                      IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0218
                                 Filed May 20, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSEPH EDWARD ALBERT OLEA,
     Defendant-Appellant.
________________________________________________________________


         Appeal from the Iowa District Court for Jasper County, Randy V. Hefner,

Judge.



         Joseph Olea appeals from his conviction for child endangerment causing

death.     CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND

REMANDED.



         Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

         Thomas J. Miller, Attorney General, Heather R. Quick (until withdrawal)

and Kevin Cmelik, Assistant Attorneys General, Mike Jacobsen, County Attorney,

and Scott Nicholson, Assistant County Attorney, for appellee.



         Heard by Vogel, P.J., and Potterfield and Mullins, JJ.
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VOGEL, P.J.

       Joseph Olea appeals from his conviction for child endangerment causing

the death of his child, K.O. He asserts the evidence was insufficient to support

the jury’s guilty verdict and that the district court imposed an illegal sentence

when it ordered him to pay the costs of the child’s autopsy, asserting it did not

have the statutory authority to do so.       He further argues the presence of a

thirteenth juror—assumedly—during deliberations violated his due process rights.

We conclude sufficient evidence supports Olea’s conviction, given the many

experts who testified that K.O.’s cause of death was shaken baby syndrome and

Olea was the only one present during the timeframe in which the injury occurred.

However, we agree with his claim the district court imposed an illegal sentence

when it ordered him to pay the costs of K.O.’s autopsy, as it did not have the

statutory authority to do so. With regard to Olea’s assertion his constitutional

rights were violated when a thirteenth juror was perhaps present for

deliberations, the record is inadequate to address this claim, and therefore we

preserve this claim for possible postconviction relief proceedings. Consequently,

we affirm Olea’s conviction but vacate the portion of his sentence requiring him to

pay the costs of K.O.’s autopsy and remand for entry of a corrected sentencing

order consistent with this ruling.

I. Factual and Procedural Background

       Olea was the father of K.O., who was six months old at the time of his

death. K.O.’s last medical appointment on January 9, 2012, established he was

healthy. Olea and K.O.’s mother, Chelsea Miller, lived together with K.O. On

January 10, 2012, Miller woke about 5:00 a.m. and peeked in on K.O. before
                                         3


leaving for work, entrusting K.O.’s care to Olea. At trial, Miller testified K.O. was

not fussier than normal the night before and that he took his nighttime bottle

appropriately.

       At trial, Olea testified K.O. was fussier than normal on the days leading up

to his death. He also stated K.O. did not take his first bottle on January 10 and

that he noticed K.O. was arching his back and sticking out his stomach when he

first woke up. This differed from Olea’s statements to Officers Wayne Winchell

and Wesley Breckenridge on January 11 and 12.             In a recorded interview

admitted into evidence, he stated K.O. woke up between 7:30 and 8:00 a.m.,

drank his bottle, and the two went back to sleep. Upon waking, Olea noticed

K.O. was fussy, arching his back, sticking out his stomach, and had a fever.

       Olea gave K.O. infant Tylenol early that morning, which broke his fever.

Miller called Olea at her mid-morning break, and Olea informed her K.O. was not

feeling well. K.O. took his second bottle slowly but then vomited, throwing up a

total of four times that morning. Miller called Olea during her lunch break and

Olea told her K.O. had vomited.       Miller stated Olea should call the doctor if

necessary, though Olea did not do so.         Miller also called Olea during her

afternoon break, at which time Olea informed her K.O. was arching his back.

When Miller came home at approximately 3:30 p.m. K.O. appeared very ill—his

body was flimsy, he was not breathing well, and his eyes were dark. She and

Olea took him to the hospital, where the doctors gave him oxygen and intubated

him.

       Due to the severity of his condition, K.O. was LifeFlighted to Blank

Children’s Hospital in Des Moines. Following a C.T. scan, the pediatric intensive
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care physician concluded K.O. suffered a severe brain injury. K.O.’s symptoms

included extensive retinal hemorrhaging, retinal folds, and retinoschisis cavities

in his eyes, as well as bleeding, swelling, and lack of oxygen in the brain. Given

these symptoms, all subsequent examining physicians concluded his injuries

were due to abusive head trauma. On January 15, K.O. was declared brain dead

and was taken off life support.

       While at the hospital, prior to K.O.’s death, Olea was very agitated. He

expressed a great deal of anger, yelled at the staff, and was defensive when

doctors inquired as to what had happened to K.O. The staff called security in

response to Olea’s behavior. He also told Miller that he did not want “her f***ing

mother there,” and stated: “You guys are all going to think I did something.” He

further informed Miller he did not want her talking to anyone outside his presence

and would not leave her alone, including sitting in the bathroom when she was

showering at the hospital. Additionally, Olea stood over K.O.’s bed crying and

stating multiple times “I’m sorry [K.O.].” At trial, Miller testified Olea had recently

lost his job and they fought nearly daily, primarily about Olea finding other

employment. She further stated Olea had been jealous in the past because

Miller seemed to love K.O. more than she loved Olea and expressed more

affection towards him than Olea.

       An autopsy on K.O.’s body was performed by Michelle Catellier, M.D.,

associate medical examiner for the State of Iowa. She ruled out a variety of

causes to his death including meningitis, brain infection, spinal cord infection,

metabolic deficiencies, bacterial infections, and cortical vein thrombosis. She

further observed three bruises on K.O.’s scalp, redness in other areas on his
                                           5


head, and bruises on both sides of his ribs. Due to these observations, as well

as the bleeding in the back of his neck and in the muscles, Dr. Catellier

concluded K.O. died from blunt force injury to the head and neck, caused by a

blow or rapid movement.

       On August 6, 2012, Olea was charged with first-degree murder, in

violation of Iowa Code sections 707.1 and 707.2(5) (2011), as well as the lesser-

included offense of child endangerment causing death, in violation of sections

726.6(1)(b), 726.6(3), and 726.6(4). A jury trial was held from January 21 to

January 28, 2014, after which the jury returned a verdict of guilty to the charge of

child endangerment causing death.

       There were several medical experts who testified at trial, including both

treating physicians—Tracy Ekhardt, M.D., and Kenneth McCann, M.D.—as well

as forensic experts Jean Spencer, M.D., Nasreen Syed, M.D., Dr. Catellier, and

Patricia Kirby, M.D.1 Drs. Syed, McCann, Spencer, and Catellier testified that,

given the specific symptoms from which K.O. suffered as well as the progression

of the symptoms, he died of some form of blunt force, inflicted injury, which was

either a shaking or a slamming. Dr. Ekhardt opined that, though she could not

say what caused the trauma, K.O. died from an inflicted trauma. Dr. Kirby also

testified and agreed with the other physicians that K.O. died from a trauma injury.



1
  Dr. Ekhardt, a pediatric intensive care physician, was K.O.’s treating doctor when he
was first admitted to Blank Children’s Hospital. She consulted with Dr. McCann, a child
abuse pediatrician, who examined K.O. after his C.T. scan.             After K.O. died,
Dr. Spencer, a pediatric ophthalmologist, examined K.O.’s eyes to determine whether he
suffered from abusive head trauma. The State’s medical examiner, Dr. Catellier, sent
K.O.’s eyes for further examination to Dr. Syed, an ophthalmologist at the University of
Iowa Hospitals and Clinics. Dr. Catellier also sent K.O.’s brain to Dr. Kirby, a
neuropathologist at the University of Iowa Hospitals and Clinics.
                                         6


       The defense expert, Zhongxue Hua, M.D., testified that, to a reasonable

degree of medical certainty, K.O. died from cortical vein thrombosis. He came to

this conclusion after examining K.O. post-mortem. Dr. Hua then explained this is

a disorder that causes the blood to clot inside of blood vessels, which prevents

the blood from leaving the brain. This in turn causes extensive hemorrhaging

and swelling in the brain, which causes death. He based this opinion on the

presence of recanalization and calcification in the blood vessels, which occurs

when the vessel attempts to move or punch through the thrombosis so the blood

may flow normally again. Dr. Hua opined this recanalization and calcification

indicated the thrombosis was at least ten days old, which was supported by

Olea’s claim that K.O. was fussy before his admission to the hospital. He further

testified that this is a very rare disease that affects approximately 1 in 200,000

people and is not always fatal. None of the State’s experts agreed with Dr. Hua’s

opinion that K.O.’s death was caused by cortical vein thrombosis, due to the

nature of K.O.’s injuries.

       Following the guilty verdict, Olea moved for a judgment of acquittal,

arguing the evidence did not support the verdict. The district court denied the

motion.   Defense counsel then requested the jury be polled.         The transcript

indicated a thirteenth juror responded “yes” when asked by the district court if the

guilty verdict was each juror’s verdict. No objection was made. On February 10,

the district court sentenced Olea to a term of incarceration not to exceed fifty

years and also ordered him to pay various fees, including the cost of K.O.’s

autopsy. Olea appeals.
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II. Standard of Review

       We review claims for sufficiency of the evidence for correction of errors at

law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). We view the evidence in

the light most favorable to the prevailing party—here, the State—and make all

reasonable inferences that may be deduced from the record. Id. The jury’s

findings are binding on appeal if supported by substantial evidence. Id.

       With regard to Olea’s claim the district court imposed an illegal sentence,

we review for correction of errors at law. See State v. Bruegger, 773 N.W.2d

862, 869 (Iowa 2009). To the extent we are addressing constitutional claims, our

review is de novo. Id.

III. Sufficiency of the Evidence

       Olea first asserts sufficient evidence does not support the jury’s guilty

verdict.   He argues the State’s medical experts and the treating physicians

missed signs that K.O. suffered from a pre-existing medical condition known as

cortical vein thrombosis, which was the conclusion the defense expert supported;

thus, his conviction should be vacated because the evidence established K.O.’s

death was due to a disease, rather than physical trauma. Olea also argues,

alternatively, that there is insufficient evidence he was the person who caused

K.O.’s injury and subsequent death.

       To prove Olea committed the crime of child endangerment causing death,

the jury was instructed that the State was required to show, beyond a reasonable

doubt, that: (1) Olea had custody and control of a child (K.O.); (2) K.O. was less

than fourteen years old; (3) Olea intentionally used unreasonable force, torture,
                                        8


or cruelty against K.O.; and (4) this act of child endangerment resulted in K.O.’s

death. See Iowa Code §§ 726.6(1)(b) & 726.6(4).

      The issue of K.O.’s cause of death was a matter of competing expert

opinions. Extensive testimony from well-qualified physicians who either treated

K.O. or examined his body after his death indicated K.O. died from inflicted

trauma. They further opined that this acute trauma was due to a shaking or

slamming, given the nature of K.O.’s injuries—particularly the injuries to his eyes

and the trauma to his brain. Dr. Hua, the defense’s expert, testified this was an

incorrect diagnosis and that K.O. died from the disease of cortical vein

thrombosis. However, this opinion was not shared by any of the State’s experts,

with several specifically ruling out this possibility as the cause of death,

particularly because of the bruises on K.O.’s head and ribs.

      As our supreme court has noted, “it is solely the province of the jury to

determine what weight expert testimony should receive.” State v. Lindsey, 302

N.W.2d 98, 103 (Iowa 1980); see also Cedar Rapids Comty. Sch. Dist. v. Pease,

807 N.W.2d 839, 850 (Iowa 2011). Given the extensive testimony indicating K.O.

died from an inflicted trauma that was a shaking or slamming, as well as our case

law establishing the credibility and weight of expert testimony is within the fact

finder’s purview, substantial evidence supports the jury’s conclusion K.O. died

from an inflicted trauma. This conclusion is also reinforced by the requirement

that we are to view the evidence in the light most favorable to the verdict—and, in

this case, the great weight of the evidence is in favor of the guilty verdict. See

Thomas, 561 N.W.2d at 39.
                                         9


      Sufficient evidence also supports the jury’s finding that Olea was the one

who inflicted the injury causing K.O.’s death.       Drs. Catellier, Ekhardt, and

McCann testified K.O. would have begun to show severe symptoms, such as

arching his back and limpness, immediately after the injury occurred. These

physicians opined that, given the timeframe in which K.O. began to exhibit these

symptoms, the trauma occurred mid-morning to early afternoon on January 9. It

is undisputed K.O. was in Olea’s sole care during this timeframe.

      The doctors’ testimony regarding the timeframe is also supported by the

information Olea gave to the investigating officers, that K.O. appeared somewhat

fussy the night before but otherwise normal, took his first morning bottle well, and

only exhibited severe symptoms after the two woke up from their nap. Though

Olea stated at trial K.O. appeared fussy and in pain prior to the morning of

January 9, the jury was free to place more weight on Olea’s statements to the

officers. See Lindsey, 302 N.W.2d at 103. Moreover, these statements were

closer in time to K.O.’s death than his trial testimony, which was two years later.

See generally State v. Fletcher, 286 N.W.2d 215, 217 (Iowa 1979) (noting

contemporaneous statements are more reliable).              Therefore, substantial

evidence supports the jury’s conclusion Olea was responsible for the injury

causing K.O.’s death. See State v. Sayles, 662 N.W.2d 1, 6–7 (Iowa 2003)

(rejecting sufficiency challenge because the child’s condition deteriorated while in

the defendant’s care, and experts testified that the victim would have

“immediately exhibited symptoms of shaken baby syndrome”). Consequently, we

affirm Olea’s conviction for child endangerment resulting in death.
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IV. Autopsy Costs

       Olea next claims the district court imposed an illegal sentence when it

ordered him to pay the costs of K.O.’s autopsy. Specifically, he asserts the court

lacked the statutory authority to order him to pay these costs, and, therefore,

imposed an illegal sentence. The State concedes the court erred in this regard.

       Iowa Code section 331.802(2)(b) (2013) states a defendant is responsible

for the costs of the victim’s autopsy if convicted of certain offenses. However,

child endangerment resulting in death is not included in this list, which indicates

the legislature did not intend for this to be a crime that would render the

defendant responsible for the autopsy cost. See Iowa Code § 331.802(2)(b); see

also State v. Wolford Corp., 689 N.W.2d 471, 475 (Iowa 2004) (“[T]he legislature

expresses its intent by omission.”). Moreover, the cost of an autopsy is not listed

as a cost under either Iowa Code sections 625.14 or 815.13, the code sections

specifying the costs for which a convicted defendant is responsible.

Consequently, we conclude the district court erred in ordering Olea to pay for the

cost of K.O.’s autopsy, and we vacate this portion of the sentence and remand

for entry of a corrected sentencing order consistent with this ruling.

V. Thirteenth Juror

       Olea’s final claim asserts the presence of a thirteenth juror during

deliberations violated his right to a fair trial and due process under the Iowa

Constitution. He cites the fact the thirteenth juror—who had been selected as an

alternate—stated, when polled, that the guilty verdict was her verdict. Thus, he

assumes she participated in the jury deliberations, which resulted in a structural

error in violation of article I, sections 9 and 10 of the Iowa Constitution.
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Therefore, he asserts, our court should vacate his conviction and order a new

trial. Alternatively, he claims trial counsel was ineffective for failing to make an

objection in this regard.

       As an initial matter, Olea did not preserve error on this claim—he

conceded he did not object at trial, and therefore the district court made no ruling

on this issue. See Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (noting

that if counsel fails to object and the district court does not rule on the issue, error

is not preserved). Furthermore, our case law counsels the potential existence of

a thirteenth juror during deliberations requires an objection for error to be

preserved. See State v. Epps, 313 N.W.2d 553, 555–56 (Iowa 1981) (holding

the defendant did not preserve error when he failed to object when a thirteenth

juror was present during the beginning of deliberations). Consequently, we will

review this claim within an ineffective-assistance-of-counsel framework.

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

the record is adequate to address the claim. State v. Straw, 709 N.W.2d 128,

133 (Iowa 2006). We may either decide the record is adequate and issue a

ruling on the merits, or we may choose to preserve the claim for postconviction

proceedings. Id. We review ineffective-assistance-of-counsel claims de novo.

Id.   To succeed on this claim, the defendant must show, first, that counsel

breached an essential duty, and second, that he was prejudiced by counsel’s

failure. Id.

       Given the sparse record present here, there is not an adequate basis on

which we may decide this claim. See State v. Truesdell, 679 N.W.2d 611, 616

(Iowa 2004) (“Ordinarily, ineffective assistance of counsel claims are best
                                             12


resolved by postconviction proceedings to enable a complete record to be

developed and afford trial counsel an opportunity to respond to the claim.”). The

only information present in the record shows a thirteenth juror responded to the

district court’s polling when it inquired whether the guilty verdict was each juror’s

verdict. This does not clearly establish the alternate was present during the

actual deliberations, given she could have simply remained in the courtroom.

Therefore, the record is inadequate to address Olea’s claim, and it is preserved

for possible postconviction relief proceedings, where a more complete record

may be established. See id.; see also Straw, 709 N.W.2d at 133.

       Based on the foregoing conclusions, we affirm Olea’s conviction of child

endangerment causing death but vacate the portion of his sentence requiring him

to pay the costs of K.O.’s autopsy.           Furthermore, we preserve for possible

postconviction-relief proceedings his claim of error that a thirteenth juror was

present for deliberations, in violation of his right to a fair trial.

       CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND

REMANDED.
