from the Iowa District Court for Des Moines County, Mark E.
Payne appeals his conviction of child endangerment resulting
in death following a jury trial.
C. Smith, State Appellate Defender, and Melinda J. Nye,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
a two-week jury trial involving a battle of medical experts
as to the cause of Randall Payne's infant son's
death, Payne was found guilty of involuntary manslaughter by
commission of a public offense, child endangerment resulting
in serious injury, and child endangerment resulting in death.
He was convicted of child endangerment resulting in
death. Payne now appeals his conviction,
asserting the district court erred (1) by submitting a flawed
model jury instruction that improperly allowed the jury to
consider Payne's out-of-court statements "just as if
they had been made at trial" and (2) in denying his
motion for new trial, based on the State's late
disclosure of potentially exculpatory autopsy evidence. We
Background Facts and Proceedings.
Newton and Randall Payne are the parents of C.P., born
October 18, 2014. Before the child's birth, in the first
trimester of Stacy's pregnancy, Stacy received abnormal
test results indicating the child had an increased risk of a
genetic disorder. She was referred to the University of Iowa
Hospitals and Clinics Fetal Diagnosis and Treatment Unit for
additional testing, and she was examined there in May, June,
and July of 2014. Ultimately, an alternative screening test
returned a negative test result for the genetic disorder.
However, the child's estimated fetal weight remained
below average over the course of those months, increasing the
risk of stillbirth. Consequently, the pregnancy was
considered to be high-risk.
October 16, 2014, approximately a week before her estimated
due date, Stacy had a routine appointment with her general
obstetrician. At that time, an ultrasound showed the
child's estimated weight had gone down since Stacy's
prior appointment, further increasing the risk of stillbirth.
At the recommendation of her physician, Stacy agreed to have
labor induced that evening. Drugs were administered to Stacy
for that purpose, but after almost two days without progress,
the child was delivered via a Cesarean section without
incident, weighing 5.41 pounds.
though the child was ultimately born by way of a C-section,
the child's head was described after the birth as having
"considerable molding, " which commonly occurs
during a vaginal birth. Along with "considerable
molding" of the head, "a small caput"-a spot
where fluid has gathered underneath the scalp- and a small
amount of bruising on the right side of the child's head
were noted.These conditions, like molding, are not
uncommon following vaginal labor and, given the length of
Stacy's labor before the surgery, did not concern her
physicians. The child's physical condition at the time of
his birth was assessed as excellent.
and Stacy were discharged from the hospital on October 22,
2014. Other than a bit of jaundice, for which Stacy and the
child were to return the next day for continued treatment,
the child was essentially found to be healthy. By the time of
their release, the molding, the caput, and the bruising of
C.P.'s head had gotten better; the child's head was
reported to be "[n]ormocephalic with open soft
fontanelle"-normal with a soft spot. C.P.'s
discharge summary also reported:
Eyes: Good red reflex.
ENT: Palate intact.
Neck: Supple without masses or adenopathy.
Chest: Clear to auscultation.
Cardiovascular: Quiet precordium with regular rhythm. S1 and
S2 normal. No murmurs are audible. He has good
Abdomen: Soft without masses or visceromegaly. Cord remains
intact without evidence of inflammation.
GU: Normal prepubertal male. He is
circumcised. Testes are descended bilaterally.
BJM: Normal hip mobility without evidence of
Skin: Patient is icteric but without rashes.
Gen.: Good suck and Moro. Good tone and cry.
one week after Stacy and C.P. were discharged from the
hospital, Payne and Stacy took the child to the emergency
room. The hospital documentation from the visit stated:
Chief Complaint: [Payne] reports [C.P.] has not moved [both
lower extremities] on own since birth. Father reports he has
been doing leg exercises on [child]. [Child] now cries in
pain when [both lower extremities] moved.
. . . .
[C.P.] presents with lower extremity pain. The onset was 2
days ago. The course/duration of symptoms is constant. Type
of injury: none. Location: Left thigh. The character of
symptoms is pain. The degree at present is moderate. The
exacerbating factor is movement. The relieving factor is
child was physically examined and x-rays of the lower
extremities were obtained. C.P.'s vital signs at that
time were reported to be:
General: Appropriate for age.
Skin: Warm, dry, pink.
Head: Normocephalic, atraumatic.
Cardiovascular: Regular rate and rhythm.
Respiratory: Lungs are clear to auscultation.
Musculoskeletal: Leg position: Appropriate contraction of
bilateral lower extremities for age.
physician that reviewed the child's x-rays reported:
Two projections were obtained. Positioning is less than
The bony pelvis appear symmetric. The proximal femurs appear
intact. I'm suspicious of bilateral congenital hip
dislocation, but the femoral epiphysis are not ossified.
Clinical correlation required. The femurs appear intact. The
tibia and fibula are poorly visualized, but are grossly
child was discharged from the emergency room shortly
thereafter, with the physician noting in the report that the
child "appears in no distress" and that the parents
"voice no concerns." The parents were directed to
follow up with a physician within two-to-three days or return
to the emergency room if the child's symptoms worsened.
had his two-week examination on November 3, 2014. Stacy
conveyed concerns about the possibility of the child having a
genetic abnormality, but the doctor, noting "the parents
[were] not terribly sophisticated, " reported the child
"seem[ed] to be doing well at this point and clearly
does not have [the genetic disorder] trisomy 18." The
child's vital signs were stated as:
Eyes: Good red reflex.
ENT: No abnormalities noted. Palate ...