                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1125
                               Filed July 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MAX K. ARNOLD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Timothy

O’Grady, Judge.



      Defendant appeals his convictions claiming trial counsel rendered

ineffective assistance. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, Matthew D. Wilbur, County Attorney, Shelly Sedlak, Assistant County

Attorney, and Stephanie Koltookian, Student Legal Intern, for appellee.



      Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
                                           2


DANILSON, C.J.

          Max Arnold appeals his convictions for one count of multiple acts of child

endangerment and one count of neglect or abandonment of a dependent person.

Arnold maintains trial counsel was ineffective in failing to challenge the portion of

his confession made after the detectives allegedly promised leniency.            We

conclude Arnold suffered no prejudice from counsel’s inaction.           Finding an

adequate basis for Arnold’s conviction without the challenged evidence, we

affirm.

I. Background Facts and Proceedings.

          On June 22, 2012, the State charged Arnold with multiple acts of      Child

endangerment in violation of Iowa Code section 726.6A (2011) (requiring three or

more acts of child endangerment), with neglect or abandonment of a dependent

person in violation of section 726.3, and with willful injury causing serious injury

in violation of section 726.3. On July 11, 2012, Arnold pleaded not guilty to all

charges. On September 21, 2012, Arnold waived his right to a speedy trial.

Arnold waived his right to a jury trial on February 19, 2013, and again at the

outset of trial.

          The charges against Arnold involve a single victim, L.W., the daughter of

Stevie (mother) and Phillip (father). L.W. was born in January 2010 and was two

years old from March through May 2012, the pertinent dates of the alleged

offenses. Stevie and Arnold began living together in November 2011. L.W. lived

with Stevie and Arnold for roughly an equal amount of time as L.W. lived with

Phillip. Arnold assumed some caretaking duties of L.W., even when Stevie was
                                            3


home.      Arnold resided part-time in the household where L.W. lived between

March 30 and May 7, 2012.

         On March 30, 2012, L.W. was examined by her pediatrician, Dr. Dennis

Jones. Dr. Jones “observed a second-degree burn to L.W.’s lower back and right

buttock.” Dr. Jones again saw L.W. on April 16, 2012.             Dr. Jones observed

bruising and “noticed L.W. was favoring her left leg when she walked.”               On

May 4, 2012, Phillip noticed L.W.’s bruising and leg injury and decided to take

L.W. to the emergency room. Dr. Jones observed L.W. had bruising on her neck

and cheek and also observed swelling in L.W.’s groin area.1 Child protective

services was contacted and informed of L.W.’s injuries.

         After a May 14, 2012 visit with Dr. Jones, L.W. was sent to an orthopedic

surgeon in Omaha, Nebraska, for additional testing. The surgeon determined

L.W. had a fractured femur that “required surgical repair and insertion of pins.”

Following surgical complications, L.W. underwent a second surgery to replace

the pins. A third surgery was necessary to remove the pins. Ultimately, L.W.

needed to learn to walk again.

         On May 10, 2012, Detective Robinson of the Council Bluffs Police

Department made contact with Stevie and Arnold and asked them to come in for

interviews.     During the interview with Detective Robinson, Arnold was asked

about the injuries to L.W. Within the first forty-five minutes of the interview,

Arnold admitted causing injuries to L.W.’s face and her groin/leg.               Arnold

admitted he did “cross the line” by slamming L.W. on the corner of the dresser

because she was “out of control” after she fell out of bed. He also admitted that

1
    Dr. Jones was apparently called to the emergency room after the child was examined.
                                         4


he had flicked her face. Arnold does not challenge this evidence on appeal and

admits this unchallenged evidence supports two acts of child endangerment.

      Arnold was also asked about an injury to L.W.’s neck and if he strangled

her. However, during this part of the interview he consistently denied he

intentionally strangled L.W., maintaining she was choking due to having her

pajama bottoms wrapped around her neck and he tried to help her by pulling

them off. Therefore, initially, Arnold did not admit to causing injuries to L.W.’s

neck. During the interview with Robinson, Arnold also admitted putting L.W. in

the deep freeze:

             I was watching her when Stevie [unintelligible] three girls,
      mine and her two girls, and then, those two were fighting, the older
      two, and it just got out of hand. I was kind of in a panicky mode or
      whatever, and [L.W.] had ended up falling down the basement
      steps following me down there . . . and I didn’t realize it but
      concrete and everything like that, so I freaked out. Deep freezer
      was the closest thing to it, went to grab something, retardedly put
      her inside of it real quick just to grab something, then I realized that
      I needed a towel or something [because] it looked like she was
      bleeding so I stepped over way and she apparently sat down.

      Later in the interview, Detective Schuetze joined Detective Robinson in

questioning Arnold.   Schuetze told Arnold to tell the whole story concerning

L.W.’s neck injury or Arnold would look bad when the detectives spoke to the

county attorney. Schuetze began questioning Arnold concerning L.W.’s neck

injury and told Arnold that admitting to causing the neck injury would not change

the charge against him. Robinson then told Arnold that the charge was child

endangerment, a class “C” felony. In response to Arnold’s question of whether

he would have a felony on his record, Robinson replied that was up to the

lawyers.
                                        5


      Arnold then asked “what’s the most?” Robinson replied, “The most as far

as time?   I wouldn’t even—ten years, I’ve never seen anybody get it.           I’ve

never—.”    Arnold then inquired, “What’s the least?” Robinson replied, “The

least? A year. And the most out of a year would be probation, time served, and

any type of community service you can perform during that year.” At that time,

Arnold continued denying causing injury to L.W.’s neck and bottom.

      Robinson explained to Arnold if he provided more information it would help

with any possible plea agreement and added:

      Not that I can promise you what type of plea agreements you’re
      going to get or would get. I’m not a lawyer, I’m not a judge. I don’t
      make those decisions. But when a county attorney comes up to me
      and says, “What’s this injury from? What’s this injury from? What’s
      this injury from?” And they’re gonna ask the doctor before they ask
      me. And then they say, “Detective Robinson, in your interview did
      you cover this? Did you cover this? Did you cover this? Did you
      cover this? And I’m gonna say, “Yes, we did.” “And were you able
      to explain away this, this, and this?” And from our interview today
      I’m gonna be able to tell them that I was able to explain this, I was
      able to explain this, but I was not able to explain this. And I was not
      able to explain this.

Schuetze claimed Arnold did not want to explain the neck and bottom injuries

“even though it’s the same charge.”

      Arnold alleges improper promises of leniency leading to impermissible

admissions of child endangerment:

             Prior to the officers’ promises, Arnold had admitted causing
      serious injury to L.W. by slamming her down, and to flicking her
      face, which resulted in bruising. The district court found both of
      these acts to meet the definition of child endangerment. But prior
      to the promises of leniency, Arnold had not admitted that he had left
      L.W. in the freezer too long, saying it was “retarded” that he had
      done that, but not intentional. He had also consistently maintained
      that the ligature marks [on her neck] were from an incident where
      L.W. had gotten wrapped up in her pajama bottoms and that he had
      not intentionally caused the injury.
                                         6



       Ultimately, Arnold admitted pulling the pajama bottoms harder because

“she would not stop moving.” Arnold also admitted to shaking L.W. and throwing

her on the bed due to his anger with her.

       On May 15, 2013, the district court found Arnold guilty of committing one

count of multiple acts of child endangerment (three or more acts) and guilty of

one count of neglect or abandonment of a dependent person. Pursuant to a

motion for judgment of acquittal, the court dismissed the charge of willful injury

causing serious injury because the State failed to “prove beyond a reasonable

doubt that Arnold had the specific intent to cause serious injury.”

       On July 3, 2013, Arnold was sentenced to a period not to exceed fifty

years for his multiple-acts-of-child-endangerment conviction and to a period not

to exceed ten years for his neglect-or-abandonment-of-a-dependent-person

conviction. The district court ordered the sentences to run concurrently. Arnold

appeals.

II. Standard of Review.

       A defendant may raise an ineffective-assistance claim on direct appeal if

he has reasonable grounds to believe the record is adequate for us to address

the claim on direct appeal. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). If

we determine the record is adequate, we may decide the claim. Id. We review

claims for ineffective assistance of counsel de novo. State v. Rodriguez, 804

N.W.2d 844, 848 (Iowa 2011). This is our standard because such claims have

their basis in the Sixth Amendment to the United States Constitution. State v.

Clay, 824 N.W.2d 488, 494 (Iowa 2012).
                                        7


III. Discussion.

      To succeed on his ineffective-assistance claim, Arnold must show by a

preponderance of the evidence (1) his counsel failed to perform an essential duty

and (2) prejudice resulted.     See Rodgriguez, 804 N.W.2d at 848.       To prove

counsel failed to perform an essential duty, Arnold must show “counsel’s

representation fell below an objective standard of reasonableness . . . under

prevailing professional norms.” See Strickland v. Washington, 466 U.S. 668, 688

(1984). In doing so, Arnold must overcome “a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” See

id. at 689. Prejudice occurs when “there is a reasonable probability that, but for

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

different.” Bowman v. State, 710 N.W.2d 200, 203 (Iowa 2006). We can affirm if

either prong is absent and need not engage in both prongs of the analysis if one

prong is lacking. See Everett v. State, 789 N.W.2d 151, 159 (Iowa 2010).

      “Ineffective assistance of counsel claims are an exception to our normal

rules of error preservation.”    Rodriguez, 804 N.W.2d at 848.      We generally

preserve   ineffective-assistance-of-counsel   claims   for   postconviction-relief

proceedings. State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011). “Only in rare

cases will the trial record alone be sufficient to resolve the claim on direct

appeal.” State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). We prefer to reserve

such claims for development of the record and to allow trial counsel to defend

against the charge. Id. If the record is inadequate to address the claim on direct

appeal, we must preserve the claim for a postconviction-relief proceeding,
                                           8

regardless of the potential viability of the claim.2 State v. Johnson, 784 N.W.2d

192, 198 (Iowa 2010). We find the record adequate to address Arnold’s claim

trial counsel was ineffective in failing to challenge a portion of Arnold’s

confession on the basis that it was a product of improper promises of leniency.

See State v. Howard, 825 N.W.2d 32, 40 (Iowa 2012) (stating statements

induced by promises of leniency are inadmissible).

       We conclude, even if Arnold can prove his counsel failed to perform an

essential duty, under these facts there was no prejudice resulting from counsel’s

failure. To prove Arnold was guilty of multiple acts of child endangerment, the

State was required to demonstrate Arnold engaged in conduct constituting three

or more acts of child endangerment. Iowa Code § 726.6A. Arnold concedes two

acts of child endangerment arising from the groin/leg injury and the facial bruising

but challenges the evidence of a third act of child endangerment.

       To prove child endangerment under section 726.6(1)(a), the State must

show the defendant “knowingly act[ed] in a manner that creates a substantial risk

to a child or minor’s physical, mental or emotional health or safety.” Knowledge

under section 726.6(1)(a) is “appreciation of the risk to the child or minor” created

by the defendant’s conduct. State v. Millsap, 704 N.W.2d 426, 430 (Iowa 2005).

Knowledge may be proved by direct evidence and also “by reasonable

inferences drawn from the circumstances surrounding the accident.” Id.




2
  See also Iowa Code § 814.7(3) (providing “[i]f an ineffective assistance of counsel
claim is raised on direct appeal from the criminal proceedings, the court may decide the
record is inadequate to decide the claim or may choose to preserve the claim for
determination under chapter 822.”).
                                        9


       Upon our review of the interview recording, Arnold admitted putting L.W. in

a freezer prior to the alleged improper promises of leniency. Arnold’s statements

after the alleged improper promises of leniency simply expanded on the freezer

injury and neck injury. Statements made by a defendant before a promise of

leniency are not inadmissible because of later promises. State v. Madsen, 813

N.W.2d 714, 727 (Iowa 2012).

       Even without Arnold’s challenged admission, the State presented

overwhelming evidence to prove a third act of child endangerment.          Stevie

testified Arnold “stood [L.W.] in the deep freeze because we didn’t have ice

packs at the time and was holding frozen stuff up to her bottom and—to help it,

and he went to get a towel, and when he came back, she was sitting in the deep

freeze.”   Stevie also testified there were no towels in the basement and the

“laundry was upstairs.” Dr. Jones explained that L.W. suffered a freezer burn

from sitting down in the freezer without underwear or pants. In his opinion, L.W.

suffered “a second-degree burn on her right buttock and a little bit on the right

side of her back.”

       Thus, the evidence established Arnold placed a two-year-old who was not

wearing any underwear or pants in a freezer and left her unattended in the

freezer when he walked away.        Such an act is dangerous and creates a

substantial risk of physical injury to the child arising from the cold. Because

Arnold walked away from L.W. with the knowledge she was in the freezer without

much clothing, we can reasonably infer he understood the substantial risk of
                                          10


injury to L.W.3 Accordingly, even without the challenged evidence, the State’s

other evidence is sufficient to prove Arnold knowingly subjected L.W. to a

substantial risk of harm constituting a third act of child endangerment.

       Because we find sufficient evidence of a third act of child endangerment

under section 726.6(1)(a), Arnold was not prejudiced by trial counsel’s failure to

seek suppression of statements made after alleged improper promises of

leniency. We affirm.

       AFFIRMED.




3
 Our supreme court has approved the following jury instruction in regard to “knowledge”
as an accurate statement of the law:
                The term “knew” or “knowledge” as used in these instructions
        refers to the defendant’s state of mind at the time or just prior to the
        commission of the offense with which he is charged. Because it is a state
        of mind, it is seldom capable of direct or positive proof. Ordinarily it must
        be determined from the words and conduct of the person and the just and
        reasonable inferences which may be drawn therefrom in accordance with
        common experience and observation. In determining the knowledge of a
        person, you have a right to infer that he knew the natural and probable
        consequences of his voluntary acts which ordinarily follows such acts.
State v. Rinehart, 283 N.W.2d 319, 321 (Iowa 1979) (emphasis added).
