Opinion
No. 4-750 / 03-1679
Filed December 8, 2004
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
David Petithory appeals from his convictions and sentences for child endangerment, three counts of neglect of a dependent person, involuntary manslaughter by public offense, possession of methamphetamine, and domestic abuse assault causing bodily injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John P. Sarcone, County Attorney, and Jeffrey Noble and Frank Severino, Assistant County Attorneys, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
David Petithory appeals from his convictions and sentences for child endangerment in violation of Iowa Code sections 726.6(1) and 726.6(4) (2003) (Count I); three counts of neglect of a dependent person in violation of section 726.3 (2001 Supp.) and section 726.3 (2003) (Counts II, VII, and VIII); involuntary manslaughter by public offense in violation of section 707.5(1) (2003) (Count III); possession of a controlled substance, to wit: methamphetamine in violation of section 124.401(5) (2003) (Count V); and domestic abuse assault causing bodily injury in violation of section 708.2A(2)(b) (2001) (Count IX). We affirm.
I. Background Facts Proceedings
According to the State's evidence presented at trial, on February 13, 2003, emergency personnel were summoned to the Des Moines home of Petithory and Amy Champoux after their one-year-old daughter, B.P., stopped breathing. Petithory told officers that he placed B.P. and her three-year-old half-sister, K.C., in the bathtub, and then fell asleep in the hallway outside. When he awoke, K.C. was screaming and directing him towards the overflowing bathtub where B.P. was floating facedown in the water.
B.P. was taken to the hospital where she was placed on a ventilator to help her breathe. Although her lungs and kidneys improved, B.P. was "neurologically devastated." She died on March 23, 2003. A subsequent autopsy revealed B.P. died from complications of near drowning.
When officers of the Des Moines Police Department originally arrived at Petithory's residence after responding to the emergency call on February 13, 2003, Petithory was seen rolling around and punching the ground, "bouncing off the walls," and mumbling. At least two officers noted Petithory's behavior was consistent with someone who was under the influence of drugs. As Officer Timothy Morgan secured the house, he noticed evidence consistent with methamphetamine use in the basement.
Later that night, and early the next morning, police obtained and executed a search warrant that produced paraphernalia including burned aluminum foil, methamphetamine residue, "tooters" used to inhale the heated methamphetamine, plastic bags containing marijuana residue, and rolling papers. Champoux, who was away from the house at the time of B.P.'s injury, told authorities that she and Petithory had used methamphetamine the night before and that Petithory had a long history of methamphetamine abuse. Blood and urine tests of Petithory and Champoux were positive for methamphetamine.
On March 14, 2003, that State charged Petithory by trial information with Counts I, II, V, VII, VIII, IX, and possession of a controlled substance, to wit: marijuana in violation of Iowa Code section 124.401(5) (2003) (Count VI). The State amended the trial information on August 15, 2003 to include Count III, involuntary manslaughter by public offense in violation of section 707.5(1), and Count IV, involuntary manslaughter by act in violation of section 707.5(2). The trial court found Petithory guilty of Counts I, II, III, V, VII, VIII, and IX. After denying his posttrial motions in arrest of judgment and for new trial, the court sentenced Petithory to two ten-year terms of imprisonment under Counts I, and II, to be served consecutively to each other but concurrent to the sentences for Counts VII, and VIII. Under Counts VII and VIII, Petithory was sentenced to two ten-year terms of imprisonment to be served consecutively to each other. The court further sentenced Petithory to a five-year term of imprisonment under Count III, and one year of imprisonment on each of Counts V and IX, with these three counts to run consecutively to the other sentences. Petithory was further ordered to pay $250,000 restitution, and was fined $5,250. The fines were suspended. Petithory appeals.
On appeal, Petithory raises the following issues for review:
I. WHETHER THE TRIAL COURT ERRED IN IMPOSING AN ILLEGAL SENTENCE WHEN IT FAILED TO MERGE COUNTS, AND TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THE LACK OF MERGER ON CONSTITUTIONAL GROUNDS?
II. WHETHER DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE IOWA CONSTITUTION; TRIAL COUNSEL FAILED TO SEEK SUPPRESSION OF EVIDENCE AND RELATED FRUIT OBTAINED IN THE WARRANTLESS SEARCH OF DEFENDANT'S HOUSE?
III. WHETHER DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE IOWA CONSTITUTION; TRIAL COUNSEL FAILED TO SPECIFY GROUNDS FOR A JUDGMENT OF ACQUITTAL?
IV. WHETHER DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE IOWA CONSTITUTION; TRIAL COUNSEL FAILED TO OBJECT TO PREJUDICIAL, INFLAMMATORY EVIDENCE?
II. Merger
Our review of challenges to the legality of a merger decision by the trial court is for errors at law. See State v. Anderson, 565 N.W.2d 349, 342 (Iowa 1997). We review claims of constitutional violations de novo. State v. Flanders, 546 N.W.2d 221, 224 (Iowa Ct.App. 1996). Iowa Code section 701.9 provides:
No person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty of the greater of the offenses only.
In determining whether a lesser offense is included in a greater one, we look to the elements of each offense and determine if the greater can be committed without also committing the lesser. 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 an included offense of the greater. Id.
Petithory first claims that Count VII, neglect of a dependent person, is a lesser-included offense of Count III, involuntary manslaughter by public offense, as submitted by the State. He asserts that because the State used the charge of neglect of a dependent person as the underlying public offense necessary to convict him of involuntary manslaughter, the neglect charge is a lesser-included offense of involuntary manslaughter and therefore, the two convictions should have merged. We disagree.
To be considered a lesser-included offense, the lesser offense must be composed solely of some but not all elements of the greater offense. State v. Jackson, 422 N.W.2d 475, 478 (Iowa 1988). Neglect of a dependent person is committed when "[a] person who is the father . . . of a child . . . knowingly or recklessly exposes such person to a hazard or danger against which such person cannot reasonably be expected to protect such person's self. . . ." Iowa Code § 726.3. Involuntary manslaughter by public offense is committed when a person "unintentionally causes the death of another person by the commission of a public offense other than a forcible felony or escape." Iowa Code § 707.5(1). The "public offense" element of involuntary manslaughter may be committed in many alternative ways. State v. Webb, 313 N.W.2d 550, 552 (Iowa 1981).
Although we look to the indictment or information to determine the enumerated statutory definition of a particular offense with which the defendant has been charged, alternative ways of committing a crime within an enumerated definition are not similarly treated. This is because the legal test for identifying lesser included offenses depends on the statutory definition of the greater offense rather than the evidence by which the offense may be proved in a particular case.
Id. (citation omitted) (emphasis added).
Because it is possible to commit involuntary manslaughter without committing neglect of a dependent person, the greater crime does not necessarily include neglect. See id. (holding public offense of assault is not a lesser-included offense of involuntary manslaughter). Accordingly, neglect of a dependent person is not a lesser-included offense of involuntary manslaughter. The trial court did not err in failing to merge Petithory's convictions for Counts III and VII.
Petithory next argues the court erred in failing to merge his convictions for neglect of dependent person with child endangerment. He contends "it is impossible to knowingly act in a manner creating a substantial risk to a child or to willfully deprive a child of necessary supervision, where the deprivation substantially harms the child's health, without also knowingly or recklessly exposing the child to a hazard or danger."
In Count I, the State charged Petithory with child endangerment alleging that on February 13, 2003, he knowingly created a substantial risk to B.P.'s health or safety by placing her unsupervised in a bath tub. In Count VII, the State charged Petithory with neglect of B.P. alleging he knowingly or recklessly exposed B.P. to "illegal drug using parents" from November 1, 2002, through February 13, 2003. Because the alleged acts occurred separately and constituted distinct offenses, there can be no claim that neglect was a lesser-included offense of child endangerment in this case. See Flanders, 546 N.W.2d at 224. The court did not err in failing to merge Petithory's convictions for Counts I and VII.
We find no merit to Petithory's claim trial counsel was ineffective in failing to request merger of the aforementioned convictions. Trial counsel is not ineffective for failing to raise a meritless issue. State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998).
III. Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, Petithory has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); Ledezma v. State, 626 at 142; State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). In proving the first element, Petithory faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second element is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
An ineffective assistance of counsel claim fails if a defendant fails to establish either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). "Preserving ineffective assistance of counsel claims that can be resolved on direct appeal wastes time and resources." State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004).
A. Failure to Seek Suppression of Evidence
Petithory argues trial counsel was ineffective in "failing to seek suppression of all evidence obtained, directly or indirectly, from the warrantless search of his residence on the evening of February 13, 2003." He asks for a new trial, or in the alternative, that this claim be preserved for postconviction proceedings. The State believes this claim should be preserved.
The record shows that counsel originally filed a motion to suppress "any and all evidence obtained in the search of [Petithory] and his residence on or about February 13, 2003, and any and all evidence directly resulting therefrom . . . [and] any and all statements given by [Petithory]." However, counsel withdrew the motion prior to trial. Because we find the record insufficient to address this issue on direct appeal, we preserve this claim for possible postconviction relief.
B. Judgment of Acquittal
Petithory next contends trial counsel failed to make a specific motion for judgment of acquittal arguing the State's evidence was insufficient to sustain his conviction under Count VIII, neglect of K.C. He believes the record contains no evidence that he exposed K.C. to any hazard or danger between November 1, 2002, and February 13, 2003.
In a bench trial, the court's finding of guilt necessarily includes a finding that sufficient evidence supports the conviction. State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997). "[W]hen a criminal case is tried to the court, a defendant may challenge the sufficiency of the evidence on appeal irrespective of whether a motion for judgment of acquittal was previously made." Id. Accordingly, we will address the merits of Petithory's sufficiency claim without regard to trial counsel's effectiveness.
We review sufficiency of the evidence claims for errors at law. Iowa R. App. P. 6.4. A trial court's verdict is binding if it is supported by substantial evidence. Abbas, 561 N.W.2d at 74. We view the evidence in a light most favorable to the State. Id. Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct. App. 1999). Direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)( p).
As mentioned above, neglect of a dependent person is committed when "[a] person who is the father . . . of a child . . . knowingly or recklessly exposes such person to a hazard or danger against which such person cannot reasonably be expected to protect such person's self. . . ." Iowa Code § 726.3. Count VIII of the trial information charged Petithory with:
NEGLECT OF A DEPENDENT PERSON and charges that on or about November 1, 2002 through February 13, 2003, the defendant, a person having custody of a child K.C., knowingly or recklessly exposed K.C. to a hazard or danger, to wit: illegal drug using parents, against which the child cannot reasonably be expected to protect herself. . . ."
We find substantial evidence supports Petithory's conviction. Both Petithory and Champoux acknowledge Petithory's daily use of methamphetamine while caring for K.C. During the search of the house, Officers discovered methamphetamine paraphernalia and residue, and Petithory tested positive for methamphetamine on February 13, 2003. Dr. Rizwan Shah testified that "parents who are addicted to methamphetamine are not available physically and emotionally to their children" because after experiencing the "high," the downfall causes the parent to sleep for hours at a time. Dr. Shah went on to testify that over time, methamphetamine users lack the energy to provide for the needs of children, develop poor impulse control, and are at an increased risk of losing their temper. We accordingly find the State's evidence sufficient to support Petithory's conviction under Count VIII.
C. Prejudicial Evidence
Petithory argues trial counsel was ineffective in failing to object to the State's admission of a videotape showing B.P. experiencing a "neurostorm" while intubated in the hospital. He contends counsel should have objected to the tape's admittance because it was unnecessary, improperly prejudicial, and offered to "inflame the passions of the factfinder." The State asserts the tape was relevant to prove the serious injury element of Petithory's charge of child endangerment, and was not unfairly prejudicial.
Without determining whether trial counsel breached an essential duty by failing to make this objection, we conclude Petithory is unable to show prejudice based on the overwhelming nature of the evidence earlier recited supporting his convictions. See Reed v. Norris, 195 F.3d 1004, 1006 (8th Cir. 1999) (citing Strickland, 466 U.S. at 697, 104 S. Ct. 2052, 80 L. Ed. 2d at 699-70); see also Greene, 592 N.W.2d at 29(holding the court may affirm a conviction if either a breach of an essential duty or prejudice is not shown). Furthermore, there is less danger of unfair prejudice when the matter is tried to the court. See State v. Jacobs, 607 N.W.2d 679, 689 (Iowa 2000). Petithory failed to demonstrate he received ineffective assistance of counsel.