Opinion
No. 3-515 / 02-1267
Filed February 11, 2004
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge.
Smith appeals her convictions for the crimes of child endangerment resulting in serious injury and neglect or abandonment of a dependent person. REVERSED.
Linda Del Gallo, Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney General, William Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
A jury found Tiffany Smith guilty of child endangerment resulting in serious injury and neglect or abandonment of a dependent person. On appeal, Smith contends the district court should have found the evidence insufficient to support the findings of guilt. We reverse.
I. Background Facts and Proceedings
Tiffany and Mike Smith had four children, ages five, four, three, and ten months. They lived in a second floor apartment. On September 14, 2001, Tiffany stepped out to the parking lot of the apartment complex to meet a friend. Mike and another friend, Yavette, were inside with the children. Within minutes, Mike and Yavette informed Tiffany that the youngest child, M.S., had ingested rubbing alcohol in the bathroom of the apartment and appeared to have stopped breathing. M.S. was rushed to the hospital where he experienced respiratory problems for several days. Following his hospital stay, he was placed in foster care.
The State charged Tiffany with child endangerment resulting in serious injury and neglect or abandonment of a dependent person. Iowa Code §§ 726.6(4) and 726.3 (2001). At the close of the State's evidence, Tiffany moved for directed verdicts, alleging the evidence was insufficient to support the charges. The district court denied the motions and a jury found her guilty on both counts. Tiffany filed motions for new trial and in arrest of judgment. The district court denied the motions and sentenced Tiffany to concurrent prison terms not to exceed ten years.
Mike was charged, tried, and found guilty of the same crimes. He filed a separate appeal.
The jury found Tiffany not guilty of a third count, also charging child endangerment resulting in serious injury.
On appeal, Tiffany argues 1) the evidence was insufficient to support the findings of guilt and 2) her new trial motion should have been granted. Following oral argument, we remanded the case to the district court for the limited purpose of revisiting its ruling on the new trial motion using the standard prescribed in State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). Applying that standard, the district court again denied the motion.
II. Sufficiency of the Evidence A. Standard of Review
Defense counsel preserved error on his sufficiency of the evidence challenge by moving for a directed verdict at the close of the State's case. State v. Wells, 629 N.W.2d 346, 356 (Iowa 2001). We will find the evidence sufficient if each element of the offense is supported by substantial evidence. State v. Sayles, 662 N.W.2d 1, 3 (Iowa 2003). "Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt." Id. (quoting State v. Webb, 648 N.W.2d 72, 75-76 (Iowa 2002)).
B. Child Endangerment
The district court instructed the jury that the State would have to prove the following elements of child endangerment resulting in serious injury:
1. On or about September 14, 2001, the Defendant was the parent of [M.S.]
2. [M.S.] was under the age of fourteen years.
3. The defendant (a) knowingly acted in a manner creating a substantial risk to [M.S.]'s health or safety, or (b) intentionally deprived [M.S.] of supervision appropriate to [M.S.'s] age.
4. The defendant's act resulted in serious injury to [M.S.].
The court further instructed the jury that "[f]or the defendant to know something means he or she had a conscious awareness that the children would be exposed to a hazard or danger." Tiffany Smith contends that the State failed to prove she knew M.S. would be exposed to danger or intentionally deprived him of supervision.
This was the only definition of knowledge given by the court and it appears immediately after the marshalling instruction for the crime of neglect of a dependent person. Cf. Uniform Crim. Jury Inst. 200.3 ("[f]or the defendant to [know] [have knowledge of] something means [he] [she] had a conscious awareness that (element requiring knowledge). The State did not contest the application of this definition to the crime of child endangerment. See State v. Heacock, 521 N.W.2d 707, 711 (Iowa 1994) (noting act causing injury must be intentional but resulting injury need not be intended). Cf. State v. Dunham, 2003 WL 183774 *1, *3 (Iowa Ct. App. 2003) (noting court erroneously instructed jury that knowledge meant a "conscious awareness that she was creating a substantial risk to [the children's] physical, mental, or emotional health or safety."). Therefore, the instruction became the law of the case. Hoskinson v. City of Iowa City, 621 N.W.2d 425, 430 (Iowa 2001).
A jury could have found the following. The Department of Human Services received an anonymous tip approximately two weeks before the September 14, 2001 incident, complaining about the condition of the Smiths' apartment. A child protection worker visited the apartment five times over the next two weeks and confirmed the existence of "environmental hazards" throughout the apartment. She also expressed concern about the "level of supervision" of the children, although she conceded that the children were supervised during all five visits.
A service provider retained by the Department visited the apartment on September 12, 2001. Like the Department's child protection worker, she determined that the home was "in disarray." On September 13, 2001, a day before the incident, the service provider helped Tiffany clean the apartment. On the day of the incident, she picked Tiffany up to do laundry, leaving the children with Mike and some of the Smiths' friends. They returned at 1:00 P.M. and the service provider stayed to assist Tiffany around the house. She helped clean up the children's room and then began cleaning the bathroom and hallway. With respect to her activities in the bathroom, she testified as follows:
Q: And you picked up the bathroom? A. The floor of the bathroom, yes.
Q. Okay. I'm assuming that when you're in the bathroom, that you were cleaning up items that you thought might be out of place or might be a danger to children? A. Yes.
Q. And you wouldn't want to leave anything around that would be harmful to the children, right? A. I was picking up items that were off the floor, such as towels, clothing, toilet bowl roll holders, things that were on the floor, old washcloths.
Q. Did you scan the room to make sure there wasn't anything dangerous for the kids? That's what you're trained to do, isn't it? A. Yes.
Q. So you would normally look for things that might cause a danger? A. Normally.
Q. That's your training? A. Yes.
Q. That's your job? A. Yes.
Q. Okay. Was there an open bottle of alcohol? A. I did not see one.
Q. Had there been one, do you believe you would have seen it? A. It depend (sic) on where it would have been. If it was in the shower or something, I didn't look in the shower. If it was up in a medicine cabinet, I didn't open that. If it was out in plain space like on the floor or something, I probably would have seen it.
Q. If it would have been where [M.S.] could have gotten hold of it, would you have seen it? A. Probably. Like I said, unless it was on a shower ledge, and I didn't look in the shower. But if it was sitting on the floor, I generally would have saw it.
At about 4:00 P.M., the service provider took Tiffany to pick up her wages at a local restaurant. She returned Tiffany to the apartment at approximately 4:30 P.M. Within half an hour, one of Tiffany's friends arrived at the apartment complex to take Tiffany to a hair appointment. Tiffany met her in the parking lot. In less than five minutes, Mike Smith came down and advised Tiffany that M.S. needed her. Momentarily, Yavette rushed out with M.S. in her arms, screaming that he was not breathing. Police later discovered an open bottle of rubbing alcohol lying in plain view underneath the bathroom sink.
In her statement to police, Tiffany stated that she ran upstairs and found M.S. in the bathroom "crying, shaking, puking."
We believe this evidence is insufficient to establish a "conscious awareness" on Tiffany's part that M.S. would be exposed to a hazard or danger. Tiffany had just cooperated with a service provider in cleaning up the apartment. That provider specifically examined the bathroom floor and removed items visible to her. The floor was the only area ten-month-old M.S. could have reached. In her statement to police, which was videotaped and admitted as substantive evidence, Tiffany stated she did not know how the bottle got to the bathroom and who used the alcohol in the bathroom. We conclude these facts do not establish knowledge as defined by the court.
We intimate no view concerning whether the State could have satisfied a different knowledge standard.
We also find the evidence insufficient to satisfy the "lack of supervision" alternative. When Tiffany left the apartment to meet her friend in the parking lot, she knew that Mike and Yavette were inside with the children. She was outside the apartment no more than five minutes before Yavette came out with M.S. Tiffany expressed distress and saw to it that M.S. was taken to the hospital. While the State points out that Tiffany acknowledged she had concerns with Mike's supervision, the service provider saw fit to leave the children in his care earlier that morning.
We conclude the State failed to prove child endangerment beyond a reasonable doubt.
C. Neglect or Abandonment of a Dependent Person
The jury was instructed that the State would have to prove the following elements of the crime of neglect or abandonment of a dependent person:
1. On or about September 14, 2001, the defendant was the mother of [C.H.], [A.H.], [F.H.], and [M.S.].
2. All children were persons under the age of fourteen years.
3. The defendant knowingly or recklessly exposed the children to a hazard or danger against which the children could not reasonably be expected to protect themselves.
The jury was further instructed:
A person is "reckless" or acts "recklessly" when he or she willfully disregards the safety of persons or property. It is more than a lack of reasonable care which may cause unintentional injury. Recklessness is conduct which is consciously done with willful disregard of the consequences, and a person knows or should know a risk of harm to another or to property is created. Though recklessness is willful, it is not intentional in the sense that harm is intended to result.
Cf. Unif. Crim. Jury Inst. 200.20:
("A person is "reckless" or acts "recklessly" when [he] [she] willfully disregards the safety of persons or property. It is more than a lack of reasonable care which may cause unintentional injury. Recklessness is conduct which is consciously done with willful disregard of the consequences. For recklessness to exist, the act must be highly dangerous. In addition, the danger must be so obvious that the actor knows or should reasonably foresee that harm will more likely than not result from the act. Though recklessness is willful, it is not intentional in the sense that harm is intended to result." (emphasis added)).
Tiffany asserts that the State failed to prove she acted recklessly. We agree. This charge, like the child endangerment charge, was based on Tiffany's conduct on September 14, 2001. On that date, a service provider was at the apartment or with Tiffany for most of the day. Although Tiffany's progress over the previous two weeks had been slower than expected, the Department's child protection worker conceded that Tiffany expressed a desire to improve her living conditions.
She does not challenge the "knowingly" prong of this charge.
We are also not convinced that Tiffany's decision to leave the children in the care of her husband and friend amounted to recklessness, in light of the service provider's decision to do the same thing that morning.
These facts are insufficient to establish a "willful disregard of the consequences" as required for a finding of recklessness. Cf. State v. Caskey, 539 N.W.2d 176, 178 (Iowa 1995) (finding sufficient evidence to support conviction where mother drove children while intoxicated).
III. Disposition
We reverse Tiffany Smith's judgment and sentence for child endangerment.
With respect to the neglect of a dependent charge, the State points out that Tiffany did not challenge the "knowingly" alternative of this crime. Tiffany responds that if the State could not establish "recklessness," the State also could not establish that she "knowingly" exposed the children to a hazard or danger.
We agree with Tiffany. The district court defined knowledge as "a conscious awareness that the children would be exposed to a hazard or danger." The court defined "reckless" in pertinent part as "conduct which is consciously done with willful disregard of the consequences, and a person knows or should know a risk of harm to another or to property is created." Given these definitions, our finding of insubstantial evidence to support the "recklessness" prong necessarily means there is insufficient evidence to support the "knowingly" prong of this crime. See State v. Royer, 436 N.W.2d 637, 641 (Iowa 1989) (noting that "[w]hile `knowledge' and the knowing-type of `intention' requires a consciousness of certainty, recklessness requires a consciousness of something far less than certainty or even probability.") (citing W. LaFave A. Scott, Criminal Law, § 3.7(f), p. 239-40 (2ded. 1986)). The jury's finding of guilt on the neglect of a dependent person count is reversed. In light of our conclusion, we need not address the remaining issue raised by Tiffany.