IN THE COURT OF APPEALS OF IOWA

No. 15-1559

Filed October 11, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

MELVIN T. LUCIER,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Joel W. Barrows, 

Judge.

In this consolidated appeal, Melvin Lucier challenges three convictions for 

second-degree sexual abuse. AFFIRMED. 

Eric D. Tindal of Nidey Erdahl Tindal & Fisher, P.L.C., Marengo, for 

appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney 

General, for appellee.

Heard by Vaitheswaran, P.J., and Doyle and Bower, JJ.
2

VAITHESWARAN, Presiding Judge.

This is a consolidated appeal of two criminal judgments against Melvin 

Lucier. In the first case, a jury found Lucier guilty of second-degree sexual abuse 

of a five-year-old child. In the second case, a district court judge found Lucier 

guilty of two counts of second-degree sexual abuse of another young child. 

Lucier challenges his conviction in the first case on the grounds (A) a 

physician’s account of the child’s statements was inadmissible hearsay and (B) 

his trial attorney was ineffective in failing to raise a Confrontation Clause 

objection to the physician’s account of the child’s statements. He challenges his 

convictions in the second case on the grounds (A) the district court’s findings of 

fact were unsupported by sufficient evidence and (B) his trial attorney was 

ineffective in failing to seek the judge’s recusal. 

I. Case 1

The department of human services was called upon to investigate 

possible sexual abuse of the five-year-old child. The caseworker referred the 

child to Dr. Barbara Harre, a pediatrician specializing in child abuse. While Dr. 

Harre was examining the child’s genital area, the child blurted out, “Uncle Tom 

touched my pee pee.” When asked where she was touched, she “pointed to the

periclitoral area and also to the introital area or where a tampon would go into, 

that area.” In response to additional questions, she said she was touched 

“inside” with “fingers.” 

The defense filed a motion in limine to exclude Dr. Harre’s testimony. The 

State resisted in part on the ground that her testimony was admissible because it 

related to diagnosis and treatment. Following a pretrial evidentiary hearing at 
3

which Dr. Harre testified, the district court made a final ruling that Dr. Harre’s 

testimony would be admissible at trial. The child did not testify at trial; Dr. Harre 

did. 

A. Admission of Dr. Harre’s Statements

Lucier contends the district court erred in admitting the child’s hearsay 

statements through Dr. Harre. See State v. Smith, 876 N.W.2d 180, 184 (Iowa 

2016) (reviewing hearsay rulings for errors of law). The State responds with an 

error preservation concern. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 

2002) (“[I]ssues must ordinarily be both raised and decided by the district court 

before we will decide them on appeal.”). We find this concern unpersuasive. 

Lucier filed a motion in limine asking the court to exclude

[a]ny reference, direct examination or cross-examination of any 

medical professional or health care provider . . . which would relate 

any history given by the alleged victim that she was abused, or that 

would include naming the Defendant in any [manner]. . . or 

narrating in any form the sequence of events between the 

Defendant and the victim

on the ground, “The presentation of such evidence does not fall under the 

hearsay exception 5.803(4)” because, in part, “the truthfulness that comes with 

making statements to aid in diagnosis or treatment is not present.” As noted, the 

district court held an evidentiary hearing. At the hearing, the court allowed the 

prosecutor and defense counsel to make extensive legal argument and made a 

detailed oral ruling on the matter. We conclude error was preserved. We 

proceed to the merits of the district court’s ruling.

Hearsay is a statement “[t]he declarant does not make while testifying at 

the current trial or hearing” offered “into evidence to prove the truth of the matter 
4

asserted in the statement.” Iowa R. Evid. 5.801(c). Hearsay generally is not 

admissible. Iowa R. Evid. 5.802. Our evidentiary rules contain various 

exceptions, including one for statements “made for medical diagnosis and 

treatment.” Iowa R. Evid. 5.803(4). The exception imposes two requirements. 

Smith, 876 N.W.2d at 185. First, the statement must be “made for—and [be] 

reasonably pertinent to—medical diagnosis or treatment.” Iowa R. Evid. 

5.803(4). Second, the statement must describe “medical history, past or present 

symptoms or sensations, or the inception or general cause of symptoms or 

sensations.” Iowa R. Evid. 5.803(4). “These requirements track with the two-part 

test . . . adopted in State v. Tracy for establishing the admission of hearsay 

statements identifying a child abuser under the exception for medical diagnosis 

and treatment.” Smith, 876 N.W.2d at 185-86 (citing Tracy, 482 N.W.2d 675, 681 

(Iowa 1992)). “[F]irst[,] the declarant’s motive in making the statement must be 

consistent with the purposes of promoting treatment; and second, the content of 

the statement must be such as is reasonably relied on by a physician in 

treatment or diagnosis.” Tracy, 482 N.W.2d at 681 (quoting United States v.

Renville, 779 F.2d 430, 436 (8th Cir. 1985)).

Lucier contends the child’s “statements should have been found 

inadmissible” because “[t]here is no evidence in the record that [the child] 

comprehended that there was a need to tell the truth.” Dr. Harre acknowledged 

she did not ask the child whether she understood the difference between truth 

and lies. Dr. Harre focused on the child’s understanding of the purpose of the 

visit. At the evidentiary hearing on admissibility, Dr. Harre testified she was 

“more interested in [the child’s] understanding that” she was a physician and 
5

whether there was “anything that is uncomfortable or that is bothering her that we 

might need to help her address.” She stated the child understood that the 

purpose of the session was to help her. This was an appropriate consideration. 

See id. (stating statement must be consistent with the purposes of promoting 

treatment); see also Smith, 876 N.W.2d at 186 (stating “[t]he emotional and 

psychological injuries of such abuse are treated by the doctor along with the 

physical injury” (citing Tracy, 482 N.W.2d at 681)); State v. Hildreth, 582 N.W.2d 

167, 170 (Iowa 1998) (“[W]here a child’s statements are made during a dialogue 

with a health care professional and are not prompted by concerns extraneous to 

the patient’s physical or emotional problem, real or perceived, the first prong of 

the Renville test is satisfied.”); State v. Overstreet, No. 15-1704, 2016 WL 

7403728, at *6 (Iowa Ct. App. Dec. 21, 2016) (“Dr. Harre testified she believed 

T.O. was aware she was having this conversation with Dr. Harre to aid Dr. Harre 

in treating her. While we note Dr. Harre testified she did not instruct T.O. not to 

lie, there is no indication in the record T.O.’s motive in making the statements to 

Dr. Harre ‘was other than as a patient responding to a doctor’s questioning for 

prospective treatment.’ We conclude the statements fall within the rule 5.803(4) 

exception.” (emphasis added) (quoting Tracy, 482 N.W.2d at 681)); State v.

Woolison, No. 01-1071, 2003 WL 1966446, at *2 (Iowa Ct. App. Apr. 30, 2003)

(stating child’s “statements to his health care providers were ‘made during a 

dialogue with a health care professional’ and were ‘not prompted by concerns 

extraneous to the patient’s physical or emotional problem.’” (citation omitted)). 

Lucier also contends Dr. Harre “was acting more in line with the role of an 

investigator rather than a treating physician,” rendering the exception 
6

inapplicable. He notes the case was referred to Dr. Harre by the department of 

human services, Dr. Harre “did not follow up concerning therapy, nor did she 

perform therapy”; and “[f]ollowing Dr. Harre’s meeting with [the child,] a report 

was sent to the Scott County Attorney’s office.” 

This court rejected the identical contention in Woolison. We stated:

A review of Dr. Harre’s testimony and description of her job function 

demonstrates that she makes medical assessments, identifies 

illness and injury, and recommends treatment in cases such as this. 

She clearly qualifies as health care professional, and her 

conversation with [the child] was for the purpose of promoting 

treatment.

Woolison, 2003 WL 1966446, at *2. Dr. Harre’s detailed testimony about her 

protocol in child abuse cases and her application of the protocol during her 

interaction with this child lead us to reach the same conclusion here.

We affirm the district court’s admission of the child’s hearsay statements 

under the medical treatment or diagnosis exception to the hearsay rule.

B. Confrontation Clause

Lucier contends his trial attorney was ineffective in failing to raise a 

Confrontation Clause objection to the admission of the child’s statements.1 To 

prevail, Lucier must show (1) counsel breached an essential duty and (2) 

prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687 (1984). The 

record is adequate to address the issue. State v. Straw, 709 N.W.2d 128, 133 

(Iowa 2006). 

 

1 We note some discussion about the Confrontation Clause by the district court, but in 

the absence of an explicit ruling, we find it appropriate to review this claim under an 

ineffective-assistance-of-counsel rubric.
7

The Iowa Supreme Court considered this issue in a case involving virtually 

identical facts and the same physician. In re J.C., 877 N.W.2d 447, 452 (Iowa 

2016). There, the court held the admission of Dr. Harre’s testimony and report 

did not violate the defendant’s rights of confrontation under the Sixth Amendment 

to the United States Constitution. Id. at 456 (citing Ohio v. Clark, 135 S. Ct. 

2173, 2182 (2015)). Lucier acknowledges J.C. is controlling but argues the 

opinion was “incorrectly decided.” We are not at liberty to ignore concededly 

controlling precedent. In light of J.C., we conclude Lucier’s attorney did not 

breach an essential duty in failing to make a Confrontation Clause challenge to 

the district court’s admission of the child’s statements through Dr. Harre. 

II. Case 2

As noted, another young child was the subject of the second set of 

charges against Lucier. Following a bench trial, the district court found him guilty 

of two counts of second-degree sexual abuse.

A. Sufficiency of the Evidence

Lucier contends the evidence is insufficient to establish he committed a 

sex act on the child and more than one sex act occurred. Our review of a district 

court’s fact findings following a bench trial is for substantial evidence. See State 

v. McFadden, 320 N.W.2d 608, 614 (Iowa 1982).

The district court set forth the elements of second-degree sexual abuse as 

follows: “1. During the years 2011 or 2012, the defendant performed a sex act 

with [the child]. 2. The defendant performed the sex act while [the child] was 

under the age of 12 years.” See Iowa Code §§ 709.1, 709.3(1)(b) (2014). The 

court further noted: “A ‘sex act’ means any sexual contact: . . . 4. Between the 
8

finger or hand of one person and the genitals or anus of another person.” See id. 

§ 702.17. The court found “there was contact between the defendant’s hand and 

the genitals or anus of [the child]” and “the defendant performed numerous sex 

acts with [the child] during the time frame of 2011 to 2012.” Both findings are 

supported by substantial evidence. 

The child testified, identifying the parts of Lucier’s body that touched hers 

and the parts of her body that were touched by Lucier. The district court found 

her testimony “credible.” We give weight to this credibility finding. State v.

DeWitt, 811 N.W.2d 460, 476 (Iowa 2012) (“[C]redibility determinations are an 

essential function of the fact finder.”). A detective with the Scott County sheriff’s 

office also testified to an interview he had with Lucier. According to the officer, 

Lucier admitted he touched this child “roughly 50 times.” This testimony amounts 

to substantial evidence in support of the district court’s fact findings. 

B. Recusal 

Lucier contends his trial attorney was ineffective in failing to ask the district 

court judge to recuse himself from his bench trial after presiding over his jury trial. 

We find the record adequate to address this issue. 

At a hearing on Lucier’s waiver of his right to a jury trial, the district court 

engaged in the following colloquy with Lucier: 

THE COURT: Couple of other things that I want go over here 

with you, Mr. Lucier, that aren’t just in the normal colloquy just to 

establish this for the record and make sure that you’re considering 

that. Obviously, you’re aware that I heard the trial that started on 

July 13th and was the presiding judge in that case, correct?

LUCIER: Yes, Your Honor.

THE COURT: All right. And you understand that I am 

generally aware of the evidence in this case as well as the subject 
9

matter of the motions here today and your prior convictions. You’re 

aware of that, right?

LUCIER: Yes, Your Honor.

THE COURT: Okay.

. . . .

THE COURT: . . . . All right. Mr. Lucier, then after going

through all of this, do you still wish to waive your right to a jury trial?

LUCIER: Yes, Your Honor.

In light of Lucier’s answers, we conclude counsel did not breach an essential 

duty in failing to seek the judge’s recusal on the ground the judge had presided 

over the first trial.

We affirm Lucier’s convictions in both cases.

AFFIRMED.