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State v. Osborn

Court of Appeal of Iowa

June 12, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
BILLIE JO OSBORN, Defendant-Appellant.

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

Billie Jo Osborn appeals from her conviction of child endangerment.

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

Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, and Clinton L. Spurrier, County Attorney, for appellee.

Considered by Doyle, P.J., and Danilson and Mullins, JJ.

DANILSON, J.

Billie Jo Osborn appeals from her conviction of child endangerment, in violation of Iowa Code section 726.6(1)(a), (1)(h), and (7) (2011), arguing the evidence did not establish she knowingly subjected her children to a substantial risk of harm or that she knowingly allowed unsupervised access by a person on the sex offender registry. She also asserts her trial counsel was ineffective. We conclude there was substantial evidence to uphold the conviction and counsel was not ineffective. We affirm.

I. Background Facts and Proceedings.

A review of the record shows that a reasonable jury could find that Billie Jo Osborn resided with Harvey Roach Jr., who was convicted in 1997 of sexually abusing his thirteen-year-old stepdaughter. Roach went to prison upon his conviction and did not participate in sexual abuse education programming offered. Upon his release, he was required to register as a sex offender. He was later convicted for failing to register as a sex offender.

From August 2008 through August 2010, the department of human services (DHS) was involved with Osborn and her three children (one of Osborn's daughters was then fifteen years old) in child-in-need-of-assistance (CINA) proceedings because Osborn was living with Roach. During those proceedings, Osborn was told that Roach had sexually abused his teenage stepdaughter and that Roach was a threat to Osborn's children's safety.[1] A protective order was issued prohibiting contact between Roach and Osborn's children. When Osborn failed to abide by the no-contact order, a protective order was entered prohibiting contact between Osborn or her husband and Roach. The protective order terminated when the CINA case was closed in August 2010.

Roach was still required to register as a sex offender as of February 2011. On February 8, 2011, a child protective investigation was conducted upon receipt of information that Osborn's children and husband (from whom she was separated) had moved in with her and Roach. Osborn and her husband would not concede to DHS that the children had moved in, only that "the children had been staying overnight at the home of Billie and Harvey Roach, Jr." Osborn did not tell the DHS investigator that she ensured that the children were supervised at all times when around Roach.

Osborn was charged with child endangerment.

At trial, Osborn's eleven-year-old son, T.O., testified that while staying in the house where his mother and Roach resided, T.O. would sometimes sleep on the couch in the living room and his then five-year-old sister, A.O., would sometimes sleep on a bed in an area off the kitchen. He also testified that he shoveled snow with Roach and was not accompanied by either of his parents when doing so. T.O. testified his mother had told him it was not okay to be around Roach by himself. But, "[a]s long as I'm around, you could be around him."

Deputy Shannon Arends accompanied the DHS child abuse investigator to Osborn's house on February 8, 2011. At trial, Arends testified "[Osborn's] response [to DHS questions as to whether the children were left unattended] was there were times that the children had been left unattended, but she did try to minimize those times."

The jury was instructed that the State was required to prove all the following elements of the crime of child endangerment:

1.On or about the week of the 2nd day through the 8th day of February, 2011, the Defendant was the parent of [A.O.] and/or [T.O.]
2. [A.O.] and [T.O.] were each under the age of fourteen years.
3.The Defendant either:
a. acted with knowledge that she was creating a substantial risk to [A.O.'s] or [T.O.'s] physical, mental or ...

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