                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1380
                             Filed October 28, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TREVOR EUGENE SMITH,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



      Trevor Smith appeals his conviction for first-degree murder. AFFIRMED

IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.




      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, and Linda Fangman, County Attorney, for appellee.




      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
                                        2


DANILSON, Chief Judge.

      Trevor Smith appeals his conviction for first-degree murder, contending

there was insufficient evidence of malice to sustain the conviction.      He also

contends his trial counsel was ineffective in failing to move for a new trial based

on the greater weight of the evidence and in failing to call a biomechanical

engineer in his defense. There was substantial evidence to support a finding of

malice aforethought, and therefore the trial court did not err in overruling the

motion for new trial.     Smith’s ineffective-assistance-of-counsel claims are

rejected. We affirm the conviction for first-degree murder. However, we reverse

the entry of judgment on the jury’s guilty verdict on the charge of child

endangerment resulting in the death of a child and remand with directions.

I. Background Facts.

      Trevor Smith and Samantha Christian moved in together in January 2012

knowing Christian was pregnant and Smith could be the father. Christian gave

birth to a girl on August 7. Christian went back to work on September 25; her

mother stayed with Smith and the infant and helped care for the child that day.

On September 26, 2012, Smith was caring for the child alone.            He called

Christian at work at about 10:30 p.m. and told her an ambulance was on the way

and the baby needed to go to the hospital.

      Black Hawk County Dispatch recorded a 911 call at 10:32 p.m. On the

recording, Smith reports, with a flat affect, that he was picking up the baby to

burp her, she started choking, and he couldn’t do anything about it. Police, fire,

and paramedic teams arrived between four and five minutes after Smith placed

the 911 call. An officer responding to the scene observed Smith to be calm.
                                         3


Paramedics reported the infant was limp, very pale, and was not breathing. Her

heart was beating, though she did not have a pulse. Smith told first responders

he was feeding the baby, she started to gasp, and he was burping her when she

stopped breathing. A mouth valve was inserted to provide oxygen, and the child

was injected with epinephrine to “get the heart perfusing again.”1 The child was

taken by ambulance to Covenant Hospital in Waterloo while the first responders

continued CPR.

       The ambulance arrived at the hospital at 11:00 p.m. Emergency-room

physician Dr. Robert Roof intubated the child and got a pulse back. The child’s

blood gas was tested, and the oxygen levels were very low, indicating she had

been without oxygen for a prolonged period of time—thirty to forty-five minutes.

While at the hospital, Smith told Christian he was feeding the baby a bottle and

she stopped breathing.     He told Dr. Roof he was feeding the child and she

became unresponsive. Because the child continued to be unresponsive,2 she

was sent by helicopter to Iowa City.

       Dr. Gwen Erkonen, a physician and assistant professor of pediatrics at

University of Iowa Hospitals and Clinics (UIHC), was one of the child’s initial

treating physicians. Dr. Erkonen stated the child was very unstable and critically




1
   Merriam-Webster dictionary defines perfuse: “to force a fluid through (an organ or
tissue) especially by way of the blood vessels.” http://www.merriam-
webster.com/dictionary/perfuse
2
  Dr. Roof testified by nonresponsive, he meant
        [n]o muscle tone, not making any—she was just flaccid, meaning she
        wasn’t moving anything. She didn’t have any strong refluxes or any
        response to either when we pinch—like, it can be painful stimuli like pinch
        or sternal rub to see if we can get them to respond in any way. She didn’t
        have any of those.
                                             4


ill on arrival.3    A CT scan showed an acute bilateral subdural hemorrhage.

Additional testing also revealed a subarachnoid hemorrhage. A drain was placed

to relieve some of the pressure on the child’s brain. At the Iowa City hospital,

Smith told Dr. Resmiye Oral—a physician specializing in child abuse pediatrics—

he was attempting to feed the baby a bottle at about 9:30 p.m. and when he put

her over his shoulder to burp her she went limp, and he laid her on the bed and

attempted to call her mother. He then called 911 (which was recorded at 10:32).

The EMS technician recommended he perform CPR. Smith told Dr. Oral that

with each blow of air into her lungs, he was hearing gurgling sounds coming from

the chest, and he also observed milk coming out of her nose.

         On September 27, police spoke with Smith and Christian.               Christian

initially told police the child was gasping and went stiff while he was feeding her.

He would later tell them he “never like intentionally shook her” and admitted that

“she did slip outta my hands.” Still later, Smith stated “I did shake her” but “didn’t

think I did it very hard.” He said he shook the baby until her head moved “side to

side” and that he shook her three-to-five times for “one or two” minutes. Smith

also told Christian and workers for the department of human services he shook

the baby because she wouldn’t stop crying.

         The child remained in a coma with a prognosis of a persistent vegetative

state. On October 2, the child’s breathing tube was removed, and the child died.



3
    Erkonen testified,
                 She needed the neurosurgical intervention, so she needed the
         drain put in her brain. She needed medicine to support her blood
         pressure, that goes continually. She needed ventilator support, so we
         had to breathe for her and support her heart rate and blood pressure with
         the medicines and to have the neurosurgeons come and place the drain.
                                        5


      An autopsy was conducted the following day by Dr. Dennis Firchau. The

autopsy showed that child had a subdural and subarachnoid hemorrhage. The

subdural hemorrhage was “acute” or recent.        Dr. Firchau found nothing of

significance in the external examination except for a contusion on the left scalp.

A contusion of the subscalp was also found. Dr. Firchau would testify that the

contusion was indicative of blunt force trauma. An epidural hemorrhage was also

found in the spinal column. The autopsy also indicated the child had suffered rib

fractures, which were most likely caused by resuscitation efforts. Dr. Nasreen

Syed, an ophthalmologic pathologist, examined the eyes post-mortem.           She

found hemorrhages in both eyes, including intraretinal hemorrhaging and optical

nerve sheath hemorrhages, and that the retinas had begun to fold and detach.

Dr. Patricia Kirby, a neuropathologist, examined the brain as part of the autopsy,

finding a “fairly extensive subdural hemorrhage” that was “a couple of days old.”

She also confirmed the subarachnoid hemorrhage reported by other doctors; the

bleeding was extensive and bilateral. Based on the pathologists’ findings, the

cause of death was ruled “blunt force injuries of the head.” The manner of death

was ruled a homicide or “death at the hands of another.”

      Smith was arrested on January 14, 2013, and was interviewed at the

Waterloo police station. He told the police there were two different periods of

shaking, one about 4:00 p.m. and one about 9:30 p.m. He also said that it was

possible the baby’s head hit a large fan while he was carrying her in the

afternoon or evening. He said the shaking was not an accident. He also said he

dropped the child onto a pillow, onto a couch, and onto a changing table.
                                          6


       Smith was charged with child endangerment causing death and first

degree murder. At trial, the State presented the testimony of Drs. Roof, Erkonen,

Michael D’Alessandro, Firchau, Syed, Kirby, and Oral. Of eight potential causes

of the child’s injuries, these doctors ruled out all but non-accidental trauma.

Dr. D’Alessandro, a physician at the Children’s Hospital at UIHC, reviewed the

CT scans.     He was asked what he meant by non-accidental trauma and

responded, “I mean another word for it is child abuse.”

              Q. Um, do—do you have an idea of what the mechanism
       would have been? A. Well, the mechanism is described in non-
       accidental trauma as you can get this from shaking a child
       vigorously, you can get it from shaking and slamming the child on a
       surface, you can get it from slamming and shaking the child. So
       any combination of those results in this sort of rotational injury,
       deceleration injury, that can lead to tearing of the blood vessels in
       the brain, lead to the subdural hematomas that we see, and it can
       also damage the brainstem which controls your breathing and your
       heart, causing the heart to stop breath—to stop, and, again,
       causing—leading to what I—we see here.

He also testified,

               There—there is some dispute in the medical literature over
       whether shaking alone can cause this sort of injury, and it’s
       something that people who are biomechanical engineers and
       neurosurgeons and neuropathologists discuss and go around in
       circles about, but in this case, we also have evidence of some sort
       of impact injury with the contusions in the scalp, so I think that it’s a
       non-accidental injury that was shaking and slamming in this case.

       Dr. Oral testified,

              Q So that the—at that point [after learning that Smith had
       shaken the baby], then, you were—your assessment was that they
       were those types of injuries, rotational deceleration/acceleration,
       and that a possible mechanism was due to shaking; correct?
       A. Yes.
              ....
              Q. Is it common or uncommon to find bruising from the
       holding of the child? A. It’s actually uncommon.
                                              7


                  Q. And why is it uncommon? A. Because majority of
          abusive head trauma doesn’t occur with the intention of hurting the
          child or killing the child. It occurs just as a result of exhaustion or
          frustration, etcetera. And because of that, majority of the time,
          people don’t necessarily inflict external injuries.[4] And another
          thing, I’m saying this just for the education of everybody here,
          shaking, unfortunately, has a positive reinforcing effect on the
          caretakers because the child becomes lethargic or obtunded and
          falls asleep, and the caretaker mistakenly perceives that as, oh, it’s
          working, she falls asleep if I shake her or him. And as a result, I am
          not saying abusive head trauma perpetrators are monsters. They
          are not. They are routine people who just don’t know how to
          handle a crying baby.

          Dr. Janice Ophoven, a pediatric forensic pathologist, testified on behalf of

the defense. Dr. Ophoven testified, “In my opinion in this case, the evidence

available to me is insufficient to make a determination for certain what happened

to” the child. She explained:

                  Most important point is that babies of this age have sudden
          unexplained death without a cause being identified as the number
          one cause of death in children between two and four months of
          age. So[,] unexplained and unexpected deaths in young infants is
          not an unusual event. It’s certainly not common, but it is something
          that forensic pathologists recognize.
                  The second point is that for any reason, for any cause of
          cardiac arrest, hypoxia can cause subdural blood and brain
          swelling and bleeding in the eyes.          That’s compounded by
          prolonged resuscitation and complications of prolonged life support
          in the hospital that can aggravate and worsen what is seen at
          postmortem. It is entirely possible for the child to have had a
          cardiac arrest from a condition that was not traumatic, that was not
          —that we don’t—that we don’t know the cause. Subdural brain
          swelling and retinal hemorrhages can occur from lack of oxygen.
                  The findings in this case that are—are concerning is the
          finding that the pathologist found a spot on the side of the head that
          he interpreted as a bruise, which, in his opinion, as I understand it,
          could have been the result of an impact. In my opinion, that bruise
          could as likely be the result of the surgical intervention that
          occurred during the attempts to save the baby’s life. There was no
          swelling in that area, as one would expect of a serious impact. We
          typically look for on x-ray or on physical exam, no swelling was

4
    There was evidence presented here that there were external injuries inflicted.
                                        8


      noted. And a mark wasn’t observed by the first responders and by
      the emergency room doctors suggesting that the material that was
      seen at postmortem may have developed while the child was in the
      hospital. So I personally, in my opinion, cannot rely on that mark as
      an indication of an inflicted impact.
             Also found at the postmortem were scattered BAP positive
      axons or cells in the corpus callosum of the brain. Those could
      indicate trauma, but they don’t tell us when or how or how severe.
      Their distribution in nature are not the kind that I typically see in
      children who would survive five days following a fatal traumatic
      injury. They’re scattered over quite an area and not clustered or
      dense the way I’m typically used to seeing.
             The answer to the question is, I don’t know why the child had
      a cardiac arrest. The subdural could have been the consequence
      or could have been associated with the cause. I don’t know.

Dr. Ophoven testified,

      [T]he theory being that if you shake a child hard enough, you can
      cause a—a specific pattern of damage that is reflected in subdural
      hematoma, brain swelling, and retinal hemorrhage. That theory
      was never tested, but it was accepted. So for many years, any
      child with retinal hemorrhage, subdural hematoma, and brain
      swelling were presumed to have been the victim of shaking. In the
      ‘80s and ‘90s and now ongoing, this theory has come under testing
      and criticism and now controversy in that the assumption that
      retinal hemorrhage and subdural hematoma and brain swelling are,
      in effect, diagnostic for an assaultive form of shaking has—has not
      been—has not met scientific tests or proof. And biomechanical and
      neuropathological research has clearly identified significant
      problems with this theory. No one’s saying shaking is a good idea,
      but the—the biomechanical literature strongly suggests that there’s
      not enough force that can be generated by an adult person to
      actually cause the damage we’re talking about. And that’s been
      repeatedly reported, and concerns have been published repeatedly.
      So the issue of whether or not that act or action in and of itself is
      sufficient to cause a fatal injury remains a theory and not a proven
      scientific fact.

She went on to discuss the amount of acceleration—G forces—required to cause

fatal head injuries, and opined the autopsy results did not support a finding that

such force had been inflicted. On cross-examination, Dr. Ophoven agreed that

there were various causes of infant cardiac arrest, including head trauma. She
                                            9


acknowledged “nothing was found in her—during her hospitalization that

explained a natural cause for her cardiac arrest.”

         Smith testified in his own defense.      He explained feeding the baby at

4 p.m. He stated he was “frustrated in the fact that [he] could not get her to stop

crying.” He acknowledged he shook the child, stating he “was trying to comfort

[his] daughter.” Smith said the child woke up again at 6 p.m. crying, he tried to

give her a bottle but she drank only about an ounce of milk. So, he gave her a

pacifier and she eventually went back to sleep. The child woke again at 9:30

crying and he changed her and gave her a bottle. He continued,

                 After she had finished the bottle, I had—I was attempting to
         sit her up so I could burp her. At this time, she appeared to me to
         start gasping for air. And she also put her arms and legs straight
         out and they were stiff. I don’t remember exactly how long that had
         happened, but I would say anywhere from about a minute to two
         minutes, and then she went limp in my arms.

He stated he tried to call Christian three times because “[s]he was a nurse” and

he “figured she would know” what to do. When he did not reach Christian, Smith

called 911. He acknowledged that the recordings of his statements to police and

him demonstrating how he had shaken the child were correct. He acknowledged

he may have dropped the baby and that “her head did hit the changing table.”

         The jury found Smith guilty of first-degree murder and child endangerment

causing the death of a child.        The trial court entered judgment on both but

entered a sentence on count 1 (first-degree murder) only.5




5
    The court did not merge the convictions, however. Iowa Code section 701.9 provides,
                 No person shall be convicted of a public offense which is
         necessarily included in another public offense of which the person is
         convicted. If the jury returns a verdict of guilty of more than one offense
                                          10


      Smith appeals, contending there was insufficient evidence of malice

aforethought to sustain the conviction. He also contends his trial counsel was

ineffective in failing to move for a new trial based on the greater-weight-of-the-

evidence standard and in failing to call a biomechanical engineer in his defense.

II. Scope and Standards of Review.

      We review claims of insufficient evidence for correction of errors at law.

State v. Showens, 845 N.W.2d 436, 439 (Iowa 2014).

      “In reviewing challenges to the sufficiency of evidence supporting a
      guilty verdict, courts consider all of the record evidence viewed in
      the light most favorable to the State, including all reasonable
      inferences that may be fairly drawn from the evidence. We will
      uphold a verdict if substantial record evidence supports it.”

Id. at 439-40 (quoting State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013)).

      We review claims a defendant’s trial attorney was ineffective de novo.

State v. Clark, 814 N.W.2d 551, 560 (Iowa 2012).

III. Discussion.

      A. Sufficiency of the evidence. We have already summarized the evidence

presented at trial and conclude the evidence could convince a rational jury

beyond a reasonable doubt that Smith acted with malice. The jury was instructed

that “[m]alice may be inferred from the commission of child endangerment which

results in death.” See Iowa Code §§ 707.2 (stating a person commits murder in

the first degree when “[t]he person kills a child while committing child

endangerment under section 726.6, subsection 1, paragraph ‘b’”); 726.6(1)(b)

(defining child endangerment as “an intentional act or series of intentional acts,



      and such verdict conflicts with this section, the court shall enter judgment
      of guilty of the greater of the offenses only.
                                         11


uses unreasonable force, torture or cruelty that results in bodily injury, or that is

intended to cause serious injury”). Smith acknowledged shaking the child and

dropping her more than once. He acknowledged the child hit her head on the

changing table. From his testimony, the jury could find that he shook the child at

4 p.m. and again at 9:30 p.m. when the child became unresponsive. He did not

call 911 until 10:30 p.m. The evidence showed the child’s brain was without

oxygen for an extended period of time. The medical personnel testified the child

suffered blunt force trauma, which resulted in her death. Substantial evidence

supports an inference of malice from the nature and cause of the injuries to the

child. Moreover, an inference of malice was properly based on a finding of guilt

on the child endangerment charge.

       The district court’s order entered judgment on both first-degree murder

and child endangerment resulting in the death of the child (although it imposed

only one sentence). We affirm the entry of judgment on the conviction for first-

degree murder. However, we reverse the entry of judgment on count 2 (child

endangerment resulting in death).6 See id. § 701.9 (“If the jury returns a verdict

of guilty of more than one offense and such verdict conflicts with this section, the

court shall enter judgment of guilty of the greater of the offenses only.”). We

remand with directions that the district court delete entry of judgment on count 2.

       B. Ineffective assistance of counsel. To succeed on an ineffective-

assistance claim, a defendant must show by a preponderance of the evidence

that trial counsel failed to perform an essential duty, and prejudice resulted.

6
 See State v. Fix, 830 N.W.2d 744, 746 (Iowa Ct. App. 2013) (“Under Iowa law, when a
defendant is convicted of separate homicide counts involving a single victim, judgment
can be entered and sentence can be imposed for only one homicide offense.”)
                                          12

State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). We can affirm if either

element is absent. Id. Ordinarily, we do not decide ineffective-assistance-of-

counsel claims on direct appeal, preferring to reserve such questions for

postconviction proceedings so counsel can defend against the charge and a

more complete record developed. Clark, 814 N.W.2d at 560. However, we find

the record adequate to address the complaints.

       Here, Smith contends his trial attorney was ineffective for failing to include

as a ground for new trial that the verdict was contrary to the weight of the

evidence, particularly the medical evidence. Under the contrary-to-the-weight-of-

the-evidence standard, the trial court has a broader power to weigh the evidence

and consider the credibility of the witnesses. See State v. Ellis, 578 N.W.2d 655,

658 (Iowa 1998) (citing 3 Charles A. Wright, Fed. Prac. & Proc. § 553 (2d ed.

1982)). “If the court reaches the conclusion that the verdict is contrary to the

weight of the evidence and that a miscarriage of justice may have resulted, the

verdict may be set aside and a new trial granted.” Id. at 658-59 (citation and

quotation marks omitted). However, trial courts are cautioned to grant a motion

for a new trial on this ground “carefully and sparingly” because “a failure to follow

[this admonition] would lessen the role of the jury as the principal trier of the facts

and would enable the trial court to disregard at will the jury’s verdict.” Id. at 659.

Smith has not established that this is the exceptional case in which the evidence

preponderates heavily against the verdict. See State v. Dudley, 766 N.W.2d 606,

620 (Iowa 2009) (noting “counsel has no duty to raise an issue that has no

merit”).
                                         13


       In alleging trial counsel should have filed a motion for new trial on grounds

the verdict is contrary to the weight of the evidence, Smith is, in essence, making

an alternative argument because such a motion concedes the sufficiency of the

evidence. See State v. Reeves, 670 N.W.2d 199, 202, 209 (Iowa 2003) (noting

“[a] motion for new trial on the grounds that the verdict is contrary to the weight of

the evidence, concedes that there is sufficient evidence to sustain a verdict”).

We reject that claim. See Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001)

(“Thus, claims of ineffective assistance involving tactical or strategic decisions of

counsel must be examined in light of all the circumstances to ascertain whether

the actions were a product of tactics or inattention to the responsibilities of an

attorney guaranteed a defendant under the Sixth Amendment.”). Although

counsel can make alternative arguments, we decline to conclude that trial

counsel can be ineffective for conceding substantial evidence existed to support

the verdict to raise the weight-of-the-evidence argument, where both trial counsel

and appellate counsel argue there was insufficient evidence to support the

verdict.

       Smith next asserts trial counsel was ineffective for not calling a

“biomechanical engineer or other expert that would have been more informative

regarding research developments in this field.” However, he has not established

the result of the trial would have been different had such a witness been called.

He claims, “Whether shaking alone can cause serious brain injury and death has

been challenged by biomechanical research . . . .” Dr. Ophoven testified about

such research. Smith does not suggest what more an additional witness would
                                        14


have provided, and he has not proved the result of the trial would have been

different if such testimony was presented.

       There was substantial evidence to support a finding of malice

aforethought, and therefore the trial court did not err in overruling the motion for

new trial.   Smith’s ineffective-assistance-of-counsel claims are rejected.     We

affirm the conviction for first-degree murder. However, we reverse the entry of

judgment on the jury’s guilty verdict on the charge of child endangerment

resulting in the death of a child and remand with directions.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

DIRECTIONS.
