IN THE COURT OF APPEALS OF IOWA
No. 13-2033
Filed May 20, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
AMY JO PARMER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Marsha M.
Beckelman, Judge.
Amy Parmer appeals her convictions for involuntary manslaughter by
public offense and child endangerment resulting in death for the death of her
paramour’s seventeen-month-old child. AFFIRMED.
Wallace L. Taylor of Law Offices of Wallace L. Taylor, Cedar Rapids, for
appellant.
Thomas J. Miller, Attorney General, Heather R. Quick (until withdrawal)
and Kevin Cmelik, Assistant Attorney General, Jerry Vander Sanden, County
Attorney, and Nicholas Maybanks and Lisa Epp, Assistant County Attorneys, for
appellee.
Heard by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
2
DOYLE, J.
Amy Parmer appeals her convictions and sentences for involuntary
manslaughter by commission of a public offense and child endangerment
resulting in death, asserting the district court erred in numerous respects. Upon
our review, we affirm.
I. Background Facts and Proceedings.
This case arose from the tragic death of a toddler. Seventeen-month-old
K.S. was brought to the hospital on Sunday, March 21, 2010, after she sustained
extensive critical, non-accidental injuries. After examinations by various
physicians, and CT scans, it was determined the child’s condition was very
grave—the child had serious brain injuries, including severe brain swelling and
extensive brain bruising and bleeding. Neurosurgical surgeries and other
interventions were performed to attempt to control the brain swelling but were
unsuccessful. The child was then placed in a medically-induced coma as a last
attempt to reduce the intracranial pressure, but the pressure did not cease. On
March 28, life support was withdrawn and K.S. died shortly thereafter.
On July 11, 2011, defendant Amy Parmer and her then paramour, Zyriah
Schlitter, the child’s father, were charged with first-degree murder and child
endangerment resulting in death for the death of the child. Tried separately,
Parmer and Schlitter were each found guilty by juries of the lesser-included
offense of involuntary manslaughter by commission of a public offense, as well
as child endangerment resulting in death. Each was sentenced to an
indeterminate term of fifty years.
3
Schlitter appealed, and we affirmed his convictions and sentence. See
State v. Schlitter, No. 13-0346, 2014 WL 5475500, at *1-14 (Iowa Ct. App. Oct.
29. 2014). There, we set forth detailed facts established at Schlitter’s trial,
viewed in the light most favorable to his verdict. See id. Ultimately, we
concluded, among other things: “After trial from December 3-21, 2012, creating
over 2400 pages of transcript, the jury assessed the credibility of thirty-nine
witnesses. A reasonable jury could find Schlitter guilty beyond a reasonable
doubt . . . .” Id. at *23.
Parmer now appeals her convictions and sentences, following a similarly
long jury trial. She asserts the district court erred in numerous respects,
specifically in (1) allowing State to present inconsistent theories in her and
Schlitter’s separate trials; (2) allowing an expert witness to testify after his
testimony “materially changed” from his prior testimony without notice to Parmer;
(3) not allowing into evidence Schlitter’s prior statement; (4) allowing alternate
theories of child endangerment to go to the jury; (5) giving an “Allen charge” to
the jury; (6) denying her motion for acquittal; and (7) denying her motion for a
new trial. The State contends Parmer failed to preserve several of her claims for
review on appeal, but it argues that in any event, each claim fails on its merits.
We address Parmer’s arguments in turn.
II. Discussion.
A. Inconsistent Theories.
Parmer asserts the State offered “diametrically opposite” theories and
facts regarding the same crime—the death of the child—at her and Schlitter’s
individual trials in order to convict both of them, denying her constitutional right of
4
due process. Specifically, Parmer maintains the State at her trial: (1) argued she
committed physical abuse on the child on March 21, when the State argued at
Schlitter’s trial that he was the perpetrator; (2) “embraced a Sunday/Monday
pattern of bruising in opening statement . . . that it rejected in [Schlitter’s] trial”;
(3) “attempted to lessen the probative value of [Schlitter’s] jealousy of [Parmer’s
other paramour, Cameron Hines,] as [Schlitter’s] motive that it explored in
[Schlitter’s] trial”; and (4) “attempted to make [her] failure to go to [the hospital]
suspicious when it made clear in [Schlitter’s] trial that [Parmer] could not go to
[the hospital].” Parmer argues that it is a denial of due process of law for a
prosecutor, in order to convict two defendants at separate trials, to offer
inconsistent theories and facts regarding the same crime. Our review of alleged
violations of constitutional rights is de novo. State v. McIver, 858 N.W.2d 699,
702 (Iowa 2015).
In support of her contention, Parmer relies on the Eighth Circuit’s decision
in Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000), as well as State v. Watkins,
659 N.W.2d 526, 532 (Iowa 2003), which discussed Smith. In Watkins, our
supreme court recognized the “right of the prosecution to rely on alternative
theories in criminal prosecutions albeit that they may be inconsistent.” 659
N.W.2d at 532. However, the court, examining Smith, found a “narrow
exception” to that right existed where the prosecution’s “selective use of
evidence . . . in order to establish inconsistent factual contentions in separate
criminal prosecutions for the same crime [is] so egregious and lacking in good
faith” it must constitute “a denial of due process.” Id. The Eighth Circuit in Smith
explicitly stated it did “not hold that prosecutors must present precisely the same
5
evidence and theories in trials for different defendants. Rather, [it held] only that
the use of inherently factually contradictory theories violates the principles of due
process.” 205 F.3d at 1052. Moreover, the appellate court explained that for
there to be a due process violation, “an inconsistency must exist at the core of
the prosecutor’s cases against defendants for the same crime.” Id. (emphasis
added). Additionally, our supreme court has noted a safeguard against abuse
exists “as a result of the prosecution’s burden to prove any theory it asserts by
evidence beyond a reasonable doubt.” Watkins, 659 N.W.2d at 532.
Other jurisdictions’ courts typically follow the Eighth Circuit’s requirement
that the factual inconsistencies go “to the core” of the prosecutor’s case for there
to be a due process violation. See Brandon Buskey, If the Convictions Don’t Fit,
You Must Acquit: Examining the Constitutional Limitations on the State’s Pursuit
of Inconsistent Criminal Prosecutions, 36 N.Y.U. Rev. L. & Soc. Change 311, 327
(2012) (and cases cited therein) (hereinafter “Buskey”); see also Sifrit v. State,
857 A.2d 65, 81 (Md. Ct. App. 2004) (“The theme requiring an inconsistency at
the core of the State’s case before finding a due process violation runs
throughout the majority of cases that have addressed the issue.”). Though there
are other disagreements among jurisdictions as to the exact proof required or
who may assert the due process violation—i.e., one defendant or both
defendants—“courts have plainly coalesced around the fair trial model to resolve
such prosecutorial inconsistency claims.” Buskey, 36 N.Y.U. Rev. L. & Soc.
Change at 328-29. As the Sixth Circuit recently explained:
A criminal defendant has the right to a fair proceeding in front of an
impartial factfinder based on reliable evidence. [She] does not
have the right to prevent a prosecutor from arguing a justifiable
6
inference from a complete evidentiary record, even if the prosecutor
has argued for a different inference from the then-complete
evidentiary record in another case.
Stumpf v. Robinson, 722 F.3d 739, 751 (6th Cir. 2013), cert. denied, 134 S. Ct.
905 (2014).
Here, even assuming without deciding the State did present inconsistent
theories at the two separate trials—though we are unconvinced the theories
presented were inconsistent—Parmer has failed to establish those “inconsistent”
theories were “so egregious and lacking in good faith” that she was denied due
process. Parmer testified at her trial, which occurred after Schlitter’s trial, and
she had an opportunity to address all of these issues at trial before the jury.
Parmer does not allege that the State withheld critical evidence or made unfair
inferences from unambiguous evidence. See id. 749. As one appellate court
pointed out in a similar case, “[t]he few courts that have found due process
violations did so in cases where the inconsistencies were inherent to the State’s
whole theory of the case or where the varying material facts were irreconcilable.”
Council v. Comm’r of Correction, 968 A.2d 483, 489 (Conn. Ct. App. 2009). A
due process violation does not occur where the “discrepancies” are “based on
rational inferences from ambiguous evidence” and the “theories are supported by
consistent underlying facts.” Id.
In Parmer’s trial, the State clearly argued and presented evidence that
Parmer and/or Schlitter could have been responsible for the final blows causing
the child’s ultimate fatal injuries or the other blows this child received in the
weeks and days leading up to that fatal day. Moreover, Parmer was able to
testify and challenge before the jury all of the issues she raises here. Finally, it is
7
important to note that the jury found Parmer guilty of involuntary manslaughter,
not murder. Upon our de novo review of the record, we find the inconsistences
alleged by Parmer were based on rational inferences from ambiguous evidence
and accordingly conclude Parmer’s due process rights were not violated.
B. Expert Witness Testimony.
Parmer next argues the district court erred in allowing a doctor to testify
for the State “when [the doctor’s] testimony materially changed from prior
testimony without any notice to the defense.” Specifically, Parmer maintains Dr.
Gary Baumbach gave different opinions of when he believed various injuries to
the child occurred in his deposition testimony, compared to his testimony in
Schlitter’s trial, compared to his testimony in Parmer’s trial. She asserts she was
“caught by surprise by Dr. Baumbach’s change in testimony” and asserts the
district court should have granted her motion for a mistrial. The State argues
Parmer failed to preserve error on this issue, but it alternatively argues Parmer
mischaracterizes Dr. Baumbach’s testimony as “changed.” Our review of the
district court’s rulings on the admissibility of evidence and discovery issues is for
abuse of discretion. State v. Edouard, 854 N.W.2d 421, 431 (Iowa 2014); State
v. Schuler, 774 N.W.2d 294, 297 (Iowa 2009).
It is true that the minutes of testimony filed by the State with the trial
information must supply a “full and fair statement” of anticipated testimony. See
Iowa R. Crim. P. 2.5(3). However, this obligation “does not require the State to
use precision in composing the expected testimony of each witness named in the
minutes” but rather “mandates the prosecutor to adequately alert the defendant
to the source and nature of the testimony, and place [the] defendant on notice of
8
the need for further investigation of the particular details of the witness’s
expected testimony.” State v. Wells, 522 N.W.2d 304, 307 (Iowa Ct. App. 1994).
Reviewing Dr. Baumbach’s testimony in the record, we agree with the State that
Parmer mischaracterizes that doctor’s testimony. His is not an exact science—
he gave an opinion as to when the injuries occurred that was generally consistent
with the other expert’s testimony, as well as his own testimony. While the doctor
did not repeat verbatim the exact times he expressed in his deposition or even in
Schlitter’s trial, his testimony was consistent with the original and additional
minutes of testimony provided by the State, as well as with his opinion that the
child’s second, fatal injury occurred within twelve to twenty-four hours before the
child was brought to the hospital. We find Parmer had fair notice of Dr.
Baumbach’s testimony.
Additionally, as the State points out, the credibility of witnesses is
generally left to the jury, “allowing it to resolve inconsistencies as it sees fit.”
State v. Mitchell, 568 N.W.2d 493, 503, 504 (Iowa 1997). While there are some
limitations upon the rule, such as where the testimony of a witness is “so
impossible, absurd, or self-contradictory that the court should deem it a nullity,”
courts generally stop short of nullifying testimony when a change in testimony is
explained or justified. See id. at 503. Here, Parmer was able to depose Dr.
Baumbach before trial. She also had the additional benefit of the doctor’s
testimony in Schlitter’s trial. With two separate instances of testimony, Parmer
was able to cross-examine Dr. Baumbach at her trial to call into question his
opinion and point out the inconsistencies in his testimony to bolster her argument
that the final injuries did not occur when the child was in her care. The jury was
9
aware of the inconsistencies, and it found Parmer guilty of a lesser-included
offense. We therefore find the district court did not abuse its discretion in
permitting Dr. Baumbach to testify.
C. Schlitter’s Prior Statement.
Parmer argues the district court erred in denying her attempt to introduce
a statement contained in a police report made by Schlitter that Schlitter “stated
that when he was at [Parmer’s] apartment, [Schlitter] was responsible for the
discipline of [his child], and that at most, [Parmer] would tell her no and try to
redirect her and that he felt [Parmer] was great with [the child] and that she loved
[the child].” The district court excluded the hearsay statement, finding it did not
constitute a statement against penal interest under Iowa Rule of Evidence
5.804(b)(3), which provides:
A statement which was at the time of its making so far
contrary to the declarant’s pecuniary or proprietary interest, or so
far tended to subject the declarant to civil or criminal liability . . . that
a reasonable person in the declarant’s position would not have
made the statement unless believing it to be true. A statement
tending to expose the declarant to criminal liability and offered to
exculpate the accused is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the statement.
As noted above, our review of rulings on the admissibility of evidence is for an
abuse of discretion. Edouard, 854 N.W.2d at 431.
In State v. Paredes, the Iowa Supreme Court determined, after a detailed
analysis of rule 5.804(b), that the complained of witness’s statements were made
against interest. 775 N.W.2d 554, 568 (Iowa 2009). In that case, the witness
stated the charged defendant “did not do it,” that he “would not hurt the baby,”
that [the witness] “does not want [the defendant, her boyfriend,] to take the fall”
10
for the child’s injuries, that [the defendant] “is not that kind of guy, not violent,”
and that he “did not take care of the baby that much.” The court explained:
Considered in isolation, these statements merely exculpate
Paredes, but they are plainly self-inculpatory when considered in
context. Except for a brief fifteen-minute interval when the baby
was cared for by Paredes’ sister, Millard and Paredes were the
infant’s only caregivers when the injuries were inflicted. As a result,
by making statements tending to exculpate Paredes, Millard was
indirectly implicating herself as the person who caused the injuries.
These statements were not hypothetical when evaluated in the
proper context.
Id. at 568-69. In finding the witness’s statements amounted to statements
against interest under the rule, the court also considered the fact the witness
made statements that were directly inculpatory, and statements that tended to
shift responsibility away from Paredes and toward the witness. Id. at 569.
Paredes is clearly distinguishable from the present case.
Here, considered in context, the hearsay statement is not an exculpatory
statement against interest like the ones made in Paredes. That Schlitter stated
he was the child’s disciplinarian when he was at Parmer’s apartment and he
believed Parmer loved the child did not so far “tend” to subject Schlitter to
criminal liability such that a reasonable person would not have made them unless
they were true. Schlitter’s statement did not tend to shift responsibility away from
Parmer. When Schlitter spent weekends at Parmer’s apartment, it was Parmer
that cared for K.S. during those times Schlitter was absent attending a financial
class. The district court did not err in determining the statement-against-penal-
interest hearsay exception did not apply to Schlitter’s statement in the police
report. In any event, and in light of all the evidence, if it was error to exclude the
statement, it was harmless error because the statement referenced times when
11
Schlitter and Parmer were together with the child, and the evidence reflects there
were times when only Parmer was providing the child’s care and discipline.
D. Allen Charge.
Here, after the jury had deliberated for four days, it advised the court late
on Friday, September 20, 2013, that it had reached a verdict on the child
endangerment charge but could not reach a verdict on the murder charge. The
court, over Parmer’s objection, determined the jury should go home for the
weekend and return the following Monday. The court advised the parties that the
first thing it would do the following Monday morning was give the jury an
instruction encouraging it to reach a verdict, commonly known as an Allen
charge.1 The following Monday, the court gave the jury the following charge:
You have been deliberating on this case for a considerable
period of time, and the Court deems it proper to advise you further
in regard to the desirability of agreement, if possible. The case has
been exhaustively and carefully tried by both sides and has been
submitted to you for decision and verdict, if possible. It is the law
that a unanimous verdict is required; and while this verdict must be
the conclusion of each juror and not mere acquiescence of the
jurors in order to reach an agreement, it is still necessary for all
jurors to examine the issues and questions submitted to them with
candor and fairness and with a proper regard for, and deference to,
the opinion of each other. A proper regard for the judgment of
others will greatly aid us in forming our own judgment.
Each juror should listen to the arguments of other jurors with
a disposition to be convinced by them; and if the members of the
jury differ in their views of the evidence, such difference of opinion
should cause them to scrutinize the evidence more closely and to
reexamine the grounds of their problem. Your duty is to decide the
issues of fact which have been submitted to you, if you can
conscientiously do so. In conferring, you should lay aside all mere
pride of opinion and should bear in mind that the jury room is no
place for espousing and maintaining, in a spirit of controversy,
either side of a cause. The aim ever to be kept in view is the truth
1
The common name for the verdict-urging or “dynamite” instructions comes from
Allen v. United States, 164 U.S. 492, 501 (1896),
12
as it appears from the evidence, examined in the light of the
instructions of the Court.
You will again retire to your jury room and examine your
differences in the spirit of fairness and candor and try to arrive at a
verdict.
Approximately two hours later, the jury returned its guilty verdicts.
Parmer argues the jury’s prompt response on Monday after deliberating
for four days the prior week evidences the jury was coerced by the Allen charge.
We disagree.
Our supreme court has refused to say giving a so-called Allen charge is
per se error. State v. Cornell, 266 N.W.2d 15, 19 (Iowa 1978). In fact, district
courts enjoy wide latitude to deliver verdict-urging instructions in response to a
reported deadlock by the jury. See State v. Campbell, 294 N.W.2d 803, 808-09
(Iowa 1980). But such a supplemental instruction may not improperly coerce a
verdict. Id. at 808. “The ultimate test is whether the instruction improperly
coerced or helped coerce a verdict or merely initiated a new train of real
deliberation which terminated the disagreement.” Id. A supplemental instruction
will be evaluated in context and considering all the circumstances. See State v.
Wright, 772 N.W.2d 774, 778 (Iowa Ct. App. 2009). Allen instructions should not
discuss the expense of litigation, the numerical split of the jury, or direct jurors in
the minority to reevaluate their thought processes. See Campbell, 294 N.W.2d at
809. The instruction given here avoids those pitfalls. The overall language is
strikingly similar to the Campbell instruction. See id. (advising the jury its verdict
“must be the conclusion of each juror and not a mere acquiescence of the jurors
in order to reach an agreement”).
13
The additional deliberation time from the giving of the Allen charge to
verdict was the same in this case as in Campbell, 294 N.W.2d at 811. In State v.
Kelley, 161 N.W.2d 123, 126 (Iowa 1968), the court found no coercion from a
similar time frame. See also State v. Power, No. 13-0052, 2014 WL 2600214, at
*5 (Iowa Ct. App. June 11, 2014). We conclude the district court did not abuse
its discretion in giving the supplemental instruction at issue here.
E. Submitting Alternate Theories of Child Endangerment.
The offense of child endangerment sets forth different ways in which the
offense can be committed in multiple subsections. See Iowa Code § 726.6
(2013). In its child endangerment instruction to the jury, the district court
submitted four subsections of section 726.6 as possible ways Parmer could have
committed the offense. Parmer challenges three of the four subsections
submitted under that section: (a) “Knowingly acts in a manner that creates a
substantial risk to a child or minor’s physical, mental or emotional health or
safety”; (d) “Willfully deprives a child or minor of . . . health care or
supervision . . . when the person is reasonably able to make the necessary
provisions and which deprivation substantially harms the child or minor’s
physical, mental or emotional health,” including “the failure to provide specific
medical treatment”; and (e) “Knowingly permits the continuing physical . . . abuse
of a child or minor.”
As to subsections (a) and (e), Parmer first argues the language of those
subsections is unconstitutionally vague as applied to her, asserting that just
about any type of conduct could fall within their scope. The State argues Parmer
failed to preserve error on the constitutional challenge, asserting Parmer should
14
have raised the issue in a pretrial motion. See State v. Milner, 571 N.W.2d 7, 12
(Iowa 1977). Since we find no merit to Parmer’s constitutional challenge, we
elect to bypass the error preservation issue.
“In assessing whether a statute is void-for-vagueness this court employs a
presumption of constitutionality and will give the statute any reasonable
construction to uphold it.” State v. Showens, 845 N.W.2d 436, 441 (Iowa 2014)
(citation and internal quotation marks omitted). We are mindful statutes are
cloaked with a presumption of constitutionality, and Parmer bears the heavy
burden of proving the statute is unconstitutional beyond a reasonable doubt and
refuting every reasonable basis upon which it could be found to be constitutional.
See State v. Thompson, 836 N.W.2d 470, 483 (Iowa 2013). Further, if the
statute is capable of being construed in more than one manner, we will adopt the
one that construes the statute as constitutional. Id.
Because this is an as-applied challenge, the question is limited to whether
the statute is void as applied to Parmer’s actions. See State v. Anspach, 627
N.W.2d 227, 233 (Iowa 2001). “Section 726.6(1)(a) requires a showing of
substantial risk to a child’s physical health or safety. It does not require proof
that the conduct was negligent or reckless, although such actions may create a
substantial risk.” Id. at 232. Similarly, subsection (e) requires a showing that the
person knowingly permitted the continuing physical abuse of a child. See Iowa
Code § 721(1)(e).
Here, Parmer maintains “the State never presented any evidence as to
what risk the child was exposed to or how [she] exposed the child to any risk.”
This flies in the face of reason. The overwhelming evidence produced at trial
15
was that the child was repeatedly physically abused, which ultimately led to her
death. The evidence presented suggested Parmer was the person that inflicted
the abuse, but if she was not the abuser, she knew of the abuse and did nothing
to prevent it or seek medical help for the injured child. The child was in Parmer’s
care on March 21, 2010, and Parmer testified she gave the child a bath prior to
lying the child down. She testified she took the child’s clothes off for the bath, but
she did not notice any additional bruises on the child’s body, beyond bruising on
the child’s face. However, beyond the marks upon the child’s face, the child was
covered in significant bruises. For instance, the child had “multiple bruising on
the left upper arm starting from the vicinity of the shoulder going down,” and
those bruises were different colors suggesting the bruises were caused at
different times. There were bruises on the child’s leg that were blue evidencing
“relatively deeper bruises” caused by “significant force.” The described bruises
and injuries go on and need not be repeated here. As one of the child’s
physician’s testified, the child’s caretakers—Parmer and Schlitter—”must have
been aware of what had happened to the child” but chose “[n]ot to seek medical
care.” This child suffered horribly, and if Parmer did not cause it, she knew of the
abuse and did nothing to prevent it nor sought out medical care for the injuries
leading up to the child’s last day in her care. A reasonable person would be
aware that beating a seventeen-month-old baby in this manner is a “significant
risk,” or doing nothing to prevent the beatings or helping the child get medical
help when the child is unable to do so for herself, fall within those acts or
omissions prohibited by section 726.6. The language is sufficient to alert the
16
average person that such conduct and omission of conduct is prohibited. See
Anspach, 627 N.W.2d at 232.
For the same reasons, we reject Parmer’s arguments that there was
insufficient evidence to submit these theories to the jury as possible ways Parmer
committed the offense of child endangerment. “Parties to a lawsuit are entitled to
have their legal theories submitted to the jury if such theories are supported by
substantial evidence.” State v. Hogrefe, 557 N.W.2d 871, 876 (Iowa 1996). If
reasonable minds would accept the evidence as adequate to reach a conclusion,
it is substantial to support a jury instruction. Id. We view the evidence in the light
most favorable to the party requesting the instruction. Id. The failure to give an
instruction does not warrant a reversal unless it results in prejudice. Beyer v.
Todd, 601 N.W.2d 35, 38 (Iowa 1999).
Parmer argues she “did not have a legal duty to provide medical care” for
the child, and she notes she was not the child’s parent or legal guardian,
suggesting she did not have to do anything. However, a duty to provide medical
care is not required. See Iowa Code § 726.6. Rather, this statute explicitly
makes it a crime for a “person having . . . control over a child” to willfully deprive
a child of health care or to knowingly permit the continuing physical abuse of a
child. Id. § 726.6(d), (e). Our supreme court in Anspach, cited by Parmer,
rejected a similar argument where a driver of a vehicle drove recklessly with
unrelated children and their parents in his vehicle. 627 N.W.2d at 234. The court
found he could be convicted of child endangerment, explaining:
The statute clearly does not limit its reach to only those with
custody of the child, i.e., the child’s parents, legal guardian, or
babysitter. It was rewritten in 1985 to include those adults having
17
“control” over the child as well. 1985 Iowa Acts ch. 180, § 3. The
term control has a broader meaning than custody. State v.
Johnson, 528 N.W.2d 638, 640-41 (Iowa 1995).
....
. . . Here, Anspach had control over the instrumentality
contributing to the risk to the children in the truck. As such, we
agree with the district court that the meaning of control “applies to a
person who has the ability to control the risk that the statute
prohibits.”
Further, the statute does not limit the applicability of the
control element to only those times when a guardian or someone
with custody is not present.
Id. at 235. Not quite fourteen years have passed since Anspach, and the
legislature has not amended the statute to change the Anspach court’s
interpretation. See Welch v. Iowa Dep’t of Transp., 801 N.W.2d 590, 600 (Iowa
2011) (“‘The legislature is presumed to know the state of the law, including case
law, at the time it enacts a statute.’” (quoting State v. Jones, 298 N.W.2d 296,
298 (Iowa 1980))). This can be interpreted as a “tacit approval of [the] decision.”
See Drahaus v. State, 584 N.W.2d 270, 276 (Iowa 1998) (holding that where the
legislature has failed to amend a statute in response to a particular interpretation
of the statute announced by the court, it is presumed that the “legislature has
acquiesced in that interpretation”).
Substantial evidence presented by the State clearly supported submission
of these theories of child endangerment to the jury. We therefore conclude the
district court did not err in submitting the instruction to the jury.
F. Motion for Judgment of Acquittal.
“A motion for judgment of acquittal is a means of challenging the
sufficiency of the evidence, and we review such claims for correction of errors at
law.” State v. Serrato, 787 N.W.2d 462, 465 (Iowa 2010). Guilty verdicts “must
18
be supported by substantial evidence,” which is “that upon which a rational trier
of fact could find the defendant guilty beyond a reasonable doubt.” Id. We are to
consider all the evidence, that which detracts from the verdict, as well as that
supporting the verdict, in our review. Id. We “view the evidence in the light most
favorable to the State, including legitimate inferences and presumptions that may
fairly and reasonably be deduced from the record evidence.” Id. (citation and
internal quotation marks omitted). Circumstantial evidence is equally as
probative as direct evidence in assessing the sufficiency of the evidence. State
v. Vaughan, 859 N.W.2d 492, 497 (Iowa 2015). It is the task of the jury to
resolve questions of fact and assess the credibility of witnesses. State v. Mills,
458 N.W.2d 395, 397 (Iowa Ct. App. 1990). A fact finder is not required to
accept a defendant’s version of the facts. Id. “Inherent in our standard of review
of jury verdicts in criminal cases is the recognition that the jury was free to reject
certain evidence, and credit other evidence.” State v. Nitcher, 720 N.W.2d 547,
556 (Iowa 2006).
Parmer contends there was not substantial evidence to support her
convictions. She asserts the State made vague allegations and innuendo, rather
than establishing the necessary elements for her convictions. She incredulously
states: “The most that the State proved was that [the child] suffered blunt force
trauma. There was absolutely no evidence that either [Parmer or Schlitter]
inflicted any injuries on [the child].” Given that Parmer concedes the child
suffered blunt force trauma, the very issue in this case was who inflicted that
trauma, as the seventeen-month-old child was unable to speak for herself. Upon
our review of the record, viewing the evidence in the light most favorable to the
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State, we find the circumstantial evidence in the present case was substantial to
convince a rational fact-finder of Parmer’s guilt beyond a reasonable doubt.
The child’s last injuries occurred during times the child was in her care.
Moreover, Parmer expressed anger towards the child to others, and two
witnesses testified she confessed to them that she killed the child. The jury was
free to accept or reject Parmer’s testimony, as well as other witnesses’
testimony. Clearly it did not find Parmer credible, though it did determine she
committed an offense lesser than murder. Based on our review of the evidence
in the record, we conclude the district court properly denied Parmer’s motion for
judgment of acquittal because substantial evidence supports both of her
convictions.
G. Motion For A New Trial.
Finally, Parmer asserts the district court abused its discretion in denying
her motion for new trial, asserting the jury’s verdict is contrary to the weight of the
evidence and a miscarriage of justice “may have resulted.” In support of her
contention, Parmer challenges the district court’s lack of discussion as to why it
determined the weight of the evidence supported the verdict, but she does not
point to any evidence she believes the court ignored. The State points out
Parmer’s curt argument on this point, and it asserts she has therefore waived
error on this claim on appeal. See Iowa R. App. P. 6.903(2)(g)(3) (stating the
argument section shall include “[a]n argument containing the appellant’s
contentions and the reasons for them with citations to the authorities relied on
and references to the pertinent parts of the record . . . [and f]ailure to cite
authority in support of an issue may be deemed waiver of that issue”). “A
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skeletal ‘argument’, really nothing more than an assertion, does not preserve a
claim. . . . Judges are not like pigs, hunting for truffles buried in briefs.” United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). Even assuming without
deciding that Parmer preserved error, her claim fails on its merits.
The district court has broad discretion when ruling on motions for a new
trial in which the defendant alleges the verdict is contrary to the weight of the
evidence, and we review its decision for an abuse of that discretion. Nitcher, 720
N.W.2d at 559. The weight-of-the-evidence standard differs from the sufficiency-
of-the-evidence standard in that the district court does not view the evidence
from a standpoint most favorable to the government. State v. Taylor, 689
N.W.2d 116, 134 (Iowa 2004). Instead, the court weighs the evidence and
considers the credibility of the witnesses. Id. While it has the discretion to grant
a new trial where a verdict rendered by the jury is contrary to law or evidence, the
court should do so only “carefully or sparingly.” Id. The district court is not to
disturb the jury’s verdict “against any mere doubt of its correctness.” State v.
Reeves, 670 N.W.2d 199, 203 (Iowa 2003). In our review, we limit ourselves to
the question of whether the trial court abused its discretion; we do not consider
the underlying question of whether the verdict is against the weight of the
evidence. Id. Accordingly, to prevail on this claim, Parmer must demonstrate the
court “exercised its discretion on grounds or for reasons clearly untenable or to
an extent clearly unreasonable.” See id. at 202.
Our review of the record evidenced that the greater weight of the evidence
presented during the trial preponderated in favor of the jury’s verdicts. The
testimony by the physicians in the case as to the child’s significant bruising,
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which Parmer stated she did not see, Parmer’s inconsistent statements, coupled
with witness’s statements as to Parmer’s anger towards the child and Parmer’s
confessions all support the jury’s verdicts. We conclude the district court did not
abuse its discretion by determining the greater weight of the evidence supported
the jury verdicts and denying Parmer’s motion for a new trial.
III. Conclusion.
For all of these reasons, we affirm Parmer’s convictions and sentences.
AFFIRMED.
State of Iowa v. Amy Jo Parmer
Combined Opinion