STATE OF IOWA, Plaintiff-Appellee, vs. TYRON CRAIG JORDAN, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-751 / 06-1841
Filed December 12, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TYRON CRAIG JORDAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jasper County, Paul R. Huscher,
Judge.
Tyron Jordan appeals from his conviction for neglect of a dependent
person. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney
General, Steve Johnson, County Attorney, and Michael K. Jacobsen, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
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ZIMMER, J.
Tyron Jordan appeals from his conviction for neglect of a dependent
person in violation of Iowa Code section 726.3 (2005). He claims there was
insufficient evidence to support his conviction. He also claims his trial counsel
was ineffective for failing to request and object to certain jury instructions and
failing to challenge section 726.3 as unconstitutional.
We preserve Jordan’s
ineffective assistance claim concerning the failure to request certain jury
instructions for possible postconviction relief proceedings. We reject Jordan’s
remaining claims and affirm his conviction.
I. Background Facts and Proceedings.
The jury could have reasonably found the following facts from the
evidence presented in this case: Jordan is a twenty-year-old father of two young
children, Jaren, eighteen months, and Mia, seven months. Jordan lived with his
children; their mother, Whitney Wilcox; and her two children from a previous
relationship, six-year-old Tristan and four-year-old Bianca. He stayed at home
and cared for the children while Wilcox worked at a nursing home.
On the morning of February 10, 2006, Jaren suffered severe first and
second-degree burns while in his father’s care. Jordan called Wilcox at work
between 8:30 and 8:45 a.m. and informed her there was an emergency. She left
work and called 911 upon arriving at her house.
Paramedics and a police officer were dispatched to the couple’s home
shortly after 9:00 a.m.
Wilcox was holding Jaren in a blanket when the
paramedics and a police officer arrived at the couple’s home. Mark Vickroy, the
lead paramedic, took the blanket off Jaren, who was naked, and placed him on
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the floor to ascertain the extent of his injuries.
Vickroy saw “from the waist
down,” Jaren was “just cherry red, almost uniform, with blistering starting to
form,” which indicated to him that Jaren had been “immersed into a hot liquid.”
Michael Knoll, a firefighter/paramedic, spoke with Jordan upon arriving at
the scene.
Jordan told Knoll “he was giving the child a bath, was using a
handheld shower, when the water went from warm to very hot very fast.” Jordan
told the police officer at the scene, Randall Camp, the same story and informed
him “they had been having problems with the water heater in the house” because
the “water could get hot really quick.”
Jaren was airlifted to the burn unit at the University of Iowa Hospitals and
Clinics (UIHC) where he was treated by Dr. Gerald Kealey, the medical director
of the burn treatment center. Dr. Kealey stated that upon his arrival, Jaren had
“life-threatening” first and second-degree “burns over the lower part of his body,
including feet, lower legs, thighs, . . . a portion of his abdomen, and his external
genitals. . . . And he had some burns on his right arm.” The right side of his
body was “more extensively burned than the left.” The palm of Jaren’s left hand
was spared as was the area “right behind the knee of the right and left side.”
Based on the pattern of the burns, Dr. Kealey likewise believed Jaren was
“lowered into hot water.”
The director of the child protection program at the University of Iowa,
Dr. Resmiye Oral, also examined Jaren during his eleven-day hospitalization at
the UIHC because of “concerns about the inflicted trauma.” She concurred with
Dr. Kealey’s opinion that Jaren had been immersed in hot water. Her conclusion
was based on the “sharp demarcation” or “line from the white -- or the regular
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skin to the red skin” present on Jaren’s body. When such a demarcation is
present, “with no splash marks beyond that sharp mark,” Dr. Oral stated there is
a concern “that the child was stable in hot water. . . . And that tells us that this
may not be an accident.”
The incident was reported to the Iowa Department of Human Services
(DHS) due to possible child abuse concerns. As a part of the DHS investigation,
two caseworkers tested the water temperature at the family’s house and learned
the highest temperature the water could reach was 132 degrees Fahrenheit.
According to Dr. Oral, based on that water temperature, Jaren probably would
have “had to be in the water at least eight seconds or so” to suffer the burns he
received. DHS initiated child in need of assistance proceedings following its
investigation because Jaren’s injuries were not consistent with Jordan’s
explanation of how the incident occurred.
About three months after Jaren was burned, Jordan changed his account
of how the incident happened. In an interview with Detective Wayne Winchell in
April 2006, he informed the detective that “he was cleaning house that morning,
and he instructed Bianca, who was four, to run the bathwater and to give Jaren
. . . a bath.” Jordan told the detective he heard Jaren “cry out,” so he “ran to the
bathroom” and “saw that Bianca . . . was trying to hold Jaren into the bathwater,
and Jaren was crying, screaming, and trying to get out of the bathwater . . . on
his hands and knees.”
On June 9, 2006, the State filed a trial information charging Jordan with
neglect of a dependent person in violation of Iowa Code section 726.3. The
matter proceeded to a jury trial on September 20, 2006. Jordan moved for a
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directed verdict both at the close of the State’s case in chief and at the close of
all evidence. The district court denied the motions. The jury found Jordan guilty
of neglect of a dependent person, and he was sentenced to an indeterminate
term of imprisonment not to exceed ten years.
Jordan appeals. He claims there was insufficient evidence to support his
conviction. He further claims his trial counsel provided ineffective assistance
because he did not request certain jury instructions, and he did not challenge
section 726.3 as unconstitutional.
II. Scope and Standards of Review.
We review sufficiency of the evidence claims for the correction of errors at
law. State v. Smith, 739 N.W.2d 289, 293 (Iowa 2007). A claim of ineffective
assistance of counsel, on the other hand, is reviewed de novo because the claim
is derived from the Sixth Amendment of the United States Constitution. State v.
Kress, 636 N.W.2d 12, 19 (Iowa 2001).
III. Discussion.
A. Sufficiency of the Evidence.
The jury was instructed the State would have to prove the following
elements in order to find Jordan guilty of the crime of neglect of a dependent
person in violation of section 726.3:
1. On the 10th day of February, 2006, the defendant was the father
of Jaren Jordan.
2. Jaren Jordan was a person under the age of fourteen years.
3. The defendant knowingly or recklessly exposed Jaren Jordan to
a hazard or danger against which Jaren Jordan could not
reasonably be expected to protect himself.
The jury was further instructed that a person is “reckless” or acts “recklessly”
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when he willfully disregards the safety of a person. 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.
Jordan argues the district court erred in overruling his motions for directed verdict
because the evidence presented at trial was insufficient to prove he acted
“knowingly or recklessly.” We do not agree.
We will uphold a guilty verdict if it is supported by substantial evidence.
Smith, 739 N.W.2d at 293. Evidence is substantial if it would “convince a rational
jury of a defendant’s guilt beyond a reasonable doubt.” State v. Smitherman, 733
N.W.2d 341, 345 (Iowa 2007).
When we determine the sufficiency of the
evidence supporting a conviction, we consider all the evidence in the record, not
just the evidence supporting the defendant’s guilt. State v. Carter, 696 N.W.2d
31, 36 (Iowa 2005). However, when we make this determination, we consider
the evidence in the light most favorable to the State, and we include legitimate
inferences and presumptions that may reasonably be deduced from the record.
Id.
Jordan initially told the paramedics, police officer, physicians, and DHS
caseworkers Jaren was accidentally burned when he was giving him a bath. He
stated he “ran about five to six inches of water into the bathtub,” tested its
temperature, and placed Jaren into the bathtub. He said he then attempted to
add more water to the bathtub using either the showerhead or a handheld
shower nozzle, and the water came out scalding. However, all of the physicians
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indicated the lack of splash marks and the sharp demarcation between the areas
of Jaren’s body that were burned and the areas that were spared suggested
Jaren was instead lowered into scalding water.
Dr. Kealey testified,
You have no splash pattern. So if they were sitting in water, the hot
water would be splashing on them. You haven’t got a run-down
pattern. If they were standing in a jet of water, that would come
down across their body, and it would burn the top more. . . . You’ve
got a pattern here where the burns are deeper on the feet and get
more superficial as you go up the body.
Dr. Oral likewise stated,
[I]f the child was in a comfortable temperature zone in the hot
water, as soon as it reached a certain level, which would be 105,
110 degrees Fahrenheit, the child would try to move away from that
environment. . . . Since there is no indication of splash marks or
various levels of burns, it is safe to speculate that this child went
into water after the water got hot.
Jordan claimed he had experienced problems with hot water surges
before and had told his landlord about it but nothing had been done.
The
landlord, however, denied that he had ever received any complaints about the
water heater in Jordan’s residence.
Jordan changed his account of the incident prior to trial. He testified at
trial that he told four-year-old Bianca to bathe Jaren, while he finished cleaning
the kitchen. “About three or four minutes later,” he heard Jaren scream. He ran
to the bathroom and saw “Bianca was pushing him back, and she said, ‘He won’t
-- He won’t sit down.’” Jordan testified that Jaren was “trying to get up . . . . His
hands were down. He had one knee down. He was toward the back of the
bathtub.”
Jordan admitted at trial that allowing Bianca to bathe Jaren was
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inappropriate and a mistake. He testified he lied to the paramedics, physicians,
Officer Camp, and the DHS in order to protect Bianca.
Dr. Oral, however, testified that Jordan’s amended version as to how
Jaren was burned was also inconsistent with his injuries. She explained that with
a lack of splash marks and the sharp demarcation line, “we get concerned that
the child was stable in hot water, allowing the hot water burn to that level the
exposed skin” (emphasis added.) In addition, Detective Winchell testified there
were no “splash marks, anything that would show there was a struggle,” and
Jaren’s knees were less burned than the rest of his body.
Resolving conflicts in the evidence, passing upon the credibility of
witnesses, and weighing the evidence are issues for the jury, and not issues to
be resolved by motions for judgments of acquittal.
State v. Hutchison, 721
N.W.2d 776, 780 (Iowa 2006). Thus, the jury was free to discredit Jordan’s
differing stories explaining how Jaren was burned in favor of the contrary
testimony of the physicians, the DHS caseworkers, and the police. See State v.
Nitcher, 720 N.W.2d 547, 556 (Iowa 2006) (recognizing under our standard of
review of jury verdicts in criminal cases, the jury is “free to reject certain
evidence, and credit other evidence”); see also State v. Blair, 347 N.W.2d 416,
422 (Iowa 1984) (stating that guilt may be inferred from defendant changing his
story). Furthermore, assuming the jury believed Jordan’s testimony at trial, the
jury could have found that he “willfully disregarded” Jaren’s safety by directing a
four-year-old child to give an eighteen-month-old child a bath without adult
supervision.
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We therefore conclude, after viewing the record in the light most favorable
to the State and affording the State the legitimate inferences and presumptions
that may reasonably be deduced from the record, that there is substantial
evidence to establish Jordan knowingly or recklessly exposed Jaren to a danger
from which he could not protect himself.
B. Ineffective Assistance of Counsel.
Jordan claims his trial counsel was ineffective for failing to request jury
instructions defining “knowingly” or “willfully,” failing to object to the jury
instruction defining “recklessness” as an incorrect statement of the law, and
failing to challenge section 726.3 “on the basis of void for vagueness, and
violation of defendant’s equal protection rights.”
“Ineffective assistance claims are generally reserved for postconviction
hearings, but may be determined on direct appeal when the record adequately
presents them.” State v. Glaus, 455 N.W.2d 274, 276 (Iowa Ct. App. 1990). The
failure to request certain jury instructions is a matter more suited to
postconviction relief. State v. Slayton, 417 N.W.2d 432, 436 (Iowa 1987). “At
such a hearing trial counsel will have the opportunity to explain its conduct and
performance and the court will have a complete record.” Id. We find the record
in this case is inadequate to address Jordan’s ineffective-assistance-of-counsel
claim regarding the failure to request jury instructions defining “knowingly” and
“willfully.” We therefore preserve this claim for postconviction relief proceedings.
However, we believe Jordan’s remaining ineffective-assistance-of-counsel
claims are capable of resolution on direct appeal. Jordan has the burden to
establish by the preponderance of the evidence that his trial counsel was
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ineffective. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001). In order to
show his counsel was ineffective, Jordan must prove his counsel failed to
perform an essential duty and prejudice resulted. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
We first address Jordan’s claim that his trial counsel was ineffective for
failing to object to the jury instruction defining “recklessness.” This instruction
follows the Iowa Criminal Jury Instruction on recklessness. See Iowa Crim. Jury
Instruction 200.20. We are reluctant to disapprove uniform instructions. State v.
Johnson, 534 N.W.2d 118, 127 (Iowa Ct. App. 1995). We therefore find counsel
did not breach an essential duty by failing to object to the instruction as an
incorrect statement of the law. See State v. Wills, 696 N.W.2d 20, 25 (Iowa
2005) (finding trial counsel was not ineffective for failing to raise unmeritorious
issue).
The constitutional challenges to section 726.3 that Jordan asserts his
attorney should have raised have not been passed upon by the courts of this
state. We do not require that counsel be a “crystal gazer” who must predict
future changes in established rules of law in order to provide effective assistance
to a criminal defendant. State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982).
Instead, we ask whether a normally competent attorney could have concluded
these questions were not worth raising. State v. Westeen, 591 N.W.2d 203, 210
(Iowa 1999).
We believe a normally competent attorney would conclude the issues of
whether section 726.3 was unconstitutionally vague or violated Jordan’s equal
protection rights were not worth raising. Our supreme court has rejected similar
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constitutional vagueness challenges to the comparable child endangerment
statute, Iowa Code section 726.6. See State v. Watkins, 659 N.W.2d 526, 535
(Iowa 2003) (holding section 726.6 was not unconstitutionally vague or overbroad
as applied to the defendant in that case); accord State v. Anspach, 627 N.W.2d
227, 232 (Iowa 2001).
We also see no merit in Jordan’s apparent contention that section 726.3
violates his equal protection rights because it infringes on his fundamental right
to parent. See In re Marriage of Howard, 661 N.W.2d 183, 190 (Iowa 2003)
(noting a compelling state interest arises when substantial or potential harm is
visited upon children); see also State v. Johnson, 528 N.W.2d 638, 641-42 (Iowa
1995) (finding section 726.3 is not limited to situations where an individual has
“legal custody” of a child but instead applies to “all situations in which one
individual may be charged with the care and control of another”). We therefore
conclude Jordan’s trial counsel was not ineffective for failing to raise the novel
issues that section 726.3 is unconstitutionally vague or violates his equal
protection rights.
IV. Conclusion.
There is sufficient evidence in the record when it is viewed in the light
most favorable to the State to support Jordan’s conviction for neglect of a
dependent person.
We reject Jordan’s claims that his trial counsel was
ineffective for failing to object to the recklessness jury instruction and failing to
challenge section 726.3 as unconstitutional. However, we find the record in this
case is inadequate to address Jordan’s remaining claim that his trial counsel was
ineffective for failing to request jury instructions defining “knowingly” and
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“willfully.” We accordingly affirm Jordan’s conviction and preserve this claim for
possible postconviction relief proceedings.
AFFIRMED.
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