STATE OF IOWA, Plaintiff-Appellee, vs. PAMELA MORWITZER, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-551 / 05-1619
Filed September 21, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
PAMELA MORWITZER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Calhoun County, Joel E. Swanson,
Judge.
Pamela Morwitzer appeals her conviction for child endangerment causing
serious injury, contending her conviction was not supported by sufficient
evidence. AFFIRMED.
Darren D. Driscoll of Johnson, Erb, Bice, Kramer, Good & Mulholland,
P.C., Fort Dodge, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, and Cynthia Voorde, County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
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MILLER, J.
Pamela Morwitzer appeals her conviction, following jury trial, for child
endangerment causing serious injury.
She contends her conviction was not
supported by sufficient evidence. We affirm.
This case arose following the admission of three-year-old Jeane Morwitzer
to the emergency room of Lake City Hospital on May 7, 2004. Jeane lived on an
acreage in rural Calhoun County, Iowa, with her maternal grandparents Pamela
and Gene Morwitzer. The property included two “units,” a farmhouse and a bus
used as sleeping quarters. Apparently two of Morwitzer and Gene’s children,
Tammy and Michelle, also lived on the farm.
Tammy is Jeane’s mother.
According to testimony given by Morwitzer in a previous 2004 court proceeding
and admitted in the case at hand by stipulation of the parties, Gene and the two
daughters slept in the bus while Morwitzer and Jeane lived and slept in the
house. Morwitzer stated she would take care of Jeane during the day and that
Gene would put Jeane to bed each evening at about 9:15 to 9:30 and return
before Jeane awoke at about 8:00 to 8:30 the following morning. She also stated
in this previous testimony that it was her responsibility to make sure Jeane got
adequate care prior to April 2004. However, she stated that in April 2004 her
other daughter, Michelle, was in the latter stage of pregnancy and she had to
watch her more closely because she was in a lot of discomfort so Gene took over
the primary care of Jeane at that point.
We believe it worthwhile to list the myriad of serious health problems
Jeane was experiencing upon arriving at the hospital. Jeane was unresponsive
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and emaciated, and medical personnel were unable to obtain a blood pressure
from her. Normal blood sugar levels are between 100 and 120, but Jeane’s
blood sugar was 1035. The treating physician determined Jeane’s condition was
so dire that she needed to be transported to Blank Children’s Hospital (Blank) in
Des Moines by Life Flight to be treated by specialists.
At Blank, Jeane was diagnosed with diabetic ketoacidosis, or diabetic
coma, a complication of Type 1 diabetes. She was also severely dehydrated and
malnourished, weighing only approximately twenty-two pounds.
Due to the
malnutrition Jeane lacked the musculature to walk, sit or even breath on her own,
and had to be placed on a ventilator to assist her in breathing. She did not have
any subcutaneous tissue in her cheeks or buttocks, her lips and gums were
extremely dry and bleeding, she had severely thinning hair, her skin was red and
peeling off in several places on her body, her eyes were sunken, and her ribs, hip
bones, and collar bones were all visible. Due to the lack of subcutaneous tissues
medical personnel were required to give Jeane her insulin through an
intravenous drip. Jeane also had to be fed through a feeding tube in order to
slowly reintroduce food into her body because she had been malnourished for so
long. She could not eat solid food for approximately two weeks after admission.
Jeane was also not potty trained and was unable to speak when she was
admitted to the hospital. Initially, her doctor at Blank was not sure Jeane would
survive and estimated she was a few hours from developing multiple organ
failure.
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Based on Jeane’s condition and injuries, Morwitzer was charged with child
endangerment causing serious injury in violation of Iowa Code sections 726.6
and 726.6(5) (2003). The case proceeded to jury trial. At the close of the State’s
case and again at the close of all the evidence Morwitzer made motions for
judgment of acquittal which the trial court overruled. The jury found Morwitzer
guilty as charged. Following trial Morwitzer filed a motion in arrest of judgment
and motion for new trial arguing, in part, that the State failed to prove she had
any contact with Jeane or knowledge of her medical condition during the spring
of 2004. The trial court apparently denied these motions, and proceeded to
sentence Morwitzer to prison for not more than ten years.
We review challenges to the sufficiency of the evidence
supporting a guilty verdict for corrections of errors at law. We will
uphold a verdict if substantial record evidence supports it.
Evidence is substantial if it would convince a rational fact finder that
the defendant is guilty beyond a reasonable doubt.
We review the evidence in the light most favorable to the
State, including legitimate inferences and presumptions that may
fairly and reasonably be deduced from the evidence in the record.
The court considers all the evidence in the record, not just the
evidence that supports the verdict.
State v. Webb, 648 N.W.2d 72, 75-76 (Iowa 2002) (internal citations omitted).
To prove Morwitzer guilty of child endangerment resulting in serious injury
the district court instructed the jury that the State had to prove, in relevant part,
that: during the Spring of 2004 Morwitzer was a “person having custody or
control of Jeane Morwitzer, or was a member of the household in which Jeane
Morwitzer resided”; during this period Morwitzer acted with the knowledge she
was creating a substantial risk to Jeane’s physical, mental or emotional health or
safety; and Morwitzer’s act resulted in serious injury to Jeane.
On appeal
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Morwitzer argues generally that the trial court erred in finding sufficient evidence
to support her conviction and overrule her motions. Although it is not entirely
clear from her appellate brief, it appears she is only challenging the sufficiency of
the evidence to prove she had “custody or control” of Jeane during the spring of
2004 or had any knowledge of Jeane’s medical condition during that time.
Jodi Keller, a child protective worker for the department of human services
testified at trial for the State. She testified she visited Morwitzer in Morwitzer’s
Calhoun County home on May 7, 2004, in response to concerns regarding Jeane
after she was brought to the hospital in the condition described above. Morwitzer
answered the door. Keller asked Morwitzer where Jeane lived and Morwitzer
stated that she lived with her in the house. Keller visited Morwitzer again on May
10 at which time Morwitzer told her she was the person who bought the groceries
and prepared the meals in the home.
During her investigation Keller also
determined Morwitzer and Gene were primarily responsible for the care of Jeane
and were the ones who bathed, fed, and dressed her. This information acquired
by Keller from Morwitzer during her investigation was consistent with the
testimony given by Morwitzer in the prior court proceeding as noted above.
To support her claim there was not sufficient evidence she had the
requisite custody or control and knowledge of Jeane’s medical condition during
the spring of 2004, Morwitzer appears to rely heavily on the evidence that Gene
took over as Jeane’s primary caretaker during a period of about four weeks prior
to Jeane’s hospitalization in early May 2004. However, the evidence does not
show that the pattern of Gene, Tammy, and Michelle sleeping in the bus and
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Morwitzer and Jeane sleeping in the house changed after March 2004.
Furthermore, Morwitzer’s statements to Jodi Keller can quite reasonably be seen
as acknowledging that up to the time of Jeane’s hospitalization Morwitzer was
responsible for grocery shopping for Jeane and preparing her meals and
Morwitzer shared with Gene some responsibility for bathing, dressing, and
feeding her. The jury could thus reasonably find that after March 2004 Morwitzer
continued to have or share with Gene the custody or control of Jeane and had
such frequent and ongoing contact with Jeane that she had to have been aware
of her malnutrition and dire medical condition. However, even assuming that
Gene was Jeane’s primary caretaker during the several weeks prior to her
hospitalization and that Morwitzer had insufficient contact with her to be fully
aware of her condition immediately prior to her hospitalization, the record
nevertheless contains ample evidence that Jeane’s condition was clearly evident
and would have been known to Morwitzer during the earlier time Morwitzer
undisputedly had her custody or control.
Several medical professionals testified that Jeane’s condition took well
more than four weeks to develop and that is was a chronic condition that had
been worsening over several months.
The physician at Blank who initially
treated Jeane, Dr. Judy Walker, testified at trial that chronic malnutrition is not
generally caused by diabetes and that a person would have had to experience
chronic malnutrition for “at least several months” for it to show like it did in Jeane
when she arrived at the hospital.
She also stated that generally persons
suffering from diabetic ketoacidosis are hospitalized for twenty-four to forty-eight
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hours before recovery, however due to the complications Jeane suffered from
her severe malnutrition she was hospitalized for two months. Dr. Walker also
testified she contacted Jeane’s physician and realized Jeane had not gained any
weight since she was eighteen months old. She also stated several other tests
were performed on Jeane to see if she had any chronic problem other than
chronic malnutrition that could explain her condition, and all such tests were
negative.
The clinical dietician who worked with Jeane at Blank also testified at trial.
She testified the malnutrition from which Jeane was suffering was a disease in
and of itself and was a significant contributing factor to her poor health condition.
It was her opinion that it would have taken three to six months of chronic
malnutrition for Jeane to get to the state she was in when she arrived at Blank,
and that there was “no way it was accomplished in four weeks.” In addition, she
had several laboratory studies done to determine how long the malnutrition had
been going on. The levels of several vitamins and trace minerals in Jeane’s
system gathered from these tests showed the malnutrition was “chronic,” “long
term” and had been going on “for months.” The dietician further testified that
Jeane’s condition would have been “obvious to any normal adult” just walking
past her in a store and anyone who would have “taken a good look” at her would
know something was wrong with her, maybe not what was wrong, but definitely
that she was not healthy.
Another one of Jeane’s treating physicians, Dr. Ricardo Flores, testified
that on Jeane’s x-rays there were several “growth arrest lines.”
Such lines
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represent locations where the bone was no longer growing for lack of
nourishment and are a strong indication of chronic malnutrition. He also noticed
the several other tell-tale signs of chronic malnutrition discussed above, that
Jeane had no fat on her body but had skin folds, indicating she had at one time
had body fat, that her bones were visible like someone in a “concentration camp,”
and that patches of her hair were falling out. He opined it would have taken a
minimum of three to four weeks for Jeane to appear as she did when she arrived
at the hospital; it would have been hard even for someone who provided no care
for her not to notice her condition; and if someone was even minimally caring for
her they should have been able to notice something was wrong well before she
was hospitalized because she presented such a “drastic case.”
Based on the evidence contained in the record, we conclude substantial
evidence supports the challenged elements of Morwitzer’s conviction.
A
reasonable jury could have found Morwitzer had custody or control of Jeane at a
time during which she knew of Jeane’s condition and need for medical attention
and acted with the knowledge she was creating a substantial risk to Jeane’s
physical, mental or emotional health or safety by not seeking such medical
attention. The jury could have so found regardless of whether Morwitzer was in
fact not Jeane’s primary caretaker during the period of about four weeks prior to
her hospitalization.
In her appellate brief Morwitzer also sets forth nearly verbatim certain
claims, other than the sufficiency of the evidence issue we have addressed
above, that she raised in her motions for judgment of acquittal, in arrest of
9
judgment, and for new trial. She then summarily asserts defense counsel was
correct in making the claims made in those motions before stating in conclusion
merely that there was insufficient evidence to support her conviction. However,
she neither cites authority nor offers any substantive argument in support of
these additional claims. When a party, in an appellate brief, does not state,
argue, or cite to authority in support of an issue, the issue may be deemed
waived. Iowa R. App. P. 6.14(1)(c); see also State v. Scovill, 224 N.W.2d 221,
223 (Iowa 1974); State v. Adney, 639 N.W.2d 246, 251 (Iowa Ct. App. 2001).
We deem any additional issues Morwitzer may have been attempting to raise in
this appeal to be waived.
We conclude there was sufficient evidence for a reasonable jury to find
Morwitzer guilty beyond a reasonable doubt of child endangerment resulting in
serious injury.
AFFIRMED.
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