                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0706
                               Filed March 4, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALICIA MARIE RIOS,
      Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Fayette County, Linda M. Fangman,

Judge.



      Defendant appeals her conviction of murder in the first degree. AFFIRMED.




      Martha J. Lucey, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins and Denise

Timmons, Assistant Attorneys General, for appellee.



      Considered by Mullins, P.J., Schumacher, J., and Danilson, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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DANILSON, Senior Judge.

       Alicia Rios appeals her conviction of murder in the first degree. She claims

she received ineffective assistance because defense counsel permitted her to

plead guilty when there was not a sufficient factual basis for her plea. We find

there is sufficient evidence in the minutes of testimony to show Rios acted with

malice aforethought and manifested an extreme indifference to human life. We

conclude Rios has not shown she received ineffective assistance of counsel and

affirm her conviction.

       I.     Background Facts & Proceedings

       According to the minutes of evidence, Rios was the mother of L.R., born in

2018. Rios told Scott Reger, a special agent with the Iowa Division of Criminal

Investigation, that on August 21, 2018, when L.R. was about five weeks old, “she

became frustrated with [the child’s] crying and then threw [the child] down, striking

her head on a coffee table and then the floor.”

       After a 911 call, officers arrived at the scene to find L.R. was having difficulty

breathing and was unresponsive. Medical personnel observed “multiple areas of

bruising on [the child’s] chest and abdomen, as well as other areas of bruising on

[the child’s] body including bilateral eyelid swelling and bruising.” Dr. Barbara Knox

stated the child “was suffering multiple skull fractures, subdural hemorrhaging,

cerebral edema, [and e]xtensive bilateral retinal hemorrhages.” Dr. Paul Stanton

and Dr. James Stadler stated the child’s injuries were “consistent with abusive

head trauma.”     Also, Dr. Scott Hagen stated the child’s condition “was not

consistent with non-accidental trauma.”
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       Rios told Amanda Palm, a physician’s assistant, Rios’s two-year-old son

was playing with a toy near L.R., who was in a car seat. She stated the older child

“bounced onto the child.” Rios stated L.R. cried after this but was limp, so she

called 911. Palm believed the child’s injuries were consistent with non-accidental

trauma. Dr. Geralyn Zuercher stated the child’s injuries were not consistent with

those that would result from a toy being dropped on her head. The child died as a

result of her injuries.

       Rios was charged with murder in the first degree, in violation of Iowa Code

section 707.2(1)(e) (2018), based on a theory she killed L.R. while committing child

endangerment, in violation of section 726.6(1)(b), or while committing assault, in

violation of section 708.1. In addition, Rios was charged with child endangerment

resulting in death, in violation of section 726.6(1)(b) and (4).

       Rios entered into a plea agreement in which she agreed to enter an Alford

plea to first-degree murder and the State agreed to dismiss the charge of child

endangerment.1 Rios told the court it could rely on the minutes of evidence to help

establish a factual basis for the offense. She also agreed the witnesses listed by

the State would testify in accordance with the minutes, and this would provide

substantial evidence to show she committed first-degree murder. The court found

there was a factual basis for Rios’s guilty plea. The court determined the plea was

knowingly and intelligently entered, and was voluntary. Rios was sentenced to life

in prison. She now appeals.


1 In an Alford plea, a defendant pleads guilty to a crime without admitting to the
underlying facts of the offense. State v. Rodriguez, 804 N.W.2d 844, 847 n.1 (Iowa
2011) (citing North Carolina v. Alford, 400 U.S. 25, 32 (1970)). In this type of plea,
a defendant consents to the imposition of a sentence without admitting guilt. Id.
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       II.    Ineffective Assistance

       Rios claims she received ineffective assistance because defense counsel

failed to file a motion in arrest of judgment to challenge her guilty plea. She states

there was not an adequate factual basis for the plea. Rios asserts there is no

evidence in the record to show she acted with malice aforethought. She also

asserts there is insufficient evidence to show she intentionally committed a

wrongful act or exhibited an extreme indifference to human life. Rios asks to have

her guilty plea vacated and the case remanded for further proceedings.

       We conduct a de novo review of claims of ineffective assistance of counsel.

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of

ineffective assistance of counsel, a defendant must prove: (1) counsel failed to

perform an essential duty and (2) prejudice resulted. Id. A defendant’s failure to

prove either element by a preponderance of the evidence is fatal to a claim of

ineffective assistance. See State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

       “It is a responsibility of defense counsel to ensure that a client does not

plead guilty to a charge for which there is no objective factual basis.” State v.

Finney, 834 N.W.2d 46, 54 (Iowa 2013).          We examine the entire record to

determine if there is a factual basis for a defendant’s guilty plea. Id. at 62. “Our

cases do not require that the district court have before it evidence that the crime

was committed beyond a reasonable doubt, but only that there be a factual basis

to support the charge.” Id. A sufficient factual basis may be found in the minutes

of evidence. Id.

       For first-degree murder, the State was required to show:
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       [The defendant] 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 [the defendant]; [the defendant] acted with
       malice aforethought; [the defendant] was committing the offense of
       child endangerment or assault; and the child’s death occurred under
       circumstances showing an extreme indifference to human life.

State v. Trowbridge, No. 12-2272, 2014 WL 955404, at *3 (Iowa Ct. App. Mar. 12

2014) (citing Iowa Code §§ 707.1, .2(5)); see also State v. Blanchard, No. 09-0871,

2010 WL 2089222, at *3 (Iowa Ct. App. May 26, 2010) (listing elements of offense).

       A.     Rios claims there is not a sufficient factual basis for the element that

she manifested an extreme indifference to human life. See Iowa Code § 707.2(5).

“The ‘extreme indifference’ element stands apart from, and in addition to, the

element of malice.” State v. Thompson, 570 N.W.2d 765, 769 (Iowa 1997). “No

further elaboration—by reference to risk of danger or recklessness—adds in a

meaningful way to the words themselves.”          Id.   “We agree that the phrase

‘manifesting an extreme indifference to human life,’ when considered in the context

of a killing of a child with malice, sufficiently describes the aggravating

circumstance elevating the act from second-degree to first-degree murder so as to

need no further or other explanation.” Id. at 768.

       We previously found, “intentionally shaking and striking the head of a five-

day-old child manifests extreme indifference or callousness to human life.”

Blanchard, 2010 WL 2089222, at *4. In this case, Rios manifested extreme

indifference to human life by throwing L.R. down, striking the child’s head on the

coffee table and floor. We conclude there is a sufficient factual basis in the record

on the element of “manifesting an extreme indifference to human life.” See Iowa

Code § 707.2(5).
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       B.        Rios claims there is not sufficient evidence to show she acted with

malice aforethought, which is necessary under both alternatives in Iowa Code

section 707.2(1)(e).     “Malice aforethought is a fixed purpose or design to do

physical harm to another that exists before the act is committed. It does not have

to exist for any particular length of time.” State v. Myers, 653 N.W.2d 574, 579

(Iowa 2002). Malice is a state of mind and is usually proven by circumstantial

evidence. State v. Newell, 710 N.W.2d 6, 21 (Iowa 2006).

       In State v. Rhode, 503 N.W.2d 27, 39 (Iowa Ct. App. 1993), we found malice

could be inferred from the circumstantial evidence that the defendant “intentionally

slammed [a child’s] head against a hard, flat surface causing a severe head injury.”

Accord State v. Porter, No. 12-0170, 2013 WL 2146543, at *5 (Iowa Ct. App. May

15, 2013) (inferring malice from defendant’s violent shaking of child, resulting in

death); Blanchard, 2010 WL 2089222, at *4 (finding malice could be inferred from

the death of a child caused by defendant intentionally shaking and striking the head

of the child).

       Rios told the district court it could rely on the minutes of evidence to

establish a factual basis for her guilty plea. The minutes provide that Special Agent

Reger would testify Rios told him:

       That she was at home in the morning that day with her two-year-old
       son, [B.R.] and [L.R.], while her husband, Abrahan Rios, and her
       mother, Dawn Fernette, were both at work. That [L.R.] was fine the
       night before and fine that morning of August 21, 2018 while her
       husband and mother were at work. That she became frustrated with
       [L.R.] and [B.R.] crying and then threw [L.R.] down, striking her head
       on a coffee table and then the floor. That [L.R.] had been healthy
       and happy the days prior and that [L.R.] had eaten earlier that
       morning. That she was the only person with [L.R.] and her son after
       her husband went to work.
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Due to Rios’s action striking the child’s head on the coffee table and the floor, the

child had “multiple areas of bruising on [her] chest and abdomen, as well as other

areas of bruising on [her] body including bilateral eyelid swelling and bruising.”

The child suffered multiple skull fractures, subdural hemorrhaging, cerebral

edema, and extensive bilateral retinal hemorrhages.

       As in Rhode, 503 N.W.2d at 39, we infer malice aforethought from the

circumstantial evidence Rios “intentionally slammed [a child’s] head against a

hard, flat surface causing a severe head injury.” Rios stated she had become

frustrated because the child was crying and threw the child down, striking her head

on the coffee table and floor. We find there is a factual basis in the record to

support the element of malice aforethought.

       C.     We conclude Rios has not shown she received ineffective assistance

because defense counsel permitted her to plead guilty when there was an

inadequate factual basis for her plea. For the same reasons, counsel was not

ineffective for failing to file a motion in arrest of judgement. We affirm Rios’s

conviction of first-degree murder.

       AFFIRMED.
