Opinion
No. 2-993 / 02-0196.
Filed February 28, 2003.
Appeal from the Iowa District Court for Sac County, William C. Ostlund, Judge.
Defendant appeals his conviction and sentence for child endangerment, in violation of Iowa Code section 726.6(3) (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, Pamela Dettmann, County Attorney, and Tina Meth Farrington, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Miller and Eisenhauer, JJ.
Defendant-appellant, Robert Talk, appeals his conviction and sentence for child endangerment, in violation of Iowa Code section 726.6(3) (2001). He claims 1) there is insufficient evidence to support the conviction, 2) the court applied the wrong standard in denying his motion for new trial, and 3) trial counsel was ineffective. We affirm.
I. Background facts and proceedings.
The State contended defendant injured six-year-old Keith by inflicting nearly identical cigarette burns on the inside of both his feet. Susan and her four children lived with the defendant for about six months before the Department of Human Services removed the children and placed them with family members. Keith and two siblings were placed with their paternal grandmother. Susan exercised weekend visitation. The children were with Susan at the defendant's home the weekend of March 17, 2001, leaving there Sunday, March 18.
On Wednesday, March 21, Keith's grandmother noticed the two marks on Keith's feet. He allegedly had complained about pain that morning to her husband. In the grandmother's opinion the marks were burns. The school nurse was informed, as was Keith's caseworker. A deputy sheriff and a DHS worker interviewed Keith at his grandmother's home on Thursday. First Keith said that he had been injured by wearing cowboy boots without socks. The deputy inspected the boots, found no seams or rough edges inside, and felt that this explanation was not possible. He described the boy as "very scared," "evasive," and "very concerned about answering any questions." As the interview continued, Keith wanted to see the deputy's handcuffs and duty equipment. The deputy agreed, but as a condition asked Keith to tell the truth about how the injuries happened and who caused the injuries. Keith then told a story the deputy felt was the truth, even though it was not the original story. The deputy also interviewed Keith's mother, the defendant, and others. The deputy believed the defendant burned Keith with a cigarette.
On Friday Keith was examined in the emergency room at a local hospital. The doctor's notes indicate she found two perfectly circular marks on the inner aspects of both feet, and they were in exactly the same location on either side. They appeared to be one to two days old. In Keith's presence the grandmother told the doctor and nurse she suspected abuse by the defendant.
At trial the doctor identified the marks as burns and opined it was unlikely they were not burns. A doctor from the Child Advocacy Center, who examined Keith on March 29, noted:
The scabbing and the depth appeared that they were from a deep injury, more than what you would get with an abrasion. I felt that they were consistent with a deep injury like you would get with a burn from something extremely hot.
While Keith was at the Child Advocacy Center, he was interviewed by a forensic interviewer. The interview was videotaped. Keith was hyperactive, ignored instruction, and left the room several times during the interview while seeking to avoid answering questions. While running in circles in the interview room Keith said defendant burned him and his mother said not to talk about it. Having made these statements Keith again left the room. There was no follow up and the interview was over. At trial, following a discussion in chambers and over defense counsel's objection challenging the reliability of the taped interview, prejudice to the defendant, and hearsay, the court allowed the jury to view the tape.
At the close of the State's case, defense counsel moved for acquittal on the grounds the State had not presented evidence on each element of the crime, "specifically as to whether the injury even occurred on the 17th." The court denied the motion. At the close of evidence defense counsel renewed his motion, which the court again denied, submitting the case to the jury. After deliberation the jury found the defendant guilty of child endangerment.
About two weeks after the verdict, defendant filed a motion for new trial, alleging the verdict was contrary to the law and the evidence, and the court erred in allowing the jury to view the videotaped interview. The court denied the motion, stating:
The Court found sufficient evidence to submit this matter to the jury. The Court finds that the verdict is not contrary to the law and that the viewing of the videotape was proper. Finally, the Court considers that the matter as submitted to the jury was properly within their province and subject to their ultimate finding.
II. Claims on appeal.
The defendant claims (1) there was insufficient evidence to support his conviction, (2) the court did not apply the correct standard in denying his motion for new trial, and (3) trial counsel was ineffective.
III. Discussion.
A. Sufficiency of the evidence. Our review is for errors of law. Iowa R.App.P. 6.4; State v. Simpson, 528 N.W.2d 627, 630 (Iowa 1995). We consider all the evidence and view it in the light most favorable to the State. State v. Nickens, 644 N.W.2d 38, 41 (Iowa Ct.App. 2002). We will uphold a finding of guilt if substantial evidence supports the verdict. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001). The State must prove every fact necessary to constitute the crime with which the defendant is charged. State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002).
The defendant claims the only evidence linking him to Keith's injuries is Keith's statement on the videotape. He argues that statement must be considered along with all the other, contradictory reasons Keith gave for his injuries. He points out the injuries were not discovered until three days after they allegedly were inflicted and the medical evidence as to the age of the injuries was contradictory.
The State argues the defendant did not preserve error on this issue because his motion for judgment of acquittal was too general. In order to preserve error, a defendant must identify in his motion "the specific elements of the charge that were insufficiently supported by the evidence." State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). The only specific insufficiency cited by defense counsel was, "specifically as to whether the injury even occurred on the 17th." All of the defendant's arguments on appeal relate to the injuries, how they occurred, and who did them. None of his arguments deal with the specific objection raised concerning proof of the date of injury. We conclude the claims now raised not on appeal were not preserved for our review. See id.
After a review of the jury instructions, we note that the only reference to the date was in Instruction 15. It did not require proof the injury occurred on March 17, but only that "on March 17, 2001, the Defendant was the person having custody or control of KS (the child)."
B. Motion for new trial. The defendant claims the court did not apply the "weight-of-the-evidence" standard when ruling on his motion for new trial. See State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). We agreed and in an order dated December 20, 2002 we remanded this matter to the district court for reconsideration of the motion for new trial, applying the Ellis standard. The district court reconsidered the defendant's motion for new trial. On January 15, 2003 the district court again denied the motion for new trial, stating:
[T]he Court has reviewed the evidence, including the credibility of all parties, submitted to the jury. The Court finds that based upon the Ellis standard, that the defendant's motion for new trial is hereby denied.
"Iowa Rule of Criminal Procedure [ 2.24](2)( b)(6) provides that the court may grant a new trial when the verdict is contrary to law or the evidence." State v. Adney, 639 N.W.2d 246, 252 (Iowa Ct.App. 2001). We review for an abuse of discretion. Id. at 250 (citing Ellis, 578 N.W.2d at 659).
We conclude the district court applied the correct standard in ruling on the defendant's motion for new trial. The district court did not abuse its discretion in denying the defendant's motion for new trial.
C. Ineffective assistance of counsel. Finally, the defendant claims trial counsel was ineffective in (1) not objecting to the videotape under the residual exception to the hearsay rule or under the recorded recollection exception; (2) not objecting to Dr. Jung's testimony the child was credible and the deputy's testimony that the child was telling the truth, that he found some witnesses credible and others not, and allowing the forensic interviewer to comment on the child's credibility; (3) allowing the deputy to give the opinion defendant committed the crime; and (4) not discovering the testimony of the school nurse.
To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate counsel failed in an essential duty and prejudice resulted. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). As to the first prong, a defendant has to establish that trial counsel's performance was outside the range of normal competency. State v. Wissing, 528 N.W.2d 561, 563 (Iowa 1995). There is a strong presumption trial counsel's conduct fell within a wide range of reasonable professional assistance. Id. As to the second prong, a defendant has to show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). "Improvident trial strategy, miscalculated tactics, and mistakes in judgment do not necessarily constitute ineffective assistance of counsel." State v. Johnson, 604 N.W.2d 669, 673 (Iowa Ct.App. 1999) "Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal." State v. Kinkead, 570 N.W.2d 97, 102 (Iowa 1997); State v. Sinclair, 622 N.W.2d 772, 781 (Iowa Ct.App. 2000). Rather, we preserve the claims for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Query, 594 N.W.2d 438, 444 (Iowa Ct.App. 1999). "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." Id. (quoting State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978)). The record is insufficient to address these claims. We preserve the defendant's claims of ineffective assistance for any postconviction proceedings.