State v. Cooper
| Decision Date | 08 November 2000 |
| Docket Number | 99-1405 |
| Parties | NOTICE! No decision has been made on publication of this opinion. The opinion is subject to modification or correction by the court and is not final until the time for rehearing or further review has passed. An unpublished opinion of the court of appeals MAY NOT BE CITED by a court or by a party in any other action. The official published opinions of the Iowa Court of Appeals are those published in the North Western Reporter published by West Group. STATE OF IOWA, Plaintiff-Appellee, vs. RICCO TERRELL COOPER, Defendant-Appellant./ 99-1405 IN THE COURT OF APPEALS OF IOWA Filed |
| Court | Court of Appeals of Iowa |
Appeal from the Iowa District Court for Black Hawk County, Jon Fister, Judge.
Defendant appeals from his conviction for child endangerment in violation of Iowa Code sections 726.6(1) and (2) (1997). Defendant contends the district court erred by (1) improperly instructing the jury; (2) admitting evidence of his prior convictions; (3) holding a jury instruction conference in his absence and (4) denying his motion for judgment of acquittal and request for new trial. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Linda Myers, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Mahan, JJ.
Defendant-appellant, Ricco Terrell Cooper, appeals from his conviction for child endangerment in violation of Iowa Code sections 726.6(1) and (2) (1997). Defendant contends the district court erred by (1) improperly instructing the jury; (2) admitting evidence of his prior convictions; (3) holding a jury instruction conference in his absence and (4) denying his motion for judgment of acquittal and request for new trial. We affirm.
F.C., the eighteen-month-old victim in this case, is the son of Tamica Allison. On January 28, 1998, Ms. Allison left her son in the care of the defendant during which time the child was burned. The child soiled his diapers and defendant ran a bath in order to bathe him. Defendant testified at trial he then took F.C. into the bathroom and placed the child in the bathtub. F.C. suffered second-degree burns to his lower legs, buttocks and scrotum from the water in the bathtub.
Defendant further said after taking F.C. out of the bathtub, he noticed little bumps and skin peeling from F.C.'s legs and buttocks. He said he called Ms. Allison and asked about the peeling skin. Ms. Allison returned later in the evening and observed quarter size blisters on F.C.'s legs. She popped F.C's blisters and called "Ask-A-Nurse" for advice on how to treat F.C.'s injuries.
Three days later, on January 31, 1998, defendant and Ms. Allison took F.C. to the hospital in Waterloo after noticing F.C.'s legs were swollen and emitting yellow pus. F.C.'s condition required him to be immediately airlifted to the University of Iowa Hospital in Iowa City. F.C. spent eleven days hospitalized in Iowa City. Dr. Randall Alexander, an expert in child abuse and forensic pediatric issues, examined F.C. and determined in his opinion F.C.'s injuries were consistent with and resulted from physical abuse.
Defendant was charged with child endangerment in violation of Iowa Code sections 726.6(1) and (2) (1997). The case was tried to a jury, which returned a verdict of guilty. Defendant was sentenced to a ten-year prison term. Defendant appeals contending the district court made several errors warranting reversal.
Defendant contends the district court improperly instructed the jury on the definition of serious injury. Defendant complains the instruction given improperly amplified the testimony given by one of the State's witness. The State advances the district court's jury instruction accurately expressed judicial interpretations of what constitutes serious injury.
Defendant contends the jury should have been given Iowa Uniform Criminal Jury Instruction No. 200.22 defining serious injury, which provides:
An element of the crime charged is that the victim suffered a "serious injury". A serious injury is a bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or extended loss or impairment of the function of any bodily part or organ.
The instruction given was a modification of the uniform instruction and provided:
An element of the crime charged is that the victim suffered a "serious injury". A serious injury is a bodily injury which creates a substantial risk of death, if left untreated, or which causes serious permanent disfigurement or extending loss or impairment of the function of any bodily part or organ. Permanent scarring caused by a bodily injury can be one form of serious permanent disfigurement.
Our review of alleged errors in jury instructions is for correction of errors at law. Iowa R. App. P. 4; State v. Chang, 587 N.W.2d 459, 460 (1998); State v. Rains, 574 N.W.2d 904, 915 (Iowa 1998). This court's task is to determine whether the instructions that were given correctly state the law. Chang, 587 N.W.2d at 460; State v. Mesch, 574 N.W.2d 10, 12 (1997). The district court has a duty to instruct fully and fairly on the law regarding all issues raised by the evidence. Iowa R. Crim. P. 18(5)(f); State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996). The court may phrase the instructions in its own words as long as the instructions given fully and fairly advise the jury of the issues it is to decide and the law which is applicable. Liggins, 557 N.W.2d at 267. Error in giving or refusing jury instructions does not merit reversal unless it results in prejudice to the defendant. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). Trial courts are not bound to give the uniform jury instructions. State v. Harrington, 284 N.W.2d 244, 250 (Iowa 1979).
A "serious injury" means a bodily injury which creates a substantial risk of death. See Iowa Code § 702.18. "[A] substantial risk of death means more than just any risk of death but does not mean that death was likely." State v. Carter, 602 N.W.2d 818, 821 (Iowa 1999) (quoting State v. Anderson, 308 N.W.2d 42, 47 (Iowa 1981)). If there is a real hazard or danger of death, a "serious injury" is established. Id.
The objectionable language does not lessen the State's burden of proof nor does it improperly amplify the testimony of any of the State's witnesses. Defendant has failed to show how he was prejudiced by this language in the instruction. The district court did not err by including in the instruction the phrase "if left untreated". The district court did not err in instructing "Permanent scarring caused by a bodily injury can be one form of serious permanent disfigurement". This language is in accord with Iowa case law. See State v. Epps, 313 N.W.2d 553, 557 (Iowa 1981) ()."
Defendant next contends the district court erred by allowing the State to cross-examine him regarding his prior convictions for possession of unauthorized weapons, violation of a drug tax stamp and possession with intent to deliver crack cocaine. The State contends the district court acted within its discretion in allowing the prosecution to impeach defendant with his prior conviction pursuant to Iowa Rule of Criminal Procedure 609(a)(1).
We generally review the trial court's rulings on admissibility of evidence for abuse of discretion. State v. Axiotis, 569 N.W.2d 813, 815 (Iowa 1997). Reversal is warranted only upon a showing the court exercised its discretion "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Blackwell, 238 N.W.2d 131, 138 (Iowa 1976) (citations omitted).
The defendant testified in his own defense. He did not testify on direct examination regarding any prior convictions. Defendant also did not make any claims he had never been convicted of a crime or that he was a law-abiding person. The State was permitted by the district court, over defendant's pre-trial objection, to inquire on cross-examination regarding defendant's prior convictions. The States' motivation to inquire about defendant's prior convictions was to impeach and discredit his direct testimony given on direct. The State was not attempting to introduce evidence of defendant's prior convictions as substantive evidence regarding proof of motive, opportunity, intent, preparation, plan, knowledge, identify or absence of mistake. See Iowa R. Evid. 404(b). The following testimony was elicited by the State on cross-examination of the defendant:
Q. Mr. Cooper, you have a criminal history; is that right? A. Yes, ma'am.
Q. In 1993, you were convicted of carrying weapons and possession of unauthorized weapons; is that true? A. Yes, ma'am. Q. In '94 you were convicted of possession with intent to deliver crack cocaine and a violation of a drug tax stamp, is that correct? A. Yes, ma'am.
Ordinarily a party may contradict and discredit an adverse witness by presenting evidence showing the facts were other than as indicated by the testimony of the witness. State v. Odem, 322 N.W.2d 43, 45 (Iowa 1982). Prior convictions may in certain circumstances be used as impeachment evidence. State v. Roth, 403 N.W.2d 762, 767 (Iowa 1987); see also State v. Goff, 315 N.W.2d 768, 769 (Iowa 1982). Evidence is admissible if it is relevant to establishing or undermining the general credibility of the witness being impeached. State v. Gilmore, 259 N.W.2d 846, 853 (Iowa 1977).
Iowa Rule of Evidence 609 specifically addresses the offer of other crime evidence for the purpose of attacking a witness's overall credibility. Under rule 609, evidence of other crimes is admissible only if the...
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