                     IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1852
                             Filed February 25, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KENNETH LEROY ADAMS,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Cerro Gordo County, Gregg R.

Rosenbladt, Judge.



       A defendant appeals his judgment and sentence for child endangerment

resulting   in   death.    JUDGMENT      AND   SENTENCE         CONDITIONALLY

AFFIRMED; RULING ON NEW TRIAL MOTION VACATED AND REMANDED.



       Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, Carlyle D. Dalen, County Attorney, and Steven Tynan and R. Blake

Norman, Assistant County Attorneys, for appellee.



       Heard by Vaitheswaran P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, P.J.

       Kenneth    Adams     appeals    his    judgment   and   sentence   for   child

endangerment resulting in death. He contends: (1) the jury’s finding of guilt is not

supported by sufficient evidence, (2) the district court applied an incorrect

standard in ruling on his motion for new trial, and (3) his trial attorney was

ineffective in failing to challenge the medical examiner’s testimony as an

improper credibility assessment.

    I. Sufficiency of the Evidence

       The jury was instructed the State would have to prove the following

elements of child endangerment resulting in death:

             1. On or about the 27th day of October, 2012, the defendant
       was the parent of or a person having custody or control of [O.A.].
             2. [O.A.] was under the age of 14 years.
             3. The defendant acted with knowledge that he was creating
       a substantial risk to the physical health or safety of [O.A.].
             4. The defendant’s act resulted in death to [O.A.].

       Adams challenges the sufficiency of the evidence supporting the third

element and, specifically, the knowledge requirement. The jury was separately

instructed, “For the defendant to act with knowledge means he had a conscious

awareness that by his actions he created a substantial risk to [O.A.’s] physical

health or safety.” “Substantial risk” was defined as “the very real possibility of

danger to a child’s physical health or safety.”

       A reasonable juror could have found the following facts. The child was

nineteen months old at the time of his death. According to his mother, he had

recently been treated for an ear infection, was experiencing some congestion,
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and was a little fussy on the night before his death but was otherwise a big,

healthy, and generally happy child.

       On the day of the child’s death, his mother removed him from his crib

shortly before 10:00 A.M, proceeded with the family’s usual weekend breakfast

routine, and left to run errands with her daughter. Adams stayed home with the

child and his older brother.

       In a recorded interview, Adams told law enforcement officers the child got

upset when his mother left, threw a tantrum, and “bashed [him] in the face.”

Adams was angered by the child’s action. He told the child not to do that and

instructed him to lie down. Adams threw a pillow on the couch, grabbed the

child’s pants and “flipped him up” onto the couch, placing him face down on the

pillow. He held the child’s arm and stroked his back until the child’s breathing

slowed down. At that point, Adams “turned [the child’s] face slightly so that his

face was sitting out” because he was concerned about sudden infant death

syndrome.    He played video games with his older son, cleaned the upstairs

bathroom, and returned to play videogames, before noticing something was

wrong with the child.

       Adams called 911 on a recorded line. He informed the dispatcher his son

was not breathing and his eyes were glassy.

       Law enforcement officers and paramedics arrived at the scene and

attempted life-saving procedures, to no avail. According to one officer, the child

“was limp, and his face was blue.”
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       Adams provided the officers with differing accounts of whether the child

convulsed before dying. As for Adams’s assertion that he cleaned the bathroom,

an officer found the bathroom in disarray.

       The State medical examiner testified the cause of the child’s death was

suffocation. He noticed bruises on the child, most prominently behind the right

ear. In his view, the bruise could have been caused by a finger being pressed on

the scalp.   He also observed “11 different discrete areas of hemorrhage or

bleeding into [] fatty tissue just underneath the scalp,” as well as contusions on

the child’s legs. He testified the bruises would have been caused by “blunt force

type trauma.”    He further explained the child’s brain had “hypoxic neuronal

changes,” which were consistent with death by suffocation. He ruled the manner

of death a homicide based on Adams’s admission to holding the child’s arm.1

The medical examiner eliminated other reasonable causes of death, including

choking on vomit, trauma from the child’s “head butt” of his father, ear infection or

cold, and sudden infant death syndrome.

       This evidence amounts to substantial evidence in support of the

knowledge element of the child endangerment charge. See State v. Hennings,

791 N.W.2d 828, 832-33 (Iowa 2010) (setting forth standard of review).

       We acknowledge the existence of evidence that might have supported a

contrary finding, including the 911 recording, capturing the voice of a distraught

father praying for the life of his son, Adams’s recorded musings outside the


1
 Adams has raised a challenge to this and other testimony of the medical examiner.
However, for purposes of assessing the sufficiency of the evidence, we are obligated to
examine all the evidence of record. See State v. Dullard, 668 N.W.2d 585, 597 (Iowa
2003).
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presence of officers cursing himself for failing to notice his son’s condition, and a

recorded reenactment with a doll, which showed Adams engaging in acts of

comfort. However, it was the jury’s function to sort through this evidence. State

v. Blair, 347 N.W.2d 416, 420 (Iowa 1984). Having found sufficient evidence to

support the knowledge element, we uphold the jury’s finding of guilt.

    II. New Trial Motion

       Adams filed a new trial motion asserting in part that the verdict was

contrary to the evidence. The district court overruled the motion. On appeal,

Adams contends the court used a sufficiency-of-the-evidence standard rather

than the weight-of-the-evidence standard prescribed by State v. Ellis, 578

N.W.2d 655, 658-59 (Iowa 1998).2 We agree with this contention. Accordingly,

we conditionally affirm Adams’s judgment and sentence, vacate the ruling on the

new trial motion, and remand for reconsideration of the new trial motion applying

a weight-of-the-evidence standard to the existing record. If the court denies the

motion, our affirmance will stand. If the court grants the motion, the court should

further set aside the judgment and sentence and order a new trial. We do not

retain jurisdiction.

    III. Expert Testimony

       Adams contends “the deputy medical examiner should not have been

allowed to express his opinion about the manner of O.A.’s death as a ‘homicide.’”

He asserts the medical examiner’s opinion was based on an impermissible

assessment of Adams’s credibility. Because the issue was not raised at trial,


2
  The State claims Adams did not preserve error on this claim. We are not persuaded by
this contention.
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Adams brings the challenge to our attention under an ineffective-assistance-of-

counsel rubric. We preserve this claim for postconviction relief proceedings to

allow defense counsel an opportunity to respond. See State v. Shortridge, 589

N.W.2d 76, 84 (Iowa Ct. App. 1998).

   IV. Disposition

      We conditionally affirm Adams’s judgment and sentence. We preserve his

ineffective-assistance-of-counsel claim for postconviction relief. We vacate the

district court’s ruling on the new trial motion and remand for reconsideration of

the motion under a weight-of-the-evidence standard.

      JUDGMENT AND SENTENCE CONDITIONALLY AFFIRMED; RULING

ON NEW TRIAL MOTION VACATED AND REMANDED.
