                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1787
                           Filed September 25, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SANTENIO DELAMIKE ACKISS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      Santenio Ackiss appeals his convictions of child endangerment resulting in

bodily injury and child endangerment. CONVICTIONS AFFIRMED, SENTENCE

VACATED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, (until withdrawal), and Melinda J.

Nye, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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VAITHESWARAN, Presiding Judge.

       Following a bench trial, the district court found Santenio Ackiss guilty of child

endangerment resulting in bodily injury and child endangerment.            On appeal,

Ackiss contends (1) the court’s findings are not supported by substantial evidence,

(2) the court impermissibly imposed court costs on charges for which he was

acquitted, and (3) the court failed to make a determination of his ability to pay

restitution.

I.     Sufficiency of the Evidence

       The crime of child endangerment requires the State to prove several

elements, including the following: the person “[k]nowingly acts in a manner that

creates a substantial risk to a child or minor’s physical, mental or emotional health

or safety.”    Iowa Code § 726.6(1)(a) (2017).        “A person who commits child

endangerment resulting in bodily injury to a child or minor . . . is guilty of a class

‘D’ felony.” Id. § 726.6(6). “A person who commits child endangerment that is not

subject to penalty [under enumerated provisions] is guilty of an aggravated

misdemeanor.” Id. § 726.6(7).

       Ackiss challenges the State’s proof on the “knowingly” element.

“Knowingly” means acting with knowledge that one’s conduct creates a substantial

risk to a child’s safety. State v. Leckington, 713 N.W.2d 208, 214 (Iowa 2006).

“[T]he definition of substantial risk in the context of child endangerment means the

very real possibility of danger to a child’s physical health or safety.” State v.

Schlitter, 881 N.W.2d 380, 390 (Iowa 2016) (internal quotation marks and citation

omitted). “The risk does not have to be likely, just real or identifiable.” Id.
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       The district court made the following pertinent findings. A woman called

911 about “a domestic dispute.” A Des Moines police officer met the woman at a

street corner and observed her outside her vehicle. He also observed “a broken

passenger side window on the right rear passenger side sliding door.” The woman

informed the officer that Ackiss “broke, or as she described it, ‘busted’ the rear

passenger side window of the minivan,” injuring “[t]wo children . . . when the glass

was shattered.”    The children “present at that time appeared to be scared.”

“[S]ome of the children had shattered glass on their clothes and hair.” “[T]he

window was broken with force such that glass entered the vehicle shattering, and

hitting and/or falling upon children in the vehicle.”

       Ackiss contends

       the record does not support a rational inference that [he] broke the
       glass—whether by hitting the window or slamming the door—with the
       knowledge that it would likely shatter and spray glass throughout the
       van and into the far rear seat of the van putting the children at risk.

To the contrary, that is the only rational inference to be drawn from the record.

       The officer’s body camera captured the woman telling the officer Ackiss “just

busted my window and now my kid’s bleeding.” She continued, “[H]e hit my glass

and my kids were in their seat and the glass splattered and it hit them.” Although

the woman backtracked at trial, testifying she did not “know how” the glass broke,

the district court credited her recorded statements to the officer over her trial

testimony. We give weight to the court’s credibility finding. See State v. Thomas,

847 N.W.2d 438, 442 (Iowa 2014) (noting the fact finder is “free to reject certain

evidence, and credit other evidence”).
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       Not surprisingly, the officer’s trial testimony was consistent with the camera

footage. He stated that the woman told him Ackiss “broke out the window of the

passenger’s side sliding door on the van” by “punching it.”        The officer also

described evidence discovered in the ensuing investigation, including glass inside

the van. He stated two of the children “had injuries on them.” Specifically, “[o]ne

of them had the cut to the nose, and another one had the cut on the elbow.” The

woman told him they received the injuries “[w]hile sitting inside the van when the

window shattered, the glass come in their seats.” He described the children as

“scared.”

       A detective who also investigated the crime scene and reviewed photos

taken at the scene testified “[t]hree of the children had apparent injuries.” Based

on her interview of the woman, she agreed that what the woman told her was

consistent with what she reviewed in the reports.

       Substantial evidence supports the district court’s determination that Ackiss

knowingly acted in a manner to create a substantial risk to the health or safety of

the children. See State v. Bower, 725 N.W.2d 435, 444 (Iowa 2006). We affirm

the court’s findings of guilt and convictions for child endangerment resulting in

bodily injury and child endangerment.

II.    Costs

       The State charged Ackiss with two counts of child endangerment and two

counts of child endangerment resulting in bodily injury. The district court acquitted

Ackiss of two of the charges. In its sentencing order, the court taxed court costs

to Ackiss. The court order also stated, “Pursuant to the plea agreement [Ackiss]
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is ordered to . . . pay court costs on any dismissed counts/cases.” There was no

plea agreement. As discussed, the case went to trial.

       On appeal, Ackiss contends the district court “erred in imposing costs

against [him] on counts for which he was acquitted.” The State responds that

Ackiss did not identify any costs arising exclusively from the acquitted counts and

the reference to a plea agreement may be corrected with a nunc pro tunc order.

       The Iowa Supreme Court recently addressed the issue of cost

apportionment in State v. McMurry, 925 N.W.2d 592, 595 (Iowa 2019). The court

held, “[F]ees and costs should not be apportioned in multicount cases that result

in both a conviction and a dismissal when the fees and costs would have been the

same without the dismissed counts.” McMurry, 925 N.W.2d at 600–01. The court

additionally explained, “If costs and fees would have been incurred in the

prosecution of a count of conviction even if the dismissed counts had not been

prosecuted, equity does not support apportionment.” Id. at 600.

       The court reaffirmed the holding in State v. Headley, 926 N.W.2d 545, 552–

53 (Iowa 2019). There, the court concluded “the State would have incurred the

costs assessed against Headley even if it only brought the charges against

Headley for which he pled guilty. Therefore, requiring Headley to pay the court

costs associated with dismissed charges did not constitute an illegal sentence.”

Headley, 926 N.W.2d at 552–53.

       Had the sentencing order in this case simply stated “[c]ourt costs are taxed

to Defendant,” McMurry would dictate affirmance. See 925 N.W.2d at 600 (noting

all the costs identified by the defendant “fall within the category of fees that would

have been the same even if the dismissed counts would not have been
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prosecuted”). But the sentencing order referred to taxation of costs on dismissed

charges pursuant to a nonexistent guilty plea. We believe the inclusion of this

language was more than a clerical error that may be corrected via a nunc pro tunc

order. See State v. Pearson, 876 N.W.2d 200, 205–06 (Iowa 2016). We vacate

the language of the sentencing order requiring Ackiss, “[p]ursuant to the plea

agreement,” to “pay court costs on any dismissed counts/cases” and remand for

entry of a corrected order clarifying court costs are taxed to Ackiss only on the

counts that resulted in convictions.

III.   Restitution

       In its sentencing order, the district court ordered Ackiss “to make restitution

in the amount of $[to be determined].”         The court stated, “If the amounts of

restitution are not available at the time of sentencing, a supplemental order will

follow.” Finally, the court found Ackiss had “the reasonable ability to pay restitution

of fees and costs in the amount approved by the State Public Defender or $____,

whichever is less.” The dollar figure was not included.

       The Iowa Supreme Court recently addressed the proper procedure with

respect to restitution. See State v. Albright, 925 N.W.2d 144, 162 (Iowa 2019).

The court stated, “Courts must wait to enter a final order of restitution until all items

of restitution are before the court. Once the court has all the items of restitution

before it, then and only then shall the court make an assessment as to the

offender’s reasonable ability to pay.” Id. The court concluded the district court’s

finding that Albright had the reasonable ability to pay restitution and the order for

restitution “without having the amount of each item of restitution before it” was

“contrary to the statutory scheme,” requiring vacating of the “sentencing order
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regarding restitution” and a remand “to order restitution in a manner consistent with

this opinion.” Id. In accordance with the dictates of Albright, we vacate the

sentencing order as to restitution and remand for further proceedings consistent

with Albright.

       CONVICTIONS AFFIRMED; SENTENCE VACATED IN PART, AND

REMANDED.
