirm.

I. Background Facts and Proceedings

Jorge Maldonado is the father of three daughters: Mya (born 2007), Carla

(born 2010), and Bryn (born 2014).1 While living with his daughters and their

mother, he began sexually abusing the two oldest children. He was charged by

trial information in February 2020 with four counts of first-degree sexual abuse and

two counts of second-degree sexual abuse. A later amendment to the trial

information removed one count of second-degree sexual abuse, and the case

proceeded to trial in September 2021.

Mya was fourteen years old at the time of trial. She testified that in the

summer of 2019, when she was about twelve years old, Maldonado pulled down

her pants while they were in her parents’ bedroom and “started touching [her].”

1We have used a random name generator for the children’s names since they
share the same initials. The abuse only concerns Mya and Carla.
3

Mya said that this time, Maldonado touched her vagina and put his finger in it.2 He

threatened that if she told anyone, he would hurt her, her sisters, and their mother.

On a later date, although she could not remember exactly when, Mya said

Maldonado touched her again, this time in the bedroom she shared with her

sisters. She testified that Maldonado “pulled my pants down and made me lay

down on my bed. He took all of my—he took off my pants and my underwear, and

he put his mouth on my vagina, and he then put his penis inside me.” Mya asked

him to stop and tried to push him off, but Maldonado told her to shut up, pushed

her arms away, and held her down.

After that summer, Mya testified that Maldonado kept doing the same things

to her throughout their home—in the living room, kitchen, and bathroom—

sometimes when her mother was gone and sometimes when she was home. He

groped her at times, and he inserted his penis into her mouth, vagina, and anus

on others. She testified that she “told him to stop, that I didn’t like it, that it was

wrong, that he was my dad, and he shouldn’t be doing that stuff,” but “[h]e didn’t

care.”

Mya decided to tell her mother about the abuse on December 23, 2019,

during her winter break from school, because she was worried about her little

sisters. The mother remembered wanting to take the girls out to eat that day, but

she testified Maldonado was acting “aggressive[ly]” and told her that she could not

leave with them. The mother and the children stayed away from Maldonado in one

of the bedrooms, but at some point, Maldonado came in and took Mya out to the

2Mya testified Maldonado engaged in similar conduct when she was seven or eight
years old, but she never told anyone.
4

living room. When the mother tried to check on Mya, who was crying, Maldonado

got upset and kicked her out of the living room.

Sometime later, Mya came into the bedroom and told her mother that “her

dad was doing things to her, that he was touching her.” The mother said that Mya

was nervous, crying, and “scared because all of [them] have gone through some

violence.” When Maldonado found out what Mya revealed, he came back into the

bedroom with a knife and, according to Mya’s testimony, dragged her out by her

hair into the living room. The mother also remembers Maldonado coming into the

bedroom with a knife, which she says he pointed at Mya’s chest while threatening

to kill them all and burn the house down if Mya said anything.

After she was dragged back into the living room, Mya testified that

Maldonado told her to “get on the couch and to pull [her] pants down.” When she

refused, Maldonado banged her head on the floor, spit on her, and threatened to

burn her with his cigarette. The mother heard Mya yell, and when she went into

the living room, Mya was on the floor. Mya said, “Mom, Mom, I want to tell you

something.” But then Maldonado “grabbed her and threw her against the ground.”

The mother asked him why he was doing this to his daughter. At first he denied

doing anything, but then he told the mother “that he was going to fuck [Mya] so

that [the mother] could see how much he enjoyed her.” The mother and Mya were

able to retreat to the bedroom.

When things calmed down, the mother got Maldonado to believe that they

needed to take Carla to the hospital because she was sick. After the whole family

got into the car, Maldonado included, the mother told Maldonado that she did not

want him to come with them. Maldonado said that if he was staying, so was Mya.
5

The mother agreed but, as soon as Maldonado got out of the car, she locked the

doors and drove off with the children. They went to a nearby church and called

the police.

A police officer responded to the church, where Mya told him that

Maldonado had been physically abusing the mother. She did not tell the officer

about the sexual abuse because she was scared that Maldonado would carry

through with his threats. Law enforcement referred the matter to the Iowa

Department of Health and Human Services. A social worker assigned to

investigate the report met with the mother and the children the next day, upon

which he learned of the allegations of sexual abuse. The social worker then

contacted the child protection center and law enforcement, which set in motion

sexual abuse examinations and forensic interviews of both children.

Mya’s examination was conducted by Dr. Regina Butteris on

January 9, 2020. Dr. Butteris did not observe any outward signs of sexual abuse.

But she noted Mya had gone through puberty, so “there can be sexual activity

without an injury.” Dr. Butteris also opined, “[a] lot of times sexual abuse doesn’t

leave an injury to begin with.” Kristin Kasner, a sexual assault nurse examiner,

conducted Carla’s physical examination on January 17 while Carla was at the child

protection center for her forensic interview. As with Mya, Kasner did not observe

any physical signs that Carla had been sexually abused, although she testified:

“That is not unusual at all. 95 or greater percent of children who have examinations

have no findings.”

Carla’s forensic interview on January 17 was led by Katie Burrell. At the

start of the interview, Burrell told Carla, who was nine years old at the time, that
6

she was being recorded on video and others were watching. She also told Carla

how important it was to tell the truth. After some rapport building, Carla pointed to

her genital area and reported: “My dad touched me here.” Upon questioning, she

specified that her dad touched her “kola” (a Spanish term for going to the

bathroom) with his hand on the bed in her mother’s room, just one time. Carla said

she had been sleeping in her bunk bed, but when she got up to go to the bathroom,

her dad “wanted [her] to come here or something.” Then, Carla continued, he

“touched her kola” and smelled his fingers. She recalled exactly what pajamas

she was wearing and said Maldonado took off her pants and underwear. Carla

added that he touched her butt with what she called his “nickel,” during which he

was “shaking.” She gestured that his nickel was in Maldonado’s genital area, and

she drew a picture of it. Carla said the nickel felt “weird” and “not good.” She

elaborated that Maldonado unzipped his pants and took his nickel out of his

underwear. Carla said that she never told anyone because “dad wanted a secret.”

In late April, the State filed a notice of intent to offer the video of Carla’s

interview under the residual hearsay exception in Iowa Rule of Evidence 5.807.

The State also filed a motion under Iowa Code section 915.38 (2019) to have both

children testify via closed-circuit television, which the court granted. At the hearing

on the motion, the children’s mental-health therapist, Diane Tonkyn, predicted that

Carla would be unable to testify at trial even with the use of a closed-circuit

television. She explained: “Anytime that I’ve attempted to talk to [Carla] about . . .

her father, she shuts down and, in fact, in one instance pulled a sheet and blanket

over her head and said, I don’t exist and I don’t want to.” Tonkyn also noted that

Carla suffered from an autism-like condition that makes it “hard for her to make
7

connections with people” and interferes with her ability to “think and interact with

the world in a neurotypical way.”

Consistent with Tonkyn’s prediction, at Carla’s deposition about two weeks

before trial, she answered most of defense counsel’s questions with, “I forgot,” “I

can’t remember,” or “I don’t know.” The State accordingly asked the court to rule

on whether Carla’s video interview could be admitted under the residual hearsay

exception.3 Maldonado resisted, arguing that any assessment on the necessity

prong of that exception must wait until Carla’s trial testimony is completed. The

court agreed and reserved ruling until trial.

By trial, Carla was eleven years old and her testimony about the abuse was

not as detailed as it was in her forensic interview. She testified that when

Maldonado lived with them, he touched her private parts with his hand and his own

private parts. She said that it hurt, and she told him to stop, but she never told

anyone because he would get mad. Beyond that, Carla wasn’t able to provide

many other details, often answering questions from the State with: “I forgot.”

After Carla finished testifying, the district court revisited the State’s request

to admit the interview video into evidence under rule 5.807. The court observed

that during Carla’s testimony, “she quickly became very upset during the

questioning. Her voice was shaky. She became very quiet. She fidgeted with her

hands and moved around in her chair. She began crying early in the testimony

and said she needed a break early on.” With these observations, the court granted

3The State also argued the interview video fell under exceptions to the rule against
hearsay for statements made for medical diagnosis or treatment and recorded
recollection. See Iowa R. Evid. 5.803(4), (5). The State later withdrew those
grounds for admissibility during oral argument at trial.
8

the State’s request, finding the statements Carla made in the video were the most

probative evidence available in comparison to other evidence the State had taken

reasonable efforts to obtain. See Iowa R. Evid. 5.807(a)(3). The video was then

played for the jury.

The jury also heard from Tonkyn, who testified about the effects of

Maldonado’s sexual abuse on Mya. Tonkyn began providing therapy to Mya in

February 2020. During their first session, Mya

was very anxious, expressing real difficulty concentrating and
focusing in school, really having a hard time staying in the classroom.
She reported that she was having invasive memories of her
experiences, and it was difficult to sit and deal with that in the
classroom. She expressed having some sleep disturbance. There
was a whole variety of things. It was a lot.

Mya opened up more in the second session about one week later, following which

Tonkyn diagnosed her with post-traumatic stress disorder. Tonykyn testified Mya

was still suffering from that disorder at the time of trial, which she opined had

“weakened or destroyed [Mya’s] . . . normal mental functions.”

After considering this evidence, the jury found Maldonado guilty as charged.

The district court denied Maldonado’s “combined motion for a new trial and in

arrest of judgment,” and sentenced him to concurrent terms of life imprisonment

without parole for the four convictions of first-degree sexual abuse and an

indeterminate term of twenty-five years, with a seventy percent mandatory

minimum, on the second-degree sexual abuse conviction, to be served

consecutive to the life sentences.

Maldonado appeals, claiming (1) the court erred in admitting the video of

Carla’s forensic interview under the residual exception to the rule against hearsay,
9

and (2) the evidence was insufficient to support the sex-act element of

Maldonado’s convictions on all counts and the serious-injury element on four

counts of first-degree sexual abuse.

II. Standards of Review

“[B]ecause the district court lacks ‘discretion to admit hearsay in the

absence of a provision providing for it’ or deny the admission of hearsay if it falls

within an exception,” appellate courts “review the district court’s evidentiary rulings

on hearsay for errors at law.” State v. Thompson, 982 N.W.2d 116, 121

(Iowa 2022) (citation omitted). Challenges to the sufficiency of the evidence are

also reviewed for correction of errors at law. State v. Brimmer, 983 N.W.2d 247,

256 (Iowa 2022).

III. Analysis

A. Residual Exception

We start with Maldonado’s claim that the district court erred in allowing the

admission of Carla’s forensic interview under the residual exception to the rule

against hearsay in Iowa Rule of Evidence 5.807.4 This exception is “often

used . . . to admit the out-of-court statements of child sex abuse victims.”

Skahill, 966 N.W.2d at 11. But, as our supreme court cautioned in Skahill, it is a

narrow exception that should be used only sparingly so that it does not “swallow

the rule against hearsay.” Id. at 10. The five requirements of the exception—

4 This rule was amended effective January 1, 2023, and applies to all actions filed
on or after that date, as well as in trials and evidentiary hearings conducted on or
after that date for actions filed before that date. The amendment does not apply
to Maldonadao’s case, which was filed in February 2020 and tried in September
2021.
10

“trustworthiness, materiality, necessity, service of the interests of justice, and

notice”—“are designed to limit the exception and protect the overarching rule

against hearsay.” Id. at 10–11 (citation omitted). Notably, “[t]hese are not factors

to be weighed; all five requirements must be satisfied.” Id. at 10.

Of the five requirements, Maldonado only contests the presence of

necessity on appeal. He submits the State’s use of the video was unnecessary

because (1) although Carla was “nervous and uncomfortable” during her trial

testimony, arrangements were made to alleviate those concerns 5; (2) “[t]he

questioning by the prosecution was fairly soft and open-ended,” with no “‘hard

hitting’ questions or pressure”; and (3) Carla was able to provide sufficient detail

of the abuse in her testimony, specifically that Maldonado touched her vagina or

“kola” with his hand and his private parts or “nickel” and that it hurt.

Necessity, as it relates to the residual exception, “is not used in the absolute

sense.” Id. at 11. Instead, “[t]he hearsay evidence only needs to be ‘more

probative on the point for which it is offered than any other evidence that the

proponent can obtain through reasonable efforts,’ as the rule requires.” Id.

(quoting Iowa R. Evid. 5.807(a)(3)). “The word ‘probative’ means ‘[t]ending to

prove or disprove.’” Id. (alteration in original) (citation omitted). Probativeness “is

not viewed in a vacuum,” and is instead considered “in relation to the other

evidence available to the State, particularly [the witness’s] live testimony.” Id.

5 Maldonado points out that Carla was allowed to testify from a separate room than
Maldonado by video, a guardian ad litem was appointed and present during her
testimony, and Carla was “allowed to take a break whenever she requested and
was allowed to color while she was on the stand.”
11

So the overarching question is whether the video interview “tend[s] to prove

what happened to [Carla] better than her trial testimony in which she was subject

to cross-examination.” See id. In other words, “[t]he necessity element requires

the hearsay evidence to be superior to other available evidence, not just reliable.”

Id. at 13. As a litmus test, “when the same evidence is available through in-court

testimony, hearsay statements are generally not necessary under the residual

exception.” Id. at 13–14. But the residual exception has been used when a child’s

testimony had “a significant gap or weakness” or “was inconsistent and hesitant,”

and “when the child testified at trial to abuse but was unable to provide important

details in their trial testimony.” Id. at 14–15.

In Skahill, the supreme court found the rationale underlying the use of the

residual exception “to fill in important details that are missing from a child’s in-court

testimony” did not apply to its facts. Id. at 15. That is because the complaining

child witness’s trial testimony “was responsive and forthcoming”; “it was evident

that she remembered what happened”; and, “[w]hile her trial testimony may not

have been quite as vivid as her [statements in the forensic] interview, it was not

hesitant or contradictory.” Id. Because the child “testified to all of the critical points

of the State’s case—that Skahill showed her his ‘private,’ asked her to ‘wiggle it,’

and touched her ‘privates’ under her clothes in a way that was painful”—the

hearsay statements “were not more probative than the otherwise available live

testimony.” Id. As a result, the necessity requirement was not satisfied, and

admission under the residual exception was error. Id.

Maldonado suggests this case is the same as Skahill, in that Carla’s trial

testimony had sufficient detail to negate the necessity requirement. He is right that
12

Carla’s trial testimony, though brief, did provide some details on sexual abuse.

After she testified to some background information, the prosecutor stated: “We’re

going to talk a little bit about something that happened a while ago. Okay, [Carla]?”

Carla responded, “Okay,” but then the guardian ad litem requested, “Can we

pause?” Following an off-the-record discussion, testimony resumed with

questions about Carla’s favorite color and candy. The prosecutor then asked Carla

about her understanding of private parts, and Carla testified that she calls a girl’s

private parts a “kola” and a boy’s private parts a “nickel.” In response to

questioning, Carla was able to confirm that she used to live with Maldonado, but

when asked: “when you lived with him there, did [Mya] and [Bryn] and your mom

live there, too?” she stated she could not remember.

From there, the transcript reads as follows:

Q. Okay. Were there some times when it was just your dad
home with you and [Bryn] and [Mya]? A. Yes.
Q. Was that while your mom was at work? A. Yes.
Q. Did your dad ever touch your kola, [Carla]? A. Yes.
Q. And when I ask if he touched it, did he touch it with his
finger?
DEFENSE COUNSEL: Your Honor, I’m going to object. It’s a
leading question.
THE COURT: Let’s rephrase the question.
Q. How did he touch your kola? A. His private parts and his
hand, too.
Q. And when you say he touched it with his private parts,
what—do you have a name for that? A. I forgot.
Q. That’s okay. I know it’s hard. Did it hurt when he touched
your kola with his private parts? A. Yes.
Q. Did you tell him to stop? A. Yes.
Q. And what did he say? A. I just forgot.
Q. Okay. A. I need a break.
Q. Okay.

After a five-minute recess, Carla’s testimony resumed:
13

Q. [Carla], you told us earlier that your dad touched your kola
with his privates? A. Yes.
Q. Did he touch your kola with anything else? A. That’s all.
Q. Okay. And did you ever tell anyone? A. No.
Q. Why didn’t you tell anyone? A. Because my dad would be
angry.
Q. Did your dad ever tell you not to tell anyone? A. Yeah.
Q. Do you remember what he said? A. No.
Q. Okay. But you knew not to tell anyone? A. No.

The State then ended direct examination, and the defense declined cross-

examination.

On appeal, while the State implicitly agrees Carla provided some

information on the sexual abuse, it submits that the “admissibility requirement is

generally met if ‘the trial testimony had a significant gap or weakness’ that

rendered it less probative than the recorded statement, on any material point.”

According to the State, if the hearsay evidence provides important details missing

from the child’s in-court testimony, then the necessity requirement is met.

The Skahill court specifically noted State v. Neitzel, 801 N.W.2d 612 (Iowa

Ct. App. 2011), was one of “[t]he two Iowa cases most directly on point” as to “when

admission of a hearsay video interview was a necessity.”6 Skahill, 966 N.W.2d at

11–12. In Neitzel, when the complaining ten-year-old witness testified at the 2010

trial nearly three years after the abuse, she “answered several general questions

and stated that she remembered having Neitzel as a babysitter when she stayed

at her dad’s house.” 801 N.W.2d at 617. But “[w]hen she was asked if she could

tell what happened the last time she saw Neitzel, she paused and then stated, ‘I

6The other noted case was State v. Rojas, 524 N.W.2d 659 (Iowa 1994), but that
case involved victim recantation during trial testimony, which was not present in
Skahill and is not present in this case. See Skahill, 966 N.W.2d at 12.
14

don’t remember.’” Id. Yet, in her forensic interview in 2007, the victim reported

“Neitzel took her upstairs to her room, undressed her, laid on her, and touched his

‘pee pee’ on her ‘private,’ as well as saying that Neitzel was undressed and his

‘pee pee’ moved up and down inside her ‘private.’” Id. The district court admitted

the hearsay statements under the residual exception, which we affirmed. Id. at

621–23. On the necessity requirement, our court found “the evidence was

necessary because [the victim] was of a young age when the abuse occurred and

unable to testify to the abuse at trial years later, making the close-in-time video

recitation . . . the most probative evidence of the abuse that occurred.” Id. at 623.

Unfortunately, this case does not fit neatly within either Neitzel or Skahill,

but instead falls somewhere in between. The victim in Neitzel could not remember

the details of the abuse during her trial testimony. See 801 N.W.2d at 617. That

is not the case here, since Carla was able to provide some testimony about the

abuse. On the other hand, the victim in Skahill had no issues with memory loss or

providing details of the abuse. See 966 N.W.2d at 15. That is also not entirely the

case here.

So let’s zero in on the supreme court’s rationale for finding necessity was

not met in Skahill. First, the victim “was responsive and forthcoming” in her

testimony. Id. Here, Carla was reluctant and troubled. The district court viewed

Carla’s testimony first hand and found that although “she testified clearly that the

Defendant committed a sex act against her,” “it was clear and obvious that [she]

struggled to testify in open court in relation to the allegations of abuse.” The court

observed that she was “very quickly upset,” spoke with a shaky voice, and was

quiet, fidgety, and tearful. We have also considered that Carla suffers from a
15

condition where “she doesn’t think and interact with the world in a neurotypical

way,” which her therapist testified would affect her ability to testify.

Second, it was evident to the court in Skahill that the victim remembered

what happened because she provided a detailed recitation of the sexual abuse,

testifying that on one of the mornings while her mother was working,

she sat on her dad’s lap in a living room chair while they watched TV
and fell asleep on his chest. When asked what happened when she
woke up, she replied: “We were under the blanket, and he showed
me his private.” She went on to testify that Skahill asked her to
“wiggle it.” [The victim] also described being touched by Skahill: “He
touched me on my privates in between my legs.”
[She] said the touching occurred under her clothes. She
agreed that the touching could be described as a “brush up against”
her privates but also answered that it was painful. [She] testified that
after these things occurred, “Skahill told me that this was our secret.”
[She] testified that she was afraid of Skahill and avoided him the rest
of the long weekend . . . .

966 N.W.2d at 5 (cleaned up). We do not have the same level of detail with Carla’s

testimony, during which she only provided brief and vague responses to questions

about the sexual abuse, often saying that she did not remember. While Maldonado

faults the State for not asking any “hard hitting” questions or pressuring Carla

during testimony, the equally brief, vague, and resistant nature of her answers to

questions in her deposition shortly before trial shows doing so would have been

futile. Indeed, defense counsel pressed Carla in her deposition for details of the

abuse, but she repeatedly stated she could not remember. On this record, unlike

Skahill, it is not evident that Carla remembered the details of what happened.

Third, the victim’s testimony in Skahill “was not hesitant or contradictory,”

id. at 15, while Carla’s testimony was both. Carla first testified Maldonado touched

her kola with both “his private parts and his hand, too.” After a recess, Carla was
16

asked if he touched her kola with anything other than his private parts, and she

stated: “That’s all.” During another exchange, Carla testified that she called a boy’s

private part a “[n]ickel,” but when she was asked later, “when you say [your dad]

touched it with his private parts . . . do you have a name for that?”, Carla

responded: “I forgot.”

Finally, the victim’s testimony in Skahill addressed “all of the critical points

of the State’s case.” Id. Here, on the other hand, Carla’s testimony provided no

timeframe for the abuse. Cf. United States v. Wandahsega, 924 F.3d 868, 882

(6th Cir. 2019) (finding a child’s inability to remember when the abuse occurred

during his trial testimony was particularly important in upholding the admission of

his hearsay statements under the exception); accord Skahill, 966 N.W.2d at 14

(discussing Wandahsega, 924 F.3d at 882). Nor did her testimony provide any

context for the touching or the circumstances surrounding it. A critical element of

the State’s case was that the contact was sexual in nature. See Iowa Code

§ 702.17 (defining “sex act”). Carla’s trial testimony offered little on this point. See

State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994) (noting context and

surrounding circumstances drive the determination of when contact is sexual in

nature).

In our view, the circumstances present in Skahill that negated necessity are

not present here. So that brings us back to the overarching question for

admissibility under the residual exception: whether the forensic interview was

“more probative on the point for which it is offered than any other evidence that the

proponent can obtain through reasonable efforts.” Skahill, 966 N.W.2d at 11
17

(quoting Iowa R. Evid. 5.807). Comparing Carla’s testimony at trial,7 which was

vague, brief, and lacking in context, with her forensic interview where she provided

significantly more detail and context, we conclude the answer is yes. Cf. id. at 8–

9, 15 (rejecting the finding that the “slightly more detailed and contextualized”

statements in a child’s forensic interview satisfied the necessity prong of the

residual exception). In Carla’s video interview, unlike her trial testimony, she

disclosed that Maldonado intercepted her making a bathroom trip in the middle of

the night while her sisters were sleeping and her mother was away, touched her

vagina with his fingers, and then smelled his fingers. Carla also reported

Maldonado took off her pajamas and underwear and touched her butt with his

genitals, which he took out of his underwear after unzipping his pants. While he

was touching her with his genitals, Maldonado was “shaking.”

Because we believe that the video interview tends to prove what happened

to Carla better than her trial testimony in which she was subject to cross-

examination, see id., we conclude the necessity requirement was satisfied, and

the court did not err in admitting the video under the residual hearsay exception.

B. Sufficiency of Evidence

Maldonado next claims the evidence was not sufficient to support the sex-

act element of his convictions on all counts and the serious-injury element on his

convictions for first-degree sexual abuse.

A verdict will be upheld if substantial evidence supports it. State v.

Wickes, 910 N.W.2d 554, 563 (Iowa 2018). “Evidence is substantial if, ‘when

7Maldonado does not argue the State could have obtained other more probative
evidence through reasonable efforts.
18

viewed in the light most favorable to the State, it can convince a rational jury that

the defendant is guilty beyond a reasonable doubt.’” Id. (quoting State v.

Ramirez, 895 N.W.2d 884, 890 (Iowa 2017)). Evidence is not insubstantial just

because it might support a different conclusion; the only question is whether the

evidence supports the finding actually made. See State v. Jones, 967

N.W.2d 336, 339 (Iowa 2021).

1. Sex act

For his challenge to the sufficiency of the evidence supporting his

convictions, Maldonado first complains there was no “physical evidence

demonstrative of sexual abuse.” On that sentiment, he submits: “The State failed

to prove element one . . . of each of the five . . . counts beyond a reasonable doubt.”

On element one of each count, the jury was instructed the State needed to prove

Maldonado “performed a sex act” on Mya as to counts one through four and Carla

as to count five.8 The instructions defined “sex act” to mean any of the following

sexual contact between two persons:

1. By penetration of the penis into the vagina or anus.
2. Between the mouth of one person and the genitals of
another.
3. Between the genitals of one person and the genitals or
anus of another person.
4. Between the finger or hand of one person and the genitals
or anus of another person.
5. By the use of artificial sex organs or substitutes thereof in
contact with the genitalia or anus.

8 Maldonado does not raise any jury instruction errors on appeal. Unobjected-to
jury instructions serve as the law of the case when reviewing the sufficiency of
evidence. State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct. App. 2018).
19

The instructions noted “the sex act alleged is hand or finger to genital contact” for

count one, “genital to genital contact” for count two, “mouth to genital contact” for

count three, and “genital to mouth contact” for count four. The instructions did not

identify a specific sex act for count five, relating to Carla.

While Maldonado is correct that there was no physical evidence of sexual

abuse, the supreme court has held that a “sexual abuse victim’s testimony alone

may be sufficient evidence for conviction.” State v. Donahue, 957 N.W.2d 1, 10–

11 (Iowa 2021). Maldonado acknowledges that Mya and Carla testified to the

abuse detailed in each count. The jury also considered Carla’s forensic interview.

Viewing this evidence in the light most favorable to the State, and given the

directive in the jury instructions that the jury could “consider the type of contact and

the circumstances surrounding it in deciding whether the contact was sexual in

nature,” we find the evidence could convince a rational jury that Maldonado

performed sex acts on his children beyond a reasonable doubt. See Wickes, 910

N.W.2d at 563. We accordingly reject Maldonado’s challenge to the sufficiency of

the evidence on this element of his sexual-abuse convictions.

2. Serious injury

In part one of his brief, Maldonado touches on the serious-injury element of

counts one through four, which required proof of a serious injury that could include

a “disabling mental illness.” Maldonado acknowledges “the State presented

evidence that [Mya] suffered from [post-traumatic stress disorder] and possibly

depression,” but he argues “the State was unable to specify that the actions of the

defendant were the direct cause of this condition and certainly not beyond a
20

reasonable doubt.” In part three of his brief,9 Maldonado adds to this claim,

suggesting there was insufficient evidence that Mya suffered a disabling mental

illness, that it was caused by the abuse, or that it was permanent or long term.

For starters, the jury instructions did not require a showing that the disabling

mental illness be permanent or long term. And, viewing the evidence in the light

most favorable to the State, the jury could rationally find Mya suffered a disabling

mental illness and that it was caused by the abuse.

On counts one through four, the jury was instructed that the State had to

prove that, “[d]uring the commission of sexual abuse, the defendant caused [Mya]

a serious injury.” The instructions defined a serious injury to include “a disabling

mental illness,” which in turn was defined as “an illness or condition which cripples,

incapacitates, weakens or destroys a person’s normal and usual mental functions.”

The jury was further instructed:

[T]he “serious injury” need not occur simultaneously with the
commission of the sexual abuse, but may precede or follow the
sexual abuse if the injury and the sexual abuse occur as part of an
unbroken chain of events or as part of one continuous series of acts
connected with one another.[10]

The evidence shows that Maldonado’s abuse of Mya began in the summer

of 2019 and continued into the school year up until Mya’s disclosure to her mother.

9 While the heading of part three of Maldonado’s brief kind of reads as a potential
jury instruction challenge, the substance of the argument concerns the sufficiency
of the evidence. To the extent that it is a challenge to the jury instruction he
discusses, Instruction 36, it would not be preserved because Maldonado did not
object to this instruction. See State v. Fountain, 786 N.W.2d 260, 262–63 (Iowa
2010) (“[O]bjections to giving or failing to give jury instructions are waived on direct
appeal if not raised before counsel’s closing arguments, and the instructions
submitted to the jury become the law of the case.”).
10 Maldonado objected to the inclusion of this instruction at trial, but he does not

reprise the challenge on appeal.
21

When asked whether the abuse changed her, Mya said that it had, explaining the

“bad thoughts” she has about the abuse are overwhelming. She continued:

“[A]nytime I do think about it, I cry.” Mya told the jury that after the summer when

her dad began the abuse, she started to cut herself. She now takes medication to

help with her depression and anxiety, which she said helps a “little bit,” although

she still feels sad and scared a lot of the time. In her testimony, Mya’s mother

agreed something had changed in Mya—she kept to herself, she didn’t eat, she

had nightmares, she cried in her sleep, and she struggled with school.

Mya’s therapist diagnosed her with post-traumatic stress disorder, the

symptoms of which included “a whole variety of things” for Mya—anxiety, difficulty

concentrating, invasive memories about the abuse, self-harm, and sleep

disturbance. As an example, Mya’s therapist, Diane Tonykyn, explained that Mya

“would be sitting in class and supposed to be focusing on what the teacher is

talking about, and she would have like memories and images of the . . . sexual

abuse.” Tonykyn testified Mya reported that all of these symptoms started after

the sexual abuse by Maldonado, and she agreed the condition “has weakened or

destroyed [Mya’s] . . . normal mental functioning.” The therapist continued to treat

Mya at the time of trial, and she testified Mya’s condition remained the same. While

psychotherapist Kate Haberman, who specializes in childhood trauma, did not treat

Mya, she testified at trial that depression and post-traumatic stress disorder are

mental illnesses capable of crippling or weakening a person’s normal mental

functioning.

Viewing this evidence in the light most favorable to the State, it shows Mya’s

post-traumatic stress disorder was a disabling mental illness that was caused by
22

Maldonado’s ongoing sexual abuse. Cf. State v. Thompson, Nos. 0-744, 00-0387,

2000 WL 1868961, at *5 (Iowa Ct. App. Dec. 22, 2000) (finding substantial

evidence to support submission of jury instruction on serious injury where expert

testified victim suffered from post-traumatic stress disorder caused by sexual

abuse and threats against her life, victim will continue therapy on a long-term basis,

and the condition impaired her daily, reasoning “[t]he evidence of the victim’s

mental and emotional status demonstrates she suffers from ‘serious injury,’

defined in the jury instructions as follows: ‘a disabling mental illness; or condition

which cripples, incapacitates, weakens or destroys a person’s normal mental

functions’”). We accordingly find sufficient evidence supports the serious-injury

element of counts one through four.

IV. Conclusion

We affirm Maldonado’s convictions, finding the forensic interview was

properly admitted under the residual exception and Maldonado’s convictions enjoy

substantial evidentiary support.

AFFIRMED.