                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0673
                                Filed July 5, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KASHENNA NICHOLE TUCKER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Wapello County, Daniel P. Wilson,

Judge.



      Kashenna Tucker appeals her conviction for child endangerment resulting

in death. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nerissa N. Jennisch,

Assistant Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Vogel, P.J., Doyle, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
                                              2


VOGEL, Presiding Judge.

          Kashenna Tucker appeals her conviction for child endangerment resulting

in death. She argues the evidence is insufficient to prove she knowingly acted in

a manner that created a substantial risk to the decedent’s safety. We find the

evidence is sufficient to support her conviction, and we affirm.

          I.     Background Facts and Proceedings

          In January 2014, Tucker lived in Ottumwa with W.E, who was born in

January 2011.1 Tucker met W.E.’s mother in Chicago, and Tucker agreed to

temporarily act as caretaker for W.E.             Even though Tucker and W.E. were

unrelated, she referred to W.E. as her nephew.

          In a series of interviews with investigators, Tucker said she left W.E. with

her friend Latisha Johnson for a few hours on Sunday, January 19, 2014. Johnson,

although uncertain of the date, testified W.E. was “real quiet” when she watched

him but he ate that afternoon and otherwise seemed normal at the time. In her

interview, Tucker said she took W.E. to a park later that day where he fell down a

series of concrete steps. Tucker said W.E. cried and complained that his “tummy”

hurt after the fall and she took him home. She noticed a scrape on his eye and a

bump on his head from the fall. She said on Monday he stayed in bed and

complained his tummy hurt, but she thought “it was something that I could handle.”

That Monday, she scheduled an appointment at their usual medical clinic for W.E.

to be seen on Thursday, January 23.




1
    Tucker also lived with her son, who was also three years old at the time.
                                             3


         Tucker told investigators that when W.E. woke on Tuesday, January 21,

she made him stand up and move around, at which point he began throwing up

“brown, red vomit” that appeared to contain blood. She said she called the medical

clinic and asked for an earlier appointment, but they said they could not see him

sooner and she should take him to the emergency room. Tucker’s phone showed

she called the clinic at 8:07 that morning. Her phone also showed she received a

call from and exchanged five texts with an unidentified person around 10:00 that

morning. She sent one text at 10:04 that said, “Im home.” Investigators later found

receipts inside a shopping bag in Tucker’s home. The receipts show purchases

from two separate Ottumwa stores on Tuesday morning at 9:38 and 9:48. The

items purchased include bath tissue, moist wipes, baking soda, and ointment. The

items were purchased using debit cards that match the last four digits of cards in

Tucker’s name. She said she tried cleaning the vomit that morning. Investigators

later found several stains that appeared to be brown vomit throughout her home,

including on carpet and hard flooring in several locations, on tissues in the trash,

and on unwashed children’s bedding inside a washing machine.2 Some of the

stains on the carpet were covered with baking soda, and there was a mop with a

bucket and water in the kitchen.

         Around noon on Tuesday, January 21, Tucker brought W.E. into the

emergency room in Ottumwa. He had minor, inefficient breathing and no pulse.

Medical staff performed CPR for forty-five minutes before he regained a pulse, at

which point they arranged to transport him to the University of Iowa Hospitals and



2
    The record contains several photographs of the stains in Tucker’s home.
                                           4


Clinics (UIHC) in Iowa City for advanced care. At 2:38, Tucker told her boyfriend

via text message, “if im arrested please come iowa city.” W.E. remained in the

Ottumwa emergency room for a couple of hours and showed some improvement

before being airlifted to UIHC later that afternoon. During the flight to Iowa City,

he lost his pulse around 3:55. Staff continued providing emergency care in the air

and at UIHC. He never regained a pulse at UIHC, and he was pronounced dead

at 4:45 that afternoon.

       W.E.’s emergency physician at UIHC noted bruises and abrasions across

his head, which led him to be concerned W.E. had suffered a head injury. The

physician also noted W.E.’s bruises were different colors in different locations,

which suggested they resulted from non-accidental injuries occurring at multiple

times. On January 23, a full autopsy was performed, and W.E.’s cause of death

was determined to be “[a]cute peritonitis due to duodenal perforation due to blunt

force injuries of the abdomen.” Peritonitis is an infection of the lining of the

abdomen, which typically results from an abdominal injury. W.E.’s duodenum, a

part of the small intestine, had a hole that allowed his bowel contents to enter his

abdominal cavity. W.E. had internal bruising that suggested his abdominal injuries

resulted from a single impact. Dr. Dennis Firchau, who performed the autopsy at

UIHC, determined W.E.’s death was a homicide, opining, “the abdominal injuries

that resulted in the peritonitis were highly unlikely to be from an accidental cause

and were most likely the result of an inflicted injury.”

       Investigators interviewed Tucker multiple times in the days and weeks

following W.E.’s death. Police eventually arrested her in Utah in December 2015

and charged her with first-degree murder and child endangerment resulting in
                                            5


death. After waiving her right to a jury trial, the matter was tried to the district court

on January 3, 2017. Among the State’s witnesses were Dr. Charles Jennissen,

who treated W.E. at UIHC:

               Q. Is peritonitis something that you would die from
       immediately upon receiving the injury that caused the tear in the
       intestine? A. No.
               Q. How does it progress? A. Well, once there is entry of
       bacterial content into the peritoneum, over time, there can be a
       reaction to that. And increasing numbers of growth of bacteria, and
       then inflammation of the lining, and the mesentery, the lining of the
       intestines related to this, you know, bacterial content from the bowel
       that’s now in the abdomen, which is not normally there. And this can
       cause increasing inflammation, abdominal pain. And typically for
       that then, if you have a child with appendicitis and has peritonitis,
       they are complaining of abdominal pain and have findings on exam.
       And often, that needs to be treated with antibiotics or surgery. So to
       die from that, you usually would have to have a progressive infection
       that’s getting worse and worse over a period of time, perhaps even
       days. And then the patient has bacteria that enters into the blood
       stream causing sepsis. Eventually, a decrease in blood flow from
       the septic shock. And so a decrease in blood flow to the brain, the
       heart, other vital organs causing eventually, cardiopulmonary arrest.
       So this isn’t something that happens over, you know, a sudden
       period of time. This is something that happens over a period of time.
               Q. Is it fair to say that not treated, and it results in death, that
       it would be a long and painful death?             A. It would be very
       uncomfortable. Now eventually a child might become very, not lucid
       because they’re not getting enough blood flow to the head. But yes,
       it would eventually be very painful and discomforting. Anyone seeing
       that child would say this child is sick. They need to be seen. And
       they need to be taken care of.
               Q. And when you say this child is sick, could it be easily
       thought that it was just a flu or something simple like that? Or would
       it be more obvious? A. Well, you know, initially, these might not
       have been very significant as far as the symptoms that they have.
       But as peritonitis develops and as they have worsening symptoms
       and then perhaps developing into septic shock, it would have been
       clear and clearer this child was not very responsive and is getting
       sicker and sicker.

       The State also presented testimony from Dr. Firchau:

              Q. What is the progression of [peritonitis]? I mean, once the
       perforation occurs, does everything happen right away? Or is it a
                                         6


       slow progression? A. Usually not. Usually it takes some time
       depending on the size of the defect and the amount of material in the
       area where the defect was. It takes some time for the contents to
       spill and then the inflammation to begin and spread. And again, there
       could be some variability. But this is a process that generally takes
       some time. And usually there’s often, or not uncommonly, there is a
       period where an individual is quite symptomatic with your symptoms
       of pain, nausea, vomiting, and very likely a fever prior to becoming
       more medically unstable.
               Q. Is it unusual for it not to be caught before someone dies
       from it? A. It usually presents itself clinically. So the person who
       has it will generally know that there’s something wrong. And if the
       person has, let’s say an adult who has the ability to make decisions
       for him or herself, it would be their choice to seek medical
       intervention or not. Or inform somebody else. But generally, there
       is some time where it’s quite clinically pronounced where people
       would often seek medical intervention or medical assistance for this.

       On February 3, 2017, the court entered its verdict. Regarding the count of

murder in the first degree, the court found a lack of evidence Tucker committed a

violent act that caused W.E.’s injuries, and it found her not guilty of murder.

Regarding the count of child endangerment resulting in death, the court found

Tucker had custody or control of three-year-old W.E. during the period at issue,

and she knowingly acted in a manner that created a substantial risk to the physical

health or safety of W.E., which resulted in W.E.’s death. Therefore, the court found

her guilty of child endangerment resulting in death. The court sentenced her to

incarceration for no more than fifty years.

       Tucker now appeals. She argues the evidence is insufficient to prove she

knowingly acted in a manner that created a substantial risk to the W.E.’s safety.

       II.    Standard of Review

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

State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). In doing so, we view the

evidence “in the light most favorable to the State.” Id. “[W]e will uphold a verdict
                                          7

if substantial record evidence supports it.” Id. “Evidence is considered substantial

if, when viewed in the light most favorable to the State, it can convince a rational

jury that the defendant is guilty beyond a reasonable doubt.” Id. The factfinder is

“free to reject certain evidence, and credit other evidence.” Id.

       III.   Analysis

       “When [a sufficiency-of-the-evidence] claim is made on appeal from a

criminal bench trial, error preservation is no barrier.”     State v. Anspach, 627

N.W.227, 231 (Iowa 2001).

       The district court convicted Tucker of child endangerment resulting in death

under Iowa Code section 726.6(1)(a) (2014) (“A . . . person having custody or

control over a child . . .commits child endangerment when 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.”). As used in the statute, “‘act’

includes a failure to do any act which the law requires one to perform.” Iowa Code

§ 702.2. Additionally, “knowingly” means “the defendant acted with knowledge that

[he or] she was creating substantial risk to the child’s safety.” State v. Leckington,

713 N.W.2d 208, 214 (Iowa 2006).

       Tucker argues the evidence does not support a conclusion that, prior to

W.E.’s death, she acted with the required knowledge that she was creating

substantial risk to W.E.’s safety. See id. At most, she asserts the evidence shows

she should have known of the risks.

       Tucker is correct that the record shows she should have known W.E.’s

deteriorating and dire condition. Dr. Jennissen testified about the progression of

peritonitis and the resulting pain, which would cause “[a]nyone seeing that child
                                            8


[to] say this child is sick. They need to be seen.” Similarly, Dr. Firchau testified

advanced peritonitis is generally “quite clinically pronounced where people would

often seek medical intervention or medical assistance.”

         Beyond     this    general   medical   evidence   of   the   obvious   distress

accompanying peritonitis, the record contains sufficient evidence specific to the

gravity of W.E.’s condition. Tucker described W.E. as clearly ill the entire day

before his death.          By the morning of his death, W.E.’s health had declined

significantly as he repeatedly vomited blood throughout the home.                   The

investigators’ testimonies and evidentiary photographs show the volume and

spread of the vomit. Tucker’s statements to investigators—made hours after

W.E.’s death—show she thought the vomit contained blood at the time. She knew

about the bloody vomit no later than 8:07 that morning when she called the clinic.

While her attempt to seek medical attention was appropriate, she ignored the

clinic’s advice to seek emergency care. Instead, she apparently left home to

purchase cleaning supplies and other items,3 talked and texted on her phone when

she returned home, and began cleaning.            Finally, she brought W.E. into the

emergency room when he had no pulse and was near death. That occurred

around noon, about four hours after she called the medical clinic and was advised

to take W.E. to the emergency room. W.E.’s bloody vomit and deteriorating

condition clearly showed he needed immediate medical care, and Tucker’s

decision to delay emergency care for about four hours—if not longer—after she




3
    The record does not explain who, if anyone, watched W.E. while Tucker was shopping.
                                         9


found him listless and vomiting blood, provides sufficient evidence that she acted

with the required knowledge of creating a substantial risk to his safety. See id.

      We recognize the evidence could have supported a different verdict. W.E.’s

symptoms of stomach pains and vomiting are consistent with many non-serious

childhood illnesses. Tucker repeatedly told investigators she did not know the

severity of the situation and she thought she could handle it.            However,

contradictory evidence does not render other evidence insufficient. See Sanford,

814 N.W.2d at 615. Sufficient evidence supports the knowledge element under

Iowa Code section 726.6(1)(a).     Therefore, we affirm her conviction for child

endangerment resulting in death.

      AFFIRMED.
