*1 yet may partly occurred have been due she was entitled penalty to interest and for delay payment petitioner’s prematurely action termi- is based on section 86.13 and nating section 85.30. therapy reading Our recommended suggests these statutes that both of psychologist. Although clinical these the deter- applicable by statutes are their make, mination difficult to we cannot weekly terms to compensation payments say that the commissioner’s assessment of disability for industrial support and do not sixty percent permanent industrial disabil- penalties allowance of interest or for ity permissible finding was not a in lieu of payment late expenses of medical percent figure petitioner the 100 for which under section 85.27. Nor does section asking. We conclude that this outcome empower 535.2 the commissioner to add finding supported by determinative sub- interest onto the award medical ex- evidence, stantial and the district court did penses. failing not err in disturb commission- Schreckengast, er’s decision. 369 N.W.2d remedy, Petitioner’s any, in re gard at 810-11. to enforcing 31, the December order after appeal the time for passed C. Petitioner’s reliance on “odd- certification to the district court lot doctrine.” Petitioner also raises on under section 86.42. The industrial com appeal or whether not the missioner had no obligation further in re record reflects that she is an odd-lot em gard enforcement, to its and his decision ployee purposes determining not to become involved was correct. Ac probable success in the labor market. The cordingly, judicial proceeding review un doctrine,” approved “odd-lot which we chapter der provides petitioner 17A no ve Co., Guyton Irving v. Jensen litigating hicle for the issues of entitlement (Iowa 1985), procedural is a device to interest on amounts due under the com designed proof to shift the burden of with missioner’s order. haveWe considered all respect employability employer issues upon and find no basis certain factual situations. We need not disturb the orders of the district determine on the record whether court or industrial commissioner. petitioner’s situation fits within the odd-lot AFFIRMED. doctrine. As we indicated in Armstrong, 382 N.W.2d at claims justices All concur REYNOLD- applicability of this doctrine must be raised SON, LAVORATO, J., C.J. and who take before the industrial commissioner they part. no will not judicial be considered on review. Petitioner has failed to demonstrate that
such claim was made at the agency level.
II. Whether Petitioner is Entitled to
Recover Respon- Interest or Penalties for Delay dent’s Payment Medical Bene- Iowa, Appellee, STATE of Awarded in December 1981 Order. fits The final issue for our determina Earl Franklin tion is whether the commissioner and dis BROTHERTON, Appellant. failing trict court erred in provide payment of penalties by interest and re No. 84-1646. spondents as a delay result of their Supreme Court of Iowa. paying expenses medical re $3007.19 March 1986. quired deputy’s under the order of Decem 31,1980. ber The record indicates that this
payment petitioner was not tendered to un July
til of 1983. Petitioner’s assertion that
parents committing accused defendant of daughter. sexual acts with their Eventual- ly charged defendant was with sexual abuse. complainant, At trial the now four old, years night testified parents attended the movie defendant had *3 vagina licked her butt and and that she had penis. licked his I. Competency testify. to Defendant filed a pretrial challenging motion the com- Harrington, Appellate plainant’s Charles L. competency De- to testify. Follow- fender, Gallo, and Appel- ing Del Asst. hearing, Linda the the court ruled the child Defender, appellant. late competent testify indeed to at trial. Defendant his prior renewed motion to tri- Gen., Miller, Atty. Thomas J. Lona Han- al, during the testimony, child’s and at the sen, Gen., Atty. Asst. and Joseline L. close of the case. All State’s of defend- Greenley, Atty., appellee. Co. ant’s motions were unsuccessful. appeal alleges
On
defendant
court abused its discretion in ruling the
SCHULTZ, Justice.
competent
was a
witness. The
Defendant Earl
ap-
Franklin Brotherton
determining
rules for
the competency
aof
peals
judgment
and sentence entered
witness in
are
civil actions
extended to
upon
second-degree
a conviction of
sexual
proceedings.
criminal
Iowa R.Crim.P.
709.3(2).
abuse.
Iowa Code
He con-
§
19(1).
provides
Iowa Rule
Evidence
the
tends
trial court
abused
discretion:
that “[ejvery person of
capacity
sufficient
(1)
ruling
four-year-old
the
com-
obligation
to understand the
of an oath or
plaining
competent
testify;
witness was
to
affirmation
competent
is
to be a witness
(2) in allowing expert opinion testimony
provided
as otherwise
in these
concerning whether
would
a child
fantasize
rules.” We
have indicated
determina-
abuse;
(3)
an incident of sexual
and
competency
tion of
testify
a witness’
to
has
denying defendant’s motion for a mistrial.
aspects: “(1)
two
capacity
the mental
to
He also contends the court erred in admit-
questions put
understand the nature
ting hearsay testimony. We affirm the
and to
intelligent
form and communicate
responsi-
answers thereto
the moral
Defendant’s brother and
in-
sister-in-law
bility
speak
truth,
to
is the
him to
vited
live with them in their home.
obligation
essence of the
nature
of an
expecting baby
sister-in-law
Harvey,
oath.”
job required
spend
the brother’s
to
great
away
deal of time
from home. De-
The trial
court is afforded wide latitude
fendant was to help around the house and
ruling
competency
discretion in
three-year-old
assist
the care of his
Paulsen,
witnesses. State v.
niece. Soon
thereafter
sister-in-law
On
we will
gave
boy.
early
birth to a
baby
August
reverse a trial court determination in this
1983, brother
sister-in-law
regard only
showing
on a
that the court
leaving
attended a movie
defendant
abused its
Id.
discretion.
baby-sit
nephew.
Approxi-
niece and
later,
mately
During
one month
competency hearing
sister-in-law
and at
trial,
three-year-old daughter push-
observed her
testified she would
ing
legs
a doll’s
questions truthfully.
around
neck and lick-
answer all
Defend-
legs.
ques-
points out,
doll
ant
between its
After
that on several
tioning
incident,
the child
about
occasions the child testified that her moth-
er had
witness’ testi-
say
told her what to
indicated
fendant’s
that the
alleged mony
she could not remember
went to bolster the
Additionally,
sexual abuse incident.
involved an
witness and thus
solely
admitted on cross-examination
issue which
reserved
decide,
that she
made
about defend-
had
stories
worker was
ant.
claims the child was
opinions negating
ability
Defendant
obvi-
state
of a
ously
concept of
incompetent because her
four-year-old
three or
to fantasize a
responsibility
alleg-
moral
the truth
to tell
sexual
between the child and an-
edly
merely a belief
person.
consisted
other
Additionally,
testify according
mother’s
opined
that a child would not be
(cid:127) Further,
instructions.
defendant claims
able to fantasize
sexual abuse
capacity
to un-
child lacked
mental
experience beyond
detail
some
questions
nature
derstand the
asked
viewing pictures. Obviously, this testimo-
*4
her
to form
at trial
she was unable
ny
response
was
in
to
introduced
defend-
intelligent
communicate
answers to these
vigorous
ant’s
cross-examination of the
questions.
complainant in which defendant attacked
suggested
her credibility and
that she had
It
is obvious that
by
learned
examining
about sexual acts
gave conflicting answers and inconsistent
pictures
magazines
in
contained
adult
what her
told her
versions of
mother
to
parents.
owned
say.
that her
The child also indicated
only
mother
told her to tell
truth and
we
Initially,
examine the admissibili
not to
stories. The record
make
as a
ty
opinion,
concerning
of the first
that
whole, however,
does not show
ability of
to
expe
a child
fantasize a sexual
competency
lacked
to be a witness. De
recently
rience. We
the admissi
addressed
spite
inconsistencies,
bility
opinion testimony
under Iowa Rule
independent
showed a remarkable
recollec
in
of Evidence 702
a child sexual abuse
tangible
tion
details
the sexual
(Iowa
Myers,
case. State v.
379 rape although opinion objection precede size was admissible the answer or an telling improper). tardiness, that witness truth was excuse for must be made. State Jones, In the 761, case we believe the first v. 271 N.W.2d 767 opinion rendered the social worker is Defendant failed to do so this case and indirectly opined as he opinion inadmissible therefore the testimony preceeding truthfulness of the objection properly witness remained in the explained rather than relevant mental and Ordinarily, prejudice does not re- psychological symptoms present in a sexu- sult from the court’s failure to sustain an ally abused child. improper opinion when substantially the same evidence is in opinion testimony, The admission of this objection. record without State only is not consti- 333, (Iowa Froning, 1982); 328 N.W.2d 338 tutes harmless error. We believe such tes- Seehan, 374, State v. 258 N.W.2d timony, although inadmissible, merely (Iowa 1977); Farris, accord State v. previous testimony cumulative to in the (Iowa 1984); State v. believability record of chil- Smith, (Iowa 309 N.W.2d 455-56 reports dren’s of sexual abuse. Factual or 1981); Webb, State v. 309 N.W.2d reporting opposite truthful of fanta- (Iowa 1981); Johnson, sizing. The social worker had earlier testi- We conclude that the fied, objection, that: opinion social worker’s concerning the abili- When working we’re with individuals ty of a child to fantasize a sexual coming who are in as adults who are merely previous cumulative ad- *5 saying they sexually were abused as missible testimony prejudice and no result- children, it stands to reason that unless ed from the court’s failure to sustain de- extremely the individual is disturbed fendant’s motion. mentally, and that would be obvious over through observation, time and clinical Next, we examine the admissibility there is no reason to doubt their credibili- opinion testimony that a child could ty. I didn’t. So One would believe an report not fantasize or in detail sexual ac coming adult saying that. The tivity viewing pictures based on same is true children. experience. Again, opinion additional this Children, experience, in our have not did not jury understanding assist the the making themselves such state- by explaining symptoms evidence in chil ments, society because in impor- our of abuse; by rather, dren caused sexual family tance of and because of our own opinion goes directly indirectly or to the sexual privacy attitudes about and inti- complain issue of the the truthfulness of macy, experience we do not have the of testimony. Myers witness’ we cited just children coming saying, in and (S.D.1985), Logue, State N.W.2d 151 happened such and such has a sexu- approval. with In Logue the South Dakota nature, al it has not. if Supreme Court determined the trial court Another admitting answer followed and expert abused its discretion an point at defendant’s counsel opinion inter- that the defendant was the source posed objection concerning compe- an knowledge the of the child’s sexual because the tency of the witness opinion and further that the was not based on “scientific data” subject matter of the opin- “possibility prejudice social worker’s and the substan ion was “a final conclusion jury tially outweighed probative the value of draw respond- ... not him.” The court testimony.” this at 157. Id. Defendant’s objection.” ed “overruled as to that objection opinion testimony the second this by case should have been sustained the The properly court ruled trial. defendant’s motion. When an is answer, late and opinion follows the a motion testimony concerning This fanta- strike, coupled application sizing with an reporting to have or activity detail sexual if indirectly upheld it is viewing pictures from is related sion of evidence any grounds appearing in already record that sustainable on opinion Jespersen, children do not make sexual accusations 804, 806 Rule happen. did We need not N.W.2d incident not 801(d)(1)(B) decide, opinion provides: if this admissible testimony similarity to tes- bears sufficient (d) which are not hear- Statements so timony already in the record that it is hearsay A is if: say. statement Rather, the deemed cumulative evidence. witness. The by Prior statement opinion three-year-old could not hearing at or declarant testified report in sexual from mere- detail activities subject and is to cross-examination con- pictures ly sexually explicit seems viewing statement, cerning and the statement Seehan, elementary obvious. See (B) testimony is ... consistent with impact at 379. and is offered to rebut an or interpretation by from such implied charge against of recent fa- relatively insignificant. is worker improper brication or influence mo- especially This true when other evidence tive, ... believability child’s stresses the testimony We believe the social worker’s activity. Opinion testimony of a sexual squarely parameters fell within admitted evidence is erroneously into with- rule. unlikely any juror’s prejudice out when it is witness, Declarant, understanding any or in way was altered already testified trial and cross-ex- opinion. We affected Id. conclude amined matters revealed opinion admitting the error in testimo- out of court statements she had made to ny merely about sexual detail was Additionally, the social worker. defend- harmless error. ant’s claim that the social testimo- worker’s Hearsay. III. As a witness ny simply introduced to bolster the State, psychiatric testi- testimony complain- regarding fied statements made ant’s is not in with accord complainant to him at evaluation two ses- vigorously record. The *6 alleged sions after the sexual abuse. Over during cross-examined which made in- hearsay objection, a the court allowed the consistent statements her mem- testify complainant worker that mother, ory, coaching and matters had told him defendant licked her had and prior deposition. contained in a The testi- defendant had asked her to lick him. Fur- mony regarding of the social worker what ther, the witness indicated the had told him four months using puppets had demonstrated acts alleged after the incident and nine months body and gestured specific also area prior trial, statements which are consist- puppets alleged on the where she the de- complainant’s testimony ent with the dur- fendant had touched her. The trial court examination, ing clearly direct offered position took the that the partially to rebut the successful cross-ex- prove not truth complainant. amination of Defendant’s matter asserted and the court offered to making any charge claim he was not give cautionary a instruction to that effect. fabrication, of improper recent motive or appeal, On defendant these claims state- influence is borne our. not out examina- hearsay ments are and therefore inadmissi- tion of the Parts cross-ex- agree. ble. not We do specifically amination to such related mat-
We conclude the ters mother prompting prepar- evidence was not as the and hearsay ing trial, under Iowa Rule Evidence the child’s 801(d)(1)(B). Although trial memory, court did and whether the child made rely ground, not this ruling story a on elicited direct examination. hearsay objection resulting the admis- The child’s out court statements to the
381 HARRIS, clearly the defini- All justices fall within concur LARSON, WOLLE, JJ., concur hearsay who statements which are not tion of LAVORATO, specially, J., who takes 801(d)(1)(B). in rule as defined part. no At court had Mistrial. trial IV. complainant’s mother on redirect
cautioned HARRIS, Justice (concurring). contents examination not to disclose the agree I strongly that the case be should prepared by a of Hu- Department join I, III, affirmed and divisions IVand Thereafter, investigator. man Services opinion. majority only I concur ignored cautionary mother instruction the result division II for reasons investigator had be- and stated my dissent in stated in 382 Myers, State v. molested. lieved been (Iowa 1986). N.W.2d I believe the timely objected to the statement Defendant proper scope review on that issue should being hearsay. de- as The court sustained be for an abuse of discretion. I think jury fendant’s instructed trial court did not abuse its discretion out, go jury answer will “[t]he admitting challenged expert testimony. completely disregard that last state- ment.” Defendant’s counsel then moved WOLLE, JJ., join spe- LARSON and mistrial, urging jury would for a that the cial concurrence. disregard able to such a The court issued cau- statement. another
tionary instruction to the and subse- overruled
quently the mistrial motion. argues
On defendant court in deny abused its discretion motion for trial mistrial. A court denying discretion in granting has wide J. J. Robert KOPPES Susan Hamilton, for mistrial. a motion Koppes, Appellants, N.W.2d We find only of discretion defendant abuse when PEARSON, Appellee. A. James prejudice prevents shows from Trudo, having fair trial. See State v. No. 85-761. trial Supreme Court of Iowa. in a position court was better to observe complained the matters of and to ascertain March 1986. effect, any, jury. Generally, *7 disregard an admonition to the inad any
missible is sufficient to cure Hamilton,
prejudice. See our
160. In review of the on this record we find no abuse of discretion granting
the trial court for mistrial.
motion summary, we have all of reviewed no merit
defendant’s contentions and find assignments
in his of error. therefore We judgment
affirm and sentence of the
AFFIRMED.