State v. Dessinger

• Decision Date: 23 April 2021
• Docket Number: No. 18-2116,18-2116
• Citation: 958 N.W.2d 590
• Parties: STATE of Iowa, Appellee, v. Shanna DESSINGER, Appellant.
• Court: Iowa Supreme Court

958 N.W.2d 590

STATE of Iowa, Appellee,

v.Shanna DESSINGER, Appellant.

No. 18-2116

Supreme Court of Iowa.

Submitted October 15, 2020

Filed April 23, 2021

Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy (argued), Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kyle Hanson (argued), Assistant Attorney General, and Darren D. Driscoll, County Attorney, for appellee.

Appel, J., delivered the opinion of the court, in which all justices joined.

APPEL, Justice.

In this case, we consider an appeal by Shanna Dessinger arising from her conviction of child endangerment. Dessinger asks for a new trial claiming that (1) several pieces of hearsay evidence were improperly admitted, (2) her Confrontation Clause rights were violated, (3) her trial counsel was ineffective, and (4) the district court failed to consider an ability-to-pay determination before imposing court costs.

The court of appeals affirmed Dessinger's conviction but vacated the portion of the sentence regarding restitution and remanded to the district court for resentencing. We granted further review. For the following reasons, we affirm Dessinger's conviction and remand the case to the district court for resentencing.

I. Factual and Procedural Background.

A. Introduction. Shanna Dessinger began work at Tracey's Tots daycare in Fort Dodge, Iowa, in January 2018. On the afternoon of May 9, 2018, Dessinger was involved in an incident at Tracey's Tots where she allegedly intentionally choked and pushed to the floor a four-year-old child, D.A.J. As a result of the incident, the State charged Dessinger with child endangerment in violation of Iowa Code sections 726.6(1)(a ) and 726.6(7) (2018). Dessinger plead not guilty

B. District Court Proceedings.

1. Motion in limine. A week prior to trial, Dessinger filed a motion in limine related to several evidentiary matters. Specifically, Dessinger challenged the competency of D.A.J. to testify based on recent deposition testimony that Dessinger asserted showed D.A.J. did not understand the concept of truth and lies. Dessinger further noted that D.A.J. and Demetria Gully were the only witnesses who viewed the event and that other witnesses’ testimony could implicate the Confrontation Clause, involve multiple levels of hearsay, and would be inadmissible. The State responded by denying that D.A.J. was incompetent, and as to other hearsay statements, the State asserted that "[t]hese are exceptions to the hearsay rule."

The issues raised in the motion in limine were considered by the district court on the first day of trial. The district court concluded that D.A.J. was competent to testify but ruled that the prosecution could not lead the witness and must use only open questions. On the hearsay questions, the district court said that hearsay would not be admissible unless a hearsay exception applied but offered no further ruling.

2. Trial evidence. At trial, the prosecution did not offer testimony from D.A.J. The State offered testimony from Gully, Officer Paul Samuelson, and Cori Jewett. A summary of the testimony of the State's trial witnesses follows.

Gully testified she was seventeen years old, in high school, and was at her first day of work at Tracey's Tots. She testified that on the day in question, she observed one of Dessinger's pupils climbing on a playground fence. Gully stated she told Dessinger to intervene but that she responded that she didn't care what the child was doing because she was quitting at the end of the day. Gully concluded Dessinger was just having a hard day and was overwhelmed at the moment.

Later on the day of the incident, Gully was working in the two-year-old room. The two-year-old room was located next to the preschool room. The wall between the rooms featured a large window. Gully testified that she saw Dessinger grab D.A.J. by the neck in a choking motion and then release his neck and push the child to the ground. According to Gully, D.A.J. immediately thereafter was screaming and crying "I'm sorry, I'm sorry, I'm sorry." Gully testified that there was no chance the incident was an accident. Gully immediately went to her supervisor Jewett to report the matter.

On cross-examination, Gully testified that after the incident, she and Jewett "both talked to [D.A.J.] and asked him what happened and he showed us what happened." On redirect examination, the State asked Gully what she observed D.A.J. demonstrating to her and Jewett. Dessinger's counsel objected on hearsay grounds. The district court overruled the objection, concluding that the witness could not testify to any words the child said but could describe the child's conduct during the demonstration. Gully then testified that D.A.J. grabbed Jewett by the neck and engaged in lifting as if he was lifting himself up. Gully testified that she would characterize the demonstration as choking.

Fort Dodge Police Officer Paul Samuelson testified on behalf of the State. He told the jury that on the day of the incident, he was dispatched to the lobby of the Fort Dodge Police Department where someone was making a report of a child allegedly being abused at a daycare. He testified that in the lobby, D.A.J.’s parents informed him that he had been picked up and then put down at the daycare facility. As a result of the statements of the parents, Samuelson testified that he spoke immediately with Gully. Based on his investigation, Samuelson "believed it was a credible allegation."

Jewett testified that Gully came to her office at about 3:00 p.m. to report the incident. While Gully made her report, Jewett believed she could hear D.A.J. crying in the other room. When she entered the nearby room, D.A.J. was whimpering. Upon entering the room, Jewett asked Dessinger to get her things and leave.

The State sought testimony from Jewett about D.A.J.’s postincident demonstration. Jewett testified that D.A.J. put his hands around his neck in a fashion like he was being choked. When D.A.J.’s father came to pick up D.A.J., Jewett explained to him what had been reported to her and what D.A.J. had shown her.

After the State rested, Dessinger took the stand on her own behalf. She responded to Gully's testimony about her frustration with a child climbing the fence that she had already instructed the child three times not to do so. She admitted responding to Gully that she did not care and was going to quit anyway but claimed that the momentary frustration passed quickly.

Dessinger testified that after being outdoors, the children returned to the building and played nicely. Dessinger testified that D.A.J. was playing with a dress-up apron. She asserted that D.A.J. needed help with adjusting the apron, that she was assisting D.A.J. with the apron when she lost her balance, hit a bookshelf, and the apron ended up in her hand. Dessinger denied that D.A.J. was upset, crying "I'm sorry," or whimpering.

Dessinger testified that Gully was mistaken in her description of what she saw. She admitted that she might have knocked D.A.J. over when she lost her balance, but she insisted that anything that happened on that day was an accident.

3. Jury verdict and judgment. The jury convicted Dessinger, as charged, of child endangerment. In entering judgment, the district court ordered Dessinger to pay "the court costs of this action." The district court determined, however, that Dessinger lacked the ability to pay the court-ordered attorney fees and thus ordered $0 in attorney fees reimbursement. The district court further ordered that the defendant pay fees for room and board as later assessed. The district court stated that the amount of room and board assessed by the sheriff and filed with the clerk shall have the force and effect of a judgment unless the defendant affirmatively requests a hearing to dispute the amount assessed.

Dessinger appealed. We transferred the case to the court of appeals.

C. Decision of Court of Appeals. On the hearsay issues, the court of appeals believed that error was preserved by Dessinger's objection to Gully's testimony regarding D.A.J.’s demonstration, and that despite no explicit objection, the court's overruling of the objection preserved error for Jewett's subsequent testimony also regarding D.A.J.’s conduct. However, the court of appeals did not believe error was preserved on the testimony by Jewett and Officer Samuelson regarding verbal statements D.A.J. made to each of them.

The court of appeals held that D.A.J.’s nonverbal demonstration was in fact a hearsay statement. The court of appeals did not decide whether the statements met a hearsay exception, instead, holding that the demonstration evidence was merely cumulative because their substance was the same as the already admitted verbal assertions, so their admission would not justify reversal.

The court of appeals determined that Dessinger did not preserve her Confrontation Clause challenge. Despite raising the concern in her motion in limine and in a challenge to D.A.J.’s competency, Dessinger made no objection at trial, and the district court did not rule on the issue.

On the ineffective-assistance-of-counsel claims, Dessinger argued that her counsel was ineffective in three ways: first, counsel failed to raise hearsay objections about D.A.J.’s verbal statements; second, counsel failed to raise Confrontation Clause objections; and third, counsel failed to object to testimony from Officer Samuelson concerning his opinion on whether the allegation that D.A.J. had been abused was credible. Because the record was not fully developed to rule on the issues, the court of appeals preserved all three issues for postconviction-relief proceedings.

Finally, Dessinger argued that the district court failed to make a proper reasonable-ability-to-pay determination regarding her restitution costs. The court of appeals found that the district court did not make an ability-to-pay determination, and therefore, vacated the restitution portion of the sentencing order and remanded for...