IN THE COURT OF APPEALS OF IOWA

No. 19-0295

Filed June 3, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

TIMOTHY M. FONTENOT,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Patrick R. Grady, 

Judge.

Timothy Fontenot appeals his convictions on two counts of indecent contact 

with a child. AFFIRMED. 

Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant 

Appellate Defender, for appellant.

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

General, for appellee.

Considered by Bower, C.J., Mullins, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2020).
2

SCOTT, Senior Judge.

In July 2016, allegations surfaced that Timothy Fontenot had been 

inappropriately touching eleven-year-old H.N. In the coming days the child 

underwent a medical evaluation and a forensic interview, which was recorded. 

Fontenot was ultimately charged by trial information with two counts of seconddegree sexual abuse as to H.N.1

 In February 2018, the State filed its notice of 

intent to present the video of the child’s forensic interview as evidence under the 

residual hearsay exception or, in the event the defense made a charge of 

fabrication or action from a recent improper influence or motive in testifying, as a 

prior consistent statement with the declarant’s testimony. See Iowa Rs. Evid. 

5.801(d)(1)(B) (prior consistent statement), .807 (residual exception). In 

December, the State amended its trial information to include two additional counts 

of indecent contact with a child as to H.N. The matter proceeded to a jury trial.

At trial, H.N. testified Fontenot first “did something bad to” her when she 

was six or seven during a camping trip in Minnesota, when he “rubb[ed] up and 

down [her] leg.” The alleged inappropriate touching continued at the child’s home 

in Marion, Iowa, when the child testified she was seven or eight and Fontenot 

would rub her with his hand. The child testified Fontenot directed her to not tell 

anyone about the encounters. After a year or two, Fontenot began touching the 

child’s “private spot.” This continued until the child was eleven. H.N. testified the 

last occurrence involved Fontenot rubbing her “private spot” under her underwear,

and on one occasion he inserted his fingers. The child also testified Fontenot 

 

1 He was also charged with two counts of indecent contact with a child as to 

another child, E.M.
3

bought her items so he could have extra “tickle time”—which is what Fontenot 

called the inappropriate touching episodes—with her. H.N. generally testified 

Fontenot touched her both over and under her clothing more times than she could 

count.

On cross-examination, defense counsel highlighted inconsistencies 

between H.N.’s testimony and her prior statements in her forensic interview and 

February 2018 deposition. Later in the trial, the State requested admission of the 

video of H.N.’s forensic interview. The State argued the video was admissible 

under the residual exception to the rule against hearsay. Alternatively, the State 

argued defense counsel’s cross-examination of the child amounted to a charge 

that the child recently fabricated her allegations or acted from a recent improper 

influence or motive in testifying, and the child’s statements in the video therefore 

did not amount to hearsay. The court allowed the video to be admitted. Ultimately, 

the jury found Fontenot guilty of two counts of indecent contact with a child as to 

H.N.2

Fontenot now appeals his convictions, claiming the video of the forensic 

interview amounted to hearsay and the district court erred in allowing its admission. 

Appellate review of challenges to the admission of evidence on hearsay grounds 

is for correction of errors at law. In re Det. of Tripp, 915 N.W.2d 867, 873 (Iowa 

2018); State v. Juste, 939 N.W.2d 664, 674 (Iowa Ct. App. 2019). “This standard 

of review extends to determining whether statements come within an exception to 

the general prohibition on hearsay evidence.” State v. Russell, 893 N.W.2d 307, 

 

2 The jury could not reach verdicts on the sexual-abuse counts, which were later 

dismissed. The jury found Fontenot not guilty of indecent contact with E.M.
4

314 (Iowa 2017). Improper admission of hearsay evidence “is presumed to be 

prejudicial unless the State shows the contrary,” which may be established by 

“proving the error was harmless beyond a reasonable doubt.” State v. Huser, 894 

N.W.2d 472, 495 (Iowa 2017).

Fontenot argues the video contains hearsay and was therefore 

inadmissible. Hearsay is inadmissible except as provided by the Iowa Constitution, 

a statute, the rules of evidence, or a supreme court rule. Iowa R. Evid. 5.802. 

Hearsay is any out-of-court “statement” made by the “declarant” while not testifying 

at the current trial or hearing that is offered “into evidence to prove the truth of the 

matter asserted in the statement.” Iowa R. Evid. 5.801(c). The term “statement” 

means a person’s oral or written assertion, or “[n]onverbal conduct, if intended as 

an assertion.” Iowa R. Evid. 5.801(a). The term “declarant” means “the person 

who made the statement.” Iowa R. Evid. 5.801(b). 

However, certain statements are not hearsay. See Iowa R. Evid. 5.801(d). 

A declarant-witness’s prior statement is not hearsay if the declarant-witness 

“testifies and is subject to cross-examination about a prior statement, and the 

statement” “[i]s consistent with the declarant’s testimony and is offered to rebut an 

express or implied charge that the declarant recently fabricated it or acted from a 

recent improper influence or motive in so testifying.” Iowa R. Evid. 5.801(d)(1)(B). 

One scholar has laid out the elementary requirements for admissibility as follows:

To be admissible under Rule 5.801(d)(1)(B), the party seeking to 

admit the prior consistent statement must establish the following four 

elements: (1) the declarant must testify at trial and be subject to 

cross-examination concerning the prior statement; (2) there must be 

an express or implied charge of recent fabrication or improper 

influence or motive against the declarant; (3) the prior statement 

must be consistent with the declarant’s challenged in-court 
5

testimony; and (4) the prior consistent statement must be made 

before the alleged motive to fabricate or improper influence arose.

7 Laurie Kratky Doré, Iowa Practice Series: EvidenceTM § 5.801:7 (Nov. 2019 

update) (footnotes and citations omitted).

Fontenot only appears to challenge the fourth element. He argues because 

the statements contained in the video occurred after H.N.’s allegations of 

inappropriate touching, they do not fit the exception. “Our supreme court adopted 

the rule ‘that a witness’s prior consistent statement is admissible as nonhearsay to 

rebut a charge of recent improper motive under Iowa rule of evidence 

[5.]801(d)(1)(B) only if the statement was made before the alleged improper motive 

to fabricate arose.’” Juste, 939 N.W.2d at 674 (quoting State v. Johnson, 539 

N.W.2d 160, 165 (Iowa 1995)). The statement must occur before the allegation of 

motive to fabricate arose, not before the initial report of alleged abuse. See id. 

The implicit allegation of recent fabrication arose during defense counsel’s crossexamination of H.N. or, at the very earliest, during H.N.’s February 2018 

deposition, both of which unquestionably occurred after H.N. made her statements 

in the forensic interview. The defense’s cross-examination of H.N. implied a 

fabrication of H.N.’s version of the facts and occurred after her forensic interview 

and, therefore, the fourth element is satisfied. See, e.g., State v. Crawley, No. 11-

0466, 2012 WL 470174, at *4 (Iowa Ct. App. Feb. 15, 2012); State v. Wells, 522 

N.W.2d 304, 309 (Iowa Ct. App. 1994).

While somewhat unclear, Fontenot also appears to lodge a challenge to the 

establishment of the third element, that the prior statement be consistent with the 

declarant’s challenged in-court testimony. He claims the video included 
6

statements that were inconsistent with H.N.’s trial testimony. Specifically, in her 

trial testimony, H.N. agreed Fontenot never touched her breasts, but in the forensic 

interview she stated Fontenot placed his hand under her shirt and sports bra and 

started touching, squeezing, and rubbing her “private spot up here,” referring to 

her chest area, two days earlier. He also claims the video contained information 

not contained in H.N.’s testimony, that Fontenot variously touched his penis over 

his pants while he touched H.N. and conversation H.N. had with Fontenot and the 

other alleged victim. But the jury was instructed that witness statements made 

before trial that it found “inconsistent with the witness’s testimony during the trial 

could only be used “as a basis for disregarding all or any part of the witness’s 

testimony during the trial.”3 In other words, the jury was instructed H.N.’s prior 

inconsistent statements could not be used as substantive evidence but only as a 

tool to assess H.N.’s credibility as a witness during trial. Cf. State v. Kramer, No. 

16-2048, 2018 WL 346454, at *9 (Iowa Ct. App. Jan. 10, 2018) (“Insofar as the 

admitted portion contained more than prior consistent statements, we note the 

district court clearly articulated the purpose for which the [evidence] was admitted 

and its intention to restrict the evidence to such use.”). We presume the jury 

followed the court’s direction that it could only use the conflicting or additional 

information as a credibility assessment tool, see State v. Sanford, 814 N.W.2d 611, 

620 (Iowa 2012); State v. Hanes, 790 N.W.2d 545, 552 (Iowa 2010), and the 

evidence was therefore not inadmissible hearsay because it was not being 

considered for the truth of the matter asserted. See Iowa R. Evid. 5.801(c)(2). 

 

3 Defense counsel objected to this instruction at trial, but it is not challenged on 

appeal. 
7

Presuming the jury followed the instruction, we are also unconvinced the 

complained-of evidence had any prejudicial effect on the jury’s verdict. The 

instruction, coupled with the inconsistent statements in the video, served to 

Fontenot’s benefit rather than his detriment. 

We conclude the bulk of the forensic interview video was properly admitted 

as non-hearsay prior consistent statements and Fontenot suffered no prejudice 

from the admission of the inconsistent statements contained in the video of the 

interview. As such, we affirm Fontenot’s dual convictions of indecent contact with 

a child. 

AFFIRMED.