                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0152
                              Filed August 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WALTER CORDELL WILLIAMS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Kellyann Lekar,

Judge.



      The defendant appeals from his convictions for involuntary manslaughter

while committing a public offense and child endangerment resulting in death.

AFFIRMED.



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

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.



      Considered by Mullins, P.J., Greer, J., and Potterfield, S.J.*

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

(2020).
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POTTERFIELD, Senior Judge.

       Walter Williams appeals from his convictions for involuntary manslaughter

while committing a public offense and child endangerment resulting in death.

Williams maintains there was insufficient evidence to support his conviction, makes

ineffective-assistance claims regarding counsel’s failure to object to some jury

instructions and move for a new trial based on the weight of the evidence,1 and

complains the court improperly imposed restitution.

I. Background Facts and Proceedings.

       Four-year-old J.H. was pronounced dead in the late hours of July 8, 2017.

After an autopsy two days later, the medical examiner determined J.H. died from

blunt force injuries to the chest and abdomen. Williams, who is the father of two

of J.H.’s younger siblings and who was caring for J.H. from approximately 1:00

p.m. on July 8 until the time he died, was charged with first degree murder,

pursuant to Iowa Code section 707.2(1)(e) (2017), and child endangerment

resulting in the death of a child, pursuant to Iowa Code section 726.6(4).

       Williams pled not guilty. Following an eight-day jury trial, he was convicted

of involuntary manslaughter while committing a public offense—a lesser-included

offense of first-degree murder—and child endangerment resulting in death of a


1 Judgment was entered against Williams on January 18, 2019, so the amended
Iowa Code section 814.7 (Supp. 2019) does not preclude him from raising these
claims of ineffective assistance on direct appeal. See State v. Damme, 944
N.W.2d 98, 103 n.1 (Iowa 2020) (noting “the 2019 amendments to Iowa Code
sections 814.6 and 814.7 do not apply retroactively to direct appeals from a
judgment and sentence entered before the statute’s effective date of July 1, 2019”
and “reiterat[ing] that date of the judgment being appealed controls the applicability
of the” amended code sections); see also Iowa Code § 814.7 (requiring defendants
to raise claims of ineffective assistance of counsel in application for postconviction
relief rather than on direct appeal).
                                          3


child. The court determined the two offenses merged and sentenced Williams only

under the child-endangerment conviction. Williams was sentenced to a term of

incarceration not to exceed fifty years. He appeals.

II. Discussion.

       A. Sufficiency of the Evidence.

       Williams challenges the sufficiency of the evidence for both of his

convictions. We review challenges to the sufficiency of the evidence for correction

of errors at law. State v. Romer, 832 N.W.2d 169, 174 (Iowa 2013). We will uphold

a defendant’s convictions when they are supported by substantial evidence. State

v. Williams, 674 N.W.2d 69, 71 (Iowa 2004).           “Substantial evidence means

evidence ‘that could convince a rational trier of fact that a defendant is guilty

beyond a reasonable doubt.’” Id. (citation omitted). In reviewing the evidence

supporting a guilty verdict, we “consider all the record of evidence viewed in the

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

fairly drawn from the evidence.” Romer, 832 N.W.2d at 174 (citation omitted).

       The State bears the burden of proving every element of the crimes beyond

a reasonable doubt. Williams, 674 N.W.2d at 71. As to both convictions, Williams

maintains the State failed to prove “the requisite intent for each charge or

alternative” and that it was Williams’s actions that directly caused the death of J.H.

We consider the evidence supporting each conviction in turn.

       Involuntary Manslaughter while Committing a Public Offense. For the

jury to properly convict Williams of involuntary manslaughter while committing a

public offense, the State had to prove all of the following:
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              1. On or about the 8th and 9th days of July, 2017, Walter
       Williams, recklessly committed the crime of:
              (a) child endangerment as defined in instruction No. 30 or
              (b) assault as defined in instruction No 31.
              2. When Walter Williams committed the crime, he
       unintentionally caused the death of [J.H.]

The jury was instructed that

       [a] person commits child endangerment when they are a parent or
       person having custody or control over a child under the age of
       fourteen years and acted with knowledge that their acts were
       creating a substantial risk to the child’s physical health or safety, or
       intentionally committed an act or a series of acts or used
       unreasonable force, torture or cruelty that resulted in physical injury
       to the child.

It was also instructed that assault

       occurs when a person does an act which was intended to cause pain
       or injury or result in physical contact which was insulting or offensive;
       or place another in fear of an immediate physical contact which
       would have been painful, injurious, insulting or offensive to them and
       had the apparent ability to do the act.
               “Apparent ability” means a reasonable person in Walter
       Williams’ position would expect that act to be carried out under the
       existing facts and circumstances.

       The evidence introduced at trial, when viewed in the light most favorable to

the State, supports this conviction. J.H.’s mother, Danielle, testified that four-year-

old J.H. was “his normal self,” “[h]yper and happy” at the time she left for work—

approximately 1:00 p.m. on July 8, 2017. Once Danielle left for work, Williams was

left in charge of J.H., J.H.’s four siblings, and J.H.’s twelve-year-old aunt, A.C.

According to A.C., J.H. was upstairs with Williams after Danielle left and A.C. heard

“constant[]” “stomping noises” coming from upstairs. J.H.’s oldest sister, who was

ten years old on July 8, described hearing “boom noises” while also hearing J.H.

scream and cry. Later, both girls saw vomit and blood on a towel upstairs. At

some point during the day, A.C. noticed J.H. appeared unable to walk and looked
                                           5


“sad.” Sometime after approximately 9:00 p.m., she saw J.H. without a shirt and

noticed “bruises going across his chest.” At this point, he was lying on Danielle’s

bed and it looked “like he couldn’t—like he wasn’t opening up his eyes.”

       Beginning at 11:24 p.m., Williams called his sister eight times and her fiancé

three times. On the eleventh call, his sister—who was studying to be a nurse—

answered. Williams immediately asked to speak to her fiancé and then asked him

to come over quickly. Only after making those eleven calls, Williams called 911 at

11:33 p.m. He reported he found J.H. unresponsive in the bathtub; he gave the

name of the sister’s fiancé as his when asked. When medical personnel arrived a

few minutes later, they noted J.H. was dressed in underwear and pants. They also

noted J.H., his clothes, the bed on which J.H. lying, and the bathtub were all dry.

J.H. was not breathing and did not have a pulse. He was transported to a local

hospital by ambulance and pronounced dead before midnight.

       Williams was interviewed by police in the early morning hours of July 9.

During the interview, he was asked if he ever hits J.H., and he responded, “Yep.”

At another point, Williams told the officer he “hit him all the time.”

       The medical examiner conducted an autopsy on July 10.             At trial, the

medical examiner testified J.H. had a “number of bruises” “in areas which were not

typical of where accidental bruises should be.” J.H. also had “patterned bruises,”

which “usually implies that the person was struck by some type of object.”

According to the doctor, the fact that J.H. had “clustered bruises, multiple bruises

in the same area, lots of bruises, and then the pattern bruises” gave him concern

“that this was some type of abuse case.” During the internal examination, the

medical examiner found blood in the right and left chest cavities and the peritoneal
                                           6


cavity; hemorrhaging and three tears in J.H.’s liver; and hemorrhaging in the

pancreas, right lung, and adrenal gland. He opined J.H. suffered these injuries

zero to forty-eight hours before his death. Based on these findings, the medical

examiner determined that J.H. died from blunt force injuries to the chest and

abdomen at the hands of another person—not due to an accidental injury.

       From this evidence, the jury could conclude that J.H. was uninjured when

his mother left for work.    Sometime between then and 11:33 p.m., Williams

repeatedly struck J.H.—causing the “constant[]” “boom” or “stomping” noises the

girls heard and leading J.H. to scream and cry. Williams was a man in his twenties,

while J.H. was four years old and weighed about forty pounds. J.H. was struck

with enough force to leave bruises covering his body and to cause internal

hemorrhaging of multiple organs. Therefore, sufficient evidence supports that

Williams’s repeated striking of J.H. in the chest and body was an intentional act or

a series of acts or use of unreasonable force, torture, or cruelty that resulted in

physical injury to J.H. (child endangerment) and an act which was intended to

cause pain or injury (assault). J.H. ultimately died from those injuries later.

       Child Endangerment Resulting in the Death of a Child. For the jury to

find Williams guilty of child endangerment resulting in the death of a child, the

State had to prove all of the following:

               1. On or about the 8th and 9th days of July, 2017, Walter
       Williams was the parent or person having custody or control of [J.H.]
               2. [J.H.] was under the age of fourteen years.
               3. (a) Walter Williams acted with knowledge that his acts were
       creating a substantial risk to [J.H.’s] physical health or safety, or
               (b) Walter Williams intentionally committed an act or a series
       of acts or used unreasonable force, torture or cruelty that resulted in
       bodily injury to [J.H.]
               4. Walter Williams’ acts resulted in the death of [J.H.]
                                            7



Here, the jury answered an additional interrogatory indicating that some members

of the jury found Williams acted with knowledge that this acts were creating a

substantial risk to J.H.’s physical health or safety and other jurors found that

Williams intentionally committed an act or a series of acts or used unreasonable

force, torture, or cruelty that resulted in bodily injury to J.H.

       The first alternative, “acted with knowledge that his acts were creating a

substantial risk to [J.H.’s] physical health or safety,” requires a finding that Williams

knowingly acted and knowingly created a substantial risk to J.H.’s physical health

or safety. See State v. Schlitter, 881 N.W.2d 380, 390 (Iowa 2016).               “[T]he

definition of ‘substantial risk’ in the context of child endangerment is: The very real

possibility of a danger to a child physical’s health or safety.” State v. Anspach, 627

N.W.2d 227, 233 (Iowa 2001). The jury could reasonably conclude Williams, who

was much larger than J.H., repeatedly struck J.H. with enough force that it left

bruises covering J.H.’s body and caused hemorrhaging of several internal organs.

Thus, the jury could find Williams knowingly acted in a way that put J.H.’s physical

health at a substantial risk. The jury was aided in this finding by the instruction

that it could infer Williams intended the natural result of his actions.

       The second alternative, that Williams “intentionally committed an act or a

series of acts or used unreasonable force, torture or cruelty that resulted in bodily

injury to [J.H.]” is the same element required to find Williams guilty under the child-

endangerment alternative in involuntary manslaughter while committing a public

offense. As we already concluded the jury could reasonably make such a finding
                                          8


under the other conviction, we reach the same conclusion for the same reasons

here.

        Substantial evidence supports both of Williams’s convictions.

        B. Ineffective Assistance.

        Williams raises four claims under the ineffective-assistance framework. He

argues counsel was ineffective for failing to challenge three jury instructions and

for failing to move for a new trial based on the weight of the evidence.

        “In order to support a claim of ineffective assistance of counsel, a defendant

must show (1) that counsel failed to perform an essential duty and (2) that prejudice

resulted.” State v. Kuhse, 937 N.W.2d 627, 628 (Iowa 2019). “To prove counsel

failed to perform an essential duty, the defendant ‘must show that counsel’s

performance was deficient,’ meaning counsel ‘made errors so serious that counsel

was not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment.’” Id. (citation omitted). “The crux of the prejudice component rests

on whether the defendant has shown ‘that there is a reasonable probability that,

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

been different.’” Id. (citation omitted). To establish prejudice in the context of his

ineffective-assistance-of-counsel claims, Williams must show a reasonable

probability that the result of the trial would have been different. See id. “The

likelihood of a different result must be substantial, not just conceivable.         A

defendant must show the probability of a different result is sufficient to undermine

confidence in the outcome.” Id. (citation omitted). We must “consider the totality

of the evidence, identify what factual findings would have been affected, and

determine if the error was pervasive or isolated and trivial.” Id. (citation omitted).
                                           9


Here, because Williams raises four claims of ineffective assistance, “we should

look to the cumulative effect of counsel’s errors to determine whether [he] satisfied

the prejudice prong of the Strickland test.” State v. Clay, 824 N.W.2d 488, 500

(Iowa 2012).

       Jury Instruction No. 29: Specific Intent. Williams maintains counsel

provided ineffective assistance in failing to object to the specific-intent instruction,

which included this: “Specific intent does not have to exist for any particular length

of time. It is sufficient if it exists any time before the act.” (Emphasis added.)

Williams maintains this is an incorrect statement of law and allowed the jury to

convict him of child endangerment resulting in death if it found he had the specific

intent to cause J.H. bodily injury at any time prior to J.H.’s injuries.

       Our supreme court has previously ruled that “specific intent is linked to the

proscribed act and therefore must be present at the time of the proscribed act.”

State v. Hanes, 790 N.W.2d 545, 556 (Iowa 2010).              It is likely trial counsel

breached an essential duty by failing to object to this improper instruction. See id.

(deciding the court “need not address whether defense counsel’s failure to object

[to this instruction] was deficient and caused [the defendant] prejudice” because

the court reversed on other grounds).

       Jury Instruction No. 18: Williams’s Out-of-Court Statements. Williams

maintains counsel breached an essential duty in failing to object to the jury

instruction regarding his out-of-court statements, which states, “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
                                          10

as part of the evidence, just as if they had been made at this trial.” (Emphasis

added.)

       At the time of Williams’s trial in October 2018, this model jury instruction had

been amended to delete the phrase “just as if they had been made at this trial’, but

not yet been ruled an incorrect statement of the law. See, e.g., State v. Chrzan,

No. 18-1327, 2019 WL 5067174, at *3 (Iowa Ct. App. Oct. 9, 2019) (collecting

cases where the Iowa Court of Appeals rejected the contention the jury instruction

misstated the law). Only recently, our supreme court ruled it is a misstatement of

the law and erroneous. See State v. Shorter, 945 N.W.2d 1, 4-5 (Iowa 2020). We

“do not expect counsel to anticipate changes in the law,” and generally conclude

“counsel will not be found ineffective for a lack of ‘clairvoyance.’” Millam v. State,

745 N.W.2d 719, 722 (Iowa 2008). Though we note at least one panel of our court

found counsel breached an essential duty in failing to object to this instruction

when it was used in a trial after the model instruction was updated to strike the

challenged language in June 2018. See State v. Stroud, No. 19-0457, 2020 WL

3571856, at *2 (Iowa Ct. App. July 1, 2020).

       Instruction No. 32: Caused or Directly Contributed.              Williams also

challenges his counsel’s failure to object to instruction no. 32, which states, “The

injury inflicted by Walter Williams upon [J.H.] resulted in the death of [J.H.] if it

caused or directly contributed to [J.H.]’s death.” Williams argues this instruction is

improper because it presumes Williams inflicted an injury on J.H. and does not

refer to any other instruction or element to explain its purpose. He maintains the

way this instruction was drafted “lessened the State’s burden to prove an essential

element of child endangerment resulting in death.” The State responds that the
                                            11


instructions, when read as a whole, properly instruct the jury and alleviate any

concerns that the jury believed it was directed to find Williams injured J.H.

       Prejudice regarding Jury Instructions. Despite Williams’s contention

otherwise, the prejudice necessary to find reversible error under the ineffective-

assistance framework—Strickland prejudice—does not automatically result from a

failure to object to an incorrect jury instruction. As our supreme court “recently

emphasized,” “presumed-prejudice standard applies to preserved errors in jury

instruction” but “an ineffective-assistance-of-counsel claim based on failure to

preserve jury instruction error must demonstrate deficiency and prejudice.” Kuhse,

937 N.W.2d at 629; see also Shorter, 945 N.W.2d at 11 (noting that, although the

out-of-court-statement instruction was erroneous, “[t]his does not mean that the

instruction is necessarily prejudicial in a given case”).

       We have made it clear that ineffective-assistance-of-counsel claims
       based on failure to preserve error are not to be reviewed on the basis
       of whether the claimed error would have required reversal if it had
       been preserved at trial. Rather, a defendant must demonstrate a
       breach of an essential duty and prejudice.

State v. Maxwell, 743 N.W.2d 185, 196 (Iowa 2008).

       As the State recognizes, Williams has not attempted to establish how he

was prejudiced by counsel’s failure to object to these instructions. But this requires

us to preserve Williams’s claims for possible postconviction-relief proceedings

rather than reject the claims. See State v. Harris, 919 N.W.2d 753, 754 (Iowa

2018) (“If the development of the ineffective-assistance claim in the appellate brief

was insufficient to allow its consideration, the court of appeals should not consider

the claim, but it should not outright reject it.”).
                                         12


       Weight of the Evidence. Williams also argues trial counsel was ineffective

for failing to move for a new trial based on the verdict being contrary to the weight

of the evidence. Williams tacks this claim on to argument regarding sufficiency of

the evidence. He lists the applicable legal standards, but he does not articulate

how the weight of the evidence fails to support the verdict. See State v. Ellis, 578

N.W.2d 655, 659 (Iowa 1998) (recognizing the “distinction between a sufficiency-

of-the-evidence standard and a weight-of-the-evidence standard.”).               This

argument is not sufficiently developed to enable our review of it. See, e.g., State

v. Oliver, No. 19-0208, 2020 WL 2487610, at *3 n.2 (Iowa Ct. App. May 13, 2020)

(refusing to consider defendant’s claim because defendant’s appellate “brief does

not contain an argument for us to address the weight-of-the-evidence issue based

upon ineffective assistance of counsel”). Additionally, as Williams argues for

cumulative prejudice and we preserve his other claims of ineffective assistance,

we preserve this one as well. See State v. Trane, 934 N.W.2d 447, 466 (Iowa

2019) (preserving a claim of ineffective assistance because “it will facilitate

consideration ‘of the cumulative effect of the prejudice arising from all the claims’”

(citation omitted)).

       We preserve each of Williams’s claims of ineffective assistance for possible

postconviction-relief proceedings. See Harris, 919 N.W.2d at 754.

       C. Restitution.

       Williams argues the district court erred in ordering him to pay his court costs

without first determining if he had the reasonability to pay. At the time it filed its

appellate brief, the State conceded that case law required us to vacate that portion

of the district court’s sentencing order and remand for an ability-to-pay
                                          13

determination. See State v. Albright, 925 N.W.2d 159–160 (Iowa 2019) (ruling the

court “can only assess” court courts “against the offender in an amount

commensurate with the offender’s reasonable ability to pay).

       However, since then, new laws regarding restitution took effect. Effective

June 25, 2020, Senate File 457 (the Act) changes the process for determining

offenders’ reasonable ability to pay restitution in criminal cases. See 2020 Iowa

Acts, ch. 1074, § 59–83. The Act provides the “[c]onversion of existing restitution

orders,” including any temporary or supplemental restitution order or “restitution

order that does not contain a determination of the defendant’s reasonable ability

to pay,” that were entered by a district court prior to the effective date “shall be

converted to permanent restitution orders.” Id. at § 73 (to be codified as Iowa Code

§ 910.2B(1) (2021)). The Act also provides, “The only means by which a defendant

may challenge the conversion . . . is through the filing of a petition pursuant to

section 910.7.” Id. at § 73 (to be codified as Iowa Code § 910.2B(2)). The new

provisions apply to the challenge of a conversion order both in the district court

and on appeal. Id. at § 73 (to be codified as Iowa Code § 910.2B(3)). And, under

another new subsection 910.7(4), “An appellate court shall not review or modify an

offender’s plan of restitution, restitution plan of payment, or any other issue related

to an offender’s restitution . . . unless the offender has exhausted the offender’s

remedies under this section and obtained a ruling from the district court . . . .” In

addition, “[a]ppellate review of a district court ruling under [section 910.7] shall be

by writ of certiorari.” Id. at § 80 (to be codified as Iowa Code § 910.7(5)).

       Because the Act removes our statutory authority to review or modify a plan

of restitution before an offender exhausts the new district court remedies, we are
                                          14

unable to consider the issue raised on appeal. See id. at § 73 (to be codified as

Iowa Code § 910.2B(3)) (“The provisions of this chapter, including but not limited

to the procedures in section 910.2A, shall apply to a challenge to the conversion

of an existing restitution order in the district court and on appeal.”).

       Thus, we affirm the sentences and leave to Williams the opportunity, once

jurisdiction returns to the district court, to challenge the conversion of the existing

order under the new rules of sections 910.2A (describing new procedures for

ordering and challenging the reasonable-ability-to-pay determination for category

“B” restitution payments), 910.2B (describing procedures for converting and

challenging existing restitution orders), 910.3 (determining the amount of

restitution), and 910.7 (describing the only procedure for challenging the

conversion of a restitution order). See also Iowa Supreme Ct. Supervisory Order,

In the Matter of Interim Procedures Governing Ability to Pay Determinations and

Conversion of Restitution Orders (July 7, 2020) (setting out additional relevant

rules and deadlines).

III. Conclusion.

       Substantial evidence supports Williams’s convictions, so we affirm.

Because Williams’s claims of ineffective assistance are not sufficiently developed

for our review, we preserve each of those claims for possible postconviction-relief

proceedings. Due to the recently-enacted SF 457 and the resulting changes in the

law regarding restitution, we affirm Williams’s sentences and leave it to him, once

jurisdiction returns to the district court, to challenge restitution under the new laws.

       AFFIRMED.
