IN THE COURT OF APPEALS OF IOWA

No. 18-2116

Filed May 13, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

SHANNA DESSINGER,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Webster County, Angela L. Doyle, 

Judge.

Shanna Dessinger appeals her conviction and sentence for child 

endangerment. CONVICTION AFFIRMED, SENTENCE VACATED IN PART, 

AND REMANDED FOR RESENTENCING.

Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney 

General, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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MAY, Judge.

Following a jury trial, Shanna Dessinger was convicted of child 

endangerment. On appeal, she argues (1) hearsay was improperly admitted, (2) 

her Confrontation Clause rights were violated, (3) trial counsel was ineffective, and 

(4) the district court failed to make an ability-to-pay determination before imposing 

court costs. We affirm Dessinger’s conviction. But we vacate the restitution

portion of the sentencing order and remand for resentencing.

I. Facts and Prior Proceedings

In May 2018, Dessinger worked at a daycare. Children were assigned to 

different rooms based on their age. On May 9, Dessinger was assigned to the 

four-year-olds’ room. In the adjacent room, Demetria Gully worked in the two-yearolds. A wall separated the rooms. There was a large window in the wall. 

According to Gully, she looked through the window and saw Dessinger grab a child 

by the neck, strangle him, and throw him down to the ground. Gully testified that 

she had a clear view of this incident and she was absolutely sure it happened. She 

immediately went to the daycare supervisor, Cori Jewett, to report it. 

Jewett told Dessinger to leave. Jewett and Gully talked to the child, D.A.J., 

and asked him to demonstrate what happened. He put his hands around his neck 

and appeared to strangle himself. Meanwhile, D.A.J.’s father arrived to pick him 

up. Both Jewett and D.A.J. told the father what happened. The father reported 

the incident to the police. Officer Paul Samuelson arrived and interviewed 

witnesses. 

Dessinger denies any wrongdoing. Instead, she contends she told the 

children to clean up after play time. D.A.J. appeared to struggle getting an apron
3

off. Dessinger tried to help him. During that process, Dessinger stumbled. 

Although Dessinger was able to catch herself, she concedes D.A.J. might have

fallen. But Dessinger denies strangling D.A.J. or squeezing his neck. 

The State charged Dessinger with child endangerment. Prior to trial, 

Dessinger filed a motion in limine and challenged D.A.J.’s competency to testify. 

The district court found D.A.J. competent. 

At trial, the State called Gully, Jewett, and Officer Samuelson. The State 

did not call D.A.J. Dessinger testified and called a character witness.

The jury found Dessinger guilty as charged. She appeals.

II. Standard of Review 

We apply different standards of review to different issues. To begin with, 

we review Dessinger’s “hearsay claims for correction of errors at law.” State v. 

Smith, 876 N.W.2d 180, 184 (Iowa 2016).

Dessinger’s confrontation claims are based on the Sixth Amendment of the 

United States Constitution and article I, section 10 of the Iowa Constitution. So we 

review those claims de novo. State v. Kennedy, 846 N.W.2d 517, 520 (Iowa 2014).

Similarly, our review of ineffective-assistance-of-counsel claims is de novo. 

See State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015) (noting “[w]e review 

ineffective-assistance-of-counsel claims de novo,” “because such claims are 

grounded in the Sixth Amendment”). “We prefer to reserve such questions for 

postconviction proceedings so the defendant’s trial counsel can defend against the 

charge. However, we depart from this preference in cases where the record is 

adequate to evaluate the . . . claim.” State v. Tate, 710 N.W.2d 237, 240 (Iowa 

2006) (internal citation omitted).
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Finally, “[w]e review restitution orders for correction of errors at law.” State 

v. Albright, 925 N.W.2d 144, 158 (Iowa 2019).

III. Analysis

A. Hearsay

Dessinger first argues the district court erred in admitting hearsay. 

Dessinger identifies the following instances of hearsay: (1) Gully’s testimony about 

D.A.J.’s out-of-court demonstration, (2) Jewett’s testimony about D.A.J.’s out-ofcourt demonstration, (3) Jewett’s testimony about D.A.J.’s out-of-court verbal 

statements, and (4) Officer Samuelson’s testimony about D.A.J.’s out-of-court 

verbal statements. 

We must first address error preservation. Dessinger objected to Gully’s 

testimony about D.A.J.’s demonstration. So she properly preserved error on her

first hearsay claim. 

As to her other three hearsay claims, however, Dessinger did not object at 

trial. But she contends her objection to Gully’s testimony also preserves error

concerning Jewett’s testimony about the same demonstration, as well as testimony 

by Jewett and Officer Samuelson regarding D.A.J.’s verbal statements. We agree

in part. 

In State v. Kidd, our supreme court explained: “Once a proper objection has 

been made and overruled, an objector is not required to make further objections 

to preserve his [or her] right on appeal when a subsequent question is asked 

raising the same issue. Repeated objections need not be made to the same class 

of evidence.” 239 N.W.2d 860, 863 (Iowa 1976) (emphasis added); accord Gacke 

v. Pork Xtra, L.L.C., 684 N.W.2d 168, 181 (Iowa 2004) (“Here Pork Xtra’s attorney 
5

had previously objected to two witnesses’ testimony concerning the contents of the 

questionnaires and these objections had been overruled by the trial court. The 

defendant was not required to repeat its objection when DeWit was questioned 

concerning the content of the same questionnaires. Therefore, error was not 

waived.” (emphasis added)).

This principle has some application here. During Gully’s testimony, the 

court overruled the defense’s hearsay objection to Gully’s testimony about her 

“observations” of D.A.J.’s demonstration. And the court made it sufficiently clear 

that additional objections to the same sort of evidence would be “to no avail.” See 

Kidd, 239 N.W.2d at 863. So we believe the defense preserved error as to both 

Gully’s and Jewett’s testimony about D.A.J.’s non-verbal demonstration.

The same is not true, however, as to testimony about D.A.J.’s verbal

statements. The court did not overrule objections to that testimony. Rather, when

Gully testified about D.A.J.’s verbal statement, the court sustained the defense’s 

objection. And, as Professor Doré explains, “[t]he exception pertaining to 

objections to a class of evidence is . . . inapplicable where an objection is 

sustained. When this occurs, a proper objection must be interposed when the 

similar evidence is introduced.” 7 Laurie Kratky Doré, Iowa Practice Series: 

Evidence § 5.103:4 (Nov. 2019 update) (footnote omitted). So the defense was 

required to object to any further efforts to introduce D.A.J.’s verbal statements. By 

failing to do so, the defense waived hearsay arguments as to Jewett’s and Officer 
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Samuelson’s testimony regarding D.A.J.’s verbal statements.

1 See State v.

Tangie, 616 N.W.2d 564, 568–69 (Iowa 2000). 

So we turn to the only preserved issue—whether testimony about D.A.J.’s 

demonstration was inadmissible hearsay. Hearsay is an out-of-court statement 

that is “offer[ed] into evidence to prove the truth of the matter asserted in the 

statement.” Iowa R. Evid. 5.801(c).

2

 A statement may be an oral assertion, a 

written assertion, or nonverbal conduct intended to be an assertion. Iowa R. 

Evid. 5.801(a); accord State v. Mueller, 344 N.W.2d 262, 264–65 (Iowa Ct. App. 

1983) (noting testimony regarding some nonverbal conduct is hearsay). Hearsay 

is usually inadmissible unless an exception applies. See Iowa Rs. Evid. 5.802, 

5.803, 5.804. 

As a starting point, we conclude D.A.J.’s demonstration was a “statement”

because he was trying to communicate what Dessinger did to him. See Iowa R. 

Evid. 5.801(a)(2) (noting “[n]onverbal conduct, if intended as an assertion,” is 

considered a statement under the rule). And it appears the statement was offered 

“to prove the truth of the matter asserted,” namely, that Dessinger strangled D.A.J. 

Iowa R. Evid. 5.801(c).3 During Gully’s testimony, the following colloquy occurred:

 

1 Alternatively, Dessinger raises an ineffective-assistance claim to bypass error 

preservation. We discuss all of Dessinger’s ineffective-assistance claims below.

2 But see Iowa R. Evid. 5.801(d) (identifying some out-of-court statements, such 

as admissions by a party opponent, “that are not hearsay” even when offered for 

the truth of the matter asserted). 

3 As Professor Mauet and Justice Wolfson explain:

It is a mistake, for both judges and lawyers, to begin any analysis of 

an out-of[-]court statement with an assumption that hearsay is 

implicated and then to search for an applicable hearsay exception. 

There are too many kinds of out-of-court statements that are not 

hearsay. Hearsay is an out-of-court statement that is offered for its 
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Q. Now, . . . you indicated . . . that [D.A.J.] showed you what 

happened to him? A. Yes. I actually told [Jewett] what happened, 

but we all were right there.

Q. So you observed it? A. Yes.

Q. Could you tell us what you observed?

. . . .

Q. . . . . Could you tell us what you observed [D.A.J.]

demonstrating? A. He grabbed [Jewett] by her neck . . .

. . . .

Q. Okay. Would you characterize that as a choking. A. Yes.

So we readily conclude that testimony about D.A.J.’s demonstration was 

hearsay. See State v. Galvan, 297 N.W.2d 344, 347 (Iowa 1980).

The State contends, however, that either the present-sense-impression or 

the excited-utterance exception applies. See Iowa R. Evid. 5.803(1), (2). The 

State concedes these exceptions were never raised before or ruled on by the 

district court. So the State asks this court to “allow substantial leeway when 

considering alternate theories of admissibility.” See DeVoss v. State, 648 N.W.2d 

56, 62 (Iowa 2002) (noting general rule that we will not affirm on grounds not raised 

before trial court but noting an exception applicable to “evidentiary rulings, whether 

the error claimed involved rulings admitting evidence or not admitting evidence”). 

But Dessinger claims the record does not support application of either exception. 

See State v. Cagley, 638 N.W.2d 678, 681 (Iowa 2001) (noting the “proponent of 

the hearsay evidence[] has the burden of proving it falls within an exception to the 

hearsay rule”). 

 

truth. When an out-of-court statement is offered for any relevant 

purpose other than proving its truth, it is not hearsay.

Thomas A. Mauet & Warren D. Wolfson, Trial Evidence § 6.3 (7th ed. 2020); see 

also id. at § 6.2 (“Any analysis of an out-of-court statement must begin with this 

question: What is the purpose for offering the statement?”).
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We assume without deciding Dessinger is correct. Even so, we find the 

testimony about D.A.J.’s demonstration was merely cumulative. Therefore, even 

if no exception applies, admission of the testimony cannot justify reversal. 

“[A]dmission of hearsay evidence over a proper objection is presumed to be 

prejudicial error unless the contrary is affirmatively established.” State v. Elliott, 

806 N.W.2d 660, 669 (Iowa 2011) (alteration in original) (citation omitted). “The 

contrary is affirmatively established if the record shows the hearsay evidence did 

not affect the jury’s finding of guilt.” Id. “One way to show the tainted evidence did 

not have an impact on the jury’s verdict is to show the tainted evidence was merely 

cumulative.” Id.

As Dessinger acknowledges, the substance of D.A.J.’s demonstration was 

the same as D.A.J.’s verbal assertions. And, as explained, Jewett and Officer 

Samuelson testified without objection about D.A.J.’s verbal statements. So we find 

testimony about D.A.J.’s demonstration was merely cumulative. See id.; accord 

State v. McGuire, 572 N.W.2d 545, 547 (Iowa 1997) (“The erroneous admission of 

hearsay testimony is presumed to be prejudicial unless the contrary is established 

affirmatively; however, the court will not find prejudice if substantially the same 

evidence has come into the record without objection.”).

B. Confrontation Clause

Dessinger next argues her Confrontation Clause rights were violated. She 

mentioned this issue in her motion in limine and challenge to D.A.J.’s competency. 

But she admits no objections were made at trial. And the record shows the district 
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court never ruled on the issue. We find error was not preserved.4 See Tangie, 

616 N.W.2d at 568–69 (finding a Confrontation Clause claim waived because, 

despite the assertion in the motion in limine, the court did not rule on the issue and 

no objection was made at trial); see also State v. Vuong, No. 02-2097, 2003 WL 

22701354, at *2 (Iowa Ct. App. Nov. 17, 2003) (“Because he did not raise the 

confrontation issue to the district court, we conclude Vuong has failed to preserve 

error on the issue.”).

C. Ineffective-Assistance Claims

Next, Dessinger claims her trial counsel was ineffective in three ways.

5

 

First, as a fallback position to bypass error preservation issues, Dessinger 

contends trial counsel was ineffective for failing to raise hearsay objections 

concerning D.A.J.’s verbal statements. See State v. Fountain, 786 N.W.2d 260, 

263 (Iowa 2010) (“Ineffective-assistance-of-counsel claims are an exception to the 

traditional error-preservation rules.”). 

But competent trial attorneys may have valid strategic reasons to forgo 

some meritorious objections. Those reasons are not always obvious on direct 

appeal. So “[w]e prefer to reserve such questions for postconviction proceedings 

 

4 Alternatively, Dessinger raises an ineffective-assistance claim to bypass error 

preservation. We discuss all of Dessinger’s ineffective-assistance claims below.

5 We recognize Iowa Code section 814.7 was recently amended to provide in 

pertinent part: “An ineffective assistance of counsel claim in a criminal case shall 

be determined by filing an application for postconviction relief” and “shall not be 

decided on direct appeal from the criminal proceedings.” See 2019 Iowa Acts ch. 

140, § 31. In State v. Macke, however, our supreme court held these amendments 

“apply only prospectively and do not apply to cases pending on July 1, 2019.” 933 

N.W.2d 226, 235 (Iowa 2019). Therefore, we conclude the amendments “do not 

apply” to this case, which was pending on July 1, 2019. See id. Because the 

amendment is inapplicable, we need not address Dessinger’s alternative argument 

of applying plain error review.
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so the defendant’s trial counsel can defend against the charge.” Tate, 710 N.W.2d 

at 240. “This is particularly true where the challenged actions of counsel implicate 

trial tactics or strategy which might be explained in a record fully developed to 

address those issues.” State v. Rubino, 602 N.W.2d 558, 563 (Iowa 1999); see 

State v. Nuno, No. 17-1963, 2019 WL 1486399, at *5–6 (Iowa Ct. App. Apr. 3, 

2019). We believe that is the case here. So we preserve this claim.

Similarly, Dessinger claims counsel’s failure to raise Confrontation Clause 

objections constituted ineffective assistance. From this record, however, we 

cannot “discern the difference between improvident trial strategy and ineffective 

assistance.” State v. Ondayog, 722 N.W.2d 778, 786 (Iowa 2006). We preserve 

this claim as well. See id.

Finally, Dessinger alleges counsel was ineffective for failing to object to 

Officer Samuelson’s opinion testimony regarding the credibility of the allegation 

that D.A.J. had been abused. This record does not tell us why trial counsel chose 

not to object. See State v. Clay, 824 N.W.2d 488, 500–01 (Iowa 2012) (“Until the 

record is developed as to trial counsel’s state of mind, we cannot say whether trial 

counsel’s failure to object implicated trial tactics or strategy.”). We preserve this 

claim as well.

D. Reasonable-Ability-to-Pay Determination 

Finally, Dessinger contends the district court improperly ordered her to pay 

court costs and correctional fees. Under Iowa Code section 910.2(1)(a)(3) (2018), 

the district court may only order restitution for court costs, which includes 

correctional fees, after finding the defendant has a reasonable ability to pay. See 

Albright, 925 N.W.2d at 159. The district court did not make an ability-to-pay 
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determination as required. We vacate the restitution portion of the sentencing 

order and remand for resentencing consistent with Albright. See id. at 158–62.

IV. Conclusion

We affirm Dessinger’s conviction. But we vacate the restitution portion of 

her sentencing order and remand for resentencing.

CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND 

REMANDED FOR RESENTENCING.