                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1487
                              Filed March 18, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ETHAN LANDON DAVIS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Wayne County, Patrick W.

Greenwood, Judge.



      The defendant appeals from his convictions of assault causing bodily injury

and child endangerment. AFFIRMED.



      Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Bower, C.J., and May and Greer, JJ.
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GREER, Judge.

       Ethan Davis appeals from his convictions of assault causing bodily injury

and child endangerment.1 Davis challenges the sufficiency of the evidence to

support his child-endangerment conviction. Specifically, he challenges whether

the evidence establishes he “knowingly act[ed]” and whether those actions created

a “substantial risk” to the child’s physical, mental, or emotional health and safety.2

Davis also maintains he received ineffective assistance from trial counsel when

counsel did not challenge the jury instruction on “substantial risk.”3

       I. Background Facts and Proceedings.

       In November 2017, Davis was charged with burglary in the first degree,

willful injury, and child endangerment. He pled not guilty, and a jury trial took place

in June 2018.

       Shayla Stevens, Davis’s former paramour with whom he shares a child,

L.D., testified at trial. According to Stevens, on the day after Thanksgiving in 2017,

she was at her boyfriend Jarvis Kennebeck’s house with eighteen-month-old L.D.

While Stevens was in the bathroom brushing her teeth, Kennebeck came in

holding L.D. and alerted her Davis was there. Soon after, Davis entered the home

uninvited, brandishing a handgun. Davis hit Kennebeck in the head with the gun


1  The issues Davis raises on appeal only implicate his conviction of child
endangerment.
2 If we find any part of this issue has not been preserved for our review, Davis asks

us to consider it under the framework of ineffective assistance.
3 Davis raises ineffective assistance on direct appeal. Because the judgment and

sentence were entered before July 1, 2019, the amended Iowa Code section 814.7
(2019) does not preclude his ability to bring an ineffective-assistance claim on
direct appeal. See State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019) (“On our
review, we hold Iowa Code sections 814.6 and 814.7, as amended, do not apply
to a direct appeal from a judgment and sentence entered before July 1, 2019.”).
                                           3


twice and then took L.D. from his arms. While holding L.D., Davis pointed the gun

at Kennebeck and then Stevens before firing a round into the ceiling. Davis fled

the home with L.D. Stevens chased after Davis to get the child from him, but Davis

shoved her down and drove away. Stevens admitted that she was using marijuana

and methamphetamine in November 2017 but denied using in the days before the

incident or ever around L.D.

       Kennebeck testified similarly. He said he was in his home holding L.D.

when Davis barged in with a gun. Davis hit Kennebeck in the face twice with the

9 mm handgun before taking L.D. from him; “[a]s soon as [he] was coming back

to, [Davis] fired a round off at the ceiling.” L.D. started crying after Davis fired the

gun. Davis took L.D. from the home and left the area.

       Deputy Sheriff David Lewis testified that the police were called to

Kennebeck’s home that day. They saw and took photos of Kennebeck’s face.

According to Deputy Sheriff Lewis, “The circular pattern that’s on Mr. Kennebeck’s

left temple area [was] consistent with the end of a barrel of a gun.” Additionally,

Deputy Sheriff Lewis confirmed they recovered a 9 mm shell casing from the

kitchen floor and located and photographed a hole in the kitchen ceiling where the

gun discharged.

       Davis testified in his own defense. According to Davis, Stevens agreed

Davis could have L.D. for part of Thanksgiving Day4 but then did not respond to

his attempts to reach her. Davis knew Stevens used illegal drugs with Kennebeck,



4Stevens and Davis did not have a court order establishing custody of L.D. or
setting a parenting time schedule; the pair worked out between them who would
care for L.D. and when.
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and he was worried about L.D.’s safety. With this in mind, Davis drove past

Kennebeck’s home on the day after Thanksgiving. When he saw Stevens’s vehicle

there, he went to the door. From outside, Davis saw L.D. lying by himself on the

floor with a pit bull running around him. Davis, with his gun holstered at his waist,

went into the house and picked up L.D. Then Stevens and Kennebeck came out

of the bathroom. Davis alleged that Stevens was holding a meth pipe. Kennebeck

and Stevens came after him, with both pushing him while he held L.D. Only then

did Davis draw the pistol. When Kennebeck came at him again, Davis hit him with

it. Davis denied Kennebeck ever lost consciousness, saying, “[h]e’s like a spring,

up and down off the floor.” Davis continued:

       And the third time [Stevens] tried to grab [L.D.] from me, I pulled the
       pistol, and I held it at both of them. And that’s—they didn’t want to
       stop. They just wanted to keep coming. They was out of their mind.
       That’s when I let off the round in the ceiling, and then they laid back.
       The whole time the dog was running around me and chased me
       outside.
               And when I got in the Hummer, [Stevens] was there. She ran
       outside. She grabbed me a few times. I tried to push her back with
       my arm. I grabbed the Hummer door and tried to close it, and she
       was in the way. And this went on for maybe ten, fifteen seconds.
               And finally I let go of the Hummer door, and I thought she
       knocked herself out with it. She was yanking on it so hard, and she
       just went to the ground. That’s when I left.

The jury acquitted Davis of robbery in the first degree but found him guilty of the

lesser-included offense of assault causing bodily injury and of child endangerment.

He was later sentenced to serve a one-year term and a two-year term,

respectively, to be served consecutively.

       Davis appeals.
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         II. Discussion.

         A. Sufficiency of the Evidence. Davis challenges the sufficiency of the

evidence to support his conviction for child endangerment. We review challenges

to the sufficiency of the evidence for correction of errors at law. State v. Romer,

832 N.W.2d 169, 174 (Iowa 2013). In doing so, we look at the evidence in the

record in the light most favorable to the State and make all inferences that can be

fairly drawn in favor of the verdict. Id.

         Here, to convict Davis of child endangerment, the State had the burden to

prove:

                  1. On or about November 24, 2017, [Davis] was the parent of
         [L.D.]
                2. [L.D.] was under the age of fourteen years.
                3. [Davis] acted with knowledge that he was creating a
         substantial risk to [L.D.’s] physical, mental and/or emotional health
         or safety.

Davis challenges the third element. He argues there was insufficient evidence to

establish he (1) created a substantial risk to L.D.’s physical, mental, or emotional

health or safety and (2) acted with the knowledge his conduct created that risk.

         Our supreme court has interpreted “substantial risk” to mean: “The very real

possibility of danger to a child’s physical, [mental, or emotional] health or safety.”

State v. Anspach, 627 N.W.2d 227, 233 (Iowa 2001). According to the testimony

of Stevens and Kennebeck,5 Kennebeck was holding the young child at the time

Davis hit Kennebeck in the face multiple times with a loaded gun. This foray

created endless possibilities of danger to this child. First, Davis could have missed


5 In his appellate brief, Davis relies on his own testimony and ignores that of
Stevens and Kennebeck. But as our standard is to review the evidence in the light
most favorable to the State, we are not constrained by Davis’s testimony.
                                          6


Kennebeck and instead hit the child. Second, a risk existed for the loaded gun to

discharge while Davis swung it around his child’s head.             Additionally, with

Kennebeck’s testimony that the hits to the head caused him to lose consciousness,

there was a risk of Kennebeck dropping the child or that he might fall on top of the

child. Finally, Davis’s action of discharging the gun above his head, while he was

holding L.D., posed a substantial risk to L.D., either due to the noise of the

discharging gun near the child’s head, possible ricochet of the bullet, or the chance

the cartridge would cause part of the ceiling to dislodge onto Davis’s and L.D.’s

heads. Any of these were real possibilities, caused by Davis’s actions, which put

L.D.’s physical health or safety in danger. See id. at 232–33. (“[I]t [is] unnecessary

to prove that the physical risk to a child’s health or safety is likely. Rather a

showing that the risk is real or articulable will suffice.”). Additionally, Davis’s

assault of Kennebeck, witnessed by L.D., created a substantial risk of harm to

L.D.’s emotional or mental health. See, e.g., State v. Lee, No. 17-0413, 2018 WL

1099273, at *3 (Iowa Ct. App. Feb. 21, 2018) (concluding, where a child witnessed

a violent altercation involving their parent, that “[e]ven without expert testimony, it

is also reasonable for the jury to conclude there is a ‘real or articulable’ risk or a

‘very real possibility of danger’ to a child’s mental, physical, or emotion health or

safety”).

       Next, Davis challenges whether substantial evidence supports that he acted

with knowledge he was creating a substantial risk to L.D. “[I]t is the appreciation

of the risk to the child or minor posed by one’s conduct that creates criminal

culpability under this statute.” State v. Milsap, 704 N.W.2d 426, 430 (Iowa 2005).

Knowledge may be inferred from circumstances surrounding the action.                Id.
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Accepting his version, if Davis understood that the loose dog could pose a danger

to the small child left unattended on the floor, it follows he should know that waving

a loaded gun near the child’s head, hitting the person holding the child in the head,

and discharging a weapon above the child’s head posed dangers to the child.

When asked at trial if it was safe to discharge a gun while holding an eighteen-

month-old child, Davis responded, “It wouldn’t have been my first option, no.”

Thus, substantial evidence supports that Davis acted with knowledge that he was

creating a substantial risk to L.D.’s physical, mental and/or emotional health or

safety.

          Alternatively, Davis argues that the third element the State had to prove,

that Davis acted with knowledge that he was creating a substantial risk to L.D.’s

physical, mental, and/or emotional health or safety, includes multiple theories of

criminal liability. He argues the element is properly separated into two distinct

theories: (1) risk to the physical health or safety of the child and (2) risk to the

mental or emotional health or safety.           He argues that there was insufficient

evidence to support both theories, so the jury should not have been instructed on

both, and since we cannot tell if the jury convicted him on a theory unsupported by

sufficient evidence, we should remand for new trial on only the properly supported

theory.

          We find several issues with this alternative argument. First, the marshalling

instruction did not break the third element down into two separate theories of the

crime, and Davis did not object to the instruction. Even if Davis is correct that the

jury should have been instructed as to two separate theories, the instruction as

given is “the law of the case for purposes of our review of the record for sufficiency
                                             8

of the evidence.” See State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009). Thus,

his argument on separate theories is not preserved for our review.

         Recognizing this may be an issue impeding our direct review, Davis asks

that we consider this under the framework of ineffective assistance of counsel,

determining whether counsel breached a duty in failing to object to the instruction.

But this claim fails for a couple reasons. First, Davis has provided no case law or

authority to support his argument that the third element is a separate theory of

liability for the crime of child endangerment. And, as the State points out, the

legislature delineated multiple alternative ways to commit child endangerment,

with the others separated into lettered paragraphs.6 Without authority to support


6   Iowa Code section 726.6 provides:
         1. A person who is the parent, guardian, or person having custody
         or control over a child or a minor under the age of eighteen with a
         mental or physical disability, or a person who is a member of the
         household in which a child or such a minor resides, 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.
                 b. By an intentional act or series of intentional acts, uses
         unreasonable force, torture or cruelty that results in bodily injury, or
         that is intended to cause serious injury.
                 c. By an intentional act or series of intentional acts, evidences
         unreasonable force, torture or cruelty which causes substantial
         mental or emotional harm to a child or minor.
                 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. For purposes
         of this paragraph, the failure to provide specific medical treatment
         shall not for that reason alone be considered willful deprivation of
         health care if the person can show that such treatment would conflict
         with the tenets and practice of a recognized religious denomination
         of which the person is an adherent or member. This exception does
         not in any manner restrict the right of an interested party to petition
         the court on behalf of the best interest of the child or minor.
                                           9


that Iowa Code section 726.6(1)(a) includes alternative means to commit the

crime, we will not say counsel breached an essential duty in failing to request a

different instruction. See State v. Liddell, 672 N.W.2d 805, 814 (Iowa 2003)

(“Counsel need not be a crystal gazer; it is not necessary to know what the law will

become in the future to provide effective assistance of counsel.” (citation omitted)).

Moreover, Davis could not establish prejudice, as even if the third element should

have been broken down into two alternative theories of liability, here, substantial

evidence supports both.

       B. Ineffective Assistance: Jury Instruction. Davis complains about the

court’s instruction to the jury following a question asking for a clarification of the

term “substantial risk.” After the jury requested a definition of “substantial risk,” the



               e. Knowingly permits the continuing physical or sexual abuse
       of a child or minor. However, it is an affirmative defense to this
       subsection if the person had a reasonable apprehension that any
       action to stop the continuing abuse would result in substantial bodily
       harm to the person or the child or minor.
               f. Abandons the child or minor to fend for the child or minor’s
       self, knowing that the child or minor is unable to do so.
               g. Knowingly permits a child or minor to be present at a
       location where amphetamine, its salts, isomers, or salts of isomers,
       or methamphetamine, its salts, isomers, or salts of isomers, is
       manufactured in violation of section 124.401, subsection 1, or where
       a product is possessed in violation of section 124.401, subsection 4.
               h. Knowingly allows a person custody or control of, or
       unsupervised access to a child or a minor after knowing the person
       is required to register or is on the sex offender registry as a sex
       offender under chapter 692A. However, this paragraph does not
       apply to a person who is a parent or guardian of a child or a minor,
       who is required to register as a sex offender, or to a person who is
       married to and living with a person required to register as a sex
       offender.
               i. Knowingly provides direct supervision of a person under
       section 724.22, subsection 5, while intoxicated as provided under the
       conditions set out in section 321J.2, subsection 1, paragraph “a”, “b”,
       or “c.”
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court instructed the jury that the definition is “The very real possibility of danger to

a child’s physical, mental and/or emotional health or safety.” The response tracks

a definition our supreme court noted “enjoys a fairly ascertainable meaning.”

Anspach, 627 N.W.2d at 232. Davis did not object to the instruction at the time.

       On appeal, Davis argues counsel provided ineffective assistance by failing

to object, maintaining counsel should have argued that the definition of “substantial

risk” includes a consideration of not only the probability of risked harm but also the

magnitude or gravity of the harm. Davis recognizes that his proposed instruction

conflicts with controlling case law. See id. at 233. That said we have no power to

overrule precedent set by our supreme court. See State v. Beck, 854 N.W.2d 56,

64 (Iowa Ct. App. 2014).        Thus, the definition of “substantial risk” remains

unchanged, and counsel had no duty to object to a proper jury instruction. This

claim of ineffective assistance fails.

       III. Conclusion.

       Because substantial evidence supports Davis’s conviction of child

endangerment and his claim of ineffective assistance fails, we affirm.

       AFFIRMED.
