                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1853
                              Filed March 6, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ZACHARY ALFRED HAYES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cedar County, Stuart P. Werling,

Judge.



      Zachary Hayes appeals his convictions of multiple acts of child

endangerment resulting in serious injury and neglect of a dependent person.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Richard J. Bennett, Assistant

Attorney General, for appellee.



      Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
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McDONALD, Judge.

       Zachary Hayes was convicted of multiple acts of child endangerment

resulting in serious injury, in violation of Iowa Code section 726.6A (2016), and

neglect of a dependent person, in violation of Iowa Code section 726.3, and

sentenced to an indeterminate term of incarceration not to exceed sixty years. The

record shows Hayes physically abused his two-month-old child. The medical

evidence showed the child had fractured ribs, a detached optic nerve, head

trauma, and brain injury. These injuries resulted in permanent medical conditions,

including limited cognitive ability, permanent visual impairment, the inability to eat

without the assistance of a gastrointestinal tube, and, most likely, the inability to

walk. In this direct appeal, Hayes claims his trial counsel provided constitutionally

deficient representation in failing to move for judgment of acquittal on the charge

of neglect of a dependent person and in failing to challenge a jury instruction.

       The court reviews ineffective-assistance-of-counsel claims de novo. See

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). To succeed on an ineffective-

assistance claim, “a defendant must prove: (1) counsel failed to perform an

essential duty; and (2) prejudice resulted.” State v. Maxwell, 743 N.W.2d 185, 195

(Iowa 2008). An attorney fails to perform an essential duty when he or she does

not meet “the standard of a reasonably competent practitioner.” State v. Clay, 824

N.W.2d 488, 495 (Iowa 2012) (quoting Maxwell, 743 N.W.2d at 195). “There is a

presumption the attorney performed his [or her] duties competently.”               Id.

“Prejudice exists where the claimant proves by a reasonable probability that, but

for the counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 596 (internal quotation marks omitted) (quoting Maxwell, 743
                                          3


N.W.2d at 196). Failure to prove either element of ineffective assistance defeats

a defendant’s claim. See State v. Williams, 695 N.W.2d 23, 29 (Iowa 2005).

       We first address Hayes’s claim his counsel provided constitutionally

deficient representation in failing to file a motion for judgment of acquittal on the

charge of neglect of a dependent person. See State v. Schlitter, 881 N.W. 2d 380,

391 (Iowa 2016) (resolving ineffective assistance claim on direct appeal regarding

motion for judgment of acquittal because “no reasonable trial strategy could permit

a jury to consider a crime not supported by substantial evidence”). A district court

may only grant a judgment of acquittal “if the evidence is insufficient to sustain a

conviction of [the charged] offense or offenses.” Iowa R. Crim. P. 2.19(8)(a). The

district court must deny a motion for a judgment of acquittal if substantial evidence

supports a guilty verdict. See State v. Marlin, No. 01-0518, 2002 WL 987899, at

*1 (Iowa Ct. App. May 15, 2002). “Substantial evidence is evidence upon which a

rational finder of fact could find a defendant guilty beyond a reasonable doubt.” Id.

In reviewing a motion for judgment of acquittal, the district court views the evidence

in a light most favorable to the State. See id.

       A parent commits neglect of a dependent person when the parent

“knowingly or recklessly exposes [his or her child] to a hazard or danger against

which [the child] cannot reasonably be expected to protect [himself or herself].”

Iowa Code § 726.3. The jury was instructed as follows:

       [a] person is “reckless” or acts “recklessly” when he willfully
       disregards the safety of persons or property. It is more than a lack
       of reasonable care which may cause unintentional injury.
       Recklessness is conduct which is consciously done with willful
       disregard of the consequences. For recklessness to exist, the act
       must be highly dangerous. In addition, the danger must be so
       obvious that the actor knows or should reasonably foresee that harm
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       will more than likely than not result from the act. Though
       recklessness is willful, it not intentional in the sense that harm is
       intended to result.

       On de novo review, we conclude Hayes cannot establish prejudice because

there was substantial, overwhelming evidence of his guilt and the result of the

proceeding would not have been different if counsel moved for judgment of

acquittal. When viewed in the light most favorable to the State, the evidence

showed Hayes failed to seek medical treatment for his child in a timely manner

after injuring him by slamming him violently onto a bed. The injuries were severe

and obvious. After Hayes injured the child, the child began having seizures and

was unable to focus his eyes. Hayes admitted that, after injuring the child, his

immediate reaction was, “Oh fuck.             Because I thought I had hurt him.”

Nonetheless, Hayes did not seek immediate treatment for the child. Indeed, when

the child’s mother discovered the child in distress and sought to take the child to

the hospital, Hayes discouraged her from so doing. There is not a reasonable

probability of a different result if counsel had moved for judgment of acquittal. See

State v. Holbert, No. 82AP-568, 1983 WL 3355, at *5-6 (Ohio Ct. App. Feb 15,

1983) (finding there was sufficient evidence to support defendant’s conviction of

endangering a child when defendant inflicted head injuries on the child and failed

to seek timely medical treatment for the child); Chiplin v. State, No. 05-17-01052-

CR, 2018 WL 6583025, at *6-7 (Tex. Crim. App. Dec. 14, 2018) (holding a jury

could rationally find the defendant acted recklessly when he inflicted head injuries

on a child but delayed treatment in order to see if the child would get better).

       We next address Hayes’s contention that his counsel should have objected

to Jury Instruction No. 16. That jury instruction states:
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               Evidence has been offered to show that the defendant made
       statements at an earlier time and place.
               If you find any of the statements were made, then you may
       consider them as part of the evidence, just as if they had been made
       at this trial.

(Emphasis added).      Hayes argues the final clause of the instruction is not

supported by law and is in violation of his Fifth Amendment right against self-

incrimination.

       On de novo review, we conclude counsel did not breach a duty in failing to

challenge the instruction. This court has repeatedly rejected the same challenge

to the same instruction.    See, e.g., State v. Yenger, No. 17-0592, 2018 WL

3060251, at *4-5 (Iowa Ct. App. June, 20, 2018); State v. Hayes, No. 17-0563,

2018 WL 2722782, at *5 (Iowa Ct. App. June 6, 2018); State v. Vandekieft, No. 17-

0876, 2018 WL 2727720, at *7-9 (Iowa Ct. App. June 6, 2018); State v. Payne, No.

16-1672, 2018 WL 1182624, at *8-10 (Iowa Ct. App. Mar. 7, 2018). Hayes’s

counsel’s performance did not fall below that of a reasonably competent

practitioner by failing to raise a challenge this court has repeatedly rejected. See

In re Detention of Vaughn, No. 00-0795, 2001 WL 1482137, at *1 (Iowa Nov. 26,

2001) (finding counsel was not ineffective for failing to raise a claim that the court

had recently rejected).

       Because substantial evidence supported Hayes’s conviction, his counsel

did not provide ineffective assistance by failing to move for judgment of acquittal

on Hayes’s charge of neglect of a dependent person. Hayes’s counsel was not

ineffective in failing to object to a jury instruction this court has repeatedly

approved.

       AFFIRMED.
