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State v. Moore

Court of Appeals of Iowa

February 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
JUSTIN COLE MOORE, Defendant-Appellant.

          Appeal from the Iowa District Court for Fayette County, John J. Bauercamper, Judge.

         Defendant appeals his conviction and sentence for child endangerment resulting in serious injury.

          Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee.

          Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.

          VOGEL, CHIEF JUDGE.

         Justin Cole Moore appeals his conviction and sentence for the crime of child endangerment resulting in serious injury, in violation of Iowa Code sections 726.6(1)(a) and 726.6(5) (2016). Moore asserts he received ineffective assistance of counsel because his counsel failed to object to a jury instruction addressing his out-of-court statements and did not request an instruction defining "reasonable degree of medical certainty." Also, Moore argues restitution should be removed from his written sentencing order and the district court failed to assess his ability to pay. We find counsel was not ineffective and Moore has not exhausted his remedies under Iowa Code section 910.7 for his restitution claims.

         I. Background Facts and Proceedings

         On August 30, 2016, Moore was caring for his girlfriend's son, E.B., while the girlfriend was at work. At 9:07 that evening, the girlfriend called Moore, who reported he was playing video games while E.B. was asleep and asked if she would pick up brownies from his mother on the way home. The girlfriend called again at 9:11, and Moore reported E.B. had fallen in the bathroom but assured her E.B. "was okay now." The girlfriend arrived home later, after stopping by Moore's mother's home, and she found Moore in the master bedroom, cradling E.B. The girlfriend testified E.B. was "fighting" to breathe, his neck was limp, his eyes were open and rolled back in his head, and his arms and legs were "stiff like a board, like he couldn't move them."

         E.B. was taken to the local hospital's emergency room. A nurse described E.B. as "lethargic, nonresponsive, ashen gray" and, at the time he was admitted, the nurse thought E.B. may die. E.B.'s injuries included lips that were "chapped but almost like a corrosive burn," dried blood near his left ear, and bruising on his forehead, spine, neck, buttocks, and groin. He was quickly transported to University of Iowa hospital, where he was diagnosed with considerable internal organ damage and head trauma requiring extensive surgery and a lengthy healing process.

         According to Moore's explanation to the police, Moore was playing video games in the living room when he heard a "loud bang or boom." He claimed E.B. had fallen off a short step stool while attempting to use the toilet, and Moore found E.B. "splayed out on the floor with his pants down" with a "bashed" lip. Moore picked up E.B., cleaned the blood, changed his pajamas, and cradled E.B. in the master bedroom until the girlfriend arrived home.

         After an investigation into E.B.'s injuries, Moore was charged with child endangerment resulting in serious injury in September 2016. Trial was held over the course of three days in September 2017. The jury returned a guilty verdict, after which Moore was sentenced to a term of incarceration not to exceed ten years. Moore appeals.

         II. Standard of Review

         "A claim of ineffective assistance of counsel requires a de novo review because the claim is derived from the Sixth Amendment of the United States Constitution." Bowman ...


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