                    IN THE COURT OF APPEALS OF IOWA

                              No. 3-1202 / 12-2272
                              Filed March 12, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RYAN N. TROWBRIDGE,
     Defendant-Appellant.
________________________________________________________________


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

Judge.



      Ryan Trowbridge appeals from the judgment and sentence following his

convictions of first-degree murder and child endangerment resulting in death.

AFFIRMED.




      S.P. DeVolder of The DeVolder Law Firm, Norwalk, for appellant.

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

General, John P. Sarcone, County Attorney, and Nan M. Horvat and Steven

Foritano, Assistant County Attorneys, for appellee.



      Heard by Potterfield, P.J., and Doyle and Bower, JJ.
                                        2


DOYLE, J.

      Ryan Trowbridge appeals from the judgment and sentence following his

convictions of first-degree murder and child endangerment resulting in death.

Trowbridge challenges the sufficiency of the evidence to support his convictions

and the admission of certain rebuttal evidence presented by the State. He also

claims his murder conviction is precluded under Heemstra principles. We affirm.

I.    Background Facts and Proceedings

      On February 28, 2010, A.F. gave birth to R.T. The child’s father was Ryan

Trowbridge. In July 2010, R.T. was a healthy four-month-old infant described as

“happy” and “perfect,” who was developing normally for her age.

      A.F. and R.T. lived with Trowbridge in Ankeny. Trowbridge cared for the

child while A.F. worked in the morning through early afternoon. A.F. then cared

for R.T. in the afternoon and evening while Trowbridge worked.          A.F. and

Trowbridge also received help from the child’s grandparents and other family

members who lived nearby.

      On the morning of July 12, 2010, Trowbridge called A.F. at work and told

her there was an emergency with the child.          That week, A.F., R.T., and

Trowbridge were house-sitting A.F.’s parents’ house a few blocks from their

apartment but their “daily routine was still the same.” A.F. worked several blocks

away and got to the house within minutes.

      Trowbridge told A.F. that R.T.’s head had become stuck facedown in

between the mattress and the headboard. A.F. saw R.T.’s condition and became

frantic as Trowbridge called 911.     The 911 operator dispatched EMTs and

instructed Trowbridge on CPR. When the EMTs arrived, they found R.T. in acute
                                           3


distress and not breathing.       The child was transported to Blank Children’s

Hospital, where doctors found no brain activity. R.T. died the next day at the

hospital.

       An autopsy revealed the child had a fresh subdural hemorrhage, a

traumatic axonal injury in the lower part of the brain near the spinal cord,

bleeding within the spine, and bleeding around the eyes to the brain internally. 1

The child had detached retinas in both eyes and extensive retinal hemorrhaging

in both eyes. Physicians and medical examiners opined the injuries to R.T.’s

neck and head were consistent with a trauma such as an acceleration and

deceleration injury. The chief Polk County medical examiner stated the child’s

eyes were some of the worst eyes he had examined in his entire career, and

there was no question in his opinion R.T. suffered an abusive trauma.               The

examiners further opined the child’s head injury occurred immediately before she

became symptomatic and resulted in her death. They ruled out asphyxiation as

a possible cause of the deep brain injuries and eye injuries suffered by the child.

The autopsy set forth the cause of death as “Abusive head trauma.”

       Trowbridge was charged with first-degree murder and child endangerment

resulting in death. He waived trial by jury. Following a trial to the court, at which

extensive medical evidence was presented by both sides, the district court made

detailed findings of fact and conclusions of law. The district court noted:

              Prior to July 12, 2010, [R.T.] was a healthy child of four
       months. She quickly and suddenly went from being a healthy baby
       on July 12, 2010, to being one in extreme distress, so critical, that
       on the next day, July 13, 2010, she died. The speed of her descent

1
 The child had also sustained, at one time, a broken clavicle, at least one rib fracture,
and either a skull fracture or an extra suture in her head bones.
                                           4


       from a healthy child to death clearly and convincingly suggests that
       an intervening force or cause led to her demise. The medical
       evidence presented by the State of lowa and by the Defendant was
       informative and essential in ascertaining the truth behind how [R.T.]
       died. The medical evidence presented by the State, as well as the
       facts and circumstances surrounding the morning of July 12, 2010,
       clearly indicates and demonstrates beyond a reasonable doubt that
       the Defendant was the instrument of [R.T.]’s death. The evidence
       shows that there was a trauma inflicted on [R.T.] of sufficient force
       to her head to cause her brain to swell, hypoxic ischemia, acute
       subdural bleeding, retinal bleeding, retinal detachment, axonal
       injury, and bleeding on her spine. Taken together these injuries
       could only have happened by force applied by her caregiver, the
       Defendant, in the short amount of time that he was in charge of her
       care on July 12, 2010. The Defendant’s description of what
       occurred that morning is unconvincing as to the methodology of
       [R.T.]’s injuries and subsequent death. Equally so, the medical
       experts of the Defendant were not convincing or at times even sure
       just how [R.T.] came to die in the manner that she did. “Wedging”
       was discussed as a possible cause of her injuries and a loss of
       oxygen to her brain as well as the method of CPR performed on her
       and the fact that she was on a ventilator or resuscitator for a
       lengthy amount of time, but the facts show that [R.T.] could not
       have been wedged as described by the Defendant.

The district court ultimately concluded:

               The conclusions to be reached from all of the evidence in
       this case is that the Defendant, the sole care provider at the time of
       the sudden and severe and critical distress that [R.T.] faced on July
       12, 2010, was the source of [R.T.]’s injuries and her death. The
       Defendant, as shown by the facts and circumstances and the
       medical evidence, acted intentionally, willfully and deliberately;
       committed the act of child endangerment upon [R.T.]; assaulted
       [R.T.] by grabbing [R.T.] and shaking her body and/or slamming her
       in such a manner that a serious and critical head trauma was
       inflicted upon her under circumstances manifesting an extreme
       indifference to human life and, specifically, the life of [R.T.].
               The injuries that [R.T.] suffered on July 12, 2010, were
       directly the result of the actions of the Defendant and were of such
       a traumatic and violent nature that wedging and/or suffocation
       could not have been the cause of such extensive injuries. Dr.
       Schmunk testified that the eye injuries were some of the worst he
       had examined in his entire career. The extensive hemorrhaging in
       all layers of the retina and the detached retinas are entirely
       consistent with a trauma to the head of the child.
                                             5


               The conclusion to be drawn from this tragedy is that [R.T.], a
       child of approximately 4 months of age, was a healthy, happy,
       normal child, loved by many, who on July 12, 2012, was suddenly,
       intentionally,  willfully, deliberately,   knowingly,     and    with
       premeditation and malice aforethought assaulted and physically
       abused so severely by the Defendant that her death occurred under
       circumstances manifesting an extreme indifference to human life.
       The Defendant committed child endangerment resulting in the
       death of [R.T.] while having custody and control over her on July
       12, 2010.

       Trowbridge filed a motion for new trial, which the court denied.

Trowbridge appeals.

II.    Sufficiency of the Evidence

       Trowbridge contends there was insufficient evidence to prove he caused

the child’s death. 2 To find Trowbridge guilty of first-degree murder, the State had

to prove on or about July 12-13, 2010, Trowbridge shook, struck, and/or

assaulted the child; the child was under age fourteen; the child died as a result of

being shaken, struck, or assaulted by Trowbridge; Trowbridge acted with malice

aforethought; Trowbridge was committing the offense of child endangerment or

assault; and the child’s death occurred under circumstances showing an extreme

indifference to human life. See Iowa Code §§ 707.1, 707.2(5) (2009). To find

Trowbridge guilty of child endangerment resulting in death, the State had to

prove Trowbridge was the parent of the child; the child was under age fourteen;

Trowbridge knowingly acted in a manner creating a substantial risk to the child’s

physical health or safety, or by an intentional act or series of intentional acts used

unreasonable force, torture, or cruelty that resulted in bodily injury or that was

intended to cause serious injury; and Trowbridge’s acts resulted in the child’s

2
   Although Trowbridge raises this claim in Division III of his brief, we elect to address it
first to clarify our analysis of his remaining claims on appeal.
                                            6

death.     See Iowa Code §§ 708.1, 726.6(1)(b).          The offenses require proof

Trowbridge committed the act resulting in injury to the child, and the child died as

a result.3     Trowbridge contends the evidence does not prove beyond a

reasonable doubt he inflicted the injury causing the child’s death. He claims the

State’s evidence required the court to “guess” what caused the child’s death.

         We review challenges to the sufficiency of the evidence for correction of

errors at law. See State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). We

“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.” Id. (internal quotation marks omitted). “We will uphold a verdict if it is

supported by substantial evidence.” State v. Jacobs, 607 N.W.2d 679, 682 (Iowa

2000). It is the State’s “burden to prove every fact necessary to constitute the

crime with which the defendant is charged, and the evidence presented must

raise a fair inference of guilt and do more than create speculation, suspicion, or

conjecture.” State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011).

         In its written opinion, the district court carefully detailed the evidence, and

we find it unnecessary to reiterate those extensive findings here. Trowbridge

reiterates the defense experts opined the child’s death was caused by an

undetermined event, “but one consistent with a suffocation tragedy,” whereas the

State’s experts opined the child’s death was caused by inflicted head trauma.

Trowbridge acknowledges the court “gave credence” to the State’s experts over

the defense’s experts regarding the cause of R.T.’s death, as the court is entitled

3
  Although Trowbridge does not specifically take issue with child endangerment
conviction, his claim encapsulates both convictions; he contends the State failed to
prove he committed the act of child endangerment or assault.
                                          7

to do in a battle-of-the-experts case. See State v. Jacobs, 607 N.W.2d 679, 685

(Iowa 2000) (“The trial court as trier of fact is not obligated to accept opinion

evidence, even from experts, as conclusive. When a case evolves into a battle

of experts, we, as the reviewing court, readily defer to the district court’s

judgment as it is in a better position to weigh the credibility of the witnesses.”).

Trowbridge claims, however, this was not a “classic” battle-of-the-experts case

because although the State’s experts unanimously opined the child’s death was

result of inflicted head trauma, their testimony conflicted “on how each expert

reached [that] conclusion.” For that reason, Trowbridge believes the court erred

in relying on the State’s experts over his.

       Trowbridge’s argument misses a critical point—namely, as he points out,

the State’s experts consistently testified R.T.’s death was caused by an abusive

or inflicted head trauma.4 Indeed, there is substantial record evidence supporting

the district court’s findings the child’s death was the result of a non-accidental

traumatic injury occurring immediately before she became symptomatic and her

admission to the hospital.     And more specifically, there is substantial record

evidence supporting the district court’s findings the traumatic injury to the child

involved shaking violently enough to cause injury within the child’s brain, spine,

and eyes, and Trowbridge was the only person with the child at that time. We

defer to the district court’s judgment that Trowbridge’s explanation of the cause

of the child’s injuries was contradicted by the more convincing medical evidence.



4
  Trowbridge challenges the district court’s allowance of certain rebuttal evidence
presented by the State. We address that contention below, but note our analysis of his
sufficiency-of-the-evidence claim is not affected the rebuttal evidence he challenges.
                                           8


The evidence was sufficient to prove Trowbridge was the person who caused the

child’s injuries that resulted in her death.

III.   Weight of the Evidence

       Trowbridge claims “[t]he greater weight of the evidence does not support

the district court’s finding of the criminal offense element of causation” and he

should be awarded a new trial.5 See Iowa R. Crim. P. 2.24(2)(b)(6) (“The court

may grant a new trial . . . [w]hen the verdict is contrary to law or evidence.”). We

review the district court’s denial of Trowbridge’s motion for new trial for abuse of

discretion. See State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).

       Trowbridge contends the testimony of the State’s experts providing the

court a factual basis to conclude the child’s death was the result of inflicted head

trauma “was hardly rock-solid.”         He points out the defense called “well-

credentialed” experts to testify the child’s injuries were consistent with a

suffocation event.

       This claim is essentially a request to have us reweigh the evidence and

judge the credibility of the witnesses. This is not our role. See State v. Reeves,

670 N.W.2d 199, 203 (Iowa 2003). We are to determine whether the district

court abused its discretion in denying the new trial motion. See id. (“On a weight-

of-the-evidence claim, appellate review is limited to a review of the exercise of

discretion by the trial court, not of the underlying question of whether the verdict

is against the weight of the evidence.”). We discern no abuse of discretion. As

5
  The State claims this issue is not preserved. In his motion for new trial, Trowbridge
alleged the court’s verdict “is contrary to the evidence,” citing rule 2.24(2)(b)(6). The
court denied Trowbridge’s motion, reiterating its findings that the greater amount of
credible evidence supported the State’s case than Trowbridge’s. The issue was
preserved.
                                          9


mentioned above, although the testimony of the State’s witnesses was not

entirely consistent when it came down to the finest details of the medical

evidence, the experts all agreed the child’s death was caused by an abusive or

inflicted head trauma, and it is undisputed Trowbridge was the only person with

the child when her injuries occurred.         In sum, the district court could have

concluded from certain essential facts the evidence did not preponderate heavily

against the verdict. See State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006)

(setting forth the weight-of-the-evidence test).

IV.    Applicability of Heemstra

       Trowbridge claims his conviction of first-degree murder—in light of his

conviction of child endangerment resulting in death—is precluded by State v.

Heemstra, 721 N.W.2d 549, 554, 559 (Iowa 2006) (precluding use of another

felony based on the same act as the predicate offense for felony murder). The

district court determined Heemstra did not apply in this case. We agree.

       This claim has been raised before, and rejected by, this court on several

occasions. See, e.g., State v. Porter, No. 12–0170, 2013 WL 2146543, at *4-5

(Iowa Ct. App. May 15, 2013); State v. Blanchard, No. 09-0871, 2010 WL

2089222, at *5-6 (Iowa Ct. App. May 26, 2010). As we stated in those cases, the

concerns about felony murder discussed in Heemstra are not presented in

section 707.2(5) (setting forth the offense of child endangerment). In State v.

Thompson, 570 N.W.2d 765, 767 (Iowa 1997), the court noted, “Our legislature

passed this child homicide statute in 1994 as part of a comprehensive act

targeting juvenile justice and the protection of children.”
                                           10


       [B]y enacting section 707.2(5), the legislature has not merely
       elevated recklessness-based manslaughter to recklessness-based
       murder. Premised on murder, not recklessness, the statute
       identifies additional elements distinguishing it from second-degree
       murder: (1) a child victim, (2) the killing occurs during an assault,
       and (3) the death occurs under circumstances manifesting an
       extreme indifference to human life. The crime fits logically into the
       continuum of homicide offenses which reveals “a gradation of
       culpability commensurate with the gradation of punishment.” The
       “extreme indifference” element stands apart from, and in addition
       to, the element of malice.

Thompson, 570 N.W.2d at 769 (emphasis added). Here, Trowbridge’s Heemstra

claim is inapposite because, as observed in Thompson, section 707.2(5) requires

not only a showing the child was killed during an assault, but also with malice

(the definition of murder under section 707.1) and “under circumstances

manifesting an extreme indifference to human life.” See id.

       In this case, we are not faced with an elimination of “all distinctions

between first-degree and second-degree murder.”            Heemstra, 721 N.W.2d at

557.   Rather, “[t]he extreme indifference element stands apart from, and in

addition to, the element of malice.” Thompson, 540 N.W.2d at 769. In sum, the

district court correctly concluded Heemstra does not preclude Trowbridge’s

conviction of first-degree murder.

V.     Rebuttal Evidence

       Trowbridge claims the district court abused its discretion in allowing, over

his attorney’s objections,6 the rebuttal testimony of Drs. Schmunk and Jenny

concerning their conclusions that R.T. died from abusive head trauma, which he

6
  As the State points out, Trowbridge did not object to each line of questioning of these
witnesses. We elect to bypass the State’s partial error preservation concern and
proceed to the merits of Trowbridge’s claim. See State v. Taylor, 596 N.W.2d 55, 56
(Iowa 1999) (bypassing error preservation problem and proceeding to the merits of the
appeal).
                                         11


alleges was submitted to merely “corroborate, reiterate and repeat the State’s

theory of the case.”

       “Rebuttal evidence is evidence that explains, repels, controverts, or

disproves evidence produced by the opposing party.”          State v. Weaver, 608

N.W.2d 797, 806 (Iowa 2000). “The trial court has considerable discretion in

admitting rebuttal evidence, including the discretion to admit evidence that

technically could have been offered as part of plaintiff’s case-in-chief. The trial

court’s ruling will be disturbed only upon a clear abuse of discretion.” Carolan v.

Hill, 553 N.W.2d 882, 889 (Iowa 1996).

       Trowbridge essentially alleges the rebuttal evidence was cumulative to the

State’s case-in-chief and therefore was “improper” and should have been

excluded. However, “[t]he fact that testimony might have been useful and usable

in the case-in-chief does not necessarily preclude its use in rebuttal,” see id., and

“[i]t is permissible to rebut testimony of an expert by other experts.” See State v.

Willey, 171 N.W.2d 301, 303 (Iowa 1969). As the district court observed in its

ruling on Trowbridge’s motion for new trial, the rebuttal testimony of Dr. Jenny

was offered to explain, controvert, or disprove the testimony of the defense

experts. The same can be said of Dr. Schmunk’s testimony. The district court

was well within its discretion to allow such rebuttal evidence. See, e.g., Willey,

171 N.W.2d at 303 (“Mr. Barton’s testimony, when recalled as a witness for the

state, was offered to explain, controvert or disprove that previously given by Mr.

Moore. This was clearly rebuttal evidence.”); State v. Nelson, 153 N.W.2d 711,

714 (Iowa 1967) (“[T]he fact testimony used in rebuttal might have been used as
                                         12


part of the state’s main case does not render it inadmissible in rebuttal if it rebuts

some of the matters testified to by defendant’s witnesses.”).

       Furthermore, it is significant to note that this was a bench trial, which

served to reduce any potential unfair prejudice attendant to the rebuttal evidence.

This is generally true because legal training assists the fact finder in a bench trial

“to remain unaffected by matters that should not influence the determination.”

State v. Matheson, 684 N.W.2d 243, 244 (Iowa 2004) (noting courts are less

likely to reverse when inadmissible evidence is introduced in a bench trial than in

a jury trial); see also State v. Casady, 491 N.W.2d 782, 786 (Iowa 1992).

VI.    Conclusion

       Substantial evidence supports Trowbridge convictions of first-degree

murder and child endangerment resulting in death. The district court did not err

in concluding Heemstra does not apply in this case, and the court exercised its

discretion in allowing the State’s rebuttal evidence. We affirm.

       AFFIRMED.
