                 IN THE SUPREME COURT OF IOWA
                           No. 17 / 04-1361

                          Filed April 28, 2006

STATE OF IOWA,

      Appellee,

vs.

MARK STEVEN LECKINGTON,

      Appellant.


      Appeal from the Iowa District Court for Scott County, Bobbi M.

Alpers, Judge.



      Defendant appeals his convictions for neglect of a dependent and

child endangerment resulting in serious injury.         JUDGMENT OF

DISTRICT      COURT      REVERSED;       CASE      REMANDED     WITH

DIRECTIONS.



      Linda Del Gallo, State Appellate Defender, and David Arthur

Adams, Assistant State Appellate Defender, for appellant.


      Thomas J. Miller, Attorney General, Kristin Guddall, Assistant

Attorney General, William E. Davis, County Attorney, and Julie A.

Walton, Assistant County Attorney, for appellee.
                                     2

STREIT, Justice.

      The defendant, Mark Leckington, was convicted of neglect of a

dependent child and child endangerment resulting in serious injury for

being involved in his wife’s decision that endangered a drunken child.

On appeal, Leckington contends there was insufficient evidence to prove

he had custody or control of the child. After considering the arguments

presented and reviewing the record made below, we conclude the

evidence was insufficient to support a finding that Mark Leckington had

custody or control of the child. This conclusion requires a reversal of

both the neglect of a dependent child conviction and the child

endangerment resulting in serious injury conviction. Consequently, we

reverse the judgment of the district court.

      I.    Facts and Prior Proceedings

      The facts in this case are the same as those set forth in State v.

Leckington, 713 N.W.2d 208, 211 (Iowa 2006), a case we also decide

today. We repeat only those facts necessary to our analysis of this case.

      On a December afternoon in 2003, Sandra Leckington received a

phone call from one of her son’s friends, Dominic Major.       Major told

Sandra to come over to his apartment to pick up her son, Shawn Yuille,
and one of his friends, Travis Talbot, because the boys had been drinking

and Travis was “pretty trashed.” Sandra got in her car and went to pick

up the two thirteen-year-old boys.       On the way to Major’s apartment,

Sandra stopped at the local convenience store and picked up her

husband, Mark Leckington. Mark stayed in the car while Sandra went

into Major’s apartment to get the boys. As the two boys emerged from

the apartment, Mark noticed Travis was wobbling, and that Major had to

eventually carry Travis to the car. Once Travis was placed in the back

seat of the car, he immediately slumped over.        One witness thought
                                            3

Travis was unconscious by the time he entered the car.                     Mark asked

whether Travis had been drinking, and Sandra told him that Travis had

not been drinking. Mark then asked Shawn what was wrong with Travis.

Shawn told him that Travis had hit his head while wrestling around in

the apartment. After a brief discussion, they drove around the block to

the Leckington home.          According to Sandra, Mark, and Shawn, Travis

walked, unaided, out of the car and into the home. Mark and Sandra

watched the boys enter the home and then drove away to run some

errands.

       Once inside the Leckington home, Travis collapsed on the kitchen

floor. Shawn went back to Major’s apartment for help, and he was told

to give Travis milk. When this did not work, he went back outside and

found some friends to help carry Travis upstairs to the bathtub.                      The

boys then ran cold water on Travis in hopes of reviving him.                     Travis’s

eyes remained open, but he began to foam at the mouth.

       Approximately an hour after they had left the boys at their home,

Sandra and Mark returned home. Mark went to a room in the back of

the house. One of the children in the house told Sandra that Travis was

“dead” and lying in the bathtub.            After an inexplicable delay, 1 Sandra
told Mark about Travis, and he told her to call Travis’s mother.

       Travis was rushed to University of Iowa Hospitals and Clinics in

Iowa City via helicopter and placed in pediatric intensive care.                       He

regained consciousness after fourteen hours and remained at the

hospital for three days. A doctor testified that his blood-alcohol level was

        1When Sandra saw Travis lying in the bathtub, she “freaked out.” She told the

boys they had to get Travis out of the bathtub and out of the house. While moving
Travis out of the tub, Sandra proclaimed “You know how much trouble I’m going to get
into, this little f***er had to drink alcohol, I’m not going to jail for this motherf***ing
bastard.” Sandra helped drag Travis down the stairs, but the boys refused to help her
put Travis outside in the cold December air.
                                     4

approximately .3, and that he was at risk of death from the high level of

alcohol in his blood.

      The State charged Mark with the offenses of child endangerment

resulting in serious injury and neglect or abandonment of a dependent

person. See Iowa Code §§ 726.3, .6 (2003). The State charged Sandra

with the same crimes, and with the additional charge of providing alcohol

to a minor resulting in serious injury. See id. § 123.47(5).

      Mark and Sandra were tried in a joint trial. The jury found Mark

and Sandra each guilty of child endangerment resulting in serious injury

and neglect of a dependent child. The jury also found Sandra guilty of

providing alcohol to a minor. Mark received two, ten-year, consecutive

sentences for his crimes.

      On appeal, Mark contends there was insufficient evidence to

support his convictions. He emphasizes he was not present when Travis

consumed the alcohol, he was only a passenger in the car, and he never

did anything to assume responsibility for Travis. He also argues there

was no evidence that he knowingly created a risk endangering Travis, or

knowingly exposed him to a hazard.         Mark also contends his trial

counsel was ineffective in failing to make a motion to sever his trial from
that of his wife. He additionally argues the court abused its discretion in

imposing consecutive ten-year sentences given the circumstances of the

case. Because the sufficiency-of-the-evidence claim is dispositive, we do

not reach his other arguments on this appeal.

      II.   Discussion

      A.    Sufficiency-of-the-Evidence Claim

      Mark made a motion for judgment of acquittal asserting there was

insufficient evidence to support the charges against him. He raises the

same argument on appeal.
                                         5

       1.     Scope of Review

       Review of sufficiency-of-evidence claims is for errors at law. State

v. Petithory, 702 N.W.2d 854, 856 (Iowa 2005).             The verdict must be

supported by substantial evidence which is “such evidence as could

convince a rational trier of fact that [the] defendant is guilty beyond a

reasonable doubt.” State v. Robinson, 288 N.W.2d 337, 339 (Iowa 1980);

State v. Query, 594 N.W.2d 438, 445 (Iowa Ct. App. 1999) (stating the

jury’s findings of guilt are binding if supported by substantial evidence).

In determining whether there is substantial evidence, the record is

viewed in a light most favorable to the State, and this includes all

legitimate inferences that may fairly and reasonably be deduced from the

evidence.    State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999).                  We

consider all the evidence presented, not just that of an inculpatory

nature. State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996). Evidence

that only raises suspicion, speculation, or conjecture is not substantial.

State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997).

       2.     Neglect or Abandonment of a Dependent Person

       The elements of the crime of neglect of a dependent child are set

forth in Iowa Code section 726.3. The relevant portion states:

       A person who is the father, mother, or some other person
       having custody of a child[ 2 ] . . . who knowingly or recklessly
       exposes such person to a hazard or danger against which
       such person cannot reasonably be expected to protect such
       person’s self or who deserts or abandons such person,
       knowing or having reason to believe that the person will be
       exposed to such hazard or danger, commits a class “C”
       felony.




       2A child is defined in Iowa Code section 702.5 as any person under the age of

fourteen.
                                    6

Iowa Code § 726.3 (emphasis added). The term “custody,” as it pertains

to neglect or abandonment of a dependent person, is not defined in the

Iowa Code. Two cases guide our analysis of the term “custody.”

      In State v. Sparegrove, 134 Iowa 599, 600, 112 N.W. 83, 84 (1907),

the State charged an individual with “exposing and abandoning a child,”

a predecessor to section 726.3, when he abandoned a baby on a woman’s

doorstep at the direction of the baby’s parents.     The applicable code

provision provided as follows:

            If the father or mother of any child under the age of 6
      years, or any person to whom such child has been intrusted or
      confided, expose such child in any highway, street, field or
      outhouse, or in any other place with intent wholly to
      abandon it, he or she, upon conviction thereof, shall be
      imprisoned in the penitentiary not exceeding 5 years.

Iowa Code § 4766 (1897) (emphasis added). The defendant argued the

language “intrusted or confided” only referred to situations in which an

individual held legal custody of a child. Sparegrove, 134 Iowa at 601,

112 N.W. at 84.     We held that the statute was not so limited and

concluded that the State properly charged the defendant with the crime

because he “undertook . . . to take charge of [the baby] and care for it.”

Id.
      In State v. Johnson, 528 N.W.2d 638 (Iowa 1995), we analyzed the

term “custody” within the current statute. In Johnson, the defendant,

Paula, provided the daily care and maintenance for her husband,

Wallace,   who   suffered   from   Parkinson’s   disease,   hypertension,

depression, and hyperuricemia. 528 N.W.2d at 639. One day, Wallace

fell to the floor and was unable to get back up. He yelled to Paula for

assistance and, after about an hour, Paula came and kicked and

punched him in the face. After Paula left, Wallace called a friend and

told him to call “911.” Paramedics and police arrived at the scene after
                                    7

Paula had returned home. Paula told the paramedics she was the only

person living at the address.     However, Wallace made noises in the

background and the paramedics entered to find Wallace lying on the floor

with a broken nose and lacerations on his ears. The State charged Paula

with, among other things, neglect or abandonment of a dependent

person.   Id.   The district court dismissed the charge of neglect or

abandonment of a dependent person on the ground that custody, an

element of the crime, required the existence of legal custody. Id. at 640.

We disagreed.     We determined the legislature’s use of the phrase

“custody” in section 726.3 did not mean legal custody. Id. at 641. Citing

Sparegrove, we concluded “custody” in the context of chapter 726 meant

“[t]o be in charge of an individual and to hold the responsibility to care

for that individual.” Id. We therefore reversed the trial court’s dismissal

of the charge of neglect or abandonment of a dependent person. Id. at

642.

       In the present case, Mark contends the State did not prove he had

custody of Travis for the purposes of this crime. The State argues Mark

had custody because he undertook the supervision of, and responsibility

for, Travis. The State claims Mark had custody of Travis during at least
three points in time. First, when Mark allowed Travis in the car; second,

when he took Travis to the Leckington home and left him there with no

other adults present; and finally, when he did not immediately call for

help when he came back home.

       The first and third arguments are without merit.      First, merely

allowing a minor into a car does not establish a custodial relationship.

The third argument—Mark did not immediately call for help—is not

supported by the record. All of the evidence indicates that Mark went to

a different part of the home as soon as he and Sandra returned home
                                     8

from running errands.     A child then approached Sandra and told her

that Travis was “dead” in the bathtub. Mark remained unaware of the

situation until Sandra came and told him about it.       As soon as Mark

found out, he instructed Sandra to call Travis’s mother. There was no

evidence to support a finding that Mark did anything to purposefully

delay medical attention for Travis, and therefore no evidence to conclude

he personally took charge of Travis’s well being.

      The State’s second argument—Mark took charge of Travis and had

the responsibility to care for him when he actively participated in the

decision to leave Travis at the Leckington home—requires more analysis.

      The State contends Mark’s testimony about what happened during

the brief car ride illustrates Mark was actively involved in the decision to

leave Travis at his unsupervised home. The State points to the following

testimony by Mark:

             Well, I said, So what is going on, to Sandi, and she
      says, I don’t know. I said, What are you guys planning on
      doing?     And they wanted to go to our house to play
      PlayStation. Well, with the kids that were at home, and
      being Brandon was there, I said, Call Travis’s mom and dad,
      see if they’re home, because I really don’t want Travis over at
      the house without us being there. Which I did not know that
      he had spent the night that night before anyway. And Sandi
      had tried calling Travis’s parents, got no answer. I ain’t
      going to abandon a child out on the street, you know, saying,
      no, you can’t come over to our house. I just said, We got
      some things we got to do, me and Sandi got to go and do
      some things, will you guys promise me that you’ll behave?

After the boys promised they would behave, Mark told the boys to stay

downstairs away from the other children in the home.            Mark then

testified “Me and Sandi stayed until they got in the porch area. I made

sure they were in the back door of the house.        Once I saw the back

kitchen door close, that’s when we left.” The State argues that once the
                                          9

Leckingtons left Travis at their own home, without adult supervision,

Mark and Sandra both undertook charge of Travis.

         The State makes a persuasive argument that Sandra decided to

take charge of the care and responsibility of Travis, but the record does

not support such a finding for Mark.

         In fact, the evidence shows Mark had very little involvement in the

decision to pick up Travis and the decision to leave Travis at the

Leckington home. Dominic Major called Sandra and told her to pick up

her son and Travis. On the way to Major’s apartment, Sandra stopped

and picked up Mark at the convenience store. Mark remained in the car

while Sandra went inside to retrieve the boys.            Neither Mark’s inquiry

about Travis’s condition nor his further inquiry about what the boys

planned to do next demonstrate Mark made the conscious choice to

place the boys at the Leckington home. While there was at least some

dispute as to who drove the vehicle, 3 the State presented insufficient

evidence to conclude Mark decided what to do with Travis. At best, Mark

acquiesced in Sandra’s decision to move the children to their home.

Without proof that Mark played a significant role in the decision to move

Travis, there is not enough evidence to find Mark was in charge of Travis,
and therefore insufficient evidence to support a finding that Mark had

custody of Travis.

         3.    Child Endangerment Resulting in Serious Injury

         The crime of child endangerment resulting in serious injury is set

forth in Iowa Code section 726.6. The relevant portions of this statute

state:



         3Sandra,
                Mark, Dominic Major, and Major’s roommate all testified that Sandra
was the driver. On the other hand, Kara Lake, a neighbor viewing the incident from the
doorway of her apartment, testified the driver was male.
                                     10
      1. A person who is the parent, guardian, or person having
      custody or control over a child . . . commits child
      endangerment when the person does any of the following:

           ....

      a. Knowingly acts in a manner that creates a substantial
      risk to a child or minor’s physical, mental or emotional
      health or safety.

           ....

      d. Willfully deprives a child or minor of necessary food,
      clothing, shelter, health care or supervision appropriate to
      the child or minor’s age, when the person is reasonably able
      to make the necessary provisions and which deprivation
      substantially harms the child or minor’s physical, mental or
      emotional health.

Iowa Code § 726.6(1) (emphasis added). In order to sustain a conviction

for child endangerment resulting in serious injury, the State must prove,

beyond a reasonable doubt, Mark had either control or custody of Travis.

We discuss control and custody separately.

      a.     Control

      Iowa Code section 726.6(3) states a person has “control” for the

purposes of child endangerment if he or she has: (1) “accepted,

undertaken, or assumed supervision” of a child from the parent or

guardian of the child; (2) “undertaken or assumed temporary supervision
of a child without explicit consent from the parent or guardian of the

child”; or (3) operated a motor vehicle with a child present in the vehicle.

      The district court did not instruct the jury on the third definition of

control. Also, there was no evidence to prove Mark accepted, undertook,

or assumed supervision of Travis with the consent of Travis’s parents or

guardians.   Therefore, we must analyze whether Mark undertook or

assumed the temporary supervision of Travis without the explicit consent

of Travis’s parents or guardians.
                                     11

      Mark claims his mere presence as an adult in the vehicle does not

mean he had control of Travis for even a brief period of time. We agree.

Mark’s role in this situation was peripheral. He did not decide to pick up

the boys; he did not decide where to leave the boys.            At best he

acquiesced in his wife’s decision to leave the boys at the Leckington

home. His inactivity does not rise to the level of control.

      b.     Custody

      As noted above, chapter 726, “Protection of the Family and

Dependent Persons,” does not define the term custody. In Johnson, we

equated the term “custody” in section 726.3 (neglect of a dependent

child) with the term custody in section 726.6 (child endangerment

resulting in serious injury).     528 N.W.2d at 641.      Because we have

already concluded Mark did not have custody of Travis for purposes of

neglect or abandonment of a dependent person, we must also find he did

not have custody for the purposes of the crime of child endangerment

resulting in serious injury.

      III.   Conclusion

      Our decision does not condone Mark Leckington’s behavior. The

level of indifference he displayed towards the health and welfare of a
child was appalling, but his actions (or inaction) did not rise to the level

of criminal liability.   The evidence was not sufficient to establish the

elements of custody or control for either crime.       Therefore, the State

failed, as a matter of law, to tender substantial proof on each of the

essential elements of the offenses.       We reverse the district court’s

judgment of conviction and remand for entry of a judgment of acquittal.

      JUDGMENT           OF    DISTRICT    COURT      REVERSED;       CASE

REMANDED WITH DIRECTIONS.
