State of Iowa v. Fabian Ivan Garcia

IN THE COURT OF APPEALS OF IOWA

No. 20-0227
Filed January 21, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

FABIAN IVAN GARCIA,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clay County, Charles Borth, Judge.

Fabian Garcia appeals his convictions for sexual abuse in the second

degree, lascivious acts with a child, and incest. AFFIRMED.

Michael H. Johnson of Johnson Law Firm, Spirit Lake, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Doyle, P.J., and Tabor and Ahlers, JJ.
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AHLERS, Judge.

Fabian Garcia appeals his convictions for sexual abuse in the second

degree, lascivious acts with a child, and incest. He argues the district court erred

in admitting a recording of the child’s forensic interview, the evidence is insufficient

to support his convictions, and the court abused its discretion in denying his

request for an in camera review of the child’s mental-health records. We reject his

arguments and affirm.

I. Background Facts and Proceedings.

On December 31, 2017, Garcia lived with his paramour (the mother) and

the couple’s five children. The complaining witness was five years old at the time.

The mother testified she and the children were in their bedrooms getting ready to

sleep by 10:00 that night while Garcia remained in the living room drinking beer

and playing video games. She later heard Garcia call the child into the living room

to help him clean up. Eventually, Garcia and the child entered the mother’s

bedroom and wished her a happy birthday.1 Later that night, the child reentered

the bedroom by herself upset and crying, and she told the mother Garcia “was

putting his fingers inside of her anus.” The mother immediately confronted Garcia

in the living room, and Garcia denied anything happened.

On January 1, the mother contacted police. The next day, the mother and

child went to the Child Advocacy Center (CAC) in Sioux City for a physical

examination and interview. The physical examination noted the child’s genital and

anal areas were “[n]ormal” with no signs of irritation or injury; however,

1 The mother’s birthday is January 1.
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“[p]enetration and trauma may occur in the genital and rectal area without leaving

definite physical signs due to the elasticity of the tissue in this area as well as the

potential for rapid healing without scarring.” During the interview, the child

spontaneously said Garcia “pulled down his pants . . . he showed his private part,

he put it, he put it in my butt and his finger, and then he licked his finger and then

he put it on his private part. And, and then he put his private part in my butt.” When

asked what his “private part” looked like, the child pointed between her legs and

said it was “like a boy.” When asked about putting the “private part in [her] butt,”

the child laid down to show her position that night and said she “kept moving

forward because it hurted.” When asked “where did it hurted at?” the child pointed

to her anus and said “he put it inside my . . . hole that, that poop comes out.”

The State charged Garcia with sexual abuse in the second degree in

violation of Iowa Code sections 709.1 and 709.3 (2017), lascivious acts with a child

in violation of Iowa Code section 709.8, and incest in violation of Iowa Code section

726.2. The matter proceeded to a bench trial on November 6 and 7, 2019, after

which the district court found Garcia guilty as charged. The court sentenced him

to indeterminate terms of incarceration not to exceed twenty-five years for sexual

abuse, ten years for lascivious acts with a child, and five years for incest, run

concurrently. Garcia appeals.

II. Standard of Review.

We review hearsay claims for errors at law. State v. Newell, 710 N.W.2d 6,

18 (Iowa 2006). A district court has no discretion to admit hearsay into evidence

unless there is a provision providing for its admission. State v. Veverka, 938

N.W.2d 197, 202 (Iowa 2020). Conversely, subject to relevance and Iowa Rule of
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Evidence 5.403 considerations, a district court also has no discretion to exclude

hearsay evidence if the statement falls within an enumerated exception. Id. This

lack of discretion regarding admission or exclusion of hearsay is why rulings on

hearsay are reviewed for the correction of legal error. Id.

We review insufficient-evidence claims for errors at law. State v. Truesdell,

679 N.W.2d 611, 615 (Iowa 2004). “Substantial evidence exists to support a

verdict when the record reveals evidence that a rational trier of fact could find the

defendant guilty beyond a reasonable doubt.” Id. “In making this determination,

‘[w]e view the evidence in the light most favorable to the verdict,’ including all

reasonable inferences that may be deduced from the record.” Id. (alteration in

original) (quoting State v. Gay, 526 N.W.2d 294, 295 (Iowa 1995)).

We review nonconstitutional challenges to discovery rulings for abuse of

discretion. State v. Leedom, 938 N.W.2d 177, 187 (Iowa 2020).

III. Hearsay.

Garcia challenges the admission of the video recording of the CAC

interview. Garcia asserts the video is inadmissible hearsay. The State

acknowledges the video is hearsay but asserts the video is admissible under the

residual exception. See Iowa R. Evid. 5.807; see also Iowa Code § 915.38(3).

Under the residual exception, such a video is admissible if the State shows five

elements: “trustworthiness, materiality, necessity, service of the interests of justice,

and notice.” State v. Rojas, 524 N.W.2d 659, 662–63 (Iowa 1994); see also

Veverka, 938 N.W.2d at 200.
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Garcia concedes the video is material if true and the State provided proper

notice. He challenges the trustworthiness, necessity, and interests-of-justice

requirements.

As to trustworthiness, our supreme court has identified several indicia of

trustworthiness that are present here. See Rojas, 524 N.W.2d at 663. By watching

the interview on video, “the trier of fact could observe for itself how the questions

were asked, what the declarant said, and the declarant’s demeanor.” Id. The

interview occurred less than forty-eight hours after the events at issue when the

child’s memory would still be fresh, much fresher than at the trial almost two years

after the events. The interview was open-ended and non-leading, with the

interviewer adopting the child’s terminology such as “private part” and “butt.” The

child’s description of sexual contact was consistent throughout the interview and

with other accounts in the record. This description was also detailed, with the child

explaining how she squirmed forward in pain from penetration. Such a description

is “beyond the experience of the average” five-year-old, especially considering the

mother’s testimony that the child has never viewed pornography or otherwise seen

a sex act. See id. While Garcia raises several issues with the interview, we believe

none of these issues are so serious as to undermine the trustworthiness of the

interview. Therefore, we find the interview sufficiently trustworthy.

As to necessity, a hearsay statement sought to be admitted under the

residual hearsay rule does not meet the requirement just because the State needs

it. See State v. Barnard, No. 18-0757, 2019 WL 5792578, at *4 (Iowa Ct. App.

Nov. 6, 2019). Rather, “the State must show the evidence is ‘more probative . . .

than any other evidence that the proponent can obtain through reasonable efforts.’”
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Veverka, 938 N.W.2d at 204 (alteration in original) (quoting Iowa R.

Evid. 5.807(a)(3)). Here, the lack of physical evidence and other witnesses meant

the State relied almost entirely on the child’s statements to prove a sex act

occurred. Cf. State v. Metz, 636 N.W.2d 94, 100 (Iowa 2001) (finding hearsay

statements of an unavailable witness were not necessary where “the State had

available to it for use at trial the testimony of other witnesses who had actually

heard statements made by the defendant”). At trial, the State offered the child as

a witness, but the child testified she did not remember many details of December

31, 2017, including whether Garcia did anything that hurt her. After the child’s

testimony, the district court admitted the CAC interview. We agree the interview

was sufficiently necessary at that point.

Finally, hearsay evidence serves the interests of justice if it meets the other

requirements of residual hearsay and “advances the goal of truth-seeking

expressed in Iowa Rule of Evidence” 5.102. Rojas, 524 N.W.2d at 665. Having

found the State showed sufficient trustworthiness and necessity, we agree the

interview also serves the interest of justice. See State v. Neitzel, 801 N.W.2d 612,

622–23 (Iowa Ct. App. 2011) (finding a child’s hearsay statements about sexual

abuse were admissible under the residual exception after the child could not

remember the events at trial). We find no error in admitting the CAC interview

under the residual hearsay exception.

IV. Sufficiency of the Evidence.

Garcia argues the evidence is insufficient to prove he engaged in sexual

activity with the child. See Iowa Code §§ 709.1 (defining sexual abuse to include

performing a sex act with a specified person), 709.8 (defining lascivious acts with
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a child to include specified sexual contact with a child), 726.2 (defining incest to

include performing a sex act with a specified related person). Garcia raises several

issues that he claims cast doubt on the child’s credibility during the CAC interview.

However, questions of credibility are for the factfinder. See State v. Laffey, 600

N.W.2d 57, 59 (Iowa 1999) (“[I]t is for the [factfinder] to judge the credibility of the

witnesses and weigh the evidence.”). The district court found the child’s

description of Garcia engaging in sexual contact with her credible, and it found

Garcia’s testimony about that night not credible. See State v. Hildreth, 582 N.W.2d

167, 170 (Iowa 1998) (finding “the alleged victim’s testimony is by itself sufficient

to constitute substantial evidence of defendant’s guilt” of sexual abuse). We find

the evidence sufficient to support Garcia’s conviction on all three counts.

V. Mental-Health Records.

Garcia filed a motion for privileged records seven days before trial, seeking

mental-health records from the child’s therapist. Two days later, the district court

denied Garcia’s motion verbally during a hearing and confirmed the denial in a

written order that followed. Garcia claims the district court erred in denying his

motion.

Iowa Code section 622.10 controls “access to mental health records and

generally prohibits disclosure of confidential communications between mental

health professionals and their patients.” Leedom, 938 N.W.2d at 186. To gain

access to confidential records, a defendant must satisfy multiple conditions,

including showing “a reasonable probability that the privileged records sought may

likely contain exculpatory information that is not available from any other source.”

Iowa Code § 622.10(4)(a)(2)(b); see also Leedom, 938 N.W.2d at 187–88 (finding
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the fact the therapist never reported the minor was sexually abused is sufficient to

review therapy records); State v. Neiderbach, 837 NW.2d 180, 196–97 (Iowa 2013)

(finding a witness’s recent bizarre behaviors are sufficient to review the witness’s

mental-health records); State v. Thompson, 836 N.W.2d 470, 490–91 (Iowa 2013)

(rejecting the defendant’s request to review mental-health records because the

defendant showed no “nexus between the issues at trial and the mental health

treatment received by” the witness). If the defendant makes such a showing, “the

court shall conduct an in camera review of such records to determine whether

exculpatory information is contained in such records.” Iowa Code

§ 622.10(4)(a)(2)(b). This process protects “the confidentiality of counseling

records while also protecting the due process rights of defendants.” Leedom, 938

N.W.2d at 186 (quoting Thompson, 836 N.W.2d at 481).

In denying Garcia’s motion, the district court found the motion was not timely

and the record contained “no evidence . . . whatsoever that” the requested records

will contain exculpatory information unavailable from any other source. Even if we

were to find the motion was timely, Garcia only advances “a rational, good faith”

belief that the State sought to admit the CAC interview because the child provided

exculpatory information “during the course of her counseling sessions.”2 When the

State filed a motion to determine the admissibility of the CAC interview, it expected

2 Garcia’s appellate brief mentions the district court may have violated his
constitutional rights to due process and a fair trial in denying a review of the
records. The district court’s order contains no indication the court considered or
decided these constitutional claims. Therefore, to the extent Garcia raises
constitutional claims on appeal, these claims are not preserved for our review. See
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine
of appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.”).
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the child to testify with “limited memory of any of the events establishing the basis

for the allegations in this case.” In an ensuing hearing on that and other matters,

the State explained the child “may have difficulty testifying” based on the

therapist’s statement “that there may be some difficulties at trial.” Nothing in the

record establishes the child’s difficulties were in any way related to information that

would be exculpatory for Garcia. While our supreme court has encouraged “judges

in close cases to examine the records in camera,” this is not a close case. See

Leedom, 938 N.W.2d at 188. Garcia has shown a generalized hope, rather than

a reasonable probability, that the child’s mental-health records will contain

exculpatory information. He is “not entitled to go on a fishing expedition in [the

witness’s] mental health records.” Thompson, 836 N.W.2d at 491. We find no

abuse of discretion in the district court’s denial of his motion for review of the child’s

mental-health records.

VI. Conclusion.

We find the child’s recorded interview is admissible under the residual

hearsay exception, the child’s testimony is sufficient evidence to support Garcia’s

conviction on all counts, and the court did not abuse its discretion in denying

Garcia’s request for review of the child’s mental-health records. Therefore, we

affirm.

AFFIRMED.