from the Iowa District Court for Fayette County, John J.
appeals his conviction and sentence for child endangerment
resulting in serious injury.
C. Smith, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee.
Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
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
Background Facts and Proceedings
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
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.
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.
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.
Standard of Review
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 ...