                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1637
                             Filed October 15, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

HOLLY ANN JOHNSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,

Judge.



      A defendant appeals from her judgment and sentence for child

endangerment resulting in bodily injury. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Michael J. Walton, County Attorney, and Melisa Zaehringer,

Assistant County Attorney, for appellee.



      Heard by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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VAITHESWARAN, P.J.

       We must determine whether a plea to child endangerment resulting in

bodily injury was supported by a factual basis.

I.     Background Facts and Proceedings

       An eight-year-old child with developmental delays was removed from the

home of her mother, Holly Johnson. The State charged Johnson with one count

of child endangerment involving multiple acts within a twelve month period. The

State later amended the trial information to add three additional counts, two

charging child endangerment resulting in serious injury, and one charging child

endangerment resulting in bodily injury. Johnson entered Alford1 pleas to the last

three counts in exchange for dismissal of the first count, which carried a heavier

sentence. At the plea proceeding, her attorney summarized the evidence the

State could proffer on all four counts, which included severe instances of abuse

and neglect.     He agreed with the prosecutor and the district court that the

recounted evidence would apply to the dismissed count as well as the remaining

three counts. He articulated the “bodily injury” component of the final count as

follows:

       In addition, there would be evidence about dental problems: that
       the child did not receive adequate dental care; that she had severe
       plaque. I think she had to have multiple fillings and experienced
       tooth pain along the way, which would establish a bodily injury
       caused by neglect to provide adequate medical care.




1
 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding “express admission of
guilt . . . is not a constitutional requisite to the imposition of [a] criminal penalty”).
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See Iowa Code § 726.6(6) (2011) (classifying as Class “D” felony child

endangerment resulting in bodily injury).2

       After the district court accepted the pleas, Johnson had a change of heart.

She filed a motion in arrest of judgment asserting “the factual basis claimed for

the ‘bodily injury’ supporting Count 4, Child Endangerment Resulting in Bodily

Injury in violation of Iowa Code § 726.6(6) was insufficient as a matter of law.”

She specifically asserted, “[t]here is no allegation that [the child] suffered any

physical pain or impairment due to the poor condition of her teeth, merely

sensitivity.” The court denied the motion, stating “tooth sensitivity can be found

to equal tooth pain and therefore equal physical pain.”

       Johnson was sentenced to three consecutive prison terms, two not

exceeding five years each and one term not to exceed ten years. On appeal,

she only challenges the factual basis supporting the final count, child

endangerment resulting in bodily injury.




2
  Although not raised, this case bears passing resemblance to State v. Neiderbach, 837
N.W.2d 180, 192-93 (Iowa 2013), recently decided by the Iowa Supreme Court. There,
the court addressed the charging of multiple counts of child endangerment. The court
found several of the counts were lesser included offenses of the child endangerment
count charged under Iowa Code section 726.6A and held the district court should have
dismissed those counts. In dicta, the court noted “the primary risk of prejudice arising
from a multiplicitous indictment is that a defendant could receive multiple sentences for a
single offense.” Neiderbach, 837 N.W.2d at 194. In this case, the original trial
information simply charged one count of child endangerment under section 726.6A.
Multiple counts were added in an amended trial information but the original count was
dismissed. Accordingly, Neiderbach’s holding is not implicated. As for Johnson’s
sentence, the three counts of child endangerment were tied to separate injuries. See
State v. Watson, No. 01-0139, 2002 WL 1427560 at *7-8 (Iowa Ct. App. Jul. 3, 2002)
(affirming findings of guilt on “five acts of child endangerment, consisting of five separate
and distinct bone breaks occurring at approximately four separate times.”), aff’d State v.
Watson, 659 N.W.2d 526 (Iowa 2003).
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II.    Analysis

       A district court may not accept an Alford plea without first finding a factual

basis for the plea. Iowa R. Crim. P. 2.8(2)(b); State v. Schminkey, 597 N.W.2d

785, 788 (Iowa 1999). The record as a whole must disclose facts to satisfy the

elements of the crime but the facts need not go so far as to establish a

defendant’s guilt. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001) (citations

omitted).

       The State and defense agreed the pertinent child endangerment provision

to which Johnson entered an Alford plea was Iowa Code section 726.6(1)(d)

(2013), which criminalizes a parent’s “willful[]” deprivation “of necessary . . .

health care . . . when the person is reasonably able to make the necessary

provisions,” where the “deprivation substantially harms the child or minor’s

physical, mental, or emotional health.” As noted, Johnson’s motion in arrest of

judgment challenged the “bodily injury” component of the crime set forth in a

separate provision, Iowa Code section 726.6(6). On appeal, Johnson abandons

this challenge and instead focuses on the factual basis supporting the willfulness

element quoted above.3        She contends “[t]here is no hint in the record that

Johnson was aware of dental problems or emergencies that would necessitate a

trip to the dentist.”

       A parent’s awareness of a specific medical condition is not a predicate to

a finding of willfulness. See State v. Akright, 506 N.W.2d 465, 469 (Iowa Ct.


3
  Johnson’s brief also raised a challenge to the factual basis supporting the “substantial
harm” element but, at oral argument, Johnson’s appellate attorney stated she was not
pursuing this challenge. She also conceded dental care constituted “health care” within
the meaning of section 726.6(1)(d).
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App. 1993) (citing but not relying on child’s medical conditions). In Akright, a

mother claimed her limited intellectual abilities, rather than any intentional act,

prevented her from adequately caring for her child, who ultimately died. 506

N.W.2d at 469. This court rejected the assertion, finding the mother surmounted

intellectual difficulties and adequately cared for the child during the first five years

of the child’s life.   Id.   Later, her caretaking deteriorated, with the evidence

establishing the child “was not fed, not cleaned, not exercised, and not cared for

over an extended period of time.”         Id.   This evidence, the court said, was

sufficient to prove a predicate child-endangerment. Id.

       As in Akright, Johnson initially ministered to the child’s needs in an

appropriate fashion. In time, Johnson allowed her home to become squalid and

scheduled and cancelled several physician’s appointments. While none of the

appointments were with a dentist, a fact Johnson highlights, the minutes of

testimony revealed that Johnson’s child “was not being fed appropriately,” “was

locked in her room by the defendant for hours on end,” and was “the victim of

physical abuse” and “severe emotional abuse.” Additionally, a physician would

state the child “had extensive tooth decay so severe that dental staff will have to

[ex]tract some teeth and perform other procedures to correct this decay.” We

conclude the minutes of testimony set forth an adequate factual basis for the

willfulness element of child endangerment resulting in bodily injury. See Keene,

630 N.W.2d at 582 (relying on descriptions in the minutes of testimony to satisfy

an element of the crime).
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       We affirm Johnson’s judgment and sentence for child endangerment

resulting in bodily injury.

       AFFIRMED.
