                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0509
                              Filed March 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JUSTIN MICHAEL STICKROD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Monroe County, Lucy J. Gamon,

Judge.



      Justin Stickrod appeals from his convictions of first-degree sexual abuse

and child endangerment. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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DANILSON, Chief Judge.

         Justin Stickrod appeals from his convictions of first-degree sexual abuse,

in violation of Iowa Code sections 709.1 and .2 (2016), and child endangerment,

in violation of section 726.6(1)(a), (3), and (5). He contends his trial attorneys

were ineffective in several respects.

         Our review of constitutional issues, such as claims of ineffective

assistance of counsel, is de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa

2012).

         To prevail on an ineffective-assistance-of-counsel claim, a defendant must

establish (1) counsel failed to perform an essential duty and (2) the defendant

was prejudiced as a result. State v. Brothern, 832 N.W.2d 187, 192 (Iowa 2013).

“We usually preserve claims of ineffective assistance of counsel for potential

postconviction proceedings. However, if the record is sufficient to decide such

claims, we will do so on direct appeal.” State v. Elston, 735 N.W.2d 196, 200

(Iowa 2007) (citations omitted). “If the claim lacks prejudice, it can be decided on

that ground alone without deciding whether the attorney performed deficiently.”

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).

         On February 4, 2016, Stickrod was home alone with his two-month-old

daughter for approximately two and one-half hours while his wife went to a doctor

appointment and ran errands. Stickrod was asleep or passed out when she

returned.1 The baby was in a swing wearing only a diaper and was crying in an


1
  His wife testified he had passed out the night before after drinking. He was awake at
7:30 a.m. on February 4. His wife stated he was drinking and that he asked her to go
out and buy him alcohol. She did so and returned shortly, finding Stickrod sitting on the
couch and holding the child. She left the house for her errands about 9:50 a.m.
                                         3


unusual way. The mother discovered blood in the infant’s diaper. She attempted

to wake Stickrod but was unable to do so. The mother took the child to the

county hospital.

       Registered nurse Christine Arauco was the first person to examine the

baby girl, observing the child exhibited “mild distress” whimpering and crying.

Nurse practitioner Nicole Topliff noted the child’s “vaginal opening was gaping”

and bleeding. Nurses observed tearing, bruising, redness, swelling, and a small

amount of stool in the vaginal area. The child’s mother testified a nurse informed

her that the child had been sexually abused. Law enforcement was called.

       The child was transported by ambulance to Blank’s Children’s Hospital.

Sexual assault nurse examiner Shannon Knudsen and Dr. Kenneth McCann

examined the baby upon arrival at Blank and observed redness, swelling,

bruising, and bleeding of the external genitalia with bilateral lacerations of the

hymen and posterior fourchette. They also observed stool in the vaginal vault.

Dr. McCann explained that infection is a major concern with such tissue damage

because bacteria in that area of the body can easily enter the blood stream and

cause a potentially fatal blood infection. Dr. McCann’s concern about the extent

of internal injuries prompted him to call in a pediatric surgeon to examine the

baby under anesthesia. Both the nurse and doctor opined the child’s injuries

resulted from inflicted trauma.

       Under anesthesia, Dr. Onyebuchi Ukabiala, a pediatric surgeon, was able

to examine the child’s injuries further. Dr. Ukabiala testified the bridge of tissue

between the anal and vaginal openings was “completely disrupted. It was torn.

It was blown apart. With that type of injury, you have to worry about possibly
                                            4


extension into the pelvic organs.”        Dr. Ukabiala had to remove a significant

amount of dead tissue to minimize the risk of infection and encourage proper

healing.    Repair of the nonviable torn tissue was not possible.               The only

treatment option was to leave the area clean but raw and uncovered—Dr.

Ukabiala stated:

       [Y]ou just leave it and allow the body and nature to slowly fill in the
       tissues with scar tissue, and as that is happening, the edges of the
       skin and mucus membrane will migrate to a covered raw area as it
       is healing, and in the end you are hoping that this happens soon
       enough before too much scar tissue has been laid down.

       The child remained hospitalized for several days.              Care of the child

following discharge involved sitz baths in lukewarm water for fifteen to twenty

minutes three times a day with only gentle patting to dry.              One week after

discharge, Dr. Ukabiala observed the tissue was beginning to fill in but was still

raw. After three months, he determined that major reconstructive surgery was

not necessary. However, Dr. Ukabiala testified,

              The bridge of tissue between the anal opening, behind, and
       the vaginal opening in front is known as the perineal body. It is a
       very important structure because it separates the two, and it is put
       under enormous stress under some conditions, and it has to be
       able to handle that stress, and my long-term concern in this child is
       that because it is no longer soft, pliable, virgin tissue, it is now scar-
       laden, that it may not be able to withstand those stresses.[2]

       Both Doctors Ukabiala and McCann opined the baby’s injuries were

caused by forcible attempted penetration.



2
 Dr Ukabiala explained that because this child’s tissue is now scar laden, the stresses it
was required to undergo created risks of tearing. Sexual intercourse later in life could be
painful and vaginal childbirth would be “very risky.” Dr. McCann noted that scar tissue
shrinks with time. Although some women without any scarring may develop tissue tears
during normal childbirth, this female “is at significant risk of developing uncontrolled,
maybe even third degree, tears of her perineum if she is having a vaginal delivery.”
                                          5


       A. Serious Injury. Stickrod first argues counsel was ineffective in failing

to challenge the sufficiency of the evidence that Stickrod caused the child serious

injury. According to Iowa Code section 702.18, a “serious injury”' is a bodily

injury which “[c]reates a substantial risk of death,” “[c]auses serious permanent

disfigurement,” or “[c]auses protracted loss or impairment of the function of any

bodily part or organ.” See Iowa Code § 702.18(1)(b)(1)-(3).

       There is substantial evidence the child sustained injuries to her anal and

vaginal areas, which if left untreated carried a substantial risk of death. See

State v. Hanes, 790 N.W.2d 545, 554-55 (Iowa 2010) (noting it is appropriate to

consider the risk of death if injury is left untreated). Moreover, the child’s vaginal

and anal tissue is now “scar-laden,” which Dr. Ukabiala testified impairs the

function of the skin. “Trial counsel has no duty to raise an issue that has no

merit.” State v. Graves, 668 N.W.2d 860, 881 (Iowa 2003).

       B. Foundation. Next, Stickrod asserts counsel should have objected to

the admission of the jail inventory report (exhibit 11), his boxer shorts (exhibit

12), and the criminalist’s testimony about DNA results from the shorts on

hearsay, foundation, and/or chain-of-custody grounds. Because this is raised in

the context of an ineffective-assistance-of-counsel claim, Stickrod must show

both breach of duty and resulting prejudice. To establish prejudice, a defendant

must show “a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine the confidence in the outcome.” Strickland

v. Washington, 466 U.S. 668, 694 (1984); see also King v. State, 797 N.W.2d

565, 571 (Iowa 2011).
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       There is a presumption that “State agents would not tamper with the

evidence.” State v. Piper, 663 N.W.2d 894, 907 (Iowa 2003) (citation omitted),

overruled on other grounds by Hanes, 790 N.W.2d at 550. The foundational

requirement for chain of custody “is generally met by showing the continuous

custody of the exhibit was such as to render it improbable that anyone tampered

with the original item or substituted a different item.” Id.

       Sheriff Daniel Johnson testified that when Stickrod entered jail his

personal items were collected and logged in a jail record (though Johnson did not

personally collect them). Exhibit 11 reflects the items collected from Stickrod’s

person at the time of booking into jail on February 5, 2016. Stickrod’s signature

is on the inventory report of his property, and there is no evidence suggesting

any tampering, alteration, or substitution occurred as to his boxer shorts. On

February 8, Deputy Todd Stewart obtained a search warrant for Stickrod’s

clothing, which he retrieved from a locked jail locker and personally transported

to the Division of Criminal Investigations crime lab. Deputy Stewart identified a

pair of red boxer shorts (underwear) as shorts taken from Stickrod’s jail locker.

He put the boxer shorts on a hanger inside out with plastic over it. Criminalist

Tara Scott thereafter testified that in examining and testing of the inside fly area

of the boxers she identified a body fluid stain consistent with Stickrod’s infant

daughter’s DNA. “The likelihood of a different result need not be more probable

than not, but it must be substantial, not just conceivable.” King, 797 N.W.2d at

572.

       Stickrod and the mother were the only caretakers on the day of the injury.

Stickrod was solely responsible for the child’s care when the bloody diaper was
                                            7


first observed. Stickrod was sitting on the sofa with the child when the mother

left to run some errands. When the mother returned she heard the child crying

and Stickrod was either passed out or asleep in bed. Medical testimony reflected

the injuries were from inflicted trauma. There is not a substantial likelihood of a

different result absent the DNA evidence.

       C. Child Endangerment Jury Instruction.                Lastly, Stickrod argues

counsel was ineffective in failing to challenge the jury instructions setting out the

elements of child endangerment.

       The jury here was instructed that to find Stickrod guilty of child

endangerment resulting in serious injury, the State was required to prove:

              (1) On or about February 4, 2016, the defendant was a
       parent of A.S.
              (2) A.S. was under the age of 14 years.
              (3) The defendant knowingly acted in a manner which
       created a substantial risk to the physical, mental or emotional
       health or safety of A.S.
              (4) The defendant’s acts resulted in a serious injury to A.S.

(Emphasis added.) The jury was also instructed: “For the defendant to know

something means he had a conscious awareness that he was acting in a manner

which created a substantial risk to A.S.’s physical, mental or emotional health or

safety."

       We acknowledge our supreme court has held the instructions used here

“did not require the jury to find the defendant had a conscious awareness that

[his] actions created a substantial risk to the child’s physical, mental, or emotional

health or safety.”3     State v. James, 693 N.W.2d 353, 355-57 (Iowa 2005)


3
  The uniform instruction for this offense has been modified to require the State to prove
“[t]he defendant acted with knowledge that [he] [she] was creating a substantial risk to”
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(explaining the trial court erred in instructing that “knowingly” refers only to the

defendant’s act and stating “[t]he instructions should have informed the jury that it

must find the defendant acted with knowledge that she was creating a substantial

risk to the child’s safety”). “It is the appreciation of the probable risks to others

posed by one’s conduct that creates culpability for criminal endangerment.” Id. at

355 (citation omitted).

       Stickrod claims, “Had the jury been properly instructed, there is a

reasonable probability jurors could have concluded Stickrod was in no condition

to know the degree of risk he posed to his daughter.” We disagree the jury could

find an adult would not know that by attempting sexual intercourse with a two-

month-old infant he was creating a substantial risk to the infant’s safety. Even if

trial counsel should have objected to the jury instruction, our confidence in the

outcome of the trial is not undermined, and Stickrod’s ineffectiveness claim fails.

See State v. Harris, 891 N.W.2d 182, 189 (Iowa 2017) (noting the defendant

“must address the instructional error from a different vantage point, however,

because his trial counsel did not object to [the] instruction” and “we must apply

the familiar prejudice framework prescribed for ineffective-assistance-of-counsel

claims”).

       Upon our de novo review, we conclude Stickrod’s ineffectiveness claims

fail. The record reflects substantial evidence the infant suffered a serious injury

and counsel, thus, had no duty to challenge the sufficiency of the evidence by a

motion for judgment of acquittal. Stickrod cannot prove prejudice resulted from a



the child’s physical, mental, or emotional health or safety.” See Iowa Crim. Jury Instr.
No. 2610.1 (element 3).
                                        9


failure to object on foundation grounds to the admissibility of DNA evidence or to

the jury instructions on the elements of child endangerment. We affirm.

      AFFIRMED.
