State of Iowa v. Lynn Melvin Lindaman

In the Iowa Supreme Court

No. 24–0769

Submitted September 10, 2025—Filed December 23, 2025

State of Iowa,

Appellee,

vs.

Lynn Melvin Lindaman,

Appellant.

Appeal from the Iowa District Court for Polk County, Charles C. Sinnard

(motion to suppress) and David Nelmark (trial), judges.

The defendant appeals from his conviction for sexual abuse in the second

degree, and the State cross-appeals seeking review of the district court’s order

suppressing evidence of the defendant’s confession. Affirmed in Part, Reversed

in Part, and Case Remanded.

McDonald, J., delivered the opinion of the court, in which Oxley,

McDermott, and May, JJ., joined. Oxley, J., filed a concurring opinion, in which

McDermott, J., joined, and Waterman, J., joined as to part I. Waterman, J., filed

a dissenting opinion, in which Christensen, C.J., joined. Mansfield, J., took no

part in the consideration or decision of the case.

Lucas Taylor (argued) of LT Law, Des Moines, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven (argued), Assistant

Attorney General, for appellee.  2

McDonald, Justice.

Lynn Lindaman was convicted of sexual abuse in the second degree,

enhanced, in violation of Iowa Code sections 709.3(1) and 901A.2(3) (2023),

arising out of the abuse of his granddaughter. We address five issues raised in

this direct appeal and cross-appeal from that conviction. First, whether there is

sufficient evidence to sustain the conviction. Second, whether Lindaman’s state

constitutional right to confront the witnesses against him was violated when the

district court allowed the complaining witness to testify at trial via one-way

closed-circuit television. Third, whether the district court erred in concluding

that the marital communications privilege did not preclude Lindaman’s former

spouse from testifying about the statements Lindaman made to her after he was

confronted with the allegation that he abused his granddaughter. Fourth,

whether the investigating officers violated Lindaman’s statutory right to make a

phone call to a family member, an attorney, or both without unreasonable delay

upon arrival at the place of detention. Fifth, whether the investigating officers

violated Lindaman’s right to the assistance of counsel when they questioned

Lindaman after he requested to have a lawyer present.

I.

This case concerns the conviction of Lynn Lindaman for the sexual abuse

of his seven-year-old granddaughter, H.K. On June 27, 2023, H.K. and her

brother rode their bikes to visit their grandparents, who lived nearby. Lindaman

was there alone. H.K. testified she liked cats, and she liked playing with her

grandparents’ cats. While her brother was in a different room, H.K. asked

Lindaman to give her a belly rub like a kitten. She said to him, “Meow, I want a

belly rub.” She testified that Lindaman started to rub her belly and then “he got

a little low.” He told her to take off her clothes. She felt like she was being forced;  3

she took off her skirt and underwear. She testified that Lindaman touched her

vagina with his hand. He rubbed “it in a circle” with his fingers. She testified

that, while this was occurring, she heard her brother’s footsteps approaching

where she and Lindaman were. The sound of her brother’s approaching footsteps

caused an interruption. She testified that she then said she was “done with this”

and put her clothes back on. She testified that she and Lindaman then went into

the kitchen. Lindaman said, “Don’t tell anyone about this, especially your

mother.” She thought, “[T]hat’s suspicious.” She and her brother then went

home.

Later that evening, H.K., her parents, and her siblings went to Lindaman’s

house to visit, as they frequently did. H.K.’s parents picked up food from a local

food truck and walked to the Lindamans’ home. The children, including H.K.,

had biked ahead of them. When H.K. got to the house, she asked Lindaman, “Do

we have to keep this secret?” and he said, “Yes.” She said, “Geesh.” Later, while

eating outside on the patio, H.K. told the group what had happened earlier in

the day. She testified:

My mind said, I can’t hold this in. We should say it out loud. This is right. So I listened to my mind. While everyone was talking and eating, I sat next to my brothers, and I’m like, “Hey, everyone, stop what you’re doing. Grandpa touched my private part.” And then everyone was like, “Excuse me, what?” I’m like, “Grandpa touched my private part.” My dad got up and threw the chair kind of across from him, and my dad was like, “What?”

Lindaman was inside the home when H.K. made her statement. H.K.’s

father went inside the home and confronted Lindaman. H.K.’s father testified

that Lindaman said, “ ‘Hold on,’ or ‘Let me explain,’ something to that effect, and

‘[H.K.] was exploring her sexuality.’ ” H.K.’s father shoved Lindaman to the

ground. After a moment, Lindaman got up and told H.K.’s parents to leave the

house. They did, and they went home. Lindaman’s wife, Anne, confronted  4

Lindaman after everyone had left the home. She testified, over Lindaman’s

objection, that Lindman admitted to “rubbing [H.K.’s] belly like a kitten.”

Lindman told Anne that “he was trying to help [H.K.] explore her sexuality in a

safe place.”

H.K.’s father, who was a police officer with the Ankeny Police Department,

called his on-duty supervisor. Law enforcement officers arrived at his house, and

H.K.’s parents reported the incident. Law enforcement officers obtained an arrest

warrant. Because H.K.’s father was employed by the Ankeny Police Department,

the Iowa Department of Public Safety, Iowa Division of Criminal Investigation

(DCI), was asked to take the lead in the case.

Peace officers executed the arrest warrant the next day at an auto service

center where Lindaman was getting his car serviced. They informed Lindaman

they were investigating allegations made by H.K. and asked if he would talk.

Lindaman replied, “I’d probably like to have my lawyer present.” DCI Special

Agent Laura Myers informed Lindaman he was under arrest and handcuffed him.

At some point during this interaction, Lindaman asked if he could make a phone

call to cancel a previously scheduled haircut appointment. The officers did not

allow him to make the phone call because they had seized his phone as evidence.

Another peace officer then told Lindaman, “If you at any time change your mind,

and you wish to speak to us, we’re willing to talk to you. Okay?” Lindaman asked,

“If I talk to you now, . . . I don’t have to go to the police station?” Special Agent

Myers responded that he would still be under arrest and taken to the station

regardless, reiterated that they would like to talk to him, but acknowledged that

he had asked for an attorney. Lindaman then stated, “I can talk to you right now,

I guess.” The arresting officers told Lindaman to wait, and they transported him

to the station.  5

Upon arriving at the station, Special Agent Myers and Ankeny Detective

Betsy Anderson escorted Lindaman to a “soft” interview room. The room had a

table, chairs, a loveseat, and an end table next to the loveseat. On top of the end

table was a phone and a phone book. The officers asked Lindaman to have a

seat, and he replied that he needed his handcuffs taken off. One of the officers

asked Lindaman to turn away from her so she could take off his handcuffs. When

Lindaman turned away, he faced directly toward the end table, phone, and phone

book for the next forty seconds while the officer uncuffed him. After the officer

uncuffed Lindaman, he sat on the loveseat within arm’s reach of the phone and

phone book.

After Lindaman was seated next to the phone, the second officer asked

Lindaman if he needed anything. Lindaman stated, “I’d just like my phone to call

my wife and cancel my appointment.” Presumably, this referred to his previously

mentioned haircut appointment. The officer told Lindaman, “You probably can’t

have your phone but you can definitely make a phone call, okay?” As the officer

made the statement, she made a small gesture with her hands toward the phone

on the end table next to Lindaman. Lindaman took no action.

After several seconds of silence while the officers were getting situated and

looking through some papers, the officers engaged with Lindaman. One officer

read him his Miranda rights. After being advised of his Miranda rights, Lindaman

signed a written waiver of his rights and agreed to speak to the officers. Over the

next hour, Lindaman gave a detailed, clinical confession. Lindaman explained

that H.K. wanted a belly rub and that he gave her one. He stated that H.K. told

him to go lower, “down there.” He admitted to massaging H.K.’s genitals and

rubbing her breasts.  6

When the officers concluded the interview, they left Lindaman in the soft

interview room unattended for approximately fifty minutes. During that time,

Lindaman sat and fidgeted. He turned the phone book and looked at the cover,

but he never looked through it. He looked at the phone on the end table, but he

did not try to make a phone call.

Lindaman was charged with sexual abuse in the second degree. The case

was tried to a jury, but the jury did not hear evidence of Lindaman’s confession.

Prior to trial, Lindaman moved to suppress evidence of his confession on two

grounds. First, he argued that he invoked his statutory right under Iowa Code

section 804.20 to call counsel or a family member at the police station and that

the officers did not honor that right by permitting him to make a call. Second,

Lindaman argued that the officers violated his constitutional right to counsel by

questioning him after he requested to have an attorney. The district court found

that the officers violated Lindaman’s statutory right to make a phone call but not

his constitutional right to counsel. As a remedy for the statutory violation, the

district court suppressed evidence of Lindaman’s confession. Even without the

confession, the jury found Lindaman guilty as charged.

Lindaman timely filed this appeal, and the State timely filed a cross-

appeal. As noted above, we address five issues material to the resolution of this

case. First, whether there is sufficient evidence to sustain the conviction. Second,

whether the district court erred in allowing the complaining witness to testify at

trial via one-way closed-circuit television. Third, whether the district court erred

in allowing Lindaman’s former spouse to testify about statements Lindaman

made to her. Fourth, whether the investigating officers violated Lindaman’s

statutory right to make a phone call upon arrival at the place of detention. Fifth,  7

whether the investigating officers violated Lindaman’s right to the assistance of

counsel.

II.

Lindaman challenges the sufficiency of the evidence supporting his

conviction. This court reviews challenges to the sufficiency of the evidence for

the correction of errors at law. State v. Mathis, 971 N.W.2d 514, 516 (Iowa 2022).

In reviewing the sufficiency of the evidence, we are highly deferential to the jury’s

verdict. State v. Jones, 967 N.W.2d 336, 339 (Iowa 2021). The jury’s verdict binds

this court if it is supported by substantial evidence. Id. Substantial evidence is

that quantum and quality of evidence sufficient to convince a rational trier of

fact the defendant is guilty beyond a reasonable doubt. See id. In determining

whether the jury’s verdict is supported by substantial evidence, we view the

evidence in the light most favorable to the State, including all legitimate

inferences and presumptions that may fairly and reasonably be deduced from

the record evidence. Id.

Viewing the evidence in the light most favorable to the verdict, we find

substantial evidence supports Lindaman’s conviction. Where, as here, the

defendant does not object to the marshaling instructions, the unobjected-to

instructions are the law for the purpose of reviewing the sufficiency of the

evidence. Mathis, 971 N.W.2d at 518. The jury was instructed that the State was

required to prove: (1) “the defendant performed a sex act with H.K.,” and (2) “[t]he

defendant performed the sex act while H.K. was under the age of fourteen (14)

years.” The jury was instructed that the term “sex act,” as relevant here, “means

any sexual contact . . . [b]etween the finger or hand of one person and the

genitals or anus of another person.” H.K. testified to the specific act of sexual

abuse and being under the age of fourteen at the time of the abuse. Under Iowa  8

law, an alleged victim’s testimony need not be corroborated and can by itself

constitute substantial evidence to sustain a conviction. See Iowa R. Crim. P.

2.21(3) (“Corroboration of the testimony of victims shall not be required.”);

Mathis, 971 N.W.2d at 519 (concluding the alleged victim’s testimony itself was

substantial evidence sufficient to sustain conviction). We conclude H.K.’s

testimony is sufficient to sustain the conviction.

Although corroboration is not required, substantial evidence in the record

does in fact corroborate H.K.’s testimony. H.K.’s father immediately confronted

Lindaman after H.K. accused him of touching her, and Lindaman stated he was

helping H.K. explore her sexuality. Lindaman told his wife Anne the same thing.

H.K. underwent a physical exam the day after telling her parents about the

alleged abuse. Nurse practitioner Jennifer Schossow testified H.K. had notable

redness in the hymenal area consistent with digital penetration or rubbing,

which was confirmed by photographic evidence.

Lindaman launches several attacks on H.K.’s credibility, arguing, among

other things, that there was no physical evidence of the abuse, that there were

no eyewitnesses to the abuse, that H.K.’s testimony was too specific to be

authentic, and that H.K.’s testimony may have been influenced by the prosecutor

or her parents. Lindaman misperceives our role. The jury is the sole arbiter of

witness credibility. As we have said before, appellate review is “not the trial

redux.” Mathis, 971 N.W.2d at 519. “In considering a challenge to the sufficiency

of the evidence, ‘[i]t is not the province of the court . . . to resolve conflicts in the

evidence, to pass upon the credibility of witnesses, to determine the plausibility

of explanations, or to weigh the evidence; such matters are for the jury.” Id.

(alteration and omission in original) (quoting State v. Musser, 721 N.W.2d 758,  9

761 (Iowa 2006)). The jury weighed these matters and was entitled to find H.K.’s

testimony credible. We will not second-guess the jury’s credibility determination.

III.

We next address Lindaman’s state confrontation clause claim. Prior to

trial, the State moved to allow H.K. to testify via closed-circuit testimony

pursuant to Iowa Code section 915.38. As relevant here, that statute provides:

Upon its own motion or upon motion of any party, a court may protect a minor, as defined in section 599.1, from trauma caused by testifying in the physical presence of the defendant where it would impair the minor’s ability to communicate, by ordering that the testimony of the minor be taken in a room other than the courtroom and be televised by closed-circuit equipment for viewing in the courtroom. However, such an order shall be entered only upon a specific finding by the court that such measures are necessary to protect the minor from trauma.

Id. § 915.38(1)(a). Lindaman timely objected to the State’s motion and argued

that allowing H.K. to testify via closed-circuit television violated his right to

confront the witnesses against him as protected by article I, section 10 of the

Iowa Constitution. The district court overruled Lindaman’s objection and granted

the State’s motion. Lindaman contends that this was reversible error.

Our recent decision in State v. White, 9 N.W.3d 1 (Iowa 2024), controls this

issue. At the time the state constitution was adopted, the right of the criminally

accused to confront the witnesses against him was a right to face-to-face

confrontation with the witnesses. Id. at 7; see also Coy v. Iowa, 487 U.S. 1012,

1016 (1988) (explaining the Supreme Court has “never doubted” that the

confrontation right “guarantees the defendant a face-to-face meeting with

witnesses appearing before the trier of fact.”); Pennsylvania v. Ritchie, 480 U.S.

39, 51 (1987) (“The Confrontation Clause provides two types of protections for a

criminal defendant: the right physically to face those who testify against him,

and the right to conduct cross-examination.”). In White, we concluded that  10

allowing a witness to testify against the defendant via one-way closed-circuit

television violated the accused’s state constitutional right to confront the

witnesses against him. 9 N.W.3d at 9. That holding is controlling here.

The State concedes that White controls the outcome here, but it argues

that this court should overrule White. The State first argues that the state

constitutional right of the criminally accused to face-to-face confrontation of the

witnesses against him is only a constitutional preference. White considered and

rejected that argument, and we adhere to our prior decision; after all, article I of

the Iowa Constitution is entitled “Bill of Rights,” not “Bill of Preferences.” Our

founders believed that the criminal procedures in place during their time were

so protective of liberty that they constitutionalized those procedures in a bill of

rights to prevent the government from limiting those protections by ordinary

legislation. In Iowa, the criminally accused must be informed of the accusation

against him. Iowa Const. art. I, § 10. He is entitled to a copy of the charging

document. Id. He is entitled to have the assistance of counsel for his defense. Id.

He is entitled to a speedy and public trial. Id. He is entitled to a trial in front of

an impartial jury. Id. He is entitled to have compulsory process to call witnesses

for him at that trial. Id. And, as we explained in White, he is entitled to confront

face-to-face the witnesses called against him at trial. See id.; White, 9 N.W.3d

at 9.

Beyond contravening the confrontation clause, the procedure in

section 915.38 is in significant tension, if not outright conflict, with a

foundational principle of our criminal justice system: the constitutional

presumption of innocence. The presumption of innocence is the “bedrock

‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation

of the administration of our criminal law.’ ” In re Winship, 397 U.S. 358, 363  11

(1970) (quoting Coffin v. United States, 156 U.S. 432, 453 (1895)). “It is

fundamental that every man is presumed to be innocent when placed on trial

until proved to be guilty.” State v. Jones, 144 N.W.2d 120, 122 (Iowa 1966)

(quoting State v. Burns, 165 N.W. 346, 348 (Iowa 1917)). The defendant is

entitled to that legal presumption “throughout the entire trial.” State v. Delanty,

230 N.W. 436, 437 (Iowa 1930) (quoting State v. Smith, 224 N.W. 594, 594 (Iowa

1929)). “No presumption that he is guilty at any time exists.” Id. (quoting Smith,

224 N.W. at 594) The nature of the case or the strength of the evidence against

the defendant does not change the presumption. State v. Meyer, 163 N.W. 244,

247 (Iowa 1917). “The presumption of innocence is the same in all cases,” and it

“shields every person” whatever the nature of the case and despite the strength

of the evidence against the accused. Id. Specifically, the defendant must “be

presumed innocent of the fact—the act charged.” Andre v. State, 5 Iowa (Clarke)

389, 398 (1857). Under our constitution, all criminal defendants are entitled to

the same type of trial regardless of the strength of the evidence against them.

The district court, however, denied Lindaman the trial afforded to all other

criminal defendants, and it did so precisely because it made a preliminary finding

of guilt. The State called mental health counselor Amanda Rennolet in support

of its motion to have H.K. testify outside Lindaman’s physical presence. Rennolet

testified that Lindaman had in fact abused H.K. and that the fact of abuse would

cause H.K. to suffer trauma in Lindaman’s physical presence. In an opinion letter

admitted as an exhibit during the pretrial hearing on the State’s motion,

Rennolet opined that H.K. experienced trauma “as a result of the abuse,” that

she was a “victim of nonparental child sexual abuse,” that testifying would

increase H.K.’s risk of “posttraumatic stress disorder,” that the sexual abuse

would have “lasting effects regardless of when it occurred,” that H.K. had a  12

“significantly higher risk of developing trauma because of the abuse,” and that

her “[h]ealthy boundaries” had been “fractured and broken” by “her own

grandfather.” The district court credited Rennolet’s testimony and found H.K.

would be traumatized by testifying in Lindaman’s physical presence. The district

court then ordered that there be a different type of trial in this case than in other

criminal cases—the complainant would get to testify outside the physical

presence of the accused and the jury—because it found before trial that

Lindaman had in fact committed the crime charged.

The State argues that section 915.38 is not in tension with the

presumption of innocence because the district court did not make a finding that

abuse in fact occurred but instead made a finding that the alleged victim would

be traumatized from being in the presence of the defendant. The State’s

distinction does not hold—implicit in a finding that a witness would be

traumatized by being in the presence of the defendant is a finding that the

defendant in fact committed the crime.

The State responds that a finding of guilt is not implicit because the victim

may incorrectly believe that they were abused. When asked about this during

oral argument, the State explained that section 915.38 does not require a finding

that abuse occurred because it does not rule out the possibility that the victim

believes the abuse occurred and is incorrect. In other words, according to the

State, section 915.38 is not in tension with the presumption of innocence

because it applies to the testimony of false accusers (persons who have not been

the victim of any crime and leveled false charges for nefarious motives) and

incorrect accusers (persons who may have been the victim of some act not

constituting a crime or persons who have been the victim of a crime but identified

the wrong person).  13

The State’s argument is troubling when conjoined with the State’s next

argument for overturning White. In the State’s view, allowing a witness to testify

outside the presence of the defendant enhances the “ability to communicate (and

testify).” According to the State, the witness would be relieved of the

psychological pressures inherent to being in the physical presence of the accused

and the jury, which would allow the witness to provide better, more convincing

testimony. But what if the better, more convincing testimony was false or

incorrect? Better, more convincing testimony is not the same thing as truthful

or accurate testimony. In the case of false or incorrect accusations, per the

State’s argument, section 915.38 increases the risk of wrongful convictions by

making the false or incorrect accusations more convincing.

Our founders recognized the very real risk of false testimony or incorrect

testimony infecting a criminal trial, and they constitutionalized the right of face-

to-face confrontation to guard against that specific risk:

Only the combination of all of these elements of confrontation— including face-to-face testimony—fully protects a defendant’s [right of confrontation].

Our founders presumably believed that accusers would be more reluctant to make false accusations when they were in the personal presence of the accused. “A witness ‘may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts.’ ” Technology has changed since the late eighteenth century, but human nature has not.

State v. Rogerson, 855 N.W.2d 495, 504 (Iowa 2014) (citation omitted) (quoting

Coy, 487 U.S. at 1019); see also Coy, 487 U.S. at 1017 (“[T]here is something

deep in human nature that regards face-to-face confrontation between accused

and accuser as ‘essential to a fair trial in a criminal prosecution.’ ” (quoting

Pointer v. Texas, 380 U.S. 400, 404 (1965))).  14

Our rules of constitutional criminal procedure are designed in the main to

protect the innocent and minimize the prospect of wrongful conviction. Like our

founders, we are not naïve of or indifferent to the costs of these protections.

Constitutional rights designed to protect the innocent increase the difficulty of

convicting the guilty. That is part of the constitutional design. The light of the

constitution shines equally on the evil and the good and the just and the unjust.

This choice reflects the “fundamental value determination of our society that it

is far worse to convict an innocent man than to let a guilty man go free.” Schlup v.

Delo, 513 U.S. 298, 325 (1995) (quoting In re Winship, 397 U.S. at 372 (Harlan,

J., concurring)). As this court long ago explained:

To protect the innocent, and punish the guilty, are the two great objects to be kept in view in the administration of criminal jurisprudence. While, upon the one hand, the law will hold the offender to a strict accountability, it should, upon the other, extend to the accused all possible facilities for a fair, full, and impartial trial. And as the accused is always presumed innocent until convicted, no course should be adopted that would deprive him of that fair trial so humanely secured to him by law.

Ray v. State, 1 Greene 316, 318 (Iowa 1848).

The State makes another argument in favor of overruling White. The State

argues White is bad policy because “White traumatizes victims every single time

it applies.” Factually, the argument rests on a false premise. The assertion that

White inflicts trauma in “every single” case is incorrect for a variety of reasons.

Most relevant here, as the State explained during oral argument, some cases

involve false accusers who, presumably, would not actually be traumatized by

giving false testimony in the defendant’s presence. We do not suggest that this

case is such a case, but the risk of wrongful conviction in this category of cases

is nonetheless real. See generally Jessica S. Henry, Smoke but No Fire: When

Innocent People Are Wrongly Convicted of Crimes That Never Happened, 55 Am.  15

Crim. L. Rev. 665 (2018) (examining data from the national exonerations

database, discussing the distinction between wrongful convictions for a crime

that actually happened and wrongful convictions for crimes that never occurred,

and explaining that one third of exonerations involve the latter category,

including false accusations of sex abuse).

Legally, the State’s (and the dissenting opinion’s) policy concern is not

material to the constitutional question presented. We do not minimize the

potential emotional distress a witness might suffer upon being required to

confront a defendant to prosecute a crime, but this concern was known to the

framers of our constitution, and they nonetheless decided upon confrontation as

the critical mechanism for the exposure of false or incorrect criminal accusation.

See Rogerson, 855 N.W.2d at 504. As judges, we are not at liberty to subordinate

that constitutional determination to legislative policy preferences.

The state constitution is “the supreme law of the state, and any law

inconsistent therewith, shall be void.” Iowa Const. art. XII, § 1. More specifically,

“This Constitution,” i.e., the state constitution as adopted in 1857, is “the

supreme law of the state, and any law inconsistent therewith, shall be void” Id.

The original, fundamental law of the constitution as ratified by the people

remains the law until amended. “The age of the Constitution may develop

conditions which make it desirable to amend it; until amended, it is a holy

covenant, which judges are not at liberty to emasculate by urging a species of

statute of limitation.” Hunter v. Colfax Consol. Coal Co., 154 N.W. 1037, 1047

(Iowa 1915).

The original law of the 1857 state constitution binds the legislature in the

same way it binds the judiciary:

To make sure that there could be no dodging of the fact that the Constitution of the state is in all parts of its acts supreme, it is  16

provided in section 1 of article 12: “This Constitution shall be the supreme law of the State, and any law inconsistent therewith, shall be void. The General Assembly shall pass all laws necessary to carry this Constitution into effect.”

Our Constitution makers wanted to make sure that this would be the rule adopted. It announced to the people, “We are turning the power of the State over to the legislature, but turning it over under the conditions named,” and so when the Legislature passes any act inimical to any section of the Constitution, that Legislature is exceeding its power and its right, and is in the same position that any other agent would be, in exceeding power, i.e., have the act in excess of the power conferred declared void.

Duncan v. City of Des Moines, 268 N.W. 547, 553 (Iowa 1936); see also C. C. Taft

Co. v. Alber, 171 N.W. 719, 720 (Iowa 1919) (“[T]he provisions of our Constitution

are mandatory, and their mandates bind as closely and as firmly the legislative

branch of the government as they do the citizen of the commonwealth. The

legislative branch must obey the Constitution or fundamental law, and must

follow and obey its requirements and directions.”). “[I]n no conceivable case may

the just judge give effect to legislation which clearly violates the fundamental

law. None but foresworn judges will yield in these to any degree of necessity, or

pressure of public opinion, or disregard the Constitution because it was created

in the eighteenth or nineteenth century.” Hunter, 154 N.W. at 1047.

For these reasons, we adhere to White. Section 915.38(1) clearly and

palpably violates the fundamental law of the state constitution, and the district

court erred in allowing H.K. to testify outside the defendant’s presence. The State

requests that we remand this matter for a harmless error determination. We

decline to do so. Harmless error review is an appellate function used to determine

whether relief is appropriate under the circumstances. See Knowles v. State, 848

So. 2d 1055, 1058 (Fla. 2003). We have conducted harmless error review, and  17

we conclude the error was not harmless. We thus remand this case for a new

trial.

IV.

Lindaman raises several additional issues in support of his claim that he

is entitled to a new trial. Lindaman contends that he is entitled to a new trial

due to prosecutorial misconduct. Specifically, he contends that the prosecutor

and H.K.’s father improperly coached H.K. in preparing her testimony and that

the prosecutor failed to timely disclose the allegedly improper coaching of H.K.

Lindaman also contends the district court erred in denying his motion to change

venue due to pretrial publicity. Additionally, Lindaman claims that the district

court erred in denying his motion for a mistrial based on prior bad acts

testimony. Because we have already concluded that Lindaman is entitled to a

new trial, we need not address any of these additional issues. They are

immaterial, are unlikely to reoccur on remand, or have already been remedied

by the grant of a new trial.

V.

We next address Lindaman’s argument regarding the marital

communications privilege. The district court allowed Lindaman’s wife, Anne, to

testify about the statements Lindaman made to her when she confronted him

about the allegation of sexual abuse. Lindaman claims this conversation was a

privileged marital communication not subject to any exception. Because this

issue is material and likely to reoccur upon any retrial of this matter, we address

it now. See State v. Dudley, 856 N.W.2d 668, 679 (Iowa 2014). “We review rulings

on the admissibility of allegedly privileged communications for abuse of

discretion. We review rulings interpreting a statutory privilege for correction of  18

errors at law.” Slaughter v. Des Moines Univ. Coll. of Osteopathic Med., 925

N.W.2d 793, 800 (Iowa 2019) (citation omitted).

Iowa Code section 622.9 generally prohibits married partners from

testifying about confidential communications made between them during the

course of the marriage. The statute provides, “Neither husband nor wife can be

examined in any case as to any communication made by the one to the other

while married, nor shall they, after the marriage relation ceases, be permitted to

reveal in testimony any such communication made while the marriage

subsisted.” Id. The statute codifies a common law privilege grounded on the

policy of encouraging free and open communication between spouses. See

Sexton v. Sexton, 105 N.W. 314, 315 (Iowa 1905).

The marital communications privilege is not absolute. The legislature has

determined that the public interest in protecting children from abuse outweighs

the benefits of the marital communications privilege. Iowa Code section 232.74

thus establishes a statutory exception to the privilege for testimony “regarding a

child’s injuries or the cause of the injuries in any judicial proceeding, civil or

criminal, resulting from a report pursuant to [chapter 232] or relating to the

subject matter of such a report.”

Because the spouse’s testimony must result from or relate to the subject

matter of a report of child abuse, those provisions defining child abuse limit the

scope of the exception. State v. Anderson, 636 N.W.2d 26, 32 (Iowa 2001). The

Code enumerates eleven categories of conduct that constitute “child abuse.” Iowa

Code § 232.68(2)(a). Each requires the abuse be at the hands of a person  19

“responsible for the care of the child.” Id.1 The Code defines “person responsible

for the care of a child” to include:

a. A parent, guardian, or foster parent.

b. A relative or any other person with whom the child resides and who assumes care or supervision of the child, without reference to the length of time or continuity of such residence.

c. An employee or agent of any public or private facility providing care for a child, including an institution, hospital, health care facility, group home, mental health center, residential treatment center, shelter care facility, detention center, or child care facility.

d. Any person providing care for a child, but with whom the child does not reside, without reference to the duration of the care.

Id. § 232.68(8). Both parties acknowledge paragraph (d) is the only potentially

applicable provision here.

Lindaman’s argument regarding the statute is very technical. The day after

the alleged abuse occurred, Ankeny police reported the incident in a “Suspected

Child Abuse Reporting Form,” which prompted the investigation, and ultimately,

this proceeding. Lindaman argues that, whatever the name of the report, he did

not commit child abuse within the meaning of the statute. According to him, he

was only supervising H.K. and not “providing care for” her. Because he was not

providing care for H.K., his acts did not constitute child abuse within the

meaning of the statute and thus Anne’s testimony about the injury to H.K. did

not relate to a report of child abuse within the meaning of the exception.

We conclude his argument is unpersuasive. As used in this statute,

providing care for a child describes the nature of the relationship between one

1 The abusive conduct relevant here is “[t]he commission of a sexual offense with or to a

child pursuant to chapter 709 . . . as a result of the acts or omissions of the person responsible for the care of the child.” Iowa Code § 232.68(2)(a)(3) (emphasis added).  20

person and another. In State v. Anderson, the defendant was a thirty-seven-year-

old man who hired a fifteen-year-old girl to work on his farm during the summer.

636 N.W.2d at 29. Their relationship became sexual. Id. Anderson’s ex-wife

testified against him at trial, and he was convicted of statutory rape. Id. at 29–

30. We concluded that the district court erred in allowing the ex-wife to testify

against him. Id. at 38. “[T]he exception to the marital privilege under

section 232.74 is limited to cases of child abuse that result from acts or

omissions of a care provider. It does not apply to injuries to children that result

from acts or omissions by a non-care provider.” Id. at 36–37. Focusing on the

nature of the relationship between the parties, we held that Anderson was not

“responsible for the care of” the alleged victim because he was her employer and

not her caretaker, so the child abuse exception did not apply. Id. at 34–37.

In contrast, it is clear that Lindaman was in a caretaker relationship with

H.K. and was a “person providing care for a child” within the meaning of Iowa

Code section 232.68(8)(d). Lindaman was H.K.’s grandfather. H.K. and her

siblings regularly visited Lindaman, sometimes multiple times per week.

Lindaman was often the only adult home with the grandchildren when they

visited, and he was the only adult home with H.K. and her brother on the day of

the alleged abuse. See Doe v. Iowa Dep’t of Hum. Servs., No. 16–0664, 2017 WL

1735647, at *2 (Iowa Ct. App. May 3, 2017) (finding sufficient evidence of the

defendant’s care provider status under Iowa Code section 232.68(8)(d) when the

defendant was the only adult present in the first instance and again when the

incident occurred in the defendant’s home while the child was under his control).

H.K.’s parents testified that they regularly entrusted the children to Lindaman’s

care. A report from the department of health and human services found  21

Lindaman “was providing for [H.K.’s] care and supervision while she was visiting

in his home and is therefore considered a caretaker.”

Despite his obvious role as a grandparent providing for the care of his

grandchildren visiting him at his home, Lindaman insists he was not a caretaker

of H.K. but was a mere supervisor of her. In support of the distinction, Lindaman

relies on Iowa Code section 232.68(2)(a)(4)(a). That section defines one form of

child abuse as “[t]he failure on the part of a person responsible for the care of a

child to provide for the adequate food, shelter, clothing, medical or mental health

treatment, supervision, or other care necessary for the child’s health and

welfare.” Id. In Lindaman’s view, because this statute uses the terms “care” and

“supervision,” they must be separate and distinct.

We find the argument unconvincing. Section 232.68(2)(a)(4)(a) sets forth

different forms of child abuse that could be committed by someone responsible

for the care of a child, but it does not define who is responsible for the care of a

child. That definition is found in section 232.68(8), and we already have

concluded that there was sufficient evidence to show Lindman was responsible

for the care of H.K. at the time of the actions at issue. Further, while it is true

that Lindaman may have only been supervising H.K. while she was with him at

his house, that does not mean that Lindaman was not responsible for her care.

Supervision describes one of the tasks associated with taking care of a child, not

something separate and distinct from taking care of a child once a caretaker

relationship has been established.

For these reasons, we conclude the district court did not err in allowing

Lindaman’s spouse to testify regarding the statements Lindaman made to her.  22

VI.

The State filed a cross-appeal to seek review of the district court’s order

granting Lindaman’s motion to suppress statements he made to law enforcement

officials. In the district court, Lindaman contended that his statements were

obtained in violation of Iowa Code section 804.20. That statute provides that a

peace officer shall permit a detained person to call, consult, or see a family

member or attorney or both without unnecessary delay upon arrival at the place

of detention. The district court found the investigating officers violated

section 804.20 when they continued to interview Lindaman after he asked to

make a phone call to his wife. The district court suppressed all of the statements

Lindaman made to the officers after Lindaman requested to call his wife. Because

this issue is material and likely to reoccur upon any retrial of this matter, we

address it now. See Dudley, 856 N.W.2d at 679.

A.

Before addressing the merits of the district court’s ruling, we must address

a jurisdictional issue. Lindaman contends that the State does not have the ability

to file a cross-appeal. According to Lindaman, the State can appeal as a matter

of right in only those circumstances specified in Iowa Code section 814.5(1), and

none of those statutory grounds for appeal as a matter of right are applicable

here. Further, he notes, the Code authorizes the State to seek discretionary

review from “[a]n order suppressing or admitting evidence.” Id. § 814.5(2)(b). The

implication from these two provisions, according to Lindaman, is that the State

cannot file a cross-appeal and was required to file an application for

discretionary review within thirty days of the district court granting the motion

to suppress evidence. Because the State did not timely file an application for  23

discretionary review, he concludes, this court lacks jurisdiction over the State’s

cross-appeal.

Lindaman’s jurisdictional challenge fails. This court has jurisdiction over

cases, not issues. See State v. Rutherford, 997 N.W.2d 142, 144–45 (Iowa 2023)

(explaining the difference between jurisdiction and authority); State v. Wilbourn,

974 N.W.2d 58, 66 (Iowa 2022) (“An appellate court either has jurisdiction over

a criminal appeal or it does not.”). This court obtained jurisdiction over this case

when Lindaman filed his notice of appeal from the district court’s judgment of

conviction and sentence. Nothing in section 814.5 prohibits the State from filing

a cross-appeal to raise additional issues and obtain additional relief once an

appeal has been properly initiated by the defendant, and the state has routinely

done so without any objection. See, e.g., Trane v. State, 16 N.W.3d 683, 699 (Iowa

2025) (reversing the district court’s grant of a motion for new trial on the state’s

cross-appeal); State v. Johnson, 770 N.W.2d 814, 824–26 (Iowa 2009)

(addressing the state’s cross-appeal); State v. Owens, 635 N.W.2d 478, 484–87

(Iowa 2001) (same); State v. Belt, 505 N.W.2d 182, 184 (Iowa 1993) (same);

Becker v. Cent. States Health & Life Co. of Omaha, 431 N.W.2d 354, 356 (Iowa

1988) (“Failure to cross-appeal on an issue decided adversely . . . forecloses . . .

raising the issue on appeal.”), overruled on other grounds by, Johnston Equip.

Corp. of Iowa v. Indus. Indem., 489 N.W.2d 13 (Iowa 1992); State v. Goodson,

No. 18–1737, 2020 WL 3571803, at *9 n.13 (Iowa Ct. App. July 1, 2020)

(declining to provide the state with greater relief on appeal because it did not file

a cross-appeal). The State, like all other litigants, can file a cross-appeal to raise

additional issues to the court in an attempt to obtain greater relief to the extent

the request for greater relief is not prohibited by the constitution.  24

B.

Having concluded that the issue raised in the State’s cross-appeal is

properly before us, we turn to the merits of the district court’s order suppressing

Lindaman’s statements to the investigating officers. “Our review of the district

court’s ruling on the motion to suppress is for the correction of legal error

because the basis for the motion is statutory.” State v. Casper, 951 N.W.2d 435,

437 (Iowa 2020). “If the district court applied the law correctly and substantial

evidence supports the court’s findings of fact, we will affirm the district court’s

ruling on a motion to suppress.” State v. Davis, 922 N.W.2d 326, 330 (Iowa

2019). Otherwise, we will reverse.

Our analysis begins, as it must, with the statutory text. Doe v. State, 943

N.W.2d 608, 610 (Iowa 2020). Detainees in Iowa have a statutory right to contact

a family member, an attorney, or both once the detainee reaches the place of

detention. The statute provides:

Any peace officer or other person having custody of any person arrested or restrained of the person’s liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person’s family or an attorney of the person’s choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney. If a call is made, it shall be made in the presence of the person having custody of the one arrested or restrained. If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody. An attorney shall be permitted to see and consult confidentially with such person alone and in private at the jail or other place of custody without unreasonable delay. A violation of this section shall constitute a simple misdemeanor.

Iowa Code § 804.20.

The plain language of the statute requires only that the officer “permit” a

detainee to make a call “without unnecessary delay” upon arriving at the place

of detention. Id. To “permit” means “[t]o consent to formally; to allow (something)  25

to happen.” Permit, Black’s Law Dictionary 1374 (12th ed. 2024). Nothing in the

text requires an officer to facilitate a phone call for a detainee or in any way assist

a detainee in making such a phone call. The statute does provide that a person

having custody of a detainee “may” make a phone call for an intoxicated person

or a minor, but it does not require such person to do so. Iowa Code § 804.20.

The district court relied on State v. Hicks, 791 N.W.2d 89, 97 (Iowa 2010),

in concluding that the officers did not permit Lindaman to make a call in

violation of the statute. In Hicks, the defendant was arrested for driving while

intoxicated and transported to the police department. Id. at 92. He was taken to

a processing room where a phone was apparently available. Id. at 96. The

defendant asked the officer, “Can I call somebody to get me out?” Id. at 92. The

officer replied, “Yeah. I can let you make a call.” Id. The conversation wandered,

but the defendant returned to his request a few more times. Id. Each time, the

officer told the defendant he could make a phone call but took no steps to

facilitate the call. Id. We held this interaction violated the defendant’s right under

section 804.20. Id. at 96–97. We stated that “[b]ecause of the disparity in power

between detaining officers and detained suspects during the detention process,”

police must “take affirmative action to ensure the request for a phone call is

honored.” Id. The officer should have gone further to “direct the detainee to the

phone and invite the detainee to place his call or obtain the phone number from

the detainee and place the phone call himself.” Id. at 97. Relying on Hicks, the

district court reasoned that the officers here did not direct Lindaman to the

phone and affirmatively invite him to place his call.

The State attempts to distinguish Hicks on the ground that it involved an

operating while intoxicated (OWI) offense with a potentially intoxicated person.

OWI cases involving potentially intoxicated persons are different, according to  26

the State, because an intoxicated person may need help in making a phone call

and because of the time pressure associated with obtaining a chemical test.

Neither the statutory text nor our precedents support the distinction. “Iowa Code

section 804.20 is a statute of general application,” State v. Moorehead, 699

N.W.2d 667, 674 (Iowa 2005), and the statute “applies to all persons who have

been arrested, not just persons arrested on suspicion of drunk driving,” State v.

Starr, 4 N.W.3d 686, 693 (Iowa 2024) (citing State v. Sewell, 960 N.W.2d 640,

645 (Iowa 2021)). Officers must permit detainees in all cases invoking the right

to make a phone call without unnecessary delay upon arrival at the place of

detention.

While we do not think Hicks is distinguishable for the reasons offered by

the State, we do not find it controlling here. After Hicks, this court revisited the

meaning of “permit” as used in section 804.20. In State v. Lamoreux, the

defendant’s attorney came to the jail and met with the defendant in a booking

room equipped with audio and video recording devices. 875 N.W.2d 172, 174–75

(Iowa 2016). The defendant claimed the officers violated his right under

section 804.20 to “be permitted to see and consult confidentially” with an

attorney. Id. at 177 (quoting Iowa Code § 804.20 (emphasis omitted)). We

explained that to “permit” means law enforcement must allow something to

happen, not that law enforcement must ensure that it happens:

The language of the statute thus appears to establish something that the attorney will be allowed to do, not something that must occur. It does not state that the attorney shall see and consult confidentially with a client in custody privately; instead it says this kind of consultation has to be permitted. “Permit” means to “grant leave for or the privilege of: ALLOW, TOLERATE.” Webster’s Third New International Dictionary 1683 (unabr. ed. 2002).

Id. We concluded there was no violation of the statute even though there was no

confidential consultation where the attorney, who was aware of the recording  27

systems, “did not turn the audio off, cover the camera, or request another room.”

Id. at 180–81. “[T]he presence of the audio and camera monitoring would have

been obvious to Lamoreux himself. Nothing in the record indicate[d] that

Lamoreux’s attorney was not ‘permitted’ to consult confidentially and in private

with his client; rather, the attorney made a decision to go ahead and consult

with his client without privacy.” Id. at 181. The defendant was required to

exercise some agency in exercising the statutory right, and he failed to do so. See

id.

Most recently, in State v. Clark, we held law enforcement officials did not

violate section 804.20 when officers retrieved the defendant’s phone, placed it

next to her, and gestured toward the phone as they told her multiple times that

she could make a call in response to her statements that she wanted an attorney.

21 N.W.3d 429, 437 (Iowa 2025). We explained that “[t]he deputies only needed

to permit Clark to have a reasonable opportunity to make a phone call.” Id. The

officers did not have a duty to specifically direct her to make the call. Id. Nor did

the officers have a duty to exercise the right on the detainee’s behalf. Id.

Officers cannot prevent detainees from making a call under

section 804.20. See Starr, 4 N.W.3d at 693 (affirming a section 804.20 violation

where the officer flatly denied the detainee’s request to make a call). Nor may

officers play semantics by telling a detainee she can make a phone call while

withholding or not providing any means to execute the call. That is, in effect, no

different than preventing a phone call. See State v. Lyon, 862 N.W.2d 391, 401

(Iowa 2015) (“[W]e have insisted that law enforcement officers not play games

when faced with a request from a person in custody to communicate with the

outside world after being arrested.”); Didonato v. Iowa Dep’t of Transp., 456

N.W.2d 367, 371 (Iowa 1990) (“[W]hen a request to make a phone call is made  28

we do not believe the statutory purpose is met if the officer stands mute and

refuses the request.”). But once a detainee knows she may make a call and has

the means to carry out the call at her fingertips, the detainee must exercise some

agency to actually make the requested phone call. See Clark, 21 N.W.3d at 437.

The Clark decision better interprets and applies the statute than the older

Hicks decision. Hicks took an overly broad view of what the statute required.

While the statute imposes duties on peace officers to permit a detained person

to make a phone call without unnecessary delay upon arrival at the detention

center, it nowhere imposes a duty on peace officers to facilitate the phone call.

Reading that requirement into the statute was improper. The statute regulates

peace officer conduct with respect to detained persons, but it also imposes

criminal liability on police officers who do not comply with the statute. See Iowa

Code § 804.20 (making it a simple misdemeanor to violate the statute). We are

obligated to interpret this criminal statute fairly and not interpret the statute to

encompass conduct “outside the fair scope and intent of [the] statute’s terms.”

State v. Koplin, 402 N.W.2d 423, 425 (Iowa 1987). Our prior cases concluding

that peace officers had a duty to facilitate a phone call for a detained person

greatly expanded the fair scope of this statute. Think of the issue this way: a

peace officer could not be held criminally liable for denying permission to make

a call by placing an unhandcuffed detainee in a soft interview room next to a

phone and phone book and telling the detainee he could definitely make a call.

No reasonable person could consider that to be the denial of permission to make

a phone call.

The district court did not have the benefit of our Clark decision when it

ruled on Lindaman’s motion to suppress, but we think Clark compels the

conclusion that the district court erred here. Once Lindaman arrived at the  29

interview room, he faced directly toward the phone while he was being uncuffed.

He was told he could “definitely make a phone call.” As the officer informed

Lindaman that he could make a phone call, the officer gestured toward the phone

and phone book, which were next to Lindaman. The phone and phone book

remained within arm’s reach for the duration of the interview. Lindaman was

then left alone in the interview room with the phone and phone book for nearly

an hour, during which time he continued to fiddle with the phone book, but he

never made a call. Lindaman’s failure to exercise agency and act on the

permission given him does not constitute a violation of the statute.

VII.

Finally, we address Lindaman’s alternative argument that the district

court should have suppressed his confession because law enforcement officers

violated his constitutional right to counsel. Lindaman contends that when he

was arrested, he invoked his right to have counsel present during questioning.

Despite this invocation, he argues, the officers did not scrupulously honor his

request but instead cajoled him into reinitiating the conversation, rendering his

subsequent Miranda waiver invalid. Although the district court suppressed the

confession on statutory grounds, it rejected this constitutional claim. We

conclude the district court was correct to do so.

The law governing this issue is well established. Under the Fifth and

Fourteenth Amendments to the United States Constitution, an individual subject

to custodial interrogation has the right to consult with an attorney and to have

the attorney present during questioning. See Miranda v. Arizona, 384 U.S. 436,

469–73 (1966). If the individual states that he wants an attorney, the

interrogation must cease until an attorney is present. Id. at 474. The Supreme

Court established a bright-line, prophylactic rule to protect this right: once an  30

accused has invoked the right to counsel, he “is not subject to further

interrogation by the authorities until counsel has been made available to him,

unless the accused himself initiates further communication, exchanges, or

conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484–85

(1981).

Thus, our analysis involves two steps. First, we must determine whether

Lindaman, after invoking his right to counsel, was subjected to further police

interrogation or whether he voluntarily reinitiated the dialogue. See Oregon v.

Bradshaw, 462 U.S. 1039, 1044 (1983). An accused reinitiates conversation

when his comments “evince[] a willingness and a desire for a generalized

discussion about the investigation.” Id. at 1045–46. Second, if the accused did

reinitiate the conversation, we must then ask whether he knowingly and

intelligently waived the right he had invoked. See Smith v. Illinois, 469 U.S. 91,

95 (1984) (per curiam); Bradshaw, 462 U.S. at 1045–46.

The record of Lindaman’s arrest, captured on bodycam video, provides a

clear sequence of events. When officers first approached Lindaman at the auto

service center, they asked if he would be willing to talk about the allegations. In

response, Lindaman stated, “I’d probably like to have my lawyer present.” The

officers immediately ceased any attempt at questioning and informed Lindaman

he was under arrest. As they were handcuffing him, an officer stated, “If you at

any time change your mind, and you wish to speak to us, we’re willing to talk to

you. Okay?” Lindaman did not respond to this statement. The officers then

informed him they were executing a search warrant at his home and asked if he

had questions about that. Lindaman then asked, “You mean talk to you right

now instead of . . . what are the options?” And moments later, “If I talk to you

now, . . . I don’t have to go to the police station?” An officer correctly informed  31

him that he would be taken to the station regardless. Crucially, the officer then

reminded Lindaman of his rights, stating they would like to talk to him, “but . . .

you asked for an attorney.” It was only after this exchange that Lindaman stated,

“I can talk to you right now, I guess.” The officers did not question him right

away but instead took him to the police station. Once at the station, the officers

read Lindaman the Miranda advisories, and he waived his rights.

Applying the controlling law to these facts, we find no constitutional

violation. Lindaman’s initial statement that he would “probably like to have [his]

lawyer present” was, at minimum, an equivocal request for counsel that the

officers rightly treated as a full invocation, and they scrupulously honored it by

immediately ceasing their efforts to engage him in conversation about the case.

The subsequent statement that they would be “willing to talk” if he changed his

mind was not interrogation; it was a neutral statement of fact that did not call

for an incriminating response.

It was Lindaman who reinitiated the dialogue. His questions about his

“options” and whether talking would change his immediate fate were not routine

inquiries about custody; they were questions that evinced a desire to engage in

a “generalized discussion about the investigation.” Bradshaw, 462 U.S. at 1045–

46. Even then, the officers did not press their advantage. Instead, they reminded

Lindaman that he had already invoked his right to counsel, giving him a clear

opportunity to stand by his initial choice. He chose a different path. Having made

his own choice to reopen the door to conversation, his subsequent written waiver

of his Miranda rights at the police station was knowing and voluntary. See id.

The district court correctly found no constitutional violation.  32

VIII.

For these reasons, we vacate Lindaman’s conviction and sentence, and we

remand this matter for further proceedings consistent with this opinion.

Affirmed in Part, Reversed in Part, and Case Remanded.

Oxley, McDermott, and May, JJ., join this opinion. Oxley, J., files a

concurring opinion, in which McDermott, J., joins, and Waterman, J., joins as

to part I. Waterman, J., files a dissenting opinion, in which Christensen, C.J.,

joins. Mansfield, J., takes no part.  33

#24–0769, State v. Lindaman

Oxley, Justice (concurring).

I.

I write separately to reiterate what I said in State v. Clark: “Iowa Code

section 804.20 require[s officers] to honor [a detainee’s] requests to speak to her

attorney [or family member] by giving her an actual opportunity to make the

phone call.” 21 N.W.3d 429, 440 (Iowa 2025) (Oxley, J., dissenting). That means

“providing the time or means to do so.” Id. When we said in State v. Hicks that

police must “take affirmative action to ensure the request for a phone call is

honored,” 791 N.W.2d 89, 96–97 (Iowa 2010), we meant that police must allow

the call to happen. And if that involves some level of facilitation—by directing the

defendant to a phone in the room, providing a phone if there isn’t one in the

room, or stopping an interview long enough to allow the call to be made—then

facilitation is required. In Hicks, we didn’t allow officers to give a wink and a nod

to a defendant’s request to make a call under section 804.20 without giving the

defendant a real opportunity to do so, see id. (“Requiring a suspect with

restrained liberty to affirmatively pick up a police department’s telephone and

contact family or counsel without invitation from the detaining officer transforms

section 804.20 into an illusory statutory right.”), and I don’t read the majority to

allow that here.

The majority is correct that Hicks is not controlling on these facts.

Lindaman had an “actual opportunity,” Clark, 21 N.W.3d at 440 (Oxley, J.,

dissenting), to call his wife if he had really wanted to. The phone and a phone

book were sitting next to him, within reach, when the officer told him he could

“definitely make a phone call” as she was walking out of the room. Unlike in

Clark, where the officers continued to ask Clark questions and placed a paper  34

over her cellphone while they continued the informed consent process to its

completion despite her repeated requests to call her attorney, id. at 438–39,

Lindaman had ample opportunity to make a call while the officers were attending

to other matters. He simply chose not to.

Because Hicks is not controlling on these facts, i.e., it is distinguishable,

we need not—and should not—call into question its holding that an officer may

be required, in certain circumstances, to take an active role in permitting a

detainee to exercise his statutory right to call his attorney or a family member.

See 791 N.W.2d at 97.

II.

With that caveat about Hicks, I join the remainder of the majority’s

opinion.

McDermott, J., joins this concurrence, and Waterman, J., joins as to part

I of this concurrence.  35

#24–0769, State v. Lindaman Waterman, Justice (dissenting).

I respectfully dissent from part III of the majority opinion and its

continuing affront to young victims of unspeakable crimes who are brave enough

to testify against their abusers. I would affirm Lynn Lindaman’s conviction for

sexually abusing his seven-year-old granddaughter. I agree with the majority’s

rejection of Lindaman’s challenges to his conviction in parts II (sufficiency of the

evidence) and V (marital communication privilege), and with its reversal of the

district court ruling suppressing Lindaman’s confession under Iowa Code

section 804.20 (2023). And in my view, none of Lindaman’s other challenges

bypassed by the majority merit a new trial.

I. The Confrontation Clause.

The majority errs by holding that the district court violated Lindaman’s

confrontation rights under article I, section 10 of the Iowa Constitution when it

allowed his granddaughter to testify against him by one-way video. The majority

repeats the unforced error it made last year in State v. White, 9 N.W.3d 1 (Iowa

2024).

The granddaughter’s therapist opined, and the district court found, that

being in the same room as Lindaman would traumatize the child. Lindaman does

not challenge that finding. The essential purpose of the confrontation clause was

satisfied because Lindaman and the jury saw and heard his victim’s live

testimony and watched one of his experienced attorneys, who was in the same

room as the child, conduct a face-to-face cross-examination. This procedure

complied to the letter with Iowa Code section 915.38, and—until the majority’s

decision in White—it complied with our interpretation of article I section 10 of

the Iowa Constitution and the United States Supreme Court’s analysis of the  36

identically worded Federal Confrontation Clause.2 See Maryland v. Craig, 497

U.S. 836, 860 (1990); Pitts v. Mississippi, 607 U.S. ___, ___, 2025 WL 3260171,

at *2 (Nov. 24, 2025) (per curiam); In re J.D.S., 436 N.W.2d 342, 346–47 (Iowa

1989) (en banc), overruled by, White, 9 N.W.3d 1. No other state has declined to

follow Maryland v. Craig and allow remote testimony by child witnesses when

construing a similarly worded state confrontation clause. As the majority

acknowledged in White, “Iowa ‘stands alone.’ ” 9 N.W.3d at 11. Alone it remains.

I would accept the State’s invitation to overturn White today for the reasons

explained in Chief Justice Christensen’s dissent, id. at 15–20 (Christensen, C.J.,

dissenting, joined by Waterman and Mansfield, JJ.), and for additional reasons

discussed below. White and today’s opinion rely on a flawed historical

understanding of the confrontation clause that downplays the fundamental role

of cross-examination and overemphasizes the secondary importance of a face-

to-face showdown. White and today’s decision disregard compelling reasons to

adhere to the national constitutional consensus and to pre-White Iowa

precedent. Finally, the majority today, as it did in White, inexplicably leaves open

2The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. (Emphasis added.) Article I, section 10 of the Iowa Constitution provides: In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right to a speedy and public trial by an impartial jury; to be informed of the accusation against him, to have a copy of the same when demanded; to be confronted with the witnesses against him; to have compulsory process for his witnesses; and, to have the assistance of counsel. (Emphasis added.)  37

the question of whether their newly crafted regime would permit two-way video

live testimony.

Fortunately, the majority’s erroneous interpretation of Iowa’s

confrontation clause is likely to be short-lived. As soon as 2028, the Iowa

legislature is expected to put before Iowa voters a clarifying amendment that

effectively overrules White and this case.3 Unfortunately, until that happens,

Lindaman’s granddaughter and other abused children and disabled adults will

suffer when they are forced to be in the courtroom with their abusers. Still other

victims will not receive justice when prosecutors drop cases to spare them that

additional trauma.

Our court nearly four decades ago correctly interpreted Iowa’s

confrontation clause in In re J.D.S., 436 N.W.2d at 346–47. We favorably quoted

Justice O’Connor’s concurrence in Coy v. Iowa, which recognized that the

Constitution allows narrowly circumscribed exceptions to the general

requirement for face-to-face confrontations:

The protection of child witnesses is, in my view and in the view of a substantial majority of the States, just such a policy. The primary focus therefore likely will be on the necessity prong. I agree with the Court that more than the type of generalized legislative finding of necessity present here is required. But if a court makes a case-

3To amend the Iowa Constitution, the proposed amendment must be passed by two

separate general assemblies and then placed on the ballot in the next general election and approved by a majority of voters. Iowa Const. art. X, § 1. In 2025, in reaction to White, the Iowa House and Senate voted overwhelmingly in favor of Senate Joint Resolution 9 to amend article I of the Iowa Constitution by adding this new section: Sec. 10A. Protection of children and other witnesses. To protect children under the age of eighteen and any witness with a mental illness, intellectual disability, or other developmental disability, the right of an accused to confront such witnesses may be limited by law. S.J.R. 9, 91st G.A., 1st Sess. § 1 (Iowa 2025). This resolution passed the senate by a vote of 47– 0 with three members absent and passed the house by a vote of 87–6 with seven members absent or abstaining. S. Journal, 91st G.A., 1st Sess., at 581–82 (Iowa 2025); H. Journal, 91st G.A., 1st Sess., at 966–67 (Iowa 2025). The next general assembly convenes in January 2027. If the proposed amendment is approved a second time, it would go on the ballot in November 2028.  38

specific finding of necessity, as is required by a number of state statutes, our cases suggest that the strictures of the Confrontation Clause may give way to the compelling state interest of protecting child witnesses. Because nothing in the Court’s opinion conflicts with this approach and this conclusion, I join it.

Id. at 345 (quoting Coy v. Iowa, 487 U.S. 1012, 1025 (1988) (O’Connor, J.,

concurring)). We went on to hold that the use of a one-way mirror, which allowed

the accused to see his accuser but not vice versa, satisfied the Confrontation

Clause of both the Federal and Iowa Constitutions. Id. at 347. We explained:

By enacting [the predecessor to section 915.38], the legislature [evinced] its belief that protection of child witnesses is an important public policy. The trial court found and, by our de novo review, we agree that the screening procedure employed in this case was necessary to protect [the child] and comported with the statutory purpose. We also find the procedure to be reasonable and hold that it did not violate [the accused’s] right of confrontation under the federal or Iowa constitutions.

Id. Importantly, we found that the accused “was given an opportunity for effective

cross-examination” of the victim. Id. at 348.

The very next year, the Supreme Court confirmed the constitutionality of

such procedures in Craig, holding that the child sex abuse victim’s testimony by

one-way closed-circuit television complied with the Sixth Amendment’s

Confrontation Clause. 497 U.S. at 860. Iowa’s compelling state interest in

protecting children from trauma has not waned in the ensuing thirty-five years,

and section 915.38’s procedure is narrowly tailored to accommodate the

defendant’s right of confrontation.

The majority today and in White gives short shrift to Craig’s sound

reasoning. The majority opinion today never even mentions Craig. And White

never directly confronted its reasoning; instead, White devoted nine paragraphs

to arguing why our court can depart from decisions of the highest court in the

land applying identically worded constitutional provisions. Just because we can  39

interpret the Iowa Constitution differently does not mean we should do so in

these cases.

In Craig, the Supreme Court held that a child’s testimony by closed-circuit

television would satisfy the Confrontation Clause only when the state

demonstrated a compelling interest in protecting the witness from trauma:

[W]e hold that, if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.

Id. at 855. The Supreme Court made clear it requires case-specific findings that

the child would be harmed by testifying in the personal presence of the

defendant:

The requisite finding of necessity must of course be a case- specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. . . . Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis . . . .

Id. at 855–56 (citations omitted). If the requisite findings of necessity are made,

then the child may testify remotely under procedures that Craig required to be

narrowly tailored to protect the defendant’s confrontation rights:

In sum, we conclude that where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child’s ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the  40

evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.

Id. at 857.

Craig upheld Maryland’s statutory procedure with the child testifying by

one-way closed-circuit television because that method “preserves all of the other

elements of the confrontation right: The child witness must . . . testify under

oath; the defendant retains full opportunity for contemporaneous cross-

examination; and the judge, jury, and defendant are able to view (albeit by video

monitor) the demeanor (and body) of the witness as he or she testifies.” Id. at

851. The same was true in White and in Lindaman’s trial. Craig remains the

controlling authority under the Sixth Amendment,4 and I would follow it under

article I, section 10 of the Iowa Constitution.

On November 24, 2025, a unanimous Supreme Court effectively

reaffirmed Craig and reiterated that “the Sixth Amendment tolerates screening

in child-abuse cases only if a court ‘hear[s] evidence’ and issues a ‘case-specific’

finding of ‘[t]he requisite . . . necessity.’ ” Pitts, 607 U.S. at ___, 2025

WL 3260171, at *2 (alterations in omission in original) (quoting Craig, 497 U.S.

at 855). In Pitts v. Mississippi, the Supreme Court reversed a decision of the

Mississippi Supreme Court that allowed a four-year-old victim of sexual abuse

to testify behind a screen at trial without the requisite findings by the trial court.

Id. at ___, 2025 WL 3260171, at *3. That is not what happened in Lindaman’s

4White acknowledged questions whether Craig has been undermined by Crawford v. Washington, 541 U.S. 36 (2004), but correctly “continue[d] to view Craig as binding precedent for purposes of federal rights under the Sixth Amendment to the United States Constitution.” White, 9 N.W.3d at 11. Crawford emphasized that the Confrontation Clause requires an opportunity to cross-examine the declarant before admitting into evidence an out-of-court testimonial statement. 541 U.S. at 68. Lindaman’s granddaughter was cross-examined by defense counsel face-to-face during her live testimony at trial, satisfying Crawford. In any event, Pitts v. Mississippi, 607 U.S. ___, 2025 WL 3260171, dispelled any question whether Crawford undermined Craig. It did not. See id. at ___, 2025 WL 3260171, at *2 (unanimously applying Craig).  41

case. The district court overseeing Lindaman’s case indisputably made the

specific findings that Craig requires.

Craig and Pitts make clear that face-to-face testimony is a strong

constitutional preference, and the exceptions are narrowly tailored and based on

the compelling state interest in protecting children from unnecessary trauma.

Our court errs by elevating the constitutional preference for face-to-face

confrontation into an absolute requirement.

Neither Lindaman nor the majority challenge the district court’s factual

findings and ruling that the statutory requirements of section 915.38 were

satisfied. The counselor treating Lindaman’s granddaughter opined that the

child would likely be traumatized by testifying in his presence:

This goes into a trauma response. And a trauma response sets the stage for continued trauma responses, meaning she can go back and regress into nightmares, new nightmares, bed wetting, thumb sucking. Behaviors that are going to hinder her development.

The child suffered nightmares about Lindaman as the trial date approached. The

counselor described “the increased risk that [the child] runs being [seated] right

in front of [Lindaman], having him look right at her as she’s asked to speak of

him.” The district court determined that the statutory requirements for remote

testimony were met:

The Court finds that, based on [the counselor’s testimony], that testifying in the physical presence of the Defendant would be traumatic for the minor victim . . . . The emotional distress the child would suffer from being in the same room as the Defendant is significant and certainly more than de minimus. The negative impacts of that distress would likely last long after the trial has concluded. The use of closed circuit testimony is necessary to protect this child. The Court also finds the testimony is more likely to be reliable if the child is not placed in the mental state that would occur from seeing the Defendant.  42

Those unchallenged factual findings satisfy the requirements for remote

testimony under Iowa Code section 915.38, Craig, J.D.S., and the great weight of

authority nationwide allowing one-way5 or two-way video6 procedures.

5See Reutter v. State, 886 P.2d 1298, 1305, 1311 (Alaska Ct. App. 1994) (applying Craig

to reject state and federal constitutional challenge to statute and allowing one-way video testimony from a child complaining witness); People v. Phillips, 315 P.3d 136, 149–53 (Colo. App. 2012) (applying the Craig factors to allow a child witness to testify by closed-circuit television despite a Colorado constitutional provision requiring face-to-face confrontation); State v. Arroyo, 935 A.2d 975, 992 (Conn. 2007) (applying Craig to uphold the admission of a complaining witness’s videotaped testimony that had been filmed while the defendant looked on “from behind a one-way mirror”); Figueroa v. State, 388 So. 3d 132, 135–37 (Fla. Dist. Ct. App. 2023) (applying Craig and holding that “the trial court did not err in allowing the child to testify via CCTV”); Lavalley v. State, 892 S.E.2d 803, 807 (Ga. Ct. App. 2023) (applying Craig and concluding that “the court’s decision to allow B. J. to testify via one-way closed circuit television was . . . necessary to protect B. J.’s welfare”); State v. Baeza, 383 P.3d 1208, 1212–13 (Idaho 2016) (upholding the district court’s admission of a child’s testimony over a closed-circuit television and relying on Craig); People v. Franklin, 229 N.E.3d 364, 376–86 (Ill. App. Ct. 2023) (applying Craig to uphold a trial court’s admission of testimony taken on a closed-circuit system); Johnson v. Commonwealth, 718 S.W.3d 597, 614 (Ky. 2025) (“Based on our precedent, we continue to interpret our Confrontation Clause as equal to that in the Sixth Amendment and will apply the Craig test.”); State v. Hamed, 326 So. 3d 375, 381 (La. Ct. App. 2021) (confirming that Craig can apply when the standards are met); People v. Jemison, 952 N.W.2d 394, 400 (Mich. 2020) (en banc) (“We will apply Craig only to the specific facts it decided: a child victim may testify against the accused by means of one-way video (or a similar Craig-type process) when the trial court finds, consistently with statutory authorization and through a case-specific showing of necessity, that the child needs special protection.”); State v. Smith, 922 N.W.2d 444, 459, 461– 62 (Neb. 2019) (following Craig under the Nebraska Constitution); State v. Smith, 730 A.2d 311, 318 (N.J. 1999) (applying Craig to uphold the admission of one-way video testimony); State v. Moen, 26 N.W.3d 560, 563–66 (N.D. 2025) (applying Craig to uphold the admission of video testimony where the district court found that the witness would be unduly traumatized if testifying face-to-face); State v. Saunders, 245 N.E.3d 889, 905 (Ohio Ct. App. 2024) (applying Craig under both the Ohio and Federal Constitutions to permit one-way video testimony despite a face-to-face clause in the Ohio Constitution); Commonwealth v. Willliams, 84 A.3d 680, 682 n.2 (Pa. 2014) (noting amendment to state constitution was intended to permit remote testimony by child witnesses); State v. Lewis, 478 S.E.2d 861, 863–66 (S.C. Ct. App. 1996) (per curiam) (applying Craig to one-way video testimony); State v. Henriod, 131 P.3d 232, 238 (Utah 2006) (finding Craig controls when analyzing whether a child may testify via closed-circuit television); State v. Foster, 957 P.2d 712, 714, 727 (Wash. 1998) (holding testimony by child sex abuse victims by one-way closed-circuit television satisfied both the Sixth Amendment and the state constitution, which contains a face-to-face confrontation clause); State v. Vogelsberg, 724 N.W.2d 649, 654–55 (Wis. Ct. App. 2006) (concluding Crawford and Craig address different confrontation issues, and upholding use of a barrier between the defendant and child witness under Craig). 6See Bragg v. State, 390 So. 3d 578, 580–85 (Ala. Crim. App. 2023) (applying Craig to

uphold a conviction where the complaining witnesses testified by two-way video from another country); State ex rel. Montgomery v. Kemp, 371 P.3d 660, 666 (Ariz. Ct. App. 2016) (“We adopt the Craig test, and applying it to this case, conclude that Davis’s confrontation rights can be satisfied through the use of two-way video testimony.”); People v. Lujan, 150 Cal. Rptr. 3d 727, 732 (Ct. App. 2012) (applying Craig to allow two-way video testimony and holding that “child witnesses shown to be traumatized by face-to-face confrontation may testify remotely without violating a defendant[’]s Confrontation Clause rights, whether or not those witnesses are victims  43

In White, our court not only departed from Craig’s well-settled federal

precedent; it also overruled our own precedent construing article I, section 10:

J.D.S. 436 N.W.2d at 346–47. See White, 9 N.W.3d at 12. The White court

justified its departure from stare decisis simply by noting the accused in J.D.S.

relied on Sixth Amendment precedent without offering “an independent

interpretation of the Iowa Constitution.” Id. (emphasis omitted). But reliance on

Sixth Amendment precedent makes perfect sense when construing identical

language in the Iowa Constitution. As the three dissenting justices in White

observed, more should be required to overrule our longstanding precedent

interpreting the Iowa Constitution:

“Stare decisis alone dictates continued adherence to our precedent absent a compelling reason to change the law.” Book v. Doublestar Dongfeng Tyre Co., 860 N.W.2d 576, 594 (Iowa 2015). The majority disregards stare decisis by over-ruling J.D.S. without any compelling reason to do so. I would honor stare decisis and follow J.D.S.

Id. at 17–18 (Christensen, C.J., dissenting).

of an independent crime committed by that defendant”); White v. State, 116 A.3d 520, 544 (Md. Ct. Spec. App. 2015) (“Accordingly, we hold that the Craig standard applies when the State seeks to present witness testimony via two-way video conference against a defendant in a criminal proceeding.”); Newson v. State, 526 P.3d 717, 720–23 (Nev. 2023) (en banc) (applying Craig to uphold two-way testimony under the Federal and Nevada Constitutions); State v. Thomas, 376 P.3d 184, 194–95 (N.M. 2016) (“We adopt the Craig standard here in our analysis of the admissibility of two-way video testimony.”); People v. Cintron, 551 N.E.2d 561, 567, 570 (N.Y. 1990) (holding that “face-to-face confrontation with the defendant is not an absolute requirement under either the Federal or State Constitution” and rejecting a facial challenge to a statute allowing two-way video testimony of child sex abuse witnesses); State v. Seelig, 738 S.E.2d 427, 429, 432, 434–36 (N.C. Ct. App. 2013) (applying Craig to reject a State and Federal Confrontation Clause challenge to testimony by “live, two-way, closed-circuit internet broadcast”); Marx v. State, 987 S.W.2d 577, 580–81 (Tex. Crim. App. 1999) (en banc) (applying Craig to find no Confrontation Clause violation in the admission of two-way closed-circuit television testimony); State v. Bergquist, 211 A.3d 946 , 963–68 (Vt. 2019) (applying Craig to uphold the constitutionality of two-way video testimony); Castillo v. Commonwealth, 827 S.E.2d 790, 817– 20 (Va. Ct. App. 2019) (viewing Craig as allowing necessity-based exception for face-to-face confrontation and upholding use of two-way video); State v. Herbert, 767 S.E.2d 471, 482 n.15 (W. Va. 2014) (noting that two-way live video may satisfy Craig and should be considered to secure appearance from a recalcitrant witness); Bush v. State, 193 P.3d 203, 214–16 (Wyo. 2008) (applying Craig to uphold a conviction where an out-of-state, medically incapacitated witness testified by video teleconference).  44

Not only did White provide no compelling reason to overrule J.D.S., but it

also flouted the state’s reliance interest underlying the doctrine of stare decisis.

See Berry v. State, ___ A.3d ___, ___, 2025 WL 2639971, at *7 (Del. Sep. 15, 2025)

(en banc) (Rejecting an argument to overturn precedent under the Confrontation

Clause, stating: “Stare decisis protects the interests of parties in the judicial

system, who act in reliance on precedent. Those reliance interests are especially

strong in criminal cases. Merely disagreeing with the reasoning or holding of a

previous case is not grounds to revisit it. This Court is particularly chary to

overturn precedent where, as here, the only change is the court’s composition.”

(footnote omitted)); Burnett v. Smith, 990 N.W.2d 289, 303–04 (Iowa 2023) (“We

are hesitant to overrule a precedent where a significant reliance interest has

developed.”)

In many other Iowa trials, the state had relied on Craig and J.D.S. to allow

victims to give live but remote testimony against their abuser when an

appropriate record had been made under Iowa Code section 915.38. White

scrapped that reliance interest by requiring retrials in multiple sex abuse cases—

trials that will retraumatize the victims. And White undermined the finality of

every conviction where counsel could have raised a facial challenge to remote

testimony under article I, section 10. Yet White overruled J.D.S. without even

mentioning the state’s reliance interest in protecting victims. White and today’s

majority opinion are wrongly decided and are causing harm. We can and should

overrule cases that erroneously departed from our longstanding precedent. See,

e.g., Burnett, 990 N.W.2d at 297–98.

The majority raises a new argument today to justify White’s unwarranted

overruling of J.D.S. The majority now contends that allowing remote testimony

violates the defendant’s presumption of innocence by making “a preliminary  45

finding of guilt.” I disagree. The district court did not disclose to the jury that it

found the child would be traumatized by being in the same room as her

grandfather. The jury determines guilt. The jury was properly instructed on the

State’s burden to prove guilt beyond a reasonable doubt. This new “presumption

of innocence” argument is unmentioned in White. It is not supported by any case

on point. No other court has adopted it. And in Pitts, the Supreme Court

reiterated that “Craig’s exception for child-abuse cases” applies regardless of

whether the perpetrator’s identity is contested. 607 U.S. at ___, 2025

WL 3260171, at *2. Lindaman never raised this presumption of innocence

argument at trial or in his appellate briefing, although he protested that allowing

only the child to testify remotely signaled judicial special treatment to his

detriment. The trial judge offered to give a limiting instruction to the jury;

Lindaman did not request one. Lindaman’s presumed innocence does not

foreclose his granddaughter’s remote testimony.

The majority’s selective history of the right of confrontation skips over the

most important aspects of its origin story. “The primary object of the

[Confrontation Clause] was to prevent depositions or ex parte affidavits . . . being

used against the prisoner in lieu of a personal examination and cross-

examination of the witness . . . .” Mattox v. United States, 156 U.S. 237, 242–43

(1895); see also Crawford v. Washington, 541 U.S. 36, 50 (2004) (“First, the

principal evil at which the Confrontation Clause was directed was the civil-law

mode of criminal procedure, and particularly its use of ex parte examinations as

evidence against the accused.”). Crawford v. Washington reviewed English cases

and nineteenth century treatises describing the Anglo-American history of

confrontation. 541 U.S. at 42–48. Crawford discussed cases commonly cited as

formative, including the trial of Sir Walter Raleigh, who was convicted of  46

treason—and ultimately executed—on the affidavit of one Lord Cobham. Id.

at 44. Crawford also discussed the trial in The King v. Paine (1696) 87 Eng. Rep.

584 (KB), where ex parte affidavits were read into the record, the affiant having

died before the trial. Crawford, 541 U.S. at 45–46. As the court noted in Paine,

the “depositions should not be given in evidence, the defendant not being present

when they were taken before the mayor, and so had lost the benefit of a cross-

examination.” 87 Eng. Rep. at 585 (emphasis added).

Indeed, it is the “opportunity of cross-examination” that is the “main and

essential purpose of confrontation.” Davis v. Alaska, 415 U.S. 308, 315–16

(1974) (quoting 5 John Henry Wigmore, Wigmore on Evidence § 1395, at 123 (3d

ed. 1940) [hereinafter Wigmore, Wigmore on Evidence (1940)]). And we have

reached the same conclusion under article I, section 10 of the Iowa Constitution.

State v. Castillo, 315 N.W.2d 63, 65–66 (Iowa 1982) (“The main and essential

purpose of confrontation is to secure for the opponent the opportunity of cross-

examination.” (quoting 5 Wigmore, Wigmore on Evidence (1940) § 1395, at 123)).

As the Ohio Supreme Court reiterated,

The Confrontation Clauses were written into our Constitutions “to secure for the opponent the opportunity of cross- examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.”

State v. Self, 564 N.E.2d 446, 450 (Ohio 1990) (quoting 5 John Henry Wigmore,

Wigmore on Evidence § 1395, at 150 (Chadbourn rev. 1974) [hereinafter

Wigmore, Wigmore on Evidence (1974)]). In State v. Self, the Ohio Supreme Court

held that both the Sixth Amendment and the Ohio confrontation clause

permitted using “a child sexual abuse victim’s videotaped deposition at trial in

place of live testimony.” Id. at 453. The court reached that conclusion even  47

though the Ohio Constitution is worded to require face-to-face confrontation. Id.

at 452. The Self court explained,

[A] criminal defendant is ordinarily entitled to a physical confrontation with the accusing witnesses in the courtroom. Yet, the value which lies at the core of the Confrontation Clauses does not depend on an “eyeball to eyeball” stare-down. Rather, the underlying value is grounded upon the opportunity to observe and to cross- examine. The physical distance between the witness and the accused, and the particular seating arrangement of the courtroom, are not at the heart of the confrontation right.

Id. The Ohio Supreme Court correctly applied timeless principles to the

new technology allowing remote, live video testimony:

While closed-circuit television and videotape recording did not exist when the Ohio (or federal) Constitution was written and adopted, these new technologies, when employed in accord with R.C. 2907.41, provide a means for the defendant to exercise the right of cross-examination and to observe the proceedings against him with the same particularity as if he and the witness were in the same room. In no sense is the defendant barred from questioning the witness or the proceeding converted to a secret or “Star Chamber” affair.

Id. at 452–53.

The Supreme Court has “never held, however, that the Confrontation

Clause guarantees criminal defendants the absolute right to a face-to-face

meeting with witnesses against them at trial.” Craig, 497 U.S. at 844. “[A] literal

reading of the Confrontation Clause would ‘abrogate virtually every hearsay

exception, a result long rejected as unintended and too extreme.’ ” Id. at 848

(quoting Ohio v. Roberts, 448 U.S. 56, 63 (1980), overruled by, Crawford, 541

U.S. 36). “[W]e have never insisted on an actual face-to-face encounter at trial in

every instance in which testimony is admitted against a defendant.” Id. at 847

(noting face-to-face confrontation “is not the sine qua non of the confrontation

right”).  48

The Craig Court emphasized the importance of a full and fair opportunity

to cross-examine the accuser. See id. at 847. That requirement was undeniably

met here. One of Lindaman’s lawyers was personally present with the child

witness and, as Lindaman’s agent, conducted his face-to-face cross-examination

of her while the other defense lawyer was in the courtroom with Lindaman.

Lindaman, through his two lawyers, had a full and fair opportunity to cross-

examine his accuser. Neither Lindaman nor the majority claim his lawyer’s

cross-examination was hindered or incomplete because Lindaman was in

another room with cocounsel at the time.

Focusing on cross-examination as the soul of confrontation makes

intuitive sense. After all, cross-examination “is beyond any doubt the greatest

legal engine ever invented for the discovery of truth.” 5 Wigmore, Wigmore on

Evidence (1974) § 1367, at 32. White erroneously relied on older Iowa cases

extolling “face-to-face” confrontations. 9 N.W.3d at 7 (citing State v. Reidel, 26

Iowa 430, 437 (1868); State v. Collins, 32 Iowa 36, 40 (1871)). Those cases merely

held that affidavits could not be substituted for live testimony. Reidel, 26 Iowa

at 437; Collins, 32 Iowa at 40. The majority today and in White commits a

variation of the post hoc ergo propter hoc fallacy: it correctly notes that face-to-

face confrontation and cross-examination historically occurred together, then it

extrapolates—wrongly in my view—to the position that both forms of

confrontation are constitutionally mandated. Thunder comes during rainstorms;

it does not follow that thunder requires rain. That video testimony was not used

in 1871 tells us more about technology than it does about constitutional

interpretation. See Self, 564 N.E.2d at 452–53. As the State observes, remote

video testimony did not exist when those cases were decided, so those nineteenth

century cases can hardly be said to have preemptively rejected live remote video  49

testimony under the Iowa confrontation clause a century and a half later. That

issue simply was not adjudicated back then.

The framers of the Iowa Constitution chose language for our state

confrontation clause identical to its federal counterpart and thereby presumably

intended the same meaning, as we determined in J.D.S., 436 N.W.2d at 347. See

generally State v. Warren, 955 N.W.2d 848, 859 (Iowa 2021) (“We ordinarily

‘interpret the scope and purpose of the Iowa Constitution . . . to track with

federal interpretations . . . ’ due to their nearly identical language . . . .” (quoting

State v. Brown, 930 N.W.2d 840, 847 (Iowa 2019))); Brown, 930 N.W.2d at 846

(“There is also evidence in the 1857 debates over the Iowa Constitution that our

framers wanted our bill of rights to provide similar protection to the Federal Bill

of Rights when they adopted similar language.”). There is no historical evidence

that the framers of the Iowa Constitution intended a different meaning for

confrontation rights than the Sixth Amendment.

By contrast, “[t]he New Hampshire Constitution provides that an

individual accused of a crime ‘shall have a right . . . to meet the witnesses

against him face to face.’ ” State v. Warren, 337 A.3d 265, 272 (N.H. 2025)

(omission in original) (emphasis added) (quoting N.H. Const. pt. I, art. 15). The

New Hampshire Constitution adopted that language in 1784, modeling its

version after the Massachusetts Declaration of Rights enacted in 1780, which

contained the same face-to-face provision. Id. at 273. The Iowa framers could

have expressly required face-to-face confrontation like those states but instead

used the language of the Sixth Amendment without that phrase. We assume the

framer’s omissions are intentional and give them effect. See, e.g., State v. Hauge,

973 N.W.2d 453, 464 (Iowa 2022) (distinguishing out of state precedent relying

on an express constitutional right to privacy not found in the Iowa Constitution).  50

Many other state constitutions include the “face-to-face” phrase in their

confrontation clauses. See State v. Foster, 957 P.2d 712, 722 n.7 (Wash. 1998)

(en banc) (collecting provisions). Iowa did not. It is not our role to rewrite article I,

section 10 to add “face-to-face.” The pending constitutional amendment will

restore our prior interpretation of article I, section 10 in J.D.S. to once again

allow remote testimony by children and disabled adults on an appropriate

record.

Words matter. At one time, both the Illinois and Pennsylvania

Constitutions expressly recognized the right of the accused to meet witnesses

“face to face.” And, the supreme courts of both states held that face-to-face

confrontation was essential to their constitutions. See People v. Fitzpatrick, 633

N.E.2d 685, 687 (Ill. 1994) (citing Ill. Const. art. I, § 8 (1970)); Commonwealth v.

Ludwig, 594 A.2d 281, 283–85 (Pa. 1991) (citing Pa. Const. art. I, § 9 (1984)). In

the wake of those decisions, both states amended their constitutions to remove

the “face-to-face” language, and without that phrase, appellate courts in both

states subsequently rejected confrontation clause challenges to statutes like

Iowa Code section 915.38. See People v. Franklin, 229 N.E.3d 364, 377–81 (Ill.

App. Ct. 2023) (upholding constitutionality of a statute allowing certain disabled

adults to testify by closed-circuit television); Commonwealth v. Willliams, 84 A.3d

680, 682 n.2 (Pa. 2014) (“[T]he amendment was designed to permit the

enactment of laws or the adoption of rules that would permit child victims or

witnesses to testify in criminal proceedings outside the physical presence of the

accused.”).

The Washington Constitution has the face-to-face phrase in its

confrontation clause, yet the Washington Supreme Court interpreted it to permit

child abuse victims to testify by one-way closed-circuit television upon  51

appropriate factual findings. Foster, 957 P.2d at 714, 727. A Colorado appellate

court reached the same conclusion under that state’s confrontation clause that

includes the “face-to-face” phrase and applied Craig to permit a child witness to

testify by closed-circuit television. People v. Philips, 315 P.3d 136, 149–53 (Colo.

App. 2012). So, too, did the Ohio Supreme Court in Self. 564 N.E.2d at 452–53.

White also relied on nineteenth century cases from Georgia, Louisiana, and

New York to support the proposition that the “right of face-to-face confrontation

was acknowledged in other states’ cases from the same period.” 9 N.W.3d at 7.

But White failed to acknowledge that today, appellate courts in Georgia and

Louisiana permit a child to testify via one-way closed-circuit television, and New

York courts allow two-way closed-circuit testimony under circumstances

satisfying Craig. See Lavalley v. State, 892 S.E.2d 803, 807–08 (Ga. Ct. App.

2023) (applying Craig to determine that a child’s testimony via one-way closed-

circuit television was proper); State v. Day, 253 So. 3d 173, 182–83 (La. Ct. App.

2018) (same); People v. Cintron, 551 N.E.2d 561, 567 (N.Y. 1990) (rejecting facial

challenge under the State and Federal Constitutions to a statute allowing two-

way video testimony of child witnesses in sex abuse cases).

So, what about two-way video in Iowa? Remarkably, the majority today

still leaves that question open, as it did in White, 9 N.W.3d at 14. This poses a

dilemma for prosecutors and victim rights advocates over whether to risk another

retrial by allowing otherwise recalcitrant child victims to testify by two-way video.

I would not bet that this court ultimately would allow two-way video without a

constitutional amendment. The State’s experienced appellate counsel at oral

argument in this case swung for the fences without arguing in the alternative

that two-way video is constitutional even if one-way is not. White said this:

At a minimum, face-to-face confrontation requires that trial witnesses must be both visible to the accused and also able to see  52

the accused. Two-way visibility—the ability to see each other—is inseparable from the idea of a face-to-face confrontation. So when the witness and the accused are prevented from seeing each other, there can be no face-to-face confrontation, and the Iowa Constitution cannot be satisfied.

Id. at 8–9. The White majority clearly saw two-way video testimony as resting on

a stronger constitutional footing than one-way video, yet today the majority again

declines to answer whether two-way video would comply with its interpretation

of article I, section 10. What Chief Justice Christensen said in protest in White

rings doubly true today:

Finally, the majority’s refusal to decide the actual appeal before us amounts to an abdication of responsibility. White contends that only in-person confrontation satisfies the Iowa Constitution. Meanwhile, the majority concludes that the use of a one-way video system violates the Iowa Constitution, but it does not decide whether a two-way video system complies with the Iowa Constitution. In short, the majority is not giving White what he asks for while also guaranteeing another appeal if he gets less than he asks for. Why isn’t the majority deciding the entire case? Surely the majority doesn’t think it needs more briefing on article I, section 10 or that new insights may emerge. Does the majority anticipate that some new authoritative treatise on the 1857 Iowa Constitution will be published between now and a potential second appeal? I doubt that will occur.

The majority protests that the “record does not describe an actual two-way system.” The majority turns a blind eye to the fact that we are all very familiar with two-way video systems, having been through the changes wrought by the COVID-19 pandemic. The majority knows what is possible with two-way video and should either approve such a procedure or indicate that the in-person appearance of a child witness is always required.

This is exactly the type of remand that a trial court judge dreads. A third trial would further traumatize the child witnesses. At a minimum, I would hold two-way video on this record does not violate the defendant’s confrontation rights under the Iowa Constitution. See, e.g., State ex rel. Montgomery v. Kemp, 239 Ariz. 332, 371 P.3d 660, 666 (Ariz. Ct. App. 2016) (adopting Craig under the Arizona Constitution and approving use of a two-way video system).  53

Id. at 20 (Christensen, C.J., dissenting).

We compared one-way and two-way video testimony in State v. Rogerson

and held that Craig applied to both. 855 N.W.2d 495, 504 (Iowa 2014). We

determined the state failed to satisfy Craig’s necessity prong and declined to

permit the prosecution to present the testimony of lab technicians or nonresident

adult car accident victims by two-way video. Id. at 507. But we “concede[d]” that

“two-way videoconferencing technology available today more closely

approximates face-to-face confrontation than one-way video.” Id. at 504. And we

recognized that Craig governs “when to permit child victims of abuse to testify

via one-way video systems.” Id. at 500 (emphasis omitted). We approvingly cited

our own precedent under the Sixth Amendment where “we employed the Craig

standard and permitted a minor sexual abuse victim to testify via closed-circuit

television because the State presented evidence that the child would suffer

emotional trauma if he were required to testify in the defendant’s presence.” Id.

at 500–01 (citing State v. Rupe, 534 N.W.2d 442, 443–44 (Iowa 1995)). We should

use the same approach under article I, section 10 of the Iowa Constitution, as

we did in J.D.S.

II. Lindaman’s Other Arguments for a New Trial.

The majority does not reach Lindaman’s remaining arguments for a new

trial. Because I would affirm the district court’s denial of Lindaman’s motion for

a new trial, I will address those arguments.

A. Venue. Lindaman argues that, because pretrial publicity made it

impossible for him to receive a fair trial by an impartial jury in Polk County, the

district court abused its discretion by denying his motion to transfer the case to

another venue. I disagree. We review rulings on motions to transfer venue by

examining “the record de novo and, on that basis, determine whether the trial  54

court abused its discretion.” State v. Dorsey, 16 N.W.3d 32, 41 (Iowa 2025)

(quoting State v. Love, 302 N.W.2d 115, 122 (Iowa 1981) (en banc), overruled on

other grounds by, State v. Reeves, 636 N.W.2d 22 (Iowa 2001)). Lindaman had to

show that there was: “(1) publicity attending the trial that is so pervasive and

inflammatory that prejudice must be presumed, or (2) actual prejudice on the

part of the jury.” Id. at 42 (quoting State v. Siemer, 454 N.W.2d 857, 860 (Iowa

1990)). The court must find there is “a substantial likelihood a fair and impartial

trial cannot be preserved with a jury selected from the county” where the crime

occurred. Iowa R. Crim. P. 2.11(11). Lindaman failed to make the requisite

showing to change venue.

Lindaman relied on stale information about press coverage of his case that

had tapered off by the time of trial. Questionnaires given to jury pools showed

“less than 20 percent” of prospective jurors had heard anything about his case.

He conceded the questionnaires “don’t show a high number of individuals that

would know about this case.” The district court correctly proceeded to voir dire

to determine whether Lindaman could get a fair trial. See Dorsey, 16 N.W.3d 32

at 45 (noting that “relying on stale information” to change venue without voir

dire is an abuse of discretion). “Voir dire is a critical part of determining whether

an impartial jury can be selected in the county of the offense.” Id. at 44. “Voir

dire of prospective jurors should be trusted to expose any substantial prejudices

among the jurors.” Id. (quoting State v. Ware, 338 N.W.2d 707, 713 (Iowa 1983)).

Voir dire supported the court’s ruling to keep the case in Polk County. The

several jurors who had heard about the case were excused for cause in an

abundance of caution. The jurors who were seated said they lacked any news

exposure to the case. The court instructed them to avoid news coverage during

the trial. Lindaman points to no evidence that any juror saw news coverage  55

during the trial. Lindaman failed to meet the “demanding standard” for a change

of venue. Id. at 45.

B. Prosecutorial Misconduct. Lindaman contends the prosecutor crossed

the line in preparing the child victim to testify. Lindaman extrapolates from the

child’s use of the word “vagina” at trial to the conclusion that the prosecutor

improperly told her what to say. Before trial, the victim had simply referred to

her “private part” or “heinie.” He argues this rises to the level of a Brady violation,

to be reviewed de novo. State v. Cahill, 972 N.W.2d 19, 27 (Iowa 2022). This claim

fails. The record shows the child learned the word “vagina” from her father after

the prosecutor asked her on the record if she knew the word. The district court

correctly found that “helping an eight-year-old learn a particular word is not the

same as insisting that she use that word or alter her testimony in any way.”

There was no misconduct. See DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002)

(“If by ‘coaching,’ DeVoss means the prosecutor went over Maggio’s testimony

with her, the claim simply has no merit.”); Owens v. State, No. 22–1359, 2024

WL 960455, at *3 (Iowa Ct. App. Mar. 6, 2024) (holding that a prosecutor

“educat[ing] the complaining witness on what the term ‘private part’ meant” was

“not impermissible coaching” and thus “the prosecutor did not commit

misconduct when preparing the child to testify”).

C. Denial of a Mistrial. Lindaman argues that he was entitled to a mistrial

when his granddaughter testified that “my mom said that [Lindaman] was a bad

man when she was little and it was not for my ears.” The prosecutor responded,

“We’re not going to talk about any of that stuff, okay?” The prosecutor stated on

the record that she had “no knowledge” of such a conversation between the

victim and her mother and it was an entirely unexpected answer. Lindaman

conceded at the time that the prosecutor “did a good job of trying to move along  56

from that statement.” And his appellate brief “duly note[s] that the prosecutor

promptly attempted to deflect the examination away from the problematic

testimony.” Lindaman nevertheless moved for a mistrial, arguing that his

granddaughter’s testimony suggested that Lindaman had abused his daughter.

The trial court denied the motion as requiring a “leap in logic,” but offered a

cautionary instruction, which Lindaman declined.

Lindaman argues the court abused its discretion in denying a mistrial. I

disagree. Lindaman must show that the unprompted answer resulted in

prejudice that prevented him from having a fair trial. State v. Callender, 444

N.W.2d 768, 770 (Iowa Ct. App. 1989). “Generally, an admonition to the jury to

disregard inadmissible testimony is sufficient to cure any prejudice,” and

Lindaman declined the court’s offer of such an admonition. Id. Lindaman relies

on State v. Belieu, 288 N.W.2d 895 (Iowa 1980), but that case is readily

distinguishable. There, the witness gave detailed inadmissible testimony of three

unrelated crimes (a robbery, a theft, and a burglary), which Belieu had previously

committed, to show that he forced her to participate in the crime at issue, and

the prior crimes were “pervasive and central to the defenses” that codefendants

argued to the jury. Id. at 901. That is a far cry from the cryptic, stray comment

challenged here. See State v. Newell, 710 N.W.2d 6, 32–33 (Iowa 2006)

(determining trial court did not abuse its discretion in denying a motion for

mistrial after a witness made a “solitary reference” to defendant’s unrelated drug

charge, when “considered in the context of the entire trial and all the properly

admitted evidence”).

None of the foregoing arguments entitles Lindaman to a new trial.

For these reasons, I dissent from part III of the majority opinion.

Christensen, C.J., joins this dissent.