                     IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0443
                                Filed May 3, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JERRY LEON THOMPSON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



       A defendant challenges his conviction. AFFIRMED.



       Jerry L. Thompson, pro se, for appellant.

       Molly E. Alley of Oliver Gravett Law Firm, P.C., Windsor Heights, for

appellant (until withdrawal).

       Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



       Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VOGEL, Judge.

         Jerry Thompson appeals his conviction for child endangerment resulting in

bodily injury, in violation of Iowa Code section 726.6(6) (2015).1 Specifically,

Thompson claims the district court erred by not granting his motion for a

judgment of acquittal because there was insufficient evidence to support the

conviction.       Thompson also asserts his counsel was ineffective in failing to

request a jury instruction that defined “unreasonable force.”           Because we

conclude there was sufficient evidence to support the verdict, we affirm

Thompson’s conviction.          However, because the factual record relevant to

Thompson’s claim of ineffective assistance of counsel is not fully developed, we

preserve that claim for a postconviction action.

         I.       Background Facts and Proceedings

         On July 9, 2015, the State charged Thompson with one count of child

endangerment resulting in bodily injury. The charge stemmed from an incident in

which Thompson used a belt to strike his thirteen–year-old daughter multiple

times.        At trial, the victim testified she and her older sister were staying at

Thompson’s house for a regularly-scheduled weekend visitation on May 16,

2015. At some point, the victim and Thompson had a disagreement, and in an

apparent attempt to discipline or control his daughter, Thompson entered her

room with a belt and struck her with it several times across the legs. The victim’s

sister was sleeping in the room when the incident occurred and testified that she

woke up while Thompson was striking the victim. According to the victim, the

1
  Thompson also pled guilty to failure to appear at the sentencing for the child-
endangerment conviction. On appeal, he did not raise any issue relating to that
conviction; thus, we will not address it further.
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belt strikes left visible red marks and bruises on the her legs for several days.

The district court denied Thompson’s motion for judgement of acquittal.

      Thompson generally admitted the substance of the allegations.              His

defense at trial was that his actions were appropriate parental discipline under

the circumstances and the force he used was reasonable. He testified he initially

brought the belt into the room as a deterrent and he did not strike the victim with

full force. He continued:

             Q. Okay. And so you said you were using the belt to try to
      stop her from kicking you? A. Well, I really—the thing is, she is
      stronger than what she looks like. I really couldn’t get it—I couldn’t
      really get in any good whacks. It was just—to me, I know my
      strength, and my daughter is my daughter, so I’m not going in with
      the intention of trying to kill my daughter. And I don’t want to beat
      her, you know, to a pulp or anything like that. It—
             Q. Were you trying to intentionally hit her? A. Initially, no. It
      was my—it was my intent to get her to go to bed and just wait until
      the morning.
             Q. Were you using anything you would characterize as full
      force? A. No.
             Q. Were you using anything that you would characterize as
      unreasonable force? A. No. And I tell you why. I’m 200 pounds,
      and I can bench 200 pounds. And if I hit my daughters with full
      force with that belt, the welts would have been really bad. I would
      never have tried to go in and beat my daughter like she’s a grown
      man.

On November 3, the jury found Thompson guilty. Thompson appeals.

      II.    Standard of Review

      We review claims of insufficient evidence for correction of errors at law.

State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). “[W]e review claims of

ineffective assistance of counsel de novo.” Ledezma v. State, 626 N.W.2d 134,

141 (Iowa 2001). When a claim of ineffective assistance of counsel is raised on

direct appeal, we must determine whether the record is adequate to address the
                                            4

claim before proceeding to the merits. State v. Johnson, 784 N.W.2d 192, 198

(Iowa 2010).

       III.    Sufficiency of the Evidence

       Thompson asserts there was insufficient evidence to support his

conviction for child endangerment resulting in bodily injury.           He argues his

actions were lawful corporal punishment administered by a parent and the record

does not support the conclusion his actions were unreasonable. In response, the

State contends the jury was free to believe the victim over Thompson and

conclude his use of force was unreasonable.2

       “In reviewing challenges to the sufficiency of evidence supporting a guilty

verdict, courts consider all of the record evidence viewed ‘in the light most

favorable to the State, including all reasonable inferences that may be fairly

drawn from the evidence.’”        Sanford, 814 N.W.2d at 615 (quoting State v.

Keopasaeuth, 645 N.W.2d 637, 639–40 (Iowa 2002)). The jury’s verdict will not

be disturbed if it is supported by substantial evidence, that is, if the evidence in

the record “can convince a rational jury that the defendant is guilty beyond a

reasonable doubt.” Id.

       Iowa Code section 726.6(1)(b) provides:

       1. A person who is the parent . . . [of] a child . . . commits child
       endangerment when the person does any of the following:




2
  The State also disputes whether Thompson preserved error on this specific claim in his
motion for judgment of acquittal. We conclude the issue was adequately presented to
and ruled upon by the district court after the motion for judgment of acquittal. See Meier
v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate
review that issues must ordinarily be both raised and decided by the district court before
we will decide them on appeal.”).
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       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.

Iowa Code section 726.6(6) makes the crime of child endangerment resulting in

bodily injury a “D” felony. Iowa law recognizes parents’ rights to use corporal

punishment on their child, “but that right is restricted by moderation and

reasonableness.” State v. Arnold, 543 N.W.2d 600, 603 (Iowa 1996). When a

parent exceeds these restrictions, “his or her conduct becomes criminal.” Id.

“The proper test is whether, under the particular circumstances, the amount of

force used or the means employed by the parent rendered such punishment

abusive rather than corrective in character.” Id. What constitutes unreasonable

force “necessarily varies with the age, physical condition, and other

characteristics of a child as well as with the gravity of the child’s misconduct.” Id.

       At trial, the jury heard testimony from the victim detailing the incident and

the injuries she suffered.      They also heard the victim’s sister describe her

eyewitness view of the incident.         The department of human services (DHS)

worker testified that marks and bruises were visible on the victim’s legs more

than thirty-six hours after the incident, and the photographs of the injuries taken

by the worker were presented to the jury. Finally, Thompson testified about the

incident. Thompson’s actions—striking the victim with a belt multiple times—

were undisputed. However, Thompson disputed the degree of force used and

whether he actually landed any “good whacks.” Thompson also disputed the

level of injuries the victim suffered.

       Regarding the testimonial dispute over the force being used, the jury could

have believed the victim’s and the sister’s testimony over Thompson’s and
                                         6

concluded the force was unreasonable.          See Sanford, 814 N.W.2d at 615

(“Inherent in our standard of review of jury verdicts in criminal cases is the

recognition that the jury [is] free to reject certain evidence, and credit other

evidence.” (quoting State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006))).

Further, the jury could have accorded weight to the DHS worker’s testimony

about the injuries and used its own judgment in observing the photographs to

conclude the use of force by Thompson was unreasonable. See Arnold, 543

N.W.2d at 603 (holding testimony about the severity of injuries supported a

finding of unreasonable force). Based on our review of the record, we conclude

there was sufficient evidence to support the jury’s verdict.

       IV.     Ineffective Assistance of Counsel

       Thompson next argues his counsel was ineffective for failing to request a

jury instruction that defined “unreasonable force” or object to the fact the

instructions submitted to the jury did not contain an “unreasonable force”

instruction. He claims this failure caused confusion for the jury and prejudiced

him. The State disagrees.

       “In order to succeed on a claim of ineffective assistance of counsel, 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). Claims

of ineffective assistance of counsel are usually preserved for postconviction

proceedings.    State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012).            “That is

particularly true where the challenged actions of counsel implicate trial tactics or

strategy which might be explained in a record fully developed to address those

issues.” State v. Rubino, 602 N.W.2d 558, 563 (Iowa 1999).
                                         7


      Because we conclude the record is not adequate to address Thompson’s

claim of ineffective assistance of counsel, we preserve that claim for a possible

postconviction action.

      V.     Conclusion

      We conclude there was sufficient evidence in the record to support the

jury’s verdict and affirm Thompson’s conviction. However, because the factual

record relevant to Thompson’s claim of ineffective assistance of counsel is not

fully developed, we preserve that claim for a postconviction action.

      AFFIRMED.

      Vaitheswaran, J., concurs; Danilson, C.J., concurs specially.
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DANILSON, Chief Judge. (concurring specially)

      I specially concur under these facts as I agree there was substantial

evidence to support the jury’s verdict. I add that although Thompson contended

he did not use unreasonable force, our supreme court has observed, “[t]he laws

of physics are such that when even a moderate degree of force is administered

through an instrument that makes contact with only a small area of the body, the

pressure visited upon that point may be more than will reasonably be

anticipated.” Hildreth v. Iowa Dep’t of Human Servs., 550 N.W.2d 157, 160 (Iowa

1996). And a jury could conclude that even a moderate degree of force with an

instrument may be an unreasonable force when a visible bodily injury is inflicted.

Here, there was substantial evidence to support the jury’s verdict as Thompson

used a belt several times and the marks he inflicted existed for several days.
