Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.
The opinion of the court was delivered by: Eisenhauer, C.J.
Amanda Porter appeals from the judgment and sentence following her convictions of first-degree murder and child endangerment resulting in death. CONVICTIONS AFFIRMED; SENTENCE VACATED IN PART.
Heard by Eisenhauer, C.J., and Potterfield and Tabor, JJ.
Amanda Porter appeals from the judgment and sentence following her convictions of first-degree murder and child endangerment resulting in death. She contends there was insufficient evidence to prove she caused the child's death, and her trial attorney was ineffective in not challenging the sufficiency of the evidence of malice aforethought and not objecting to the lack of a jury instruction defining "extreme indifference to human life." She also contends the court erred in sentencing her on both offenses when there was only one homicide. We affirm her convictions and vacate the sentence for child endangerment resulting in death.
Considering all the record evidence in the light most favorable to the State, a reasonable jury could find the following facts. See State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). Porter has a daughter from a previous relationship, who was three years old in 2008. Porter's paramour (Corson) had a son from a previous relationship who was born in 2005. Corson's child had several congenital abnormalities, had difficulty eating until doctors implanted a gastrostomy feeding tube, and was delayed in his motor and intellectual skills. After Corson and the mother separated, the mother cared for the child until September 2007, when she placed the child with Corson. Porter and Corson met in August 2007 and started living together a few months later. Porter stayed home and cared for the children; Corson worked 11:00 p.m. to 7:00 a.m. Twice before the date the child died, he received medical care for suspicious injuries. On April 16, Porter sent a text message to Corson at work, telling him to come home because something was wrong with his son. When Corson arrived Porter told him she thought the child fell off the couch but she could not be certain because she was not in the room at the time. The child was screaming, his body was stiff, and his eyes were fluttering. They took the child to the emergency room, which transferred the child to Blank Children's Hospital in Des Moines because the child had intracranial bleeding, was neurologically unstable, and was having seizures. The local treating pediatrician believed the child's injury was non-accidental.
On May 28, Porter took the child to a pediatrician. Porter said he was bruised all over and he would cry out in pain when touched. The child was admitted to the hospital because he was not growing as expected, the doctors were concerned he might be developing seizures from his previous head trauma, and there were concerns of a possible bleeding problem.
On June 23, Porter, who was then eight months pregnant, had been up much of the preceding night caring for the children and was up again around 9:30 a.m. with the children. Corson had stayed out with friends until around 4:00 a.m. He spent much of the day sleeping on the couch. Around 5:00 or 6:00 p.m. Porter took the children to her mother's air conditioned trailer because it was so hot in their trailer. Porter put the child down to sleep after they arrived. She fed him around 6:30. During the evening, Porter's mother and daughter went out for pizza, leaving Porter home with the child for about half an hour. They also went for a walk, leaving Porter home with the child for about forty-five minutes. Porter's mother and daughter went to bed around 9:00.
About 9:30 Porter came into her mother's bedroom carrying the child, saying something was wrong and he was not breathing. Porter's mother called 911. The 911 operator dispatched EMTs and instructed Porter and her mother on CPR. When EMT Gibson arrived, she found the child unresponsive, with no pulse, and not breathing. She observed bruises on the child's chest and below his armpits apparently made by thumbs. She also observed bruises on both sides of the child's neck, which she reported to the police. When police asked Porter about the bruises, she said her daughter caused the bruise on the left side of the child's neck. Later, she suggested the bruises on the child's chest might have been caused when the child scratched insect bites. After the child was flown to Blank Children's Hospital, doctors found no brain activity. The child died at the hospital.
An autopsy revealed the child had a fresh subdural hemorrhage caused by movement of the brain within the skull tearing blood vessels, torn axons in the corpus callosum caused by the two hemispheres of the brain moving back-and-forth unevenly, injury to the neck in the upper cervical region caused by back-and-forth motion of his head, detached retinas in both eyes from violent movement of the eyes, and hemorrhages in both eyes and along the optic nerves. The medical examiner testified the child's death "was due to trauma to his brain and probably trauma to his upper cervical spinal cord." He said the injuries and bruises were consistent with someone holding the child and shaking him. A simple fall or impact to the head "would not be expected to cause the kinds of injuries" sustained by the child. The medical examiner also ruled out congenital abnormalities, fetal alcohol syndrome, gastrointestinal inflammation, resuscitation efforts, and use of a ventilator as causes of the brain injuries and the child's death. He opined the child died of abusive head trauma at the hands of another person.
Dr. Spencer, a pediatric ophthalmologist, examined the child after he arrived at Blank Hospital. She testified the injuries to the child's eyes did not result from seizures, brain swelling, resuscitation efforts, or an accident such as falling off a couch or bumping into a table. The injuries were consistent with abuse and "in the absence of any medical explanation, . . . then it in my opinion was abusive head trauma."
Dr. Shah, medical director of the Regional Child Protection Center at Blank Hospital, was called to consult on the child's case. She examined the child at Blank Hospital shortly before the child died and had a case conference with several other doctors and staff from the hospital. Dr. Shah opined the child died as a result of "abusive head injury of the recent onset." Dr. Shah specified the injury was probably within six hours of when the child came to the hospital. Dr. Shah ruled out bumping into a wall or table, fetal alcohol syndrome, a bleeding disorder, seizures, the April head injury, or resuscitation efforts as possible causes of the deep brain injuries and eye injuries suffered by the child. The injury was a "severe and acute event."
The court instructed the jury on the elements of first-degree murder and child endangerment resulting in death. One of the instructions contained the phrase "extreme indifference to human life." The jury sent out a question, asking for a definition of the phrase and an example. After consulting with both attorneys, the court told the jury to reread the ...