Appeal from the Iowa District Court for Woodbury County, Steven J. Andreasen, Judge.
The opinion of the court was delivered by: Tabor, J.
Robert Everett appeals his conviction for child endangerment resulting in bodily injury, in violation of Iowa Code sections 726.6(1)(a), 726.6(1)(b), and 726.6(6) (2011). AFFIRMED.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
The question in this appeal is whether the prosecutor improperly drew attention to Robert Everett's decision not to testify at his child endangerment trial and, if so, whether the badly chosen remarks deprived Everett of a fair trial. In closing argument, the prosecutor urged the jury to believe the accuser's testimony because the child "was sworn to tell the truth . . . in contrast to the defendant when he is talking to the investigators."
We find the comments were improper because jurors would "naturally and necessarily" interpret the prosecutor's juxtaposition of the child's experience on the witness stand with Everett's unsworn statements as an allusion to Everett's failure to testify. Nevertheless, the impropriety does not require a new trial. The State corroborated the child's version of the events with physical evidence and admissions by Everett. The prosecutor's isolated comment did not prejudice Everett's substantial rights in the context of the whole trial. Accordingly, we affirm his conviction for child endangerment resulting in bodily injury.
I. Background Facts and Proceedings
A jury could have found the following facts from the evidence offered at trial. Ten-year-old D.E. lived with his mother in Sioux City, but spent several weeks during the summer of 2011 staying with his father Robert Everett in Correctionville. D.E. remembers his father spanking him almost every day of the visit.
The last day was particularly punishing. On August 15, 2011, Everett took his son along to work at a bin site on a farm outside of Anthon. On the bin site, Everett cut up pieces of metal, and D.E. helped haul the scraps. Everett was unhappy with D.E.'s performance and yelled at him "really loud like-like screaming at the top of his voice." D.E. started to cry. His father did not like it when he cried. When the ten-year-old cried, Everett forced him to stand on his "tippy toes" with his heels raised from the ground. D.E. recalled his father yelling: "Water works don't work with me. I'm going to check on you every ten minutes until you are done crying. Every time you are not done crying, I'm going to spank you five times-no ten times really hard." When D.E. did not stop crying, his father told him, "Grab your ankles." When D.E. bent over, Everett "would swat [him] ten times really hard on the butt." D.E. recalled his father repeating the ten-minute intervals of tip-toe balancing followed by the ten blows to his buttocks six or seven times. The spankings hurt worse each time, as Everett used ever increasing force.
Everett paused the spankings for lunch time, eating a sandwich with his son in the truck. During lunch, Everett asked D.E. a question. Because D.E. did not know the answer and his father had previously told him "'I don't know' isn't an answer," D.E. stayed silent. Everett responded by poking D.E. in the head with a finger, then grabbing him by the arm, and pulling him out of the truck. Everett continued to ask D.E. the question and swatted the boy's buttocks with his hand when he would not answer. Eventually, D.E. started screaming: "I want to go home." Everett then took off his studded belt and spanked his son with it. D.E. testified: "He folded it in half so the studs were hitting me." D.E. squirmed, and one of the belt strikes grazed his lower back. Everett told D.E. that hitting his back was an accident. D.E. was crying so hard he started to vomit. Everett reacted by stripping off his son's shirt and shoving it into the boy's mouth. At the end of the day, Everett showed his son the studded belt had split in half, saying, "See what you did? Now I have to get a new belt."
That night, Everett returned D.E. to his home in Sioux City. D.E. did not immediately tell his mother what happened. But two days later his little brother noticed the bruising when they were showering together, saying: "Wow [D.E.] your butt is dirty." D.E. then showed his mother the large purple bruise. D.E.'s mother photographed her son's injury and immediately called Everett to confront him. She also reported the abuse to law enforcement. Woodbury County Sheriff's Deputy Ryan Peterson spoke with D.E. and viewed the six- to eight-inch circular bruise on the boy's buttock.
D.E. received a referral to the Mercy Child Advocacy Center in Sioux City. The Mercy nurse who examined D.E. described "a very large patch of bruising that covers about 40 percent of the butt cheek. It's very, very different colors. There is greens and yellows and black, red, purple." The nurse explained it was "more difficult to cause injury to a buttock just because there is a lot of adipose or fat tissue that has more cushion compared to an area like, say over a boney area of the cheek or your arm." She said it was uncommon to see bruising that extensive and expressed her opinion that it was caused by the use of "unreasonable" and "excessive force."
Everett agreed to an interview at the sheriff's office on August 25, 2011. He spoke with Detective Peterson and Chantel Rol, a social worker from the Department of Human Services. Everett admitted spanking his son during the summer visitation but estimated no more than four or five times. Everett also admitted using a belt on the boy once or twice but denied ever owning a studded belt. Everett acknowledged recently purchasing a new belt, but only because his old one had worn out.
When asked about August 15, Everett said he spanked D.E. at the bin site. In fact, Everett's version of that day largely paralleled D.E.'s recollection, though Everett was hesitant to take responsibility for causing his son's injury. Early in the interview, Everett told the investigators he had "no idea" how D.E. suffered the severe bruising and he was "pretty sure he didn't leave that there." He suggested his son bruised easily and may have injured himself by "flopping on the ground" or maybe it happened while they were "wrestling around." But Everett did confirm he was frustrated with his son for "not doing things correctly" at the bin site and spanked him just once, using ten swats. Everett also said he forced D.E. to stand on his "tippy toes" for ten minutes at a time until he stopped crying, because "you can't talk to no one when they're crying." Everett said he had to interrupt his work and check on D.E. every ten minutes for an hour and a half because he would not stop crying. Everett said D.E. was hyperventilating so Everett "stuck his shirt in his mouth to keep the drool from getting all over him." Everett said D.E. "wasn't liking the treatment" and asked to go home. When the investigator asked if he used a belt to spank D.E., Everett responded: "if it was a belt wouldn't there be welts?"
About an hour into the interview, Everett started hedging a bit, saying, "If I did it, I'm so sorry that I did it, but I don't know where the bruises came from." He also said: "If I did lose my temper when I did spank him then that's probably where it came from." Everett eventually confessed that he "probably swatted him a little bit ...