                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1590
                             Filed January 10, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DERRICK JANES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Boone County, Paul G. Crawford,

District Associate Judge.



      Derrick Janes appeals from the judgment and sentence entered upon his

conviction for child endangerment. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.




      Considered by Vaitheswaran, P.J., Potterfield, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
                                           2


MAHAN, Senior Judge.

       Derrick Janes appeals from the judgment and sentence imposed upon his

conviction for child endangerment, in violation of Iowa Code section 726.6(1)(a)

(2016). He contends there is insufficient evidence that he acted with knowledge

that he was creating a substantial risk to the child’s health or safety. Janes also

asserts the court abused its discretion in denying his motion for mistrial due to

prosecutorial misconduct, his trial counsel was ineffective, and the court abused

its discretion in considering improper factors in sentencing him. Finding no error

or abuse of discretion, we affirm.

I. Background Facts.

       Janes was providing care for his girlfriend’s two-year-old child from about

4:00 p.m. on March 15 to approximately 2:45 a.m. on March 16, 2016, in the

apartment in which Janes resided with the child and the child’s mother. During

the time he was caring for the child, Janes was visited by five people, two of

whom he did not know. The child was in the living room of the apartment while

Janes and the others smoked methamphetamine throughout the night in another

room. The mother of the child returned home about 2:45 a.m., spoke with Janes

for about an hour, and then fell asleep.

       On March 16, the mother and Janes discovered the child had injuries to

his head, ears, and shoulder that were not present the day before. The mother

took the child to the emergency room (E.R.) later that afternoon.          Medical

personnel documented severe bruising to both the child’s ears, bruising on the

child’s left temple and cheek, bruising on the child’s left shoulder, an abrasion on

the back of the child’s head, and “defensive” bruising on the outer edge of the
                                           3


child’s palms.     In addition to these “newer” bruises,1 E.R. personnel noted a

“yellowish” bruise on the child’s right thigh.

       In a March 18 statement to Detective John Mayse, Janes acknowledged

he was at home with the child during the evening of March 15, he and the child’s

mother had smoked methamphetamine together before the mother left that

afternoon, and “he was irritated that [the mother] hadn’t come home.” Janes told

Detective Mayse that he had some friends come over about 8:00 p.m. and they

brought a couple other people with whom Janes was not familiar. Janes stated

he left the child in the living room, and he and the friends went into the bedroom

where they smoked methamphetamine. Janes told the police officer he would

watch the child “by opening the door and seeing what [the child] was doing. And

when they were smoking, he would then shut the door to the bedroom.” Janes

told the officer “he had no idea how [the child] got the injuries. He didn’t hear [the

child] fall. He said he did not hear [the child] cry.”

       Detective     Mayse    testified   Janes   stated   all   the   adults   smoked

methamphetamine and “everybody took at least ten hits from a pipe.” Detective

Mayse explained he asked Janes about the drug use because “meth affects the

body severely.” He continued,

              Meth ramps up your adrenaline system. Basically raises
       your heart rate. You can go through really severe mood swings
       from—I mean, to really sad, just crying, to severe anger, to severe
       anxiety, to severe paranoia, to the point where you start seeing
       things, hearing things that aren’t there.
              But the mood swings can be really severe. It can change
       really quickly from an emotion, crying hysterically, to severe anger

1
  The E.R. nurse testified, “[N]ew bruises start out as red, maybe a little purplish, and
then they turn towards, you know, days later greenish, yellowish, you get more of the
colors the older it gets.”
                                        4


      to where—out-of-control anger. So, yes, I mean, to the extreme
      that, you know, meth can keep—basically keeps you awake. Not
      care. You can become very annoying [sic] of what’s going on in
      your surroundings.

      Janes was found guilty of child endangerment following a jury trial. He

now appeals.

II. Scope and Standards of Review.

      We review claims of sufficiency of the evidence for errors of law. State v.

Howse, 875 N.W.2d 684, 688 (Iowa 2016). Our review of claims of ineffective

assistance of counsel, as with all constitutional issues, is de novo. See State v.

Ortiz, ___ N.W.2d ___, ___, 2017 WL 6391646, at *3 (Iowa 2017).

      As for claims of sentencing error, our review is for correction of errors at

law. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “We will not reverse

the decision of the district court absent an abuse of discretion or some defect in

the sentencing procedure.” Id. “When assessing a district court’s decision for

abuse of discretion, we only reverse if the district court’s decision rested on

grounds or reasoning that were clearly untenable or clearly unreasonable.” State

v. Plain, 898 N.W.2d 801, 811 (Iowa 2017).

III. Discussion.

      A. Sufficiency of evidence.      The jury was instructed that in order to

convict Janes of child endangerment, the State was required to prove beyond a

reasonable doubt that:

            1. On or about March 15 or 16, 2016, [Janes] was either:
            (a) a member of the household in which the child B.C.
      resided; or
            (b) the person having control over the child B.C.
            2. B.C. was under the age of fourteen (14) years.
                                            5


               3. [Janes] acted with knowledge that he was creating a
       substantial risk to B.C.’s physical, mental, or emotional health or
       safety.

       “[T]he definition of ‘substantial risk’ in the context of child endangerment”

means “[t]he very real possibility of danger to a child’s physical health or safety.”

State v. Anspach, 627 N.W.2d 227, 233 (Iowa 2001). The risk does not have to

be likely, just real or articulable. Id. at 232-33.

       Janes first contends there is insufficient evidence that he acted with

knowledge that he was creating a substantial risk to the child’s health or safety.

               We view the evidence “in the light most favorable to the
       State, including all reasonable inferences that may be fairly drawn
       from the evidence.” We uphold the verdict if substantial evidence in
       the record supports it. “Evidence is . . . substantial if, when viewed
       in the light most favorable to the State, it can convince a rational
       jury that the defendant is guilty beyond a reasonable doubt.”

Ortiz, ___ N.W.2d at ____, 2017 WL 6391646, at *4 (citations omitted).

       The State established Janes was the person having control of the two-

year-old child from the evening of March 15 through the early morning hours of

March 16. The child did not have injuries to his head, face, and shoulder before

Janes began caring for him. A two-year-old child is not capable of caring for or

protecting himself. Janes and five others he invited into the residence—two of

whom he did not know—spent several hours smoking methamphetamine while

Janes was in control of the child.         Viewing the evidence in the light most

favorable to the State, the jury could reasonably infer Janes was aware

methamphetamine use by adults in the presence of a child created a substantial

risk of danger to the child’s physical, mental, or emotional health or safety.
                                         6


      B. Prosecutorial misconduct. Janes also asserts the court erred in

denying his motion for mistrial due to prosecutorial misconduct. Our task is to

determine whether Janes was denied his constitutional right to a fair trial due to

prosecutorial misconduct or error. See Plain, 898 N.W.2d at 817. “In order to

establish a violation of the right to a fair trial, a defendant must show both (1)

error or misconduct and (2) prejudice.” Id. at 818.

      When the prosecutor was asking the mother about the child’s injuries, the

following exchange occurred:

      A. The top one is a picture of the outside of his left hand and the
      bottom one is a picture of the palm of his left hand.
               Q. Okay. And those are [the child’s] hands? A. Yes.
               Q. And are those—there appears there’s bruises on those
      hands; is that correct? A. Yes.
               Q. And did he have bruises on those hands on March 16th of
      2016 that you noticed? A. These are the bruises that he had prior
      to this.
               Q. He had those on March 15th before you left the house
      that morning? A. Yes.
               Q. And he had those bruises on March 15th before you left
      the house that afternoon? A. Yes.
               Q. And how long has he had those bruises for? A. Ever
      since I remember. I asked his pediatrician about it, and she told me
      they are not bruises.
               Q. And is this that pediatrician in Ames? A. Yes.
               Q. And what’s that pediatrician’s name?            A. Heidi
      Mittelstaedt.
               Q. And when’s the last time Heidi Mittelstaedt looked at the
      child? A. In April or May.
               Q. Does he still have those bruises on his hands? A. Yes.
               ....
               Q. Did he have any bruising on his right hand when you took
      him to the E.R.? A. The E.R., I guess, the nurse said that’s
      bruising, but Heidi [Mittelstaedt] said it’s not.
               Q. And I’m going to have to—we only can talk about what
      people actually saw and is going to testify in court. So I know
      you’re trying to help out Derrick here, but we can’t—
                                         7


      Defense counsel objected.      Outside the presence of the jury, defense

counsel objected, stating:

              Thank you, Your Honor. On direct examination I’d lodge an
      objection as to relevance when the State began questioning [the
      mother] about whether or not she has maintained a relationship
      with Derrick since this incident. We had a bench conference where
      I said that the basis for my objection to this line of questioning was
      that the State was calling this witness and impeaching them, that
      they’re not allowed to impeach their own witness. I think the rules
      are relatively clear on that.
              At that time the court’s ruling was that they weren’t going into
      impeachment. At this point I would lodge an objection to [the
      prosecutor’s] most recent statement as being him testifying, and
      also clearly for the sole purpose of impeaching [the mother]. I
      believe that that statement is extremely prejudicial to the jury, and
      at this time, Your Honor, I move for a mistrial.

      The court ruled, “I don’t see the State calling the witness to impeach her. I

think []he’s sorting out what is a potential new injury during the time frame when

the child was left in the defendant’s custody and what was a preexisting injury.”

      The court then addressed the prosecutor:

      I’m sure this is just an offhand comment in the heat of the moment
      of dealing with a potential witness concern, but don’t comment on
      the witness saying, “Oh, I know you’re just here to testify for
      Derrick,” or, “You’re trying to help Derrick.” That’s not something
      you should be saying, and it’s—[defense counsel] was correct in
      objecting, but, you know, looking at the whole, you know, back and
      forth that’s been going on between Exhibit 3 and leading into
      Exhibit 5, I can see where the witness has been volunteering
      information that doesn’t necessarily comport with the State’s theory
      of the case. I could see why your, you know, angst is potentially
      present, but you’ve got to reign it in.

      Our supreme court has recently noted               the   distinction between

prosecutorial misconduct and prosecutorial error. State v. Schlitter, 881 N.W.2d

380, 394 (Iowa 2016).

      Prosecutorial misconduct includes those statements “where a
      prosecutor intentionally violates a clear and unambiguous
                                           8


         obligation or standard imposed by law, applicable rule or
         professional conduct,” as well as “those situations where a
         prosecutor recklessly disregards a duty to comply with an obligation
         or standard.” Prosecutorial error occurs “where the prosecutor
         exercises poor judgment” and “where the attorney has made a
         mistake” based on “excusable human error, despite the attorney’s
         use of reasonable care.” . . . A prosecutor who has committed error
         should not be described as committing misconduct.

Id. (citations omitted).

         The prosecutor “may attack the witness’s credibility.” See Iowa R. Evid.

5.607 (“Any party, including the party that called the witness, may attack the

witness’s credibility.”). However, the prosecutor is not allowed to place a witness

on the stand who it expects to give unfavorable testimony solely for the purpose

of introducing otherwise inadmissible evidence. State v. Turecek, 456 N.W.2d

219, 225 (Iowa 1990); see also State v. Tracy, 482 N.W.2d 675, 679 (Iowa

1992). Viewing the entirety of the prosecutor’s questioning of the mother in the

case before us, we agree with the district court that the prosecutor did not call the

mother solely for the purpose of impeaching her.

         We also agree the trial court was correct in admonishing the prosecutor’s

statement, “So I know you’re trying to help out Derrick here . . . .” However, we

are not convinced the prosecutor’s isolated comment deprived Janes of a fair

trial.   See Plain, 898 N.W.2d at 818-19 (“[W]e first determine whether the

prosecutor violated a duty to the defendant. If so, we consider whether that

violation was intentional or reckless. An intentional or reckless violation amounts

to prosecutorial misconduct while an unintentional violation amounts only to

prosecutorial error.       We then determine whether the error caused prejudice.”

(citations omitted)).
                                          9


       C. Ineffective assistance of counsel.      Next, Janes contends his trial

counsel was ineffective in failing to object to and move to strike various

statements by the child’s grandfather at trial.

       Ineffective assistance of counsel constitutes “deficient performance
       by counsel resulting in prejudice, with performance being measured
       against an ‘objective standard of reasonableness,’ under prevailing
       professional norms.” “[N]ot every claim of ineffective assistance,
       even a meritorious one, requires reversal of a criminal conviction.”
       To prevail on a claim of ineffective assistance of counsel, a
       claimant must satisfy the Strickland [v. Washington, 466 U.S. 668,
       687 (1984),] test by showing “(1) counsel failed to perform an
       essential duty; and (2) prejudice resulted.” “Unless a defendant
       makes both showings, it cannot be said that the conviction . . .
       resulted from a breakdown in the adversary process that renders
       the result unreliable.”

State v. Clay, 824 N.W.2d 488, 494-95 (Iowa 2012) (citations omitted). Unless

the appellate record is adequate, we ordinarily preserve such claims for

postconviction relief proceedings. Id. at 494.

       Janes asserts trial counsel should have objected on hearsay grounds

when the grandfather testified that Janes answered “I don’t know” when asked

how the child’s injuries occurred.2     But statements of the defendant are not

hearsay. See Iowa R. Evid. 5.801(d)(2) (noting a statement “offered against a

party” and which is “the party’s own statement” is not hearsay); State v. Newell,

710 N.W.2d 6, 18 (Iowa 2006) (citing evidence rule 5.801(d)(2)). Trial counsel


2
 The child’s grandfather testified he came from Missouri on March 17 to pick up the
child. The grandfather testified at trial:
        [T]he first thing that stuck out was severe bruising of both ears. He had a
        pretty good lump on his cheek, but his ears were purple. The top half of
        his ears were purple. A bruise just starting in a lump on his cheek. A
        bruise on the back of his head.
                 There was a bruise on the top part of his leg, but we had him for
        the next [nineteen] days and that bruise could have been from that
        particular incident, or maybe not, on his leg. It seemed to be a different
        color than the rest.
                                        10

has no duty to make a motion that has no merit. State v. Graves, 668 N.W.2d

860, 881 (Iowa 2003).

      Janes also argues counsel should have objected when the grandfather

opined the marks on the child’s ears “were straight marks that a pair of pliers

being pinched would make.” Defense counsel did not immediately object but did

ask that the jury be excused. With the jury gone, defense counsel stated:

      I just want to acknowledge I think that this witness clearly cares
      very much for his grandson . . . . However, he continues to be
      nonresponsive to questions. So I would just ask that the court
      admonish him. I didn’t want to do this in front of the jury, but I
      would ask the court admonish him that he needs to answer the
      questions that are asked instead of saying what he wants to say.

Questioning resumed after the prosecutor and the grandfather spoke in private.

      Janes contends “the prejudicial remark about pliers deprived [him] of a fair

trial.” The State asserts trial counsel “likely made a reasonable tactical decision

not to object on rule 5.403 grounds” as to do so would only have emphasized the

testimony. We need not address whether counsel should have objected because

Janes cannot show that he was prejudiced by counsel’s failure to object and

move to strike the testimony. The photograph of the injuries reveals straight

marks on the child’s one ear. The jury also saw photographs of the injuries that

showed bruising to the insides and backs of the child’s ears. The E.R. nurse who

examined the child described the marks as appearing to have been made with

someone’s fingers. The physician who examined the child testified the injuries

she observed are “usually inflicted by someone.” Janes has not met his burden

to show a reasonable probability that he would have been acquitted if counsel

had objected to the grandfather’s testimony as unduly prejudicial.
                                           11


          D. Abuse of sentencing discretion.          Finally, Janes argues the court

abused its discretion in considering an improper factor in sentencing him. “The

imposition of a sentence is generally within the discretion of the trial court and will

be disturbed only upon a showing of abuse of discretion.” State v. Thomas, 520

N.W.2d 311, 313 (Iowa Ct. App. 1994). “The use of an impermissible factor is

viewed as an abuse of discretion and requires resentencing.” Id.

          Janes asserts the court enunciated an inaccurate fact—that the child had

“mental and physical deficiencies.”        While the court did use that phrase, in

context, we believe it is clear the court was considering the child’s inability to

protect himself. The court noted the child “was just two years old” and was “not

able to verbalize effectively his needs.” The court stressed Janes’s “horrible

prioritization of conduct,” that is, choosing to use drugs “instead of watching out

for a two-year-old child [who] can’t take care of himself.” This is not an improper

factor.    See State v. Hopkins, 860 N.W.2d 550, 554-55 (Iowa 2015) (noting

relevant     factors   include   “the   nature   of   the   offense”   and   “attending

circumstances”). We find no abuse of discretion, and we therefore affirm.

          AFFIRMED.
