Opinion
No. 4-104 / 03-0420
May 26, 2004.
Appeal from the Iowa District Court for Marshall County, David R. Danilson, Judge.
Defendant appeals from his convictions of involuntary manslaughter by public offense and child endangerment without serious injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Virginia Barchman, and Scott Brown, Assistant Attorneys General, and Jennifer Miller, County Attorney, for appellee.
Heard by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Benjamin Arends appeals from his convictions of involuntary manslaughter by public offense and child endangerment without serious injury, in violation of Iowa Code sections 707.5(1) and 726.6(6) (2001). He contends the district court erred in denying his motions for judgment of acquittal and new trial. He also contends the court erred in failing to merge the convictions and sentences. We affirm.
I. Background Facts and Proceedings.
In November 2001, Arends was the live-in boyfriend of Amanda Prusha, the mother of two-and-one-half year old Jesse Snyder. Arends, who was unemployed, was Jesse's primary caretaker while Prusha worked nine to ten hours a day.
On the morning of Wednesday, November 28, 2001, Jesse woke up around 11:00 a.m., at which time Arends attempted to feed him. Arends bathed Jesse and they watched cartoons. Jesse had been ill in the previous days and ate nothing the rest of the day. Arends did supply Jesse with liquids. Jesse went to bed at 3:00 p.m. and never got up again. Arends checked on Jesse periodically throughout the day and finally around 10:00 p.m. Arends believed Jesse was alright.
The following morning around 9:00, Prusha discovered Jesse had died during the night. An autopsy revealed Jesse had the following non-accidental injuries: a broken left leg; a subdural hematoma; retinal hemorrhages in both eyes; diffuse axonal injuries; an esophageal tear that caused a lethal case of peritonitis; bruising on the cheek, back, left shoulder, collarbone, waist, buttocks, and legs; blood on the lips and teeth; a scratch under the chin; and sunken eyes caused by severe dehydration. Traces of methamphetamine were found in Jesse's urine.
On April 1, 2002, Arends was charged with first-degree murder, in violation of Iowa Code sections 707.2(2) or 707.2(5) (count I), and child endangerment resulting in serious injury, multiple acts, in violation of section 726.6(1)(b) and 726.6A (count II). Arends waived his right to speedy trial at his April 16, 2001 arraignment. On September 18, 2002, the charges were amended, deleting allegations regarding section 707.2(5) and charging felony murder alone. Count II was amended to include a violation of section 726.6(1)(a) as an alternative means of committing child endangerment.
Trial was held in December 2002. The jury convicted Arends of the lesser included offenses of involuntary manslaughter by public offense (count I) and child endangerment without serious injury (count II). Arends was sentenced to serve an indeterminate five-year prison term on the involuntary manslaughter conviction, and a consecutive indeterminate two-year term on the child endangerment conviction.
II. Motion for Judgment of Acquittal.
Arends first contends the district court erred in denying his motion for judgment of acquittal because the evidence is insufficient to support his convictions. Specifically, he contends he was not guilty of child endangerment without injury as the jury was instructed that Arends had to commit an act rather than an omission. Arends further argues the State failed to prove he had the requisite knowledge he was acting in a manner that created a substantial risk to the physical health or safety of Jesse, or that he intentionally used unreasonable force resulting in physical injury to Jesse.
We review claims of insufficient evidence for errors at law. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We will uphold a finding of guilt if substantial evidence supports the verdict. Id. "Substantial evidence is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt." Id.
Arends concedes he failed to preserve error on his challenges to the sufficiency of the evidence because he did not argue these specific grounds in his motion for judgment of acquittal. See State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999) (requiring a defendant to identify to the district court the specific elements of the charge that were insufficiently supported by the evidence). In the alternative, Arends argues these claims in the context of an ineffective assistance of counsel claim.
We review claims of ineffective assistance of counsel de novo. State v. McBride, 625 N.W.2d 372, 373 (Iowa Ct. App. 2001). Ordinarily, we preserve ineffectiveness claims raised on direct appeal for postconviction relief to allow full development of the facts surrounding counsel's conduct. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Only in rare cases will the trial record alone be sufficient to resolve the claim. Id. "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Kirchner, 600 N.W.2d 330, 335 (Iowa Ct. App. 1999) (citing State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978)).
To establish an ineffective assistance of counsel claim a defendant must show (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefrom. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). The test of ineffective assistance of counsel focuses on whether counsel's performance was reasonably effective. Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). The defendant must show counsel's performance fell below an objective standard of reasonableness so that counsel failed to fulfill the adversarial role that the Sixth Amendment envisions. Id. A strong presumption exists that counsel's performance fell within the wide range of reasonable professional assistance. Wemark, 602 N.W.2d at 814. The defendant has the burden of proving both elements of his ineffective assistance claim by a preponderance of the evidence. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001). We may dispose of the defendant's ineffective assistance claims under either prong. Id. In order to prove the prejudice prong, the defendant must show a reasonable probability that but for counsel's alleged errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.
Instruction No. 36 set forth the elements the State was required to prove in order to convict Arends of child endangerment without serious injury:
1. During November 19 through November 29, 2001, the Defendant was a person having custody or control of Jesse Kincaid Snyder.
2. Jesse Kincaid Snyder was under the age of fourteen years.
3. While the Defendant was in custody of control of Jesse Kincaid Snyder, the Defendant either:
(a) knowingly acted in a manner that created a substantial risk to the physical health or safety of Jesse Kincaid Snyder; or
(b) intentionally used unreasonable force that resulted in physical injury to Jesse Kincaid Snyder.
During deliberations, the jury sent a question to the court, which reads in pertinent part, "The Jury is in agreement that the `inaction' of the defendant created a substantial risk to the physical health or safety of Jesse Snyder."
Because the jury returned a verdict convicting Arends of child endangerment without serious injury, Arends contends he was convicted for failing to seek medical treatment for Jesse. He argues that in order to convict him of this offense, the jury had to find he knowingly acted in a manner creating a substantial risk to Jesse's physical health or safety, and the evidence was insufficient to show he did an act. Arends contends failure to provide medical care is an omission. Arends contends failure to provide medical care is a crime under section 726.6(1)(d), a section under which he was not charged. In the alternative, Arends argues the State failed to present evidence he failed to act knowing it would create a substantial risk to Jesse.
Iowa Code section 702.2 defines the term "act" to include "a failure to do any act which the law requires one to perform." Arends's failure to seek medical treatment for Jesse would therefore qualify as an "act" under section 707.6(1)(a). We also conclude there is sufficient evidence to show Arends was knowingly acting in a manner that created a substantial risk to Jesse's physical health. The evidence shows Jesse would have been noticeably injured on the day before he died. The fracture of Jesse's left leg was caused by violent twisting and would have caused Jesse to walk with a limp. Jesse was lethally dehydrated. His brain injury would have altered his level of consciousness and been noticeable to a caretaker. As a result, Jesse would not have been able to eat, run or play. Jesse also suffered an esophageal tear that caused fatal peritonitis. The expert witnesses testified Jesse's injuries were to such an extent that it would have been noticeable to a caretaker. A jury was free to disregard Arends's testimony that he believed Jesse was alright, and to find Arends was aware of Jesse's injuries but failed to seek medical treatment for him.
Because sufficient evidence supports Arends's conviction, his trial counsel did not breach an essential duty by failing to move for judgment of acquittal on the specific grounds complained of.
III. Motion for New Trial.
Arends next contends the district court erred in denying his motion for new trial. Specifically, Arends contends the court failed to grant new trial based on the lack of supportive evidence. Arends further argues the court erred in failing to dismiss the charges or, in the alternative, grant a new trial because the convictions were inconsistent.
Rulings on motions for new trial are reviewed for errors at law. Iowa R. App. P. 6.4. The district court's ruling on a motion for new trial will only be reversed for an abuse of discretion. State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997). A motion for a new trial asserting the verdict was contrary to evidence should be granted only if the jury's verdict was contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). A verdict is contrary to the weight of the evidence where "a greater amount of credible evidence supports one side of an issue or cause than the other." Id. at 658 (citation omitted).
Following limited remand, the district court concluded "the weight of the evidence, or in other words, the greater amount of credible evidence, supports the jury verdicts reached in this action." We find no error. As stated above, the medical evidence presented at trial indicates Jesse was noticeably injured on the day he died. Arends failed to seek medical care for Jesse's injuries. His failure to act resulted in Jesse's death.
Arends also contends the district court erred in denying his motion for new trial because the verdicts are inconsistent. Arends argues it was inconsistent for the jury to return a verdict of guilty on the charge of child endangerment without serious injury, but then find the same act of child endangerment caused Jesse's death.
In ruling on this issue, the district court stated:
. . . I might state, that at first blush, when I found out about the verdicts, it certainly crossed my mind that these may be inconsistent. But at the same time, if we recall the evidence presented at trial and the State's allegations, the State did not rely on a single act or omission for obtaining the Defendant's conviction on these offenses. There were various allegations by the State and argues at the time of closing statement concerning various acts which the State believed were supported by the evidence.
And Ms. Barchman certainly is correct in that the Court does not make inquiry with the jury as to how they reached their verdict. Their verdict may or may not have been or revolved just around a single act or omission because of the numerous allegations that the State made and argues at the time of the closing argument and presented evidence consisted thereto.
In so ruling, the court relied on Unites States v. Powell, 469 U.S. 57, 66, 105 S.Ct. 471, 477, 83 L.Ed.2d 461, 469 (1984), in which the Supreme Court held inconsistent verdicts are not reviewable.
The fact that the inconsistency may be the result of lenity, coupled with the Government's inability to invoke review, suggests that inconsistent verdicts should not be reviewable.
We also reject, as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake.
Powell, 469 U.S. at 66, 105 S.Ct. at 477, 83 L. Ed.2d at 469. Accordingly, the district court did not err in denying Arends's motion.
IV. Merger.
Finally, Arends contends the district court erred in failing to merge his convictions and sentences because the crime of child endangerment is a lesser included offense of involuntary manslaughter. We review his claim for errors at law. Iowa R. App. P. 6.4.
In determining whether a lesser offense is included in a greater one, we look to the elements of each and determine if the greater offense can be committed without also committing the lesser offense. State v. Hickman, 623 N.W.2d 847, 850 (Iowa 2001). If the greater offense cannot be committed without also committing the lesser offense, the lesser is included in the greater. Id. This analysis addresses situations where multiple charges apply to a single occurrence. State v. Flanders, 546 N.W.2d 221, 224 (Iowa Ct. App. 1996).
Where the alleged acts occur separately and constitute distinct offenses, there can be no complaint one is a lesser-included offense of the other. Id. Here, Arends was charged with having committed three or more acts of child endangerment committed between July 2001 and November 29, 2001. At trial, the time frame for acts of child endangerment was narrowed to between November 19 and November 29, 2001. The evidence supports the conclusion the child was injured on at least three times in this ten days. The lesser-included analysis does not apply. Accordingly, the district court did not err in failing to merge Arends's sentences.
We affirm.