Opinion
No. 3-752 / 03-0153
Filed October 29, 2003
Appeal from the Iowa District Court for Clinton Country, David H. Sivright, Jr., Judge.
John A. Dodd appeals from a judgment and sentence following his conviction for wanton neglect of a dependent person. AFFIRMED.
Robert McGee of Robert J. McGee, P.C., Clinton, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, and Michael Wolf, County Attorney, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
John A. Dodd appeals from a judgment and sentence following his conviction for wanton neglect of a dependent person, in violation of Iowa Code section 726.8 (2001), a serious misdemeanor. He contends there is insufficient evidence to support his conviction, his trial counsel was ineffective in several respects, and the court abused its discretion in sentencing him.
Dodd was employed by Tender Loving Care and Homecare Services (TLC). On June 29, 2002, he was sent by Lisa Fratianni, TLC's owner, to the home of Don Brewer. Dodd was to care for Don, who was mentally and physically impaired from a brain injury, while Don's family attended a wedding reception for his daughter. Dodd arrived at the home at approximately 4:00 p.m. and met with Don's wife, Mary, who instructed Dodd on how to care for Don. Mary then left Dodd and Don alone.
Dodd contends he tried to coax Don to his bedroom at approximately 10:00 p.m. Dodd got a drink of water for Don and told him his wife wanted him to take his medication and go to bed. Dodd contends Don blew up in his face and said, "You're not telling me what to do here, big boy. Get out of my house." Dodd claims Don took a bag of pills, ripped it open, and ran into the closet. Don then spilled more medication on the floor. Although Dodd contends he pleaded with Don to take his medication, Don became increasingly agitated and chased him out of the home. Dodd claims he was trained to get away from someone who is violent and about to explode.
When the Brewers' youngest daughter returned home between 10:00 and 11:00 p.m. that night, she could not locate either Dodd or her father. She called her mother who rushed home to find the kitchen cupboards opened, food strewn about, and her husband's medication spilled on the bedroom floor. Mary frantically searched for her husband, locating him in the back yard. Don was curled into a ball and crying.
Mary Brewer called Fratianni to find out what had occurred, and whether Don was given the medication he needed to prevent seizures. As Fratianni had not heard from Dodd, she called his home. Fratianni claims she did not receive an answer to her call.
Mary Brewer reported the incident to the Department of Human Services, which in turn notified law enforcement. Dodd was charged with wanton neglect of a dependent person and nonsupport of a dependent person. The felony charge of nonsupport of a dependent person was dismissed by the court at the close of the State's case in chief. Dodd was convicted of wanton neglect of a dependent person, and was sentenced to a term of ninety days imprisonment and fined $250.00.
Dodd contends insufficient evidence supports his conviction. Because a jury verdict is binding on us when supported by substantial evidence, our scope of review is limited to the correction of errors at law. State v. Speicher, 625 N.W.2d 738, 740 (Iowa 2001). Evidence is substantial if it could convince a rational jury of a defendant's guilt beyond a reasonable doubt. State v. Hoffer, 383 N.W.2d 543, 545 (Iowa 1986). We view the evidence in a light most favorable to the State, and we must consider all the evidence in the record, not just the evidence supporting the verdict. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998).
We conclude substantial evidence supports the jury's verdict. In his motion for judgment of acquittal, Dodd argued the evidence was insufficient that he knowingly acted in a manner likely to be injurious to the physical, mental or emotional welfare of a dependant adult. However, the evidence at trial indicated Dodd left Don alone and did not let anyone know of his actions. Mary Brewer testified that she instructed Dodd as to the family's emergency plan and showed him a list of phone numbers. However, Dodd did not contact the Brewer family, his employer, or emergency assistance to inform them Don was alone and agitated. His actions were likely to cause Don physical, mental or emotional injury. In fact, Don did suffer emotional injuries, as Mary found him curled in the fetal position and crying in the backyard.
Dodd contends the district court erred in sentencing him to a ninety-day sentence. We review the court's sentencing decision for an abuse of discretion. State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999). We find no abuse of discretion. Although Dodd criticizes the court for proceeding with sentencing without the benefit of a presentence investigation report, such a report may be ordered for a serious misdemeanor "only upon a finding of exceptional circumstances warranting an investigation." Iowa Code § 901.2. Dodd does not contend such exceptional circumstances exist in this case.
Although a presentence investigation report was not ordered, the sentencing court had ample information about Dodd's work and family histories. This information was elicited in the course of the trial. During the allocution portion of the sentencing hearing, Dodd chose not to convey pertinent facts about his employment or family to the court. Instead, Dodd characterized the testimony of Mary Brewer and Fratianni as "a pile of lies." In sentencing Dodd, the court considered the appropriate factors and concluded Dodd should be sentenced to ninety-days incarceration. We conclude the court did not abuse its discretion in so doing.
Finally, Dodd contends his counsel provided ineffective assistance in failing to request jury instructions on the affirmative defenses of compulsion and justification. He also contends his counsel was ineffective in failing to investigate his claim he spoke with Fratianni on the night of June 29, and in failing to inform the sentencing court of the hardship he would suffer as a result of his conviction. We review claims of ineffective assistance of counsel de novo. State v. Heuser, 661 N.W.2d 157, 166 (Iowa 2003). To prove ineffective assistance of counsel, Dodd must show: (1) trial counsel failed to perform an essential duty and (2) Dodd was prejudiced by counsel's errors. Id. As the record is not sufficiently developed with respect to these claims, we preserve them for postconviction relief.