State of Iowa v. Tenko Julius Wilde

IN THE COURT OF APPEALS OF IOWA

No. 21-1212
Filed December 21, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

TENKO JULIUS WILDE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Joel Dalrymple,

Judge.

A defendant appeals his convictions for continuous sexual abuse of a child,

indecent contact with a child, and four counts of second-degree sexual abuse.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Stuart Hoover, East Dubuque, Illinois, for appellant.

Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.

Heard by Tabor, P.J., and Schumacher and Chicchelly, JJ.
2

TABOR, Presiding Judge.

Tenko Wilde challenges his six sex-offense convictions. Five counts

involved his older son, K.O.; one was against his younger son, Z.O. In contesting

the sufficiency of the evidence, Wilde highlights inconsistencies in the boys’

testimonies about the times and places of the abuse. He also argues the district

court erred in admitting bad-acts evidence in the form of two pornographic cartoons

found on his phone. Finally, he claims prejudice from admission of a hearsay

statement in which then three-year-old K.O. told family friends that Wilde

performed a sex act on him.

First, viewing the evidence in the light most favorable to the district court’s

determinations of guilt and giving due deference to its credibility findings, we find

substantial evidence that Wilde committed these crimes. Second, we find

admission of the cartoons was improper but harmless. Third, we find admission

of the hearsay was improper and prejudicial as to one count of second-degree

sexual abuse. Thus, we affirm in part, reverse in part, and remand.

I. Facts and Prior Proceedings

Wilde and his partner, Emilea, had two sons: K.O., born in 2012, and Z.O.,

born in 2015. A few months after Z.O.’s birth, Emilea died. K.O. testified that

sometime after his mother was gone, Wilde started sexually abusing him.

After his partner’s death, Wilde’s coworker, Heidi Schoellen, and her

teenage son, Austin, helped the family. One day in the summer of 2015, the

Schoellens were watching the boys while Wilde did chores around the house. The

Schoellens noticed K.O. was often passing gas. While Heidi was out of the room,

Austin urged K.O. to use the bathroom because he was still potty training.
3

According to Austin’s testimony, K.O. said he couldn’t use the bathroom because

“his father had put his pee pee in his butt and it hurt.” Shocked, Austin relayed

K.O.’s statement to Heidi, who confronted Wilde. Wilde appeared confused and

emotional; Heidi remembered him crying. Heidi later told a family friend about the

incident. The friend contacted the Iowa Department of Human Services. In August

2015, the department and law enforcement began investigating. As part of their

investigation, K.O. went to the child protection center for a forensic interview. But

he did not disclose any abuse. So the department ruled the allegations unfounded.

Over the next few years, Wilde and his sons moved often. And Wilde held

various jobs, including a stint as a truck driver in 2016 or 2017. During this time,

K.O. remembered his father asking if he wanted to ride along for a delivery to the

Minnesota State Fair. When K.O. said yes, Wilde told him he could only go if he

performed sex acts on Wilde. K.O. did so.

Eventually, Wilde and the boys settled into a Cedar Falls trailer park, living

at Lot 12. Wilde was active in online gaming and connected with a community of

people who identified as “furries.”1 Through this online community, Wilde formed

both platonic and romantic relationships with men from other states. He invited

several men to come live with him and his sons at the trailer park. Among the first

men to move in to the lot were Mason and Mateo.

1 A “furry” is someone “especially interested in anthropomorphic or cartoon animals
(e.g., Bugs Bunny).” Hsu, K.J. & Bailey, J.M., The “Furry” Phenomenon:
Characterizing Sexual Orientation, Sexual Motivation, and Erotic Target Identity
Inversions in Male Furries, 48 Arch Sex Behav 1349 (2019). Furries may take on
personas as those animals. Id.
4

But that was not all that was happening at Lot 12. K.O. testified that Wilde

routinely sexually abused him while they lived there. But as more men moved into

the trailer, K.O. recalled that his father’s clandestine sex acts against him became

less frequent. Then Wilde bought Lot 41. Only he and his sons moved into that

trailer—allowing Wilde’s abuse to ramp back up to a “couple nights a week.” K.O.

testified that the sex acts continued during the summer of 2020, particularly in July,

as he recalled hearing fireworks while enduring the abuse. K.O. also recounted a

night when Wilde called both boys to his bedroom to perform sex acts. Z.O.’s

testimony corroborated his brother’s recollection.

Mason and the other men living with Wilde often took care of K.O. and Z.O.

They babysat, cooked meals, and helped get them ready for school. In fact, it was

Mason who K.O. eventually confided in. A few days before Labor Day 2020,

Mason watched the boys while Wilde went out shopping. K.O. approached Mason

while he was cooking dinner. In an emotional encounter, K.O. revealed he was

upset about “something that his dad did.” Mason thought Wilde possibly spanked

or yelled at K.O. But K.O. said that was not the case and pointed to his rear,

mouth, and crotch. K.O. said the abuse had been going on since “a little while

after his mother passed.” K.O. disclosed that Wilde had abused Z.O. too. K.O.

was worried Mason would confront Wilde, but agreed to let him tell Wilde’s mother,

Diane. Mason called Diane that same night, telling her they need to talk soon. But

before that conversation occurred, on Labor Day, K.O. told Mason: “It happened

again.” As proof, K.O. led Mason to Wilde’s bedroom and pointed to K.O.’s clothes

on the floor.
5

When Mason told Diane, she did not report Wilde’s offenses. Instead, K.O

recalled his “granny” advising him not to tell anybody about the abuse “or it will

make it weird.” Diane also posted a cryptic message on Facebook, saying: “you

know what you’re doing.” Wilde’s sister, Rebecca, saw their mother’s post and

assumed it was about another sibling who had a “drug habit.” Eventually, Diane

shared with Rebecca that the post was about Wilde. When Rebecca learned of

the sexual-abuse allegations against her brother, she contacted authorities.

After some initial reluctance, K.O. told a child protection worker that Wilde

had been sexually abusing him. Both boys underwent physical exams and forensic

interviews at the child protection center. A nurse practitioner found no physical

signs of abuse. In their interviews, both boys gave consistent accounts of

performing sex acts at their father’s direction. The next day, Officer Katie

Burkhardt obtained a search warrant for Lot 41. When officers arrived to execute

the warrant, Wilde refused to open the door for nearly ten minutes. When he did

appear, he was wearing a holstered gun. Officers seized the gun and Wilde’s cell

phone before taking him to the police station for questioning.

At the station, Officer Burkhardt interviewed Wilde. He described his

relationship with the boys as distant, telling Burkhardt: “I blame them for the death

of my partner.” After Burkhardt informed him of the sexual-abuse allegations,

Wilde said: “I don’t believe I’ve done anything like that.” When asked about Diane’s

Facebook post, Wilde said he hadn’t seen it. He also implied his sister, Rebecca,

coached the boys. Burkhardt then arrested Wilde for sexual abuse.

Following Wilde’s arrest, Rebecca went to Lot 41 to get clothes for K.O. and

Z.O. While she was there, she ran into Mateo. According to her testimony, “he
6

shared with me a sexual fetish called cubbies,” which she understood as a

subgroup of the “furries” devoted to child sexual abuse. Mateo said he had seen

Wilde “watching this cubbies thing, and it disturbed me.” Rebecca shared this

information with Officer Burkhardt.

Meanwhile, law enforcement extracted downloads from Wilde’s cell phone.

One was a screenshot of Diane’s Facebook post. The phone also contained

videos that Wilde had recorded the day of his arrest. As the district court observed:

“It is apparent from a review of the videos the defendant was making a last will and

testament.” Finally, related to Rebecca’s tip about the “cubby” fetish, Burkhardt

found three pornographic cartoons featuring anthropomorphic animals, captioned

as fathers and sons engaged in sexual conduct. Stored on Wilde’s cell phone,

those cartoons were last viewed in October 2019.

By trial information, the State charged Wilde with six counts:

(1) continuous sexual abuse of a child, a class “B” felony, in violation of Iowa

Code section 709.23(2) (2020) for committing sex acts against K.O.

between July and September 2020;

(2) second-degree sexual abuse, a class “B” felony, in violation of

section 709.3, for committing sex acts against K.O. between May 2015 and

January 2017;

(3) second-degree sexual abuse, a class “B” felony, in violation of

section 709.3, for committing sex acts against K.O. between January 2017

and January 2019;
7

(4) second-degree sexual abuse, a class “B” felony, in violation of

section 709.3, for committing sex acts against K.O. between January 2019

and June 2020;

(5) second-degree sexual abuse, a class “B” felony, in violation of

section 709.3, for committing sex acts against Z.O. between January and

September 2020; and

(6) indecent contact with a child, an aggravated misdemeanor, in violation of

section 709.12(1)(c), for soliciting K.O. to perform certain acts between

2015 and 2020.

While in jail pretrial, Wilde kept in touch with Diane, as well as Mason,

Mateo, and the other men living at the trailer lots. He sent letters addressing what

each person should say at trial.

Also pretrial, Wilde moved to exclude the cartoons found on his cellphone

under Iowa Rule of Evidence 5.404(b). The State resisted, claiming the cartoons

were relevant to identity, knowledge, absence of mistake, and intent. The district

court allowed the State to offer two of the three cartoons, finding their depictions

of oral and anal sex between animal figures portrayed as fathers and sons were

“strikingly similar” to the crimes at hand. The court excluded a third cartoon

depicting bondage. Following this ruling, Wilde waived his right to a jury trial.

At his bench trial, both K.O. and Z.O. testified to performing sex acts as

demanded by their father. K.O. also said Wilde sometimes solicited him to “nibble”

on Wilde’s nipples during the sex acts. Wilde’s impeachment of the State’s

witnesses focused on inconsistencies in the timeline of the alleged sex acts. The
8

defense offered testimony from men who lived with Wilde and K.O.’s former pre-

school social worker who did not see “red flags” in his interactions with his sons.

The district court found Wilde guilty on all six counts. At sentencing, the

court imposed indeterminate terms of fifty years for the continuous sexual-abuse

count, twenty-five years for each second-degree abuse count, and two years for

the indecent contact offense. The court ran the indecent contact and the three

sexual abuse counts involving K.O. concurrent with each other, but consecutive to

the continuous sexual-abuse count and the sexual-abuse offense against Z.O.

The full sentence was a term not to exceed one-hundred years in prison.

Wilde appeals, raising three issues.

II. Analysis

A. Substantial Evidence of Wilde’s Guilt

Wilde contends the State presented insufficient evidence to convict him of

five of his six offenses.2 We review his challenge for legal error. See State v.

Banes, 910 N.W.2d 634, 637 (Iowa Ct. App. 2018). Our sufficiency review is the

same for a bench trial as a jury trial. State v. Myers, 924 N.W.2d 823, 827 (Iowa

2019). The court’s findings of fact have the effect of a special verdict—binding on

appeal if supported by substantial evidence. State v. Fordyce, 940 N.W.2d 419,

2Wilde does not raise a sufficiency challenge to count IV, second-degree sexual
abuse against K.O. between January 2019 and June 2020.
9

425 (Iowa 2020). We view the record in the light most favorable to the court’s

decision. Myers, 924 N.W.2d at 827.

1. Continuous sexual abuse of K.O.

To prove continuous sexual abuse, the State must show Wilde engaged in

three or more sex acts with K.O. with at least thirty days between the first and last

act. See Iowa Code § 709.23(1). The trial information alleged abuse from July 1

to September 6, 2020. K.O. testified to two specific incidents of sexual abuse by

Wilde after they moved into Lot 41. He noted that one occurred around the Fourth

of July. He also testified that the frequency of the abuse increased to “a couple

times a week” once they moved. And Mason testified that K.O. told him on Labor

Day that Wilde had sexually abused him again.

Still, Wilde argues the record lacks the clarity necessary to prove three or

more sex acts. He concedes that K.O. elaborated on two incidents of abuse at Lot

41. But he questions the court’s finding of the third sex act. The State contends

that Wilde’s argument “attempts to impose a requirement of specificity in child

sexual abuse cases that simply does not exist in the law and would be nearly

impossible to satisfy.” We agree with the State. “We do not think our legislature

intended to impose the strict requirement urged by [Wilde].” State v. Yeo, 659

N.W.2d 544, 551 (Iowa 2003). Given K.O.’s testimony about the weekly abuse

and the specified timeline from July to September 2020, we find substantial

evidence to support Wilde’s conviction. See State v. Bowers, 661

N.W.2d 536, 543–44 (Iowa 2003) (finding victim testimony that sexual abuse

occurred one to three times a week for a year was permissible for a charge of four

counts of second-degree sexual abuse).
10

2. Second-degree sexual abuse of K.O. and Z.O.

For second-degree sexual abuse, the State must show a sex act occurred

between Wilde and a child under the age of twelve. Iowa Code § 709.3(b). Wilde

does not dispute that K.O. and Z.O. were under twelve for all dates alleged.

Instead, he flags discrepancies in their accounts of how old they were, where they

went to school, or where they lived at the time of the abuse described. Wilde

argues their imprecise testimony casts doubt on their credibility and cannot prove

three of the sexual-abuse convictions because their recollections contradict the

time periods alleged by the State.3

We disagree with Wilde on this point. The specific times and places of the

sex acts were not material elements of second-degree sexual abuse. State v.

Griffin, 386 N.W.2d 529, 532 (Iowa Ct. App.1986); see also State v. Brown, 400

N.W.2d 74, 77 (Iowa Ct. App.1986) (“The date fixed in the indictment or information

for the commission of a crime is not material, and a conviction can be returned

upon any date within the statute of limitations . . . .”). Any inconsistencies as to

when or where the incidents occurred did not fatally undermine the court’s finding

of guilt. See State v. Laffey, 600 N.W.2d 57, 60 (Iowa 1999).

Determining the credibility of K.O. and Z.O. was the fact finder’s function.

See State v. Musser, 721 N.W.2d 758, 761 (Iowa 2006). The district court found

the boys’ accounts to be consistent and believable. The court noted any

inconsistencies were outweighed by their detailed descriptions of Wilde’s abuse.

3 In his sufficiency argument, Wilde also calls our attention to the district court’s
reliance on hearsay for count II. But for sufficiency purposes, we consider all
evidence presented at trial even if wrongly admitted. State v. Dullard, 668 N.W.2d
585, 597 (Iowa 2003).
11

We defer to those credibility findings. Thus, substantial evidence existed for each

of Wilde’s challenged convictions for second-degree sexual abuse.

3. Indecent Contact with K.O.

To show Wilde had indecent contact with a child, the State had to prove he

solicited a child to touch him for the purpose of sexual desire. See Iowa Code

§ 709.12(1)(a). K.O. testified that sometimes while performing sex acts, he would

be told to put his mouth on his father’s nipples—an act he called “nibbling.”

Wilde again protests the lack of details for when or where that indecent

contact occurred. Pointing to K.O.’s testimony about performing sex acts during

the Minnesota state fair trip, Wilde questions the territorial jurisdiction for this count.

See State v. Liggins, 524 N.W.2d 181, 185 (Iowa 1994). But we are not convinced

by Wilde’s attempt to splice together separate parts of K.O.’s testimony.

When discussing the sexual favors his father demanded before taking him

out of state, K.O. did not list “nibbling” as part of the deal. True, when asked

whether Wilde solicited him to “nibble” while they lived in Cedar Falls, K.O.

responded, “I think so, but I’m not sure.” But such uncertainty or lack of detail from

a child witness is no surprise. State v. Donahue, 957 N.W.2d 1, 10–11

(Iowa 2021). The fact finder was free to weigh K.O.’s imprecision in the context of

his other testimony. Considering the whole record, the fact finder could find

indecent contact occurred in Black Hawk County during the five years alleged.
12

Thus, viewing the evidence in the light most favorable to the district court’s ruling,

substantial evidence supports Wilde’s conviction for indecent contact.

B. Bad Acts Challenge

Wilde next contends the district court abused its discretion in admitting the

two cartoons stored on his cell phone. He argues the images should have been

excluded under Iowa Rule of Evidence 5.404(b). Under that rule, “[e]vidence of a

crime, wrong, or other act is not admissible to prove a person’s character in order

to show that on a particular occasion the person acted in accordance with the

character.” Iowa R. Evid. 5.404(b)(1). In other words, the rule prohibits evidence

that “serves no purpose except to show the defendant is a bad person.” State v.

Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001). But such evidence may be

admissible to prove “motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.” Iowa R. Evid. 5.404(b)(2).

Our supreme court has described rule 5.404(b) as a rule of exclusion:

unless the prosecutor can voice a legitimate, noncharacter theory of admissibility

for the bad-acts evidence, such evidence is out. See State v. Thoren, 970

N.W.2d 611, 625 (Iowa 2022). Admissibility depends on three questions: (1) was

the evidence relevant to a disputed factual issue, (2) is there clear proof the

defendant engaged in the act, and (3) does the danger of unfair prejudice from its

admission substantially outweigh the act’s probative value? Id. at 626.

Pretrial, the court determined the cartoons were relevant to prove Wilde’s

identity as the perpetrator, and found a “striking similarity” between the acts

depicted in the cartoons and the crimes charged. Beyond that basis, the court

found the cartoons were relevant to prove Wilde’s specific intent for the indecent
13

contact charge and his overall motive. On appeal, Wilde contests each of those

grounds for admissibility. We consider his arguments in turn.

1. Legitimate, non-character purpose

Identity. The identity of the perpetrator may be a noncharacter purpose for

admitting child pornography in a sexual-abuse case. See State v. Putman, 848

N.W.2d 1, 10 (Iowa 2014). In Putman, “identity was the only disputed issue . . . as

the defense sought to shift responsibility for the crime onto the victim’s father.” Id.

But, as Wilde points out, “identity was never an issue in the trial court proceedings.”

Both children testified that their father was the perpetrator. His defense was a

general denial, not an effort to shift blame onto another person.

The district court acknowledged that given the testimony of K.O. and Z.O.,

this case was not a “whodunnit.” But the court still believed that because the State

had to prove identity beyond a reasonable doubt, the cartoons were relevant for

that purpose. That reasoning, according to Wilde, cannot survive the recent

analysis of rule 5.404(b) in Thoren, 970 N.W.2d at 631. Thoren distinguished

Putman because “the culprit’s identity was disputed there,” which made modus

operandi evidence relevant. 970 N.W.2d at 631 n.6; accord State v. Cox, 781

N.W.2d 757, 770 (Iowa 2010) (“Modus operandi is typically relevant as a subset of

identity.” (citation omitted)).

We agree with Wilde’s reading of Thoren. While the State must prove

identity in every criminal prosecution, bad-acts evidence is relevant only when the

culprit’s identity is contested. To say otherwise, would defeat rule 5.404(b)’s

purpose because “if there is no real dispute, ‘the only relevancy of such evidence

is to show the defendant’s criminal disposition or propensity to commit the very
14

crime for which the defendant is on trial.’” State v. Richards, 879 N.W.2d 140, 147

(Iowa 2016) (citations omitted).

Recognizing that identity was “not explicitly argued at trial,” the State

creates a boogeyman argument: Wilde could have tried to shift blame to the

“numerous young men—friends and lovers of the defendant who all identified as

‘furries’—liv[ing] with Wilde and the boys at various times and help[ing] take care

of the children.” From that suggestion, the State proposes:

Under these circumstances, a reasonable factfinder could easily
conclude that someone with access to the children sexually abused
them. A reasonable factfinder might also discount the possibility of
a young father raping his own sons in favor of a conclusion that one
of Wilde’s transient roommates was the guilty party.

If Wilde had pursued that defense, the State might have a point. But he

didn’t.4 Bad-acts evidence must be relevant to a legitimate issue. Cox, 781

N.W.2d at 771. If Wilde argued at trial that another person sexually abused his

sons, and the sons did not identify the perpetrator, a “strikingly similar” bad act

could be allowed to show that Wilde committed the crime. See id. But identity was

not at issue because K.O. and Z.O. could identify Wilde. Thus, the cartoons were

not admissible for this purpose.

Motive or Intent. While the district court lumps motive together with intent

in finding the cartoons admissible, the terms are not “synonyms for the same

concept.” Thoren, 970 N.W.2d at 627. So we consider motive detached from

intent. Motive is “the impetus that supplies the reason for a person to commit a

4 Indeed, this shift in blame would have been a difficult argument for the defense
to make when K.O. testified the abuse started before any other men moved in.
And K.O. trusted Mason, one of the roommates, for his original disclosure of
Wilde’s sexual abuse.
15

criminal act.” Id. (citing Putman, 848 N.W.2d at 10). Motive is rarely an element

of an offense, but bad acts “may be relevant to provide context and help explain

why the defendant committed the charged acts.” Id. at 628.

On motive, Wilde argues that the cartoons retrieved from his cell phone do

not show his impetus for committing the crimes alleged. And the State

acknowledges that our supreme court has held that evidence of child pornography

cannot be admitted to prove the alleged perpetrator’s motive. See id. (citing

Putman, 848 N.W.2d at 10 (“The perpetrator’s motive for sexually abusing L.R.

was not a legitimate or disputed issue in this case.”)). We must follow Thoren and

Putman on the motive question.

As for intent, the district court found the cartoons relevant to prove Wilde’s

sexual purpose in soliciting indecent contact with a child. See Iowa Code § 709.12

(requiring proof that touching was “for the purpose of arousing or satisfying the

sexual desire” of either the defendant or the child). Again, Wilde relies on Thoren

to rebut the district court’s rationale. Thoren explained: “[T]he elements of a

charged offense do not automatically become legitimate, disputed factual issues

in a case.” 970 N.W.2d at 629. It continued, “Because many crimes require some

showing of mens rea, admitting prior bad acts testimony every time a charge

includes some notion of specific intent would eviscerate rule 5.404(b).” Id. at 630.

Thoren held the district court “abused its discretion in allowing the State to use

testimony from Thoren’s former clients to prove motive or intent.” Id.

Like Thoren, Wilde did not advance a defense contesting the sexual

purpose of his contact with K.O. As the case was tried, the cartoons were not

relevant to the specific intent element of indecent contact. See Thompson v.
16

United States, 546 A.2d 414, 422 (D.C. 1988) (“Where intent is merely a formal

issue derived from the elements of the offense, and is not being controverted, the

argument for receiving [bad-acts] evidence falters.”). Thus, the district court

abused its discretion.

The State must prosecute Wilde based on what he did, not based on his

bad character for storing these pornographic cartoons on his cell phone. See State

v. Sullivan, 679 N.W.2d 19, 23 (Iowa 2004). Because the disputed evidence was

not relevant to a legitimate non-character purpose, we need not weigh its probative

value against the danger of unfair prejudice.

2. Harmless Error

The State alternatively argues any error in admitting the cartoons was

harmless.5 For evidentiary errors not involving the constitution, we presume

prejudice and reverse unless the record shows otherwise. Id. at 30. In the State’s

view, reversal is not required for two reasons. First, a judge, not a jury, determined

Wilde’s guilt. The prejudicial effect of bad-acts evidence is reduced in the context

of a bench trial. State v. Casady, 491 N.W.2d 782, 786 (Iowa 1992). Second, the

court’s reasoning is plain from its written verdict. The State presented strong

evidence of Wilde’s guilt through the consistent testimony of his two sons. The

court found the boys’ testimony to be “extremely credible.” While the court

5 Wilde urges us to use the harmless-error analysis for constitutional errors,
contending he was forced to waive a jury trial because of the pretrial ruling on his
bad-acts claim. But his voluntary decision to waive his right to a jury as a matter
of strategy does not transform his evidentiary claim into one of constitutional
magnitude. “The criminal process includes many situations which require a
defendant to make difficult judgments regarding which course to follow.” State v.
Gay, 526 N.W.2d 294, 297 (Iowa 1995).
17

discussed the cartoons, they were not a central feature of its sufficiency analysis.

On this record, we agree with the State. Admission of the two cartoons was

harmless.

C. Hearsay Challenge

Wilde next challenges hearsay statements by K.O. offered through Heidi

Schoellen and her son, Austin. On the witness stand, Austin recalled a

conversation they had when he was fifteen and K.O. was “three or four years old.”6

Austin testified that he noticed K.O. had “farted a decent bit,” so he suggested the

child use the restroom because “he was potty training at the time.” The prosecutor

asked whether K.O. then “described something about his ability to use the

restroom.” Austin said “yes” and, over a hearsay objection, recounted that K.O.

said that “his father had put his pee pee in his butt and it hurt.” In earlier testimony,

also over a hearsay objection, Heidi too recalled that K.O. “said he couldn’t poop

because it hurt because of that reason.” On cross-examination, Heidi conceded

that she did not hear K.O. say those words; Austin told her about it.

In response to the defense objections, the State insisted that K.O.’s

statements fell under hearsay exceptions for present sense impressions and then-

existing physical conditions. See Iowa R. Evid. 5.803(1), (3).7 The court declined

6 The trial testimony and appellate briefing include conflicting references to K.O.’s
age when he made the statement. But based on K.O.’s birth date, he would have
been three.
7 That rule provides:

The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
(1) Present sense impression. A statement describing or
explaining an event or condition, made while or immediately after the
declarant perceived it.
....
18

to rule on the hearsay objections in real time, asserting because it was a bench

trial the court could wait until its written ruling to determine admissibility. Yet the

written ruling did not address the evidentiary question. But as the State

acknowledges on appeal, because the court considered the hearsay statements

in its fact findings, it implicitly overruled the objections.

1. Present Sense Impression

Wilde now argues that the hearsay was improperly admitted and presumed

prejudicial. He attacks both exceptions.8 But the State defends admission of the

hearsay only as a present sense impression.9 So we focus on that exception.

“The rationale behind the present sense impression exception is that the

declarant has no opportunity to fabricate a statement if the statement is made

during or ‘immediately’ after the event.” State v. Dessinger, 958 N.W.2d 590, 600

(Iowa 2021) (citation omitted). Many cases ponder whether a lapse in time

between the event and the statement is tolerable. See, e.g., Fratzke v. Meyer, 398

N.W.2d 200, 205 (Iowa Ct. App. 1986) (venturing that “precise contemporaneity is

not possible”).

(3) Then-existing mental, emotional, or physical condition. A
statement of the declarant’s then-existing state of mind (such as
motive, intent, or plan) or emotional, sensory, or physical condition
(such as mental feeling, pain, or bodily health), but not including a
statement of memory or belief to prove the fact remembered or
believed unless it relates to the validity or terms of the declarant’s
will.
Iowa R. Evid. 5.803.
8 Wilde notes that Heidi’s testimony was double hearsay, repeating her son’s out-

of-court statement repeating K.O.’s out-of-court statement.
9 The State concedes on appeal that the part of K.O.’s statement attributing his

physical condition to Wilde’s sexual abuse is “a statement of memory or belief to
prove the fact remembered or believed,” which is prohibited by rule 5.803(3).
19

For K.O.’s statement, each party focuses on a different event or condition.

Wilde assumes the event at issue is the alleged sexual abuse, asserting: “the

record is unclear as to how much time has elapsed from the event that was given

as causation to the description in the hearsay in order to make a determination as

to its proximity to the statement.” In contrast, the State contends that K.O.’s

statement described his condition—an inability to have a bowel movement—while

he perceived it. In the State’s view, because rule 5.803(1) permits hearsay

“explaining” that condition, K.O.’s interpretation of the reason for his constipation

was admissible as part of the present sense impression.

At first blush, the State’s interpretation of the rule makes sense. But on

closer inspection, we hesitate to read “explaining” so broadly. Our hesitation

comes from an “analytical distinction” highlighted recently by our supreme court.

To qualify as a present sense impression, “the person must be providing a current

description of the sensory impressions of an event rather than a mental process.”

Dessinger, 958 N.W.2d at 601. K.O.’s belief that the abuse caused his current

physical condition reflected his mental process not a sensory impression. Put

differently, the exception “applies only to reports of what the declarant has actually

observed through the senses, not to what the declarant merely conjectures.” See

Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004) (rejecting exception when caller

told police that he saw someone “resembling the defendant” firing a gun). To be

sure, the State could have offered K.O.’s out-of-court statement describing his

inability to defecate as a present sense impression. But K.O.’s conjecture about

the cause was inadmissible.
20

In excluding K.O.’s statement attributing his current physical condition to

prior sexual abuse, we consider the intersection between sections (1) and (3) of

rule 5.803. A trial handbook explains their differing applications in the context of a

personal injury action:

[A] statement by a person lying in a hospital bed that the person is in
pain, and that the pain was caused by someone who went through a
red light, would be admissible as a then-existing statement of
physical condition as to the pain, but not as to the cause. A
statement by the same person writhing in pain at the scene of an
accident to the effect that he or she was in extreme pain and feared
death because someone had gone through a red light, would be
totally admissible as a present sense impression of a
contemporaneous event.

Then-existing state of mind, 10 Wis. Prac., Trial Handbook for Wis. Lawyers

§ 16:10 (3d ed.). K.O.’s statement about the cause of his rectal pain concerned

his then-existing state of mind, not his present sense impression of a

contemporaneous event. As the State concedes, his statement of memory or

belief was excluded under rule 5.803(3). Thus, we find the district court erred in

admitting the entirety of K.O.’s statement as a present sense impression.

2. Harmless error

As a fallback position, the State argues that we should affirm Wilde’s

convictions even if the court improperly allowed the hearsay. First, the State

argues the hearsay was cumulative to K.O.’s trial testimony. Second, the State

notes that similar abuse reports from K.O. to a nurse practitioner came in without

objection. The State points out that K.O. maintained that the abuse started after

his mother died when he was three years old. Yet the State recognizes that the

district court used the Schoellens’ testimony to corroborate the timing of the

earliest incident of abuse involving K.O. With that recognition, the State contends
21

the later investigations by social workers and police corroborate those earliest

abuse allegations and salvage Wilde’s conviction for count II, alleging second-

degree sexual abuse for sex acts against K.O. between May 2015 and January

2017.

What the State overlooks is that K.O. did not disclose the abuse during that

2015 investigation, and the police did not find probable cause to charge Wilde

based on the Schoellens’ reports. Because the wrongly admitted hearsay was the

most salient evidence of that early abuse, we find its admission was reversible

error for the sexual-abuse allegation in count II.

Thus, we remand to the district court for a new trial on count II. On all other

counts, we affirm. Because the district court ran the sentence for count II

concurrent to two other sexual-abuse counts and the indecent-contact conviction,

resentencing is unnecessary. See State v. Nall, 894 N.W.2d 514, 525 (Iowa 2017)

(opting to sever judgment and sentence for reversed conviction from remaining

sentence).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.