State of Iowa v. Caleb Jeffrey Fairchild

IN THE COURT OF APPEALS OF IOWA

No. 23-2090
Filed December 18, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

CALEB JEFFREY FAIRCHILD,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Madison County, Michael Jacobsen,

Judge.

The defendant appeals his convictions for three counts of sexual abuse in

the second degree and one count of indecent contact with a child. AFFIRMED.

Nick Sarcone of Babich Sarcone, P.L.L.C., Des Moines, for appellant.

Brenna Bird, Attorney General, and Joshua A. Duden, Assistant Attorney

General, for appellee.

Considered by Greer, P.J., and Buller and Langholz, JJ.
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GREER, Presiding Judge.

After allegations surfaced of sexual conduct involving child-care employee

Caleb Fairchild and two young children, a jury found Fairchild guilty of three counts

of sexual abuse in the second degree, in violation of Iowa Code sections 709.1

and 709.3(1)(b) (2019), and one count of indecent contact with a child, in violation

of Iowa Code section 709.12(1)(a). Fairchild appeals, alleging the district court

impermissibly admitted hearsay statements of one of the child victims during the

testimony of the child’s mother and that there was insufficient evidence underlying

the convictions involving both child victims. Because the statements were not

hearsay since they were not intended to prove the matter asserted and Fairchild

failed to preserve the record on his objection to the statements in any event, we

find the district court did not err in allowing the testimony. On the challenge to

sufficiency of the evidence, the evidence supporting the convictions is substantial,

so we affirm.

I. Background Facts and Proceedings.

Fairchild was a daycare provider at Young Explorers (the Center), a

childcare facility, from 2019 to August of 2021. At the Center, Fairchild was a

“floater,” or an employee who assisted other employees when and where there

was a need. Although Fairchild assisted where there was a need, he mostly found

himself working with ages three years and older.

In 2019, seven-year-old child, L.O., and L.O.’s mother were:

reading a book, and we were talking about good touch, bad touch,
kind of and I was telling him, like, nobody should be touching—you
know, like in this scenario, we were talking—like they call it the
swimsuit area kind of thing, your privates, whatever you want to call
it, and he said, “You mean like Caleb?” . . . I’m like, “Well, who’s
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Caleb?” And he’s like, “You know, the worker.” . . . I’m like—my gut
kind of sunk, and I said, “Well, what happened?” And he had stated
that they were out on the playground, and he swung up and hit him
in the genital area.

L.O.’s mother reported the concerns to the owner and director of the Center,

specifically that L.O. was “hit from the outside of the clothes” by Fairchild. At first

the mother and director thought it might be “horseplay” between L.O. and Fairchild.

The director; assured L.O.’s mother that it would not happen again. But, at trial,

the mother testified:

Q. About how much later was another incident reported? A. I
asked [L.O.], just to touch base with him again, maybe a week or two
later, and he said—I said, “How’s things going? Has anything come
up?” And he said, “Actually, Mom, yes.”
Q. Okay. And based on what he told you then, what did you
think? Did that change your opinion from horseplay— A. 100
percent.

At this point, L.O.’s mother, once again, contacted the director again and called

the Iowa Department of Health and Human Services (the department) to report the

allegations. L.O. stopped going to the Center in November. Although the

department interviewed Fairchild, no further investigation followed. Fairchild

continued to work for the Center. He left the Center in August 2021.

Then in May 2022, another child who had attended the Center in 2019,

C.M., told his mother that Fairchild had touched him inappropriately. The

allegations involved touching C.M.’s buttocks and penis. C.M.’s mother contacted

the police. The police started an investigation that included interviewing Fairchild,

and both children underwent forensic interviews at Blank Children’s STAR Center.

Charges were filed following this investigation.
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The first jury trial ended in a mistrial, but after retrial the jury found Fairchild

guilty of all four counts. Fairchild was sentenced in December 2023.

II. Discussion.

Fairchild appeals his conviction, alleging the admission of statements made

by L.O. to his mother was improper, as the statements were hearsay not

admissible under any exception. He also argues the testimony of the complaining

child witnesses was inconsistent and uncorroborated, warranting a finding of

insufficient evidence that he committed a sex act against either of them. We

address both of his claims.

a. Admission of Alleged Hearsay Evidence.

Fairchild argues the mother’s testimony of the first conversation that L.O.

had with his mother about Fairchild touching him should not have been allowed

into evidence, as this testimony constituted inadmissible hearsay. “‘Hearsay’

means a statement that: (1) The declarant does not make while testifying at the

current trial or hearing; and (2) A party offers into evidence to prove the truth of

the matter asserted in the statement.” Iowa R. Evid. 5.801(c). We generally review

evidentiary rulings for an abuse of discretion. See State v. Wilson, 878

N.W.2d 203, 210 (Iowa 2016). “An abuse of discretion occurs when a district court

exercises its discretion on grounds or for reasons clearly untenable or to an extent

clearly unreasonable.” Id. at 210–11. “A ground or reason is untenable when it is

not supported by substantial evidence or when it is based on an erroneous

application of the law.” Graber v. City of Ankeny, 616. N.W.2d 633, 638

(Iowa 2000). “Although we generally review a court’s decision to admit or exclude
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evidence for an abuse of discretion, we review a hearsay claim for correction of

errors at law.” State v. Neitzel, 801 N.W.2d 612, 621 (Iowa Ct. App. 2011).

Here, the district court did not rule on Fairchild’s initial hearsay objection

after the State countered that the statements were admissible under the excited

utterance exception. See Iowa R. Evid. 5.803(2). The court responded, “If you

want to try and establish that it’s excited utterance, you may ask further questions.”

See State v. Dudley, 856 N.W.2d 668, 680 (Iowa 2014) (“The rationale underlying

the ‘excited utterance’ exception is ‘that the excitement of the event limits the

declarant’s capacity to fabricate a statement and thereby offers some guarantee

of its reliability.’”). In making that record, L.O.’s mother testified about how she first

learned of the inappropriate touching as she read the book about good and bad

touch to L.O. without any objection from Fairchild. After that testimony, when the

prosecutor had moved on to asking the mother questions about how she felt about

L.O.’s statements, Fairchild again objected, and the following discussion occurred:

FAIRCHILD: Objection, Your Honor. The—hearsay was
never—excited utterance was never established, and no ruling’s
been made on that at this point.
COURT: Well, he moved on to other questions. I didn’t hear
any further objections from you regarding that.
FAIRCHILD: All right, Your Honor. Thank you.
STATE: Your Honor, I’d just like to also add I didn’t ask any
questions that would elicit any hearsay either. Thank you.
COURT: Go ahead.

Before we consider the merits of Fairchild’s argument, we note the State

concedes on appeal that L.O.’s statements did not constitute an excited utterance.

So, the State turns to three arguments supporting the admission of the statement.

First, the State urges that Fairchild did not preserve error. Second, the State

asserts the statement was not hearsay as it was not offered for the truth of the
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matter but to show evidence of the mother’s reaction to the information and the

steps she took to address the situation at the Center. And third, the State contends

any admission of this statement was harmless and not prejudicial to Fairchild

because of other similar evidence presented at trial without objection.

“The preservation of error doctrine is grounded in the idea that a specific

objection to the admission of evidence be made known, and the trial court be given

an opportunity to pass upon the objection and correct any error.” State v. Brown,

656 N.W.2d 355, 361 (Iowa 2003). If the court is not given an opportunity to

address an objection, then the issue is waived. See State v. Meyers, 799

N.W.2d 132, 147 (Iowa 2011) (“Issues on appeal not raised in the district court are

deemed waived.”) “The general rule is that where an objection is sustained, it must

be repeated each time similar testimony is offered by the opposing party.” State

v. Dessinger, 958 N.W.2d 590, 599 (Iowa 2021). When the questions by the State

led to a response that included hearsay, Fairchild was required to object at that

point to preserve error and ask that the jury not consider the evidence. Error was

not preserved.

But even if it had been, we would find the State’s third argument to be

persuasive. The mother testified that L.O. “stated that they were out on the

playground, and [Fairchild] swung up and hit him in the genital area.” Assuming it

was hearsay, “[t]here are two distinct tests to apply to determine whether the

admission of inadmissible testimony is non-prejudicial or harmless under the two

rules. In the hearsay context, ‘where substantially the same evidence is in the

record, erroneously admitted evidence will not be considered prejudicial.’” Brown,

656 N.W.2d at 361 (citation omitted). Here, substantially similar detail was
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provided in L.O.’s specific testimony about the touching and by Fairchild in his

interview with the police. Likewise, the Center’s director testified to the results of

the internal investigation into L.O.’s initial complaint, stating Fairchild characterized

his actions involving the child as “roughhousing.” Fairchild did not suffer prejudice

from the admission of the statement made by L.O., and thus it is not a ground for

reversal.

b. Sufficiency of the Evidence.

Fairchild contends that the evidence, presented primarily from child

witnesses, was insufficient to prove he committed a sex act. We review challenges

to the sufficiency of the evidence for errors at law. State v. Dalton, 674

N.W.2d 111, 116 (Iowa 2004). When assessing sufficiency-of-the-evidence

challenges, we review the record “in the light most favorable to the State.” State

v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017). The State is entitled to “legitimate

inferences and presumptions that may fairly and reasonably be deduced from the

record evidence.” Id. (citation omitted). It is not the court’s purview to weigh the

credibility of witnesses and resolve factual issues; such assessments are reserved

for the jury. State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005). If we find the record

shows substantial evidence, we are bound by the jury’s verdict. State v. Mong,

988 N.W.2d 305, 312 (Iowa 2023).

To start, Fairchild argues that because each of the complaining child

witness’s testimony was (1) inconsistent and (2) unsupported by corroborating

testimony or other evidence, no reasonable fact finder could find the testimony

credible. Yet, as Fairchild points out in his brief, “Believed by the district court or

the jury, L.O. and C.M.’s testimony alone could be substantial proof of sexual
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abuse.” See State v. Duran-Sierra, No. 21-1312, 2023 WL 2148743, at *2 (Iowa

Ct. App. Feb. 22, 2023); see also State v. Knox, 536 N.W.2d 735, 742 (Iowa 1995).

Any deficiency in corroborating testimony is only significant if a reasonable fact

finder could not find the child’s testimony credible. So Fairchild pivots to the

argument that “there is a gaping absence of any evidence beyond the vague and

inconsistent testimony of the alleged victims,” rooting his argument in State v.

Smith, 508 N.W.2d 101 (Iowa Ct. App. 1993). In the more than thirty years since

it was decided, Smith has become an anomaly in our case law:

Smith is an outlier case. It has been criticized in the commentary,
and it has not been followed in any sexual abuse case in Iowa since.
The primary flaw in Smith is that it is inconsistent with the standard
of appellate review of jury verdicts, which requires that the evidence
be viewed in the light most favorable to the verdict and which
requires deference to the jury’s resolution of disputed factual issues.

State v. Trane, 984 N.W.2d 429, 436–37 (Iowa 2023) (quoting State v.

Mathis, 971 N.W.2d 514, 518 (Iowa 2022)). This court has described the

circumstances related to the reporting in Smith as “extreme.” State v.

Schondelmeyer, No. 14-0621, 2015 WL 1817030, at *3 (Iowa Ct. App.

Apr. 22, 2015). And, “Smith draw[s] on archaic concepts about sexual abuse to

support its decision, but it also glossed over the gatekeeping concepts that must

frame our analysis.” State v. Showers, No. 23-0390, 2024 WL 2317709, at *5

(Iowa Ct. App. May 22, 2024); see id. (providing examples of cases where

sufficient evidence was found in sex abuse cases based on child victim testimony).

During trial, both children, who were then twelve years old, testified. L.O. reported

Fairchild would touch his penis and testicles over his clothes or through “my

pocket,” roughly “three times a week.” L.O. stated that Fairchild told him not to tell
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anyone. Fairchild would have the child sit next to him and give L.O. his phone,

allowing the child to watch videos or play games. Fairchild would then fondle the

child’s genitalia for “five, ten minutes.” L.O. also testified to other statements made

by Fairchild:

Q. Did the defendant ever tell you that something would
happen to your body as a result of him touching you? A. Yes.
Q. What did he say? A. I don’t feel comfortable saying it.
Q. Okay. Was it—without actually saying it, would it have been
something beneficial to your body? A. Yes.
Q. In what way? A. Bigger.

Like L.O.’s description of events, C.M. reported that Fairchild would give

C.M. his phone to play games on as a distraction. Once C.M. was engrossed in a

game on his phone, Fairchild would reach down into C.M.’s clothes and, with “skin-

to-skin” contact, touch his testicles and butt cheeks—“squishing them.” C.M.

reported the touching happened “a couple times a day. One or two, usually.”

Fairchild told C.M. to “keep . . . secrets.” And as to both children, Fairchild singled

them out for phone use and gave them snacks, separate from the other children.

Fairchild centers his argument on a theme that the children failed to provide

sufficient detail about the touching and that they, instead, provided “inconsistent”

testimony. We see this primarily as a credibility argument, and the fact finder’s

function was to determine the witnesses’ credibility, which it did here. See State

v. Musser, 721 N.W.2d 758, 761 (Iowa 2006). And as far as the lack of detail over

specific words used, “such uncertainty or lack of detail from a child witness is no

surprise.” State v. Wilde, 987 N.W.2d 486, 495 (Iowa Ct. App. 2022). Again, the

fact finder could weigh the imprecision of words used along with the children’s

demeanor, age, and other testimony.
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Going to the inconsistencies in the testimony, we find them to be minimal in

the context of the full description of what the children presented. As for L.O.’s

testimony, Fairchild points to an inconsistency in the previous report to the daycare

in 2019 and the trial testimony about where Fairchild touched the child. But in

L.O.’s trial testimony, his description of being touched in his “private area” along

with other detailed testimony provided sufficient evidence of the elements to be

proved. And fact finders weigh that testimony against any inconsistency.

Finally, Fairchild argues C.M. was inconsistent on whether he touched the

child “through his clothes” or if the contact was skin-to-skin. In reviewing the

testimony of the child, we do not see any inconsistency from the testimony that

C.M. provided as he confirmed that Fairchild reached through his clothes and

touched his genitalia or buttocks, undercutting any allegation of conflicting

testimony.

Testimony from children need not be exacting to be sufficient to support a

conviction. “Inconsistencies and lack of detail are common in sexual abuse cases

and do not compel a jury to conclude that the victim is not credible or that there is

insufficient evidence to support a guilty verdict.” State v. Donahue, 957

N.W.2d 1, 11 (Iowa 2021). And here, the inconsistencies in the testimony of the

children were minimal, and the descriptions given, along with the consistency of

the pattern of Fairchild’s behavior towards each of them, provided substantial

evidence for the convictions.

III. Conclusion.

We affirm the convictions.

AFFIRMED.