IN THE SUPREME COURT OF IOWA

No. 12–0729

Filed December 5, 2014

Amended February 10, 2015

STATE OF IOWA,

Appellee,

vs.

PATRICK MICHAEL DUDLEY,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Marion County, Darrell J. 

Goodhue, Judge.

The State seeks further review of a court of appeals decision 

reversing a defendant’s conviction because the district court allowed 

expert testimony vouching for the victim’s credibility. DECISION OF 

COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT 

REVERSED AND CASE REMANDED WITH INSTRUCTIONS.

Kent Simmons, Davenport, for appellant.

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

Attorney General, Edward W. Bull, County Attorney, and Nicole L. Olson, 

Assistant County Attorney, for appellee.
2

WIGGINS, Justice.

This case involves two charges of sexual abuse in the second 

degree in violation of Iowa Code section 709.3(2) (2009). A jury convicted 

the defendant of these charges. On appeal, defendant contends he is 

entitled to have the charges dismissed because the State failed to comply 

with a plea bargain agreement. He also contends, if we do not dismiss 

the charges, he is entitled to a new trial because certain expert witnesses 

vouched for the credibility of the victim, the district court admitted 

hearsay statements from the victim into the record, and the district court 

did not allow him to use a prior conviction of a witness to impeach that 

witness. We transferred the case to our court of appeals. The court of 

appeals held the State did not violate the plea bargain agreement, but 

the defendant is entitled to a new trial on the ground an expert witness 

vouched for the credibility of the victim.

The State sought further review, which we granted. On further 

review, we agree with the court of appeals that the State did not violate 

the plea bargain agreement, but that the defendant is entitled to a new 

trial on the ground an expert witness vouched for the credibility of the 

victim. Therefore, we affirm the decision of the court of appeals and 

remand the case for a new trial. On retrial, the district court should not 

admit the victim’s hearsay statements into the record and should revisit 

the use of the prior conviction consistent with this opinion.

I. Background Facts and Proceedings.

Patrick Dudley and his wife Kay lived in Northfield, Minnesota. In 

June 2010, Dudley and his wife planned a trip to Knoxville, Iowa, to visit 

a friend. The Dudleys took their ten-year-old granddaughter B.O. along 

for the trip. When the Dudleys arrived in Knoxville, all three individuals 

slept in one bedroom. The Dudleys slept on a mattress on the floor and 
3

B.O. slept in a sleeping bag on the floor. B.O. alleged on the second 

night of the trip, after she and her grandparents went to bed, Dudley 

touched her vagina with his hand. B.O. alleged he did the same thing on 

the third night of the trip. 

Dudley, his wife, and B.O. returned to Minnesota the next day. On 

the evening she returned home, B.O. told her mother that her 

grandfather had touched her vagina with his hand. B.O.’s parents called 

the police in Minnesota to report the abuse. The Minnesota authorities 

contacted the police in Knoxville to report the incident.

Later that month the child traveled to the Regional Child Protection 

Center at Blank Children’s Hospital in Des Moines. Tammera Bibbins, a 

forensic interviewer, conducted an interview of B.O. The purpose of the 

interview was to determine if the authorities should continue their

investigation. The interviewer recommended further investigation.

The State eventually charged Dudley with two counts of sexual 

abuse in the second degree. In September 2011, Dudley filed seven 

motions in limine, including motions to exclude expert testimonies of 

Bibbins and B.O.’s treating therapist, Mary Casey, and exclude the 

testimony of B.O.’s neighbor, Pat Korinek. On December 27, Dudley also 

filed a motion to dismiss the charges and enforce a pretrial plea 

agreement. The district court overruled all the motions at issue in this 

appeal.

Before trial, the county attorney made a plea offer to Dudley. The 

county attorney agreed to dismiss the charges if Dudley passed a 

polygraph test given by a certified test administrator. The county 

attorney also notified Dudley the offer would expire once the parties took 

B.O.’s deposition. Dudley initially refused to take a polygraph test and 

did nothing with the offer for more than sixty days. After months had 
4

passed, the county attorney contacted Dudley to inform him he would be 

making a trip to Minnesota to interview B.O., and once he did, all plea 

offers were off the table. Dudley decided to take the polygraph test in 

Minnesota but did so after the county attorney made the trip to speak 

with B.O. 

Dudley passed the Minnesota polygraph test and sent the results 

to the county attorney. Dudley did not inform the county attorney he 

had agreed to go forward with the test prior to the county attorney’s trip 

to see the child. The county attorney only found out Dudley took the test 

after Dudley sent him the results of the exam. The county attorney 

agreed to look at the results but had concerns with the veracity of the 

results. Even with these concerns and Dudley’s failure to inform the 

county attorney that he decided to take the test, the county attorney 

agreed to allow Dudley to take another exam in Iowa. Dudley did not 

pass the Iowa test.1 

Dudley filed a motion arguing the court should enforce the plea 

agreement because he detrimentally relied upon the plea offer by waiving 

his Fifth Amendment right against self-incrimination and his Sixth 

Amendment right to a speedy trial. The district court denied Dudley’s 

motion and the case proceeded to trial.

At trial, Casey, a board certified psychologist, testified she provided 

therapeutic treatment to B.O. Casey testified she diagnosed B.O. with 

posttraumatic stress disorder and generalized anxiety disorder. The 

court permitted Casey to testify regarding typical physical manifestations 

and symptoms of an individual suffering from posttraumatic stress 

1The results of the Iowa polygraph test were not in the record before this court. 

The county attorney indicated Dudley did not pass the exam during the pretrial motion 

hearing. 

 
5

because of sexual abuse. Her descriptions matched, almost exactly, the 

manifestations other witnesses had already testified B.O. was exhibiting. 

Casey then testified to the observations she made of B.O.’s symptoms 

and physical manifestations while she was treating the child. Casey 

testified she observed some “telltale” physical manifestations such as the 

child dressing in layers, cutting her hair, dressing “very boyish,” and 

reacting to triggers such as seeing her grandfather’s car. Casey 

concluded her testimony on direct examination with the following 

exchange with the county attorney:

Q: Ma’am, based on your education, training, and 

experience, do you have an opinion to a reasonable degree of 

certainty in your field as to whether or not [B.O.]’s physical 

manifestations were consistent with a child suffering from 

sexual abuse trauma? A: Yes, they were consistent. 

Q: And do you have an opinion based on your line of 

work again, based on your credentials as to whether or not 

her symptoms were consistent with a child dealing with 

sexual abuse trauma? A: Yes, her symptoms were. 

At trial, Bibbins testified to the type of interview she conducts with 

children who have made allegations of sexual abuse. Bibbins testified 

she conducted her interview with B.O. in the same manner. She also 

explained to the jury the concepts of coaching a child and 

suggestibility—using leading questions when interviewing the child. 

Bibbins testified B.O.’s “statement was consistent throughout the entire 

interview process.” The county attorney also asked Bibbins to opine 

whether B.O.’s involvement with therapy was “problematic in the realm 

of coaching” to which Bibbins answered she “did not see it as 

problematic.” Bibbins also testified she made recommendations for B.O. 

to receive therapy and cease all contact with Dudley. 

Dudley also tried to exclude testimony regarding what B.O. had 

told the child’s neighbor, Korinek, about the incident in Iowa. The 
6

district court stated it would allow the testimony so long as the State 

established the statements qualified under the excited utterance 

exception to hearsay. At trial, B.O.’s mother testified that after her 

daughter told her about the incident the child went to bed. The next 

morning the mother called Korinek and told her about B.O.’s accusation. 

She asked Korinek to talk with B.O. about the trip with her 

grandparents. B.O.’s mother then sent her to the neighbor’s home to 

deliver eggs. 

Korinek testified B.O. was not her normal bubbly self when she 

arrived at the neighbor’s home. Korinek further testified she asked the 

child what was wrong. B.O. began to cry and was very upset. Korinek 

testified she prompted the child to tell her what was wrong a few times 

before the child disclosed the incident to her. The State then asked 

Korinek what B.O. told her had happened that caused the child to be so 

upset. Over objection, the district court ruled the statements fell under 

the excited utterance exception and permitted Korinek to respond. 

Korinek testified B.O. told her Dudley had touched her vagina while they 

were in Iowa. 

Lastly, Dudley filed a notice of his intent to introduce evidence of a 

prior criminal conviction of one of the State’s witnesses, Michael 

Gannaway. During the course of the case, Dudley’s sister-in-law and her 

boyfriend, Gannaway, were living with the Dudleys. Gannaway testified

that while he was living in Dudley’s home, Dudley disclosed to him that

“he [Dudley] was guilty of what he was charged with and that as soon as 

it blew over, he was going to seek therapy or something like that.” 

Around the same time this statement was made, the Dudleys asked 

Gannaway and Kay’s sister to move out of the home. Dudley sought to 

introduce evidence to impeach Gannaway’s credibility. 
7

Gannaway was convicted of theft in Minnesota more than twenty 

years prior to the current trial. When asked about his criminal history 

during his deposition, Gannaway stated he had never been convicted of a 

crime. Dudley wanted to admit the crime of dishonesty and the denial 

during deposition to impeach Gannaway. The district court ruled it

would not

sustain the motion in limine on [the] 20-year-old 

misdemeanor. It’s kind of like a speeding charge. I suspect 

if you got back in that and the record went long enough, he 

probably had a speeding charge and that’s shown as a 

criminal charge too. 

The State argued the statement in his deposition was an innocent 

mistake and did not rise to the level of perjury. The district court did not 

permit Dudley to impeach Gannaway with either the criminal charge or 

the statement in the deposition.

The jury found Dudley guilty on both charges. Dudley filed a 

notice of appeal. We transferred the appeal to our court of appeals. The 

court of appeals found the district court did not abuse its discretion in 

denying Dudley’s motion to enforce the plea agreement because the offer 

was no longer valid at the time Dudley took the polygraph test. However, 

the court of appeals reversed and remanded the case for a new trial 

finding Casey’s testimony amounted to an impermissible comment on 

B.O.’s credibility. After reaching that conclusion, the court of appeals 

did not address the other issues raised by Dudley’s appeal. The State 

then filed this application for further review, which we granted.

II. Issues.

In this appeal, the issues as to whether the district court erred in 

failing to require the State to honor the plea agreement and whether the 

expert testimony amounted to an impermissible comment on B.O.’s 
8

credibility are dispositive. However, because some of the issues raised by 

Dudley may reoccur on remand, we will address whether the court 

abused its discretion in admitting the neighbor’s testimony as an 

exception to the hearsay rule and whether the court was correct in not 

allowing Dudley to impeach Gannaway’s testimony with Gannaway’s 

criminal conviction.

III. Standard of Review.

When faced with a motion to dismiss as a sanction for the State’s

alleged repudiation of a plea agreement, the district court has the same 

limited discretion it has “when ruling on a motion to dismiss for failure to 

provide a speedy trial under Iowa Rule of Criminal Procedure [2.33(2)].” 

State v. Hovind, 431 N.W.2d 366, 368 (Iowa 1988). If the district court 

abused its limited discretion by finding the State did not repudiate the 

plea agreement, we will reverse its finding. Id.

We review hearsay rulings for correction of errors at law and will 

reverse the admission of hearsay evidence as prejudicial unless the 

contrary is shown. State v. Elliott, 806 N.W.2d 660, 667 (Iowa 2011). We 

review all other evidentiary rulings for an abuse of discretion. Id. 

When the district court exercises its discretion on grounds or for 

reasons clearly untenable or to an extent clearly unreasonable, an abuse 

of discretion occurs. State v. Nelson, 791 N.W.2d 414, 419 (Iowa 2010). 

When a ground or reason is based on an erroneous application of the law

or not supported by substantial evidence, it is untenable. Graber v. City 

of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).
9

IV. Whether the District Court Abused Its Limited Discretion 

By Not Dismissing the Case Due to the State’s Alleged Repudiation 

of the Plea Agreement.

For a plea bargain agreement to be binding, the performance of the 

terms of the plea bargain agreement must be mutual. Hovind, 431 

N.W.2d at 368. The State has no obligation to make available the 

anticipated benefits of a plea agreement when the defendant fails to 

perform his or her end of the bargain. Id. Furthermore, the State has 

the ability to withdraw from a plea agreement up until the time a 

defendant enters a guilty plea or until the defendant has taken action 

that amounts to a detrimental reliance on the agreement. See State v. 

King, 576 N.W.2d 369, 370 (Iowa 1998) (per curiam).

The State communicated to Dudley, prior to withdrawing the plea 

offer, that the county attorney was making a trip to Minnesota to 

interview B.O. and that once he made the trip, the offer would be off the 

table. Dudley did not take the test or advise the county attorney he was 

arranging to take the test prior to the time the county attorney made the 

trip. Accordingly, the State withdrew the plea agreement to dismiss the 

charges in exchange for a successful test prior to the time Dudley took 

his polygraph test. Additionally, because Dudley had not taken the test 

when the State withdrew the plea agreement, Dudley did not 

detrimentally rely on the plea agreement when he took the test. 

Therefore, the district court did not abuse its limited discretion by 

denying Dudley’s motion to enforce the plea agreement.

V. Whether the District Court Abused Its Discretion When It 

Found the Expert Witnesses’ Testimony Did Not Amount to an 

Impermissible Comment on B.O.’s Credibility.

A. Applicable Legal Principles. Iowa Rule of Evidence 5.702 

permits expert opinion testimony “if . . . specialized knowledge will assist 
10

the trier of fact to understand the evidence or to determine a fact in 

issue.” Expert testimony in child sexual abuse cases can be very 

beneficial to assist the jury in understanding some of the seemingly 

unusual behavior child victims tend to display. Veronica Serrato, Expert 

Testimony in Child Sexual Abuse Prosecutions: A Spectrum of Uses, 68 

B.U. L. Rev. 155, 163 (1988). Juries may have misconceptions regarding 

how an abused child should behave. Id. at 160–62. A child may appear 

frightened on the stand or unwilling to testify. Id. The child’s

recollection of the events may seem inconsistent, or the child may have 

delayed reporting the abuse for quite some time. Id. An expert witness, 

such as a psychologist or social worker, can help the jury understand 

these behaviors and other behaviors common to children who have 

suffered sexual abuse trauma. Id. at 163. 

In an early Iowa case in this area, the expert witness testified it 

was rare for children to lie about sexual abuse. State v. Myers, 382 

N.W.2d 91, 91 (Iowa 1986). In Myers, we set forth the legal principles 

regarding expert testimony in child sexual abuse cases. We stated 

“experts will be allowed to express opinions on matters that explain 

relevant mental and psychological symptoms present in sexually abused 

children.” Id. at 97. However, we acknowledged, “most courts reject 

expert testimony that either directly or indirectly renders an opinion on 

the credibility or truthfulness of a witness.” Id. 

We have consistently followed Myers in our subsequent case law. 

We have permitted an expert witness to testify regarding the “typical 

symptoms exhibited by a person after being traumatized.” State v. 

Gettier, 438 N.W.2d 1, 6 (Iowa 1989). We held this testimony was 

admissible because it did not directly comment on whether the victim at 

issue had symptoms consistent with “rape trauma syndrome.” Id. In a 
11

later case, we allowed expert testimony to explain to a jury why children

victims may delay reporting their sexual abuse. State v. Payton, 481 

N.W.2d 325, 327 (Iowa 1992). Again, the expert witness avoided 

commenting directly on the child at issue and only testified generally 

about victims of sexual abuse. Id. 

We have also analyzed expert witness testimony under the hearsay 

exception. Under a hearsay analysis, when the child makes statements 

for the purposes of diagnosis or treatment, those statements fall under 

the hearsay exception contained in Iowa Rule of Evidence 5.803(4). See 

State v. Hildreth, 582 N.W.2d 167, 169–70 (Iowa 1998) (holding a social 

worker treating the child was permitted to testify to statements the child 

made about the abuse, including the victim’s identification of the 

perpetrator, because the statements were necessary to the treatment of 

ensuring the continued safety of the child). The child must make the

statements to a trained professional for the purposes of diagnosis or 

treatment to be admissible under rule 5.803(4). Id. Even under a 

hearsay analysis, the experts did not couple their testimony of the 

statements made by the child, the identity of the abuser, and the events 

of the abuse with a professional opinion as to whether the child was 

truthful, had symptoms of sexual abuse trauma, or whether the 

symptoms of the child were consistent with child abuse. See id. at 169.

We see no reason to overturn this well-settled Iowa law prohibiting 

an expert witness from commenting on the credibility of a victim in a 

criminal sex abuse proceeding. Although we are committed to the liberal 

view on the admission of psychological evidence, we continue to hold 

expert testimony is not admissible merely to bolster credibility. State v. 

Hulbert, 481 N.W.2d 329, 332 (Iowa 1992). Our system of justice vests 

the jury with the function of evaluating a witness’s credibility. Id. The 
12

reason for not allowing this testimony is that a witness’s credibility “is 

not a ‘fact in issue’ subject to expert opinion.” Id. (quoting Myers, 382 

N.W.2d at 97). Such opinions not only replace the jury’s function in 

determining credibility, but the jury can employ this type of testimony as 

a direct comment on defendant’s guilt or innocence. Id. Moreover, when 

an expert comments, directly or indirectly, on a witness’s credibility, the 

expert is giving his or her scientific certainty stamp of approval on the 

testimony even though an expert cannot accurately opine when a witness 

is telling the truth. In our system of justice, it is the jury’s function to 

determine the credibility of a witness. An abuse of discretion occurs 

when a court allows such testimony. Id.

We again reaffirm that we are committed to the legal principle that 

an expert witness cannot give testimony that directly or indirectly 

comments on the child’s credibility. We recognize there is a very thin 

line between testimony that assists the jury in reaching its verdict and 

testimony that conveys to the jury that the child’s out-of-court 

statements and testimony are credible. Id. We will now analyze the 

testimony in this case to determine whether the line was crossed.

B. Testimony of Treating Therapist, Mary Casey. The 

testimony at issue deals with Casey opining B.O.’s physical 

manifestations and symptoms were consistent with a child dealing with 

and suffering from sexual abuse trauma. We must determine whether 

the expert crossed the line by testifying in a manner that indirectly 

conveyed to the jury that the child was telling the truth.

One leading expert in the field notes allowing expert testimony that 

a child’s symptoms are consistent with sexual abuse trauma is 

problematic because the symptoms do not prove someone abused the 

child. See Brett C. Trowbridge, The Admissibility of Expert Testimony in 
13

Washington on Post Traumatic Stress Disorder and Related Trauma 

Syndromes: Avoiding the Battle of the Experts by Restoring the Use of 

Objective Psychological Testimony in the Courtroom, 27 Seattle U. L. Rev. 

453, 474–79 (2003). Psychiatrists formulated a syndrome to describe the 

trauma suffered by sexually abused children. Id. at 474–77. This 

syndrome is called child sexual abuse accommodation syndrome 

(CSAAS) and its proponents urge it is representative of a common 

denominator of the most frequently observed behaviors of sexual abuse 

victims. Id. The psychiatrists developed the syndrome to give a 

diagnosis and provide better treatment to children suffering from these 

behaviors. Id. The psychiatrists did not develop the diagnosis of sexual 

abuse trauma or CSAAS to prove abuse occurs because the diagnosis 

assumes abuse has occurred. Id. at 475. Moreover, the identification of 

symptoms or physical manifestations of sexual abuse trauma in children 

is not consistent among professionals. See Mary Ellen Reilly, Note, 

Expert Testimony on Sexually Abused Child Syndrome in a Child 

Protective Proceeding: More Hurtful than Helpful, 3 Cardozo Pub. L. Pol’y 

& Ethics J. 419, 442 (2005) (explaining a “study of over 122 appellate 

court decisions involving expert testimony of child sexual abuse revealed 

sharp contradictions” (internal quotation marks omitted)). 

To allow an expert witness to testify a child’s physical 

manifestations or symptoms are consistent with sexual abuse trauma or 

CSAAS allows the expert witness to indirectly vouch that the victim was 

telling the truth because the expert opines the symptoms are consistent 

with child abuse. To put it another way, the expert is saying these 

symptoms mean the child suffered a sexual abuse trauma; therefore, the 

child must be telling the truth when he or she relates his or her story to 

the jury. It is the jury’s function to determine if the victim is telling the 
14

truth, not the expert witness’s. Accordingly, the expert witness’s

testimony crossed the line when she testified B.O.’s physical 

manifestations or symptoms were consistent with sexual abuse trauma 

or CSAAS. 

C. Testimony of Forensic Interviewer, Tammera Bibbins. The 

portion of testimony Dudley finds objectionable in Bibbins’s testimony is 

her explanation of coaching and suggestibility. Bibbins stated B.O.’s 

“statement was consistent throughout the entire interview process.” 

Dudley also finds objectionable Bibbins’s recommendation for B.O. to 

receive therapy and cease all contact with Dudley. Finally, he finds 

objectionable her opinion that B.O.’s involvement in therapy was not 

problematic in the realm of coaching.

Bibbins is a forensic interviewer whose purpose in this matter was 

to gather facts for the police. She was not conducting her interview for 

purposes of diagnosis or treatment. However, Dudley does not claim the 

testimony should have been excluded because the testimony did not fall 

under Iowa Rule of Evidence 5.803(4), an exception to the hearsay rule. 

The only objection Dudley made was that this testimony vouched for 

B.O.’s credibility.

We need to break down each statement Dudley claims as 

objectionable to determine whether the State crossed the line. The first 

statement by Bibbins was that B.O.’s statements were consistent 

throughout the interview. We do not find this statement crossed the line. 

Bibbins was merely stating the fact that throughout the interview B.O. 

never changed her story as to the events with Dudley. The jury is 

entitled to use this information to determine the victim’s credibility. This 

information gives the jury an insight into the victim’s memory and 

knowledge of the facts. See State v. Frake, 450 N.W.2d 817, 819 (Iowa 
15

1990) (stating a jury may consider a witness’s memory and knowledge of 

facts in determining the witness’s credibility). With this information as 

part of the evidence, the jury still had to decide if B.O.’s complaints

against Dudley were credible.

The second statement by Bibbins was that she recommended B.O. 

receive therapy and stay away from Dudley. Bibbins based these 

recommendations on her opinion that she believed Dudley sexually 

abused B.O. This testimony crossed the line because she testified she 

believed B.O. was in fact sexually abused by Dudley; thus, indirectly 

vouching for her credibility.

The third statement dealt with her opinion that B.O.’s involvement 

in therapy was not problematic in the realm of coaching. We do not find 

this statement crossed the line. The gist of the statement is that 

participation in therapy, in and of itself, does not mean the therapist is 

coaching the victim. If Dudley contends anybody coached B.O., he can 

develop this claim through the cross-examination of the witnesses or his 

own expert testimony regarding coaching. 

D. Harmless Error. “Error may not be predicated upon a ruling 

which admits or excludes evidence unless a substantial right of the party 

is affected . . . .” Iowa R. Evid. 5.103. In cases of nonconstitutional

error, we start with the presumption that the substantial rights of the 

defendant have been affected. State v. Howard, 825 N.W.2d 32, 41 (Iowa 

2012). The State has the burden to affirmatively establish the 

substantial rights of the defendant were not affected. Id. at 42. The 

State does not argue the admissibility of the objectionable statements 

constitute harmless error. Therefore, we will not make the arguments for 

the State or reach the issue of harmless error. See In re Det. of Blaise,

830 N.W.2d 310, 320–21 (Iowa 2013) (acknowledging generally that the 
16

State waives a harmless-error argument if not raised on appeal, but 

makes an exception to this rule if the error is based on ineffective 

assistance of counsel because in an ineffective-assistance-of-counsel 

claim the burden is on the defendant to show prejudice). 

Therefore, we affirm the decision of the court of appeals, reverse 

Dudley’s conviction, and remand the case for a new trial.

VI. Other Issues Raised on Appeal.

Dudley has raised other issues on appeal that may not be

dispositive. However, these issues may reoccur on the retrial of this case 

so we will address them.

A. Testimony of B.O.’s Neighbor. The district court let the 

neighbor testify regarding B.O.’s statements to her concerning the abuse. 

The district court allowed the statements in as an exception to hearsay 

under rule 5.803(2). The rule provides:

The following are not excluded by the hearsay rule, even 

though the declarant is available as a witness:

. . . .

(2) Excited utterance. A statement relating to a 

startling event or condition made while the declarant was 

under the stress of excitement caused by the event or 

condition. 

Iowa R. Evid. 5.803(2).

We have enumerated the factors we consider to determine whether 

a statement qualifies as an excited utterance. See State v. Harper, 770 

N.W.2d 316, 319 (Iowa 2009). These factors are

“(1) the time lapse between the event and the statement, (2) 

the extent to which questioning elicited the statements that 

otherwise would not have been volunteered, (3) the age and 

condition of the declarant, (4) the characteristics of the event 

being described, and (5) the subject matter of the statement.”
17

Id. (quoting State v. Atwood, 602 N.W.2d 775, 782 (Iowa 1999)). The 

court must consider all the factors to determine if the statements are 

admissible. State v. Hy, 458 N.W.2d 609, 611 (Iowa Ct. App. 1990). The 

neighbor’s testimony regarding B.O.’s statements is problematic because 

of the time lapse between the alleged event and the statements and the 

extent to which questioning elicited the statements that otherwise would 

not have been volunteered. 

First, the lapse of time was from Friday evening, when the last 

incident occurred, to sometime before Sunday afternoon. This factor is 

not determinative and on its own, is not enough to take the statements 

out of the exception. See id. (holding a four-year olds’ statements 

disclosing sexual abuse to her parents were admissible despite the 

passage of time because she disclosed at the first possible opportunity). 

Second, the statement must be spontaneous and any questions 

asked of the child must not be “ ‘calculated to elicit information which 

would otherwise have been withheld.’ ” State v. Brown, 341 N.W.2d 10, 

13 (Iowa 1983) (quoting State v. Watson, 242 N.W.2d 702, 704 (Iowa 

1976)). Here, the child, upon the family’s return home, told her mother 

the story. The following day, the mother sent B.O. over to the neighbor’s 

home to have the neighbor talk to B.O. about the disclosure she had 

made to her mother the night before. Further, the mother sent B.O. to 

Korinek’s home under the pretense of delivering eggs to the neighbor. 

Korinek testified B.O. was not her normal bubbly self when she arrived 

at the neighbor’s home. Korinek also testified she began the 

conversation by asking B.O. about her vacation. The child then started 

to cry. Korinek continued to ask B.O. what was wrong. The more she 

pressed B.O., the more upset the child became.
18

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.” United 

States v. Tocco, 135 F.3d 116, 127 (2d Cir. 1998); see also United States 

v. Brown, 254 F.3d 454, 458 (3d Cir. 2001) (“[E]xcitement suspends the 

declarant’s powers of reflection and fabrication, consequently minimizing 

the possibility that the utterance will be influenced by self interest and 

therefore rendered unreliable.”). Also, “it is possible for someone to be 

too excited to volunteer pertinent information . . ., and thus the inherent 

‘guarantee of truthfulness’ supporting the admission of excited 

utterances applies equally to declarations made in response to an 

inquiry.” United States v. Joy, 192 F.3d 761, 767 (7th Cir. 1999). 

We review the admissibility of an excited utterance for an abuse of 

discretion. The last alleged incident of abuse occurred Friday evening. 

The next day, B.O. traveled in a car with the Dudleys from Knoxville, 

Iowa, to Fairfield, Minnesota. Upon arriving at the child’s home, the 

Dudleys stayed to visit with B.O.’s family for a short time. Once Dudley 

left and the child felt safe, she disclosed what happened to her mother. 

B.O.’s mother testified that, sometime between 9 p.m. and 10 p.m. on 

Saturday evening, B.O. came into the mother’s room and, without any 

questioning, told the mother her grandfather had touched her. 

District courts should consider the time lapse between the event 

and statements to ensure the statements were not the product of 

conscious thought or reflection. See State v. Tejeda, 677 N.W.2d 744, 

753–54 (Iowa 2004) (finding the district court did not abuse its discretion 

omitting statements made thirty minutes after the event, in a different 

location, and in response to direct questioning). However, it is 

permissible to allow a greater amount of time lapse for children who 
19

make the statements to a parent or other safe adult, at the soonest 

possible time after the abuse occurred. See Hy, 458 N.W.2d at 611. 

B.O. made the statements to her mother almost twenty-four hours after 

the incident. After B.O. made the statements to her mother, the child 

went to bed, and it was not until the next afternoon, approximately 

thirty-six hours after the incident, B.O.’s mother sent her to Korinek’s

house. During the time between the disclosure to her mother and the 

next day, B.O. had time to reflect upon what had occurred. Further, 

unlike the disclosure to her mother, B.O. required more than one 

prompting question before she made the statements to Korinek. 

The exception for excited utterance “presupposes that the 

declarant blurted out a remark while under the influence of the startling 

event, so that it is unlikely that the remark was the product of conscious 

thought or reflection, but was probably accurate.” Jay M. Zitter, 

Annotation, When Is Hearsay Statement “Excited Utterance” Admissible 

Under Rule 803(2) of Federal Rules of Evidence, 155 A.L.R. Fed. 583, 583 

(1999). B.O.’s statements to Korinek were not spontaneous in reaction to 

a startling event, but rather an upset child telling her story to a neighbor 

and friend after she no longer felt the urgent need to disclose the 

information to someone safe. We find the district court abused its 

discretion in admitting this testimony. On retrial, the statements B.O. 

made to Korinek are not admissible. 

B. Not Allowing Dudley to Use Gannaway’s Criminal 

Conviction to Impeach His Testimony. Dudley sought to impeach 

Gannaway’s testimony by using Gannaway’s theft conviction that was 

more than twenty years old. The district court denied Dudley’s request,

equating the theft charge to a traffic ticket.
20

Iowa Rules of Evidence allow past crimes of dishonesty to be 

admitted for the purposes of impeaching a witness. Iowa R. Evid. 

5.609(a)–(b). We have held theft is a crime of dishonesty. See State v. 

Parker, 747 N.W.2d 196, 208 (Iowa 2008) (distinguishing a previous 

conviction of drug possession from convictions “found to be probative of 

credibility, like perjury and theft offenses”). Crimes of dishonesty are 

admissible unless they fall outside the time limit of rule 5.609(b). Iowa 

R. Evid. 5.609(a)(2), (b). When a crime falls outside the time limit of rule 

5.609(b), the probative value must substantially outweigh the prejudice 

of the evidence. Id. 

Here, the district court did not properly weigh the probative value 

against the prejudice of the evidence. Because we are ordering a retrial, 

we do not have to weigh the probative value against the prejudice of the 

evidence and decide this issue. Therefore, on retrial, the court should do 

the analysis required under rule 5.609. After the court makes that 

analysis, an appellate court, if necessary, will be in a better position to 

decide if the evidence is admissible.

VII. Disposition.

We affirm the decision of the court of appeals and reverse the 

judgment of the district court because some of the expert testimony 

admitted by the district court amounted to impermissible vouching of the 

victim’s credibility. We remand the case to the district court in order for 

Dudley to have a new trial consistent with our holding in this opinion.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT 

COURT JUDGMENT REVERSED AND CASE REMANDED WITH 

INSTRUCTIONS.

All justices concur except Waterman and Zager, JJ., who concur 

specially, and Cady, C.J., who dissents.
21

#12–0729, State v. Dudley

WATERMAN, Justice (concurring specially).

I join the majority opinion but write separately because the 

majority fails to examine well-reasoned decisions from other jurisdictions 

addressing the same question we must confront today—the admissibility 

of expert testimony that the specific child victim’s behavior or symptoms 

are “consistent with” sexual abuse trauma. As the majority 

acknowledges, “there is a very thin line” between expert testimony that 

assists the jury and that which impermissibly vouches for the childwitness’s credibility. Our court has not previously decided whether the 

line is crossed by an expert who opines the victim’s behavior or 

statements are “consistent with” child abuse trauma. I think it is worth 

considering the guidance provided by our sister state supreme courts to 

help decide this close and important question. The stakes are high when 

the retrial forces the victim to relive the trauma of the abuse. 

I also write separately to emphasize the majority opinion should 

not be read to foreclose the possible use of such expert testimony in 

rebuttal if the defendant opens the door by suggesting the victim’s 

behavior is inconsistent with that of an abused child. As noted below, 

many other courts have allowed testimony that a child victim’s behavior 

or symptoms are “consistent with” child abuse trauma as rebuttal 

evidence. That is not what happened in this case. 

Just two years ago, in State v. Favoccia, the Supreme Court of 

Connecticut thoroughly reviewed the conflicting precedent and policy 

considerations in reaching the same conclusion we reach today. 51 A.3d 

1002, 1012–22 (Conn. 2012). The Favoccia court overturned its own 

precedent to hold that “the trial court abused its discretion in permitting 

[the expert] to testify about the complainant’s behaviors being consistent
22

with those generally characteristic of sexual assault victims.” Id. at 

1026. Conversely, in People v. Spicola, the New York Court of Appeals 

recently held “the trial judge did not abuse his discretion when he 

allowed the expert to testify about CSAAS [Child Sexual Abuse 

Accommodation Syndrome] to rehabilitate the boy’s credibility.” 947 

N.E.2d 620, 635 (N.Y. 2011). Significantly, here, the State offered the 

challenged expert testimony in its case in chief against Dudley, not in 

rebuttal. Spicola is therefore distinguishable. But, the observation of the 

Spicola dissent nonetheless applies: “[T]he expert[] confirm[ed] . . . nearly 

every detail of the case and of complainant’s behavior as consistent with 

that of a victim of sexual abuse . . . .” Id. at 639 (Lippman, C.J., 

dissenting). These divergent outcomes reflect national jurisprudence on 

the issue. Lisa R. Askowitz, Restricting the Admissibility of Expert 

Testimony in Child Sexual Abuse Prosecution: Pennsylvania Takes It to the 

Extreme, 47 U. Miami L. Rev. 201, 205–06 nn.34–35 (Sept. 1992) 

(surveying caselaw and recognizing the split in authority). 

Many other courts have held opinions that a child victim’s behavior 

or symptoms are “consistent with” child abuse are inadmissible. See 

Favoccia, 51 A.3d at 1015–16 & n.26 (collecting cases); see also id. at 

1009 (holding that “expert testimony linking a specific complainant to 

those general characteristics” is “impermissible vouching and ultimate 

issue testimony” and therefore inadmissible); Wheat v. State, 527 A.2d 

269, 274–75 (Del. 1987) (concluding that allowing an expert to connect 

general characteristics to a specific complainant is equivalent to 

bolstering the victim’s credibility and is therefore inadmissible); State v. 

Foret, 628 So. 2d 1116, 1130 (La. 1993) (holding that an expert testifying 

to child sexual abuse symptoms must limit the testimony to general 

characteristics that cannot directly concern the particular victims); 
23

Commonwealth v. LaCaprucia, 671 N.E.2d 984, 985 (Mass. App. Ct. 

1996) (holding that the trial court abused its discretion by allowing 

expert testimony that “directly link[ed] the characteristics of sexually 

abused children to the complainants in this case”); State v. Chamberlain, 

628 A.2d 704, 707 (N.H. 1993) (holding that testimony that a child’s 

symptoms were “consistent with” CSAAS could not be offered to prove 

the child was abused); State v. Michaels, 625 A.2d 489, 499–502 (N.J. 

Super. Ct. App. Div. 1993) (reversing a conviction based on inadmissible 

testimony that the victims’ behavior was “consistent with” sexual abuse),

aff’d, 642 A.2d 1372 (N.J. 1994). 

Although many other jurisdictions have allowed testimony the 

victim’s behavior or symptoms are “consistent with” child abuse trauma 

under some circumstances,2 most limit such testimony to rehabilitation 

of the victim3 whose credibility was attacked by the defense. See People 

2See Favoccia, 51 A.3d at 1015 n.26 (surveying cases); see also United States v. 

Lukashov, 694 F.3d 1107, 1116 (9th Cir. 2012) (“We conclude that the district court did 

not abuse its discretion in allowing [the doctor] to testify about the characteristics that 

she looks for when assessing a child victim’s story of sexual abuse, and to opine that 

her evaluation of [the child] was consistent with [the child’s] allegations of sexual 

abuse.”); Steward v. State, 636 N.E.2d 143, 146 (Ind. Ct. App. 1994) (“Indiana courts 

have consistently allowed expert testimony concerning whether a particular victim’s 

behavior is consistent with the behavioral patterns of victims of sexual abuse.”), aff’d, 

652 N.E.2d 490 (Ind. 1995); State v. McIntosh, 58 P.3d 716, 728–30 (Kan. 2002) 

(holding that the testimony of an expert witness is admissible when the witness outlines 

the general characteristics of sexually abused children and then states that the victim’s 

symptoms are consistent with those characteristics); Spicola, 947 N.E.2d at 635 

(holding that the trial judge did not abuse his discretion by admitting expert testimony 

on rebuttal which connected generalized sexual abuse symptoms to the individual 

victim); State v. Stowers, 690 N.E.2d 881, 883 (Ohio 1998) (holding that “an expert 

witness’s testimony that the behavior of an alleged child victim of sexual abuse is 

consistent with behavior observed in sexually abused children is admissible under the 

Ohio Rules of Evidence”). 

3These safeguards can take the form of prohibiting all expert testimony—

including all “consistent with” testimony—except for purposes of rehabilitation on 

rebuttal by requiring the testimony to be narrowly tailored to an identifiable symptom 

from which the complainant suffers. See, e.g., People v. Nelson, 561 N.E.2d 439, 444 

(Ill. App. Ct. 1990) (“At this time, we choose to limit the admissibility of such testimony 

 
24

v. Beckley, 456 N.W.2d 391, 399 (Mich. 1990) (“We find that the rebuttal 

limitation as expressed by the majority of jurisdictions is the preferable 

approach.” (Emphasis added.)). Such cases are inapplicable here 

because the State does not argue Dudley opened the door to such 

testimony by arguing the victim’s behavior was inconsistent with child 

abuse trauma.

The result we reach today is supported by the decisions of other 

courts that recognize testimony the victim’s behavior or symptoms are 

“consistent with” child abuse is the “functional equivalent” of vouching 

for the victim’s credibility. Spicola, 947 N.E.2d at 639. The Connecticut 

Supreme Court aptly concluded: 

“[T]here is no material distinction between express testimony 

that the child has been sexually abused, and implicit 

testimony that outlines the unreliable behavioral reactions 

found with sexually abused victims, followed by a list of the 

complainant’s own behavioral reactions, that points out that 

the two are consistent, and then invites the jury to add up 

the points to conclude that the child has been sexually 

abused.” 

Favoccia, 51 A.3d at 1023 (quoting People v. Peterson, 537 N.W.2d 857, 

873 (Mich. 1995) (Cavanagh, J., dissenting)). “[S]uch testimony ‘comes 

too close to testifying that the particular child is a victim of sexual 

abuse.’ ” Id. at 1017–18 (quoting Peterson, 537 N.W.2d at 868). 

The victim’s credibility is often the fighting issue in child abuse 

cases. See John E.B. Myers, et al., Expert Testimony in Child Sexual 

to rebuttal after the victim’s credibility has first been attacked.”); see also People v. 

Bowker, 249 Cal. Rptr. 886, 891 (Ct. App. 1988) (requiring that the testimony is 

“targeted to a specific ‘myth’ or ‘misconception’ suggested by the evidence”); People v.

Beckley, 456 N.W.2d 391, 399 (Mich. 1990) (holding that “only those aspects of ‘child 

sexual abuse accommodation syndrome,’ which specifically relate to the particular 

behaviors which become an issue in the case are admissible”). 

____________________
25

Abuse Litigation, 68 Neb. L. Rev. 1, 89 (1989). I agree with the 

Connecticut Supreme Court’s assessment that: 

[“Consistent with”] testimony create[s] a significant risk that 

the jury w[ill] consider [the expert’s] testimony as an 

imprimatur on the complainant’s allegations, particularly 

[when] her testimony [is] based directly on observations of 

the complainant[] . . . , which renders [the] case distinct from 

those wherein the expert disclaims any familiarity with the 

specific facts of the case or testifies only in terms of 

generalities or hypotheticals.

Favoccia, 51 A.3d at 1025. As another appellate court recognized:

It is one thing to educate the jury to understand that child 

abuse victims may act in counterintuitive ways, and that 

excessive weight should not be given to factors such as 

failure to disclose when the child victim’s credibility is 

weighed . . . [and] quite another to suggest to the jury that 

the events and feelings expressed by the child witnesses are 

the same as those experienced by other victims of abuse. 

That this has the effect of buttressing the witnesses’ 

credibility seems impossible to deny. 

Commonwealth v. Deloney, 794 N.E.2d 613, 623 (Mass. App. Ct. 2003) 

(citations omitted). The purpose of expert testimony in child sexual 

abuse cases 

is to give the jury a framework of possible alternatives for the 

behaviors of the victim at issue in the case in relation to the 

class of abuse victims. In this respect, the expert’s role is to 

provide sufficient background information about each 

individual behavior at issue which will help the jury to dispel 

any popular misconception commonly associated with the 

demonstrated reaction. 

Beckley, 456 N.W.2d at 406. This purpose can be accomplished through 

generalized testimony without vouching for the victim’s truthfulness. 

See Favoccia, 51 A.3d at 1018 (“[T]he ‘conduct of a child who has been 

sexually abused, and the emotional antecedents underlying this conduct, 

can be effectively explained to the jury through testimony relating to the 
26

class of victims in general . . . .’ ” (quoting State v. Sims, 608 A.2d 1149, 

1154 (Vt. 1991))). 

[W]here “the sole reason for questioning the ‘expert’ witness 

is to bolster the testimony of [the complainant] by explaining 

that his version of the events is more believable than the 

defendant’s, the ‘expert’s’ testimony is equivalent to an 

opinion that the defendant is guilty, and the receipt of such 

testimony may not be condoned.” 

Spicola, 947 N.E.2d at 639 (quoting People v. Ciaccio, 391 N.E.2d 1347, 

1351 (N.Y. 1979)). 

Armed with generalized knowledge, the fact finder can connect the 

dots. We should be mindful that “more specific testimony yields returns 

that increase in prejudice to the defendant as they diminish in value with 

respect to the edification of the jury as to behaviors that might affect the 

complainant’s credibility.” Favoccia, 51 A.3d at 1024. 

As the foregoing cases demonstrate, expert testimony may be 

admissible in rebuttal if the defendant opens the door by challenging the 

credibility of the child victim based on behavior or symptoms the expert 

can show is consistent with child abuse trauma. But, in this case, the 

expert crossed the line by providing such an opinion in the State’s case 

in chief. 

Zager, J., joins this special concurrence.
27

#12–0729, State v. Dudley

CADY, Chief Justice (dissenting).

I respectfully dissent. I would conclude that any error in this case 

in admitting expert testimony at trial concerning behavior exhibited by 

the victim that was consistent with sexual abuse trauma was harmless 

and does not require a new trial. 

There is a very fine line between the admission of expert testimony 

that identifies behavior or symptoms typically displayed by victims of 

sexual abuse and inadmissible expert testimony about behavior or 

symptoms displayed by victims of sexual abuse that vouches for the 

credibility of a victim of sexual abuse. Finding that subtle difference is 

committed to the sound discretion of the district court to make the 

difficult call, ruling on such evidence in light of all the circumstances. 

See State v. Frank, 298 N.W.2d 324, 327 (Iowa 1980). Discretion is not 

abused unless the ruling is based on “untenable” grounds, is “clearly 

unreasonable,” or no support for the decision exists in the record. State 

v. Gartin, 271 N.W.2d 902, 910–11 (Iowa 1978). Moreover, although 

prejudice is presumed unless the record affirmatively establishes 

otherwise, State v. Paredes, 775 N.W.2d 554, 571 (Iowa 2009), an abuse 

of discretion constitutes reversible error only if the admission of the 

evidence “injuriously affect[s]” the complaining party, results in a 

“miscarriage of justice,” or a different result would have occurred if the 

evidence had not been admitted, 7 Laurie Kratky Doré, Iowa Practice 

Series, Evidence § 5.103:14, at 65 (2013). 

The fine line in the legal standard in this case weighs against 

prejudice to support reversible error. The trial court had discretion to 

admit expert testimony that identified recognized symptoms of sexual 

abuse trauma that were exhibited by the victim, and there is nothing in 
28

the record to suggest the State used or sought to use this evidence to 

vouch for the credibility of the victim. Reversible error in admission of 

evidence at trial should not come down to splitting hairs.