Opinion
No. 4-383 / 03-0577.
July 14, 2004.
Appeal from the Iowa District Court for Poweshiek County, Richard J. Vogel, Judge.
Defendant appeals from the judgment and sentence entered upon his conviction for involuntary manslaughter. REVERSED AND REMANDED WITH DIRECTIONS.
Brian Earley of Earley Law Office, Montezuma, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, Michael Mahaffey, County Attorney, and James Kivi, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Shane Dupee appeals from the judgment and sentence following his conviction for involuntary manslaughter. He contends the district court erred by convicting him of felony involuntary manslaughter because the jury was only instructed as to misdemeanor involuntary manslaughter. We review his claim for errors at law. Iowa R. App. P. 6.4.
Dupee was charged with first-degree murder following the death of his infant daughter, Aliyah Stevens. Aliyah suffered a subdural hemorrhage, a subarachnoid hemorrhage, cerebral edema, a hemorrhage along the optic nerve, and fractured ribs. Her injuries were consistent with having been shaken.
Dupee was home alone with Aliyah on January 8, 2002 when the injuries occurred. At the hospital, Dupee stated, "They're gonna blame me" and "It's my fault." He informed police officers that Aliyah's crying had awakened and angered him. Dupee admitted he may have squeezed Aliyah too hard and acknowledged he may have shaken her.
Following jury trial, Dupee was convicted of involuntary manslaughter. Dupee filed a motion in arrest of judgment alleging the district court improperly convicted him of felony involuntary manslaughter when the jury was instructed only on misdemeanor involuntary manslaughter. His motion was denied and Dupee was sentenced to five years incarceration and fined $750.
Iowa Code section 707.5 (2001) defines involuntary manslaughter.
1. A person commits a class "D" felony when the person unintentionally causes the death of another person by the commission of a public offense other than a forcible felony or escape.
2. A person commits an aggravated misdemeanor when the person unintentionally causes the death of another person by the commission of an act in a manner likely to cause death or serious injury.
Iowa Code § 707.5. The jury was given the following instruction on involuntary manslaughter:
In order to prove the defendant guilty of Involuntary Manslaughter, as a lesser included offense of the crime charged in the Trial Information, the State must prove all of the following elements:
1. On or about January 9, 2002, the defendant recklessly shook and/or struck Aliyah Stevens.
2. The defendant did the act in a manner likely to cause death or serious injury.
3. By doing the act, the defendant unintentionally caused the death of Aliyah Stevens.
If the State has proved all of the elements, the defendant is guilty of Involuntary Manslaughter. If the State has failed to prove any one of the elements, the defendant is not guilty of Involuntary Manslaughter, and you will then consider the charge of Assault, as explained in Instruction No. 22.
Dupee argues the given instruction applied to misdemeanor involuntary manslaughter, not felony involuntary manslaughter. Specifically, Dupee argues the jury was not instructed and did not deliberate on the "public offense" element of felony involuntary manslaughter.
In denying Dupee's motion in arrest of judgment, the district court found the involuntary manslaughter instruction adequately addressed the public offense issue. The court found "under the facts and circumstances submitted and the instructions that the jury could not find the defendant shook or struck Aliyah Stevens without having committed assault." We cannot agree. The jury was instructed on and found Dupee guilty of aggravated misdemeanor involuntary manslaughter. The jury was not instructed on felony involuntary manslaughter. Accordingly, the court erred in imposing conviction and sentence on Dupee for felony involuntary manslaughter. We reverse and remand for the district court to vacate the judgment and sentence for felony involuntary manslaughter, and impose judgment and sentence for aggravated misdemeanor involuntary manslaughter.
Dupee, in the conclusion of his brief, contends the court erred in assessing a civil penalty in the sentence. He cites no authority and makes no argument and we will not consider the claim. See State v. Reddick, 388 N.W.2d 201, 203 (Iowa Ct.App. 1986).
REVERSED AND REMANDED WITH DIRECTIONS.