State v. Folkers

• Decision Date: 03 April 2020
• Docket Number: No. 18-1999,18-1999
• Citation: 941 N.W.2d 337
• Parties: STATE of Iowa, Appellee, v. Brenna FOLKERS, Appellant.
• Court: Iowa Supreme Court

941 N.W.2d 337

STATE of Iowa, Appellee,

v.Brenna FOLKERS, Appellant.

No. 18-1999

Supreme Court of Iowa.

Filed April 3, 2020

Mark C. Smith (until withdrawal) and then Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Brian Williams, County Attorney, and Michael S.A. Hudson, Assistant County Attorney, for appellee.

McDONALD, Justice.

At approximately six o’clock in the morning on a January day, local fire and police departments responded to a fire at the mobile home of Brenna Folkers and her husband Richard Wilson. By the time the police arrived, Wilson had extinguished the fire with an extinguisher, but the house had filled with smoke. Folkers, Wilson, and their two-year-old son had escaped from the home but not before exposure to the smoke. Folkers and her son, who was covered with black soot, were taken to the hospital for medical treatment. When the police spoke with Folkers and Wilson, the police learned Folkers and Wilson smoked marijuana and hash oil in the home. With Wilson’s consent, officers searched the home later that day. They found a cache of illegal drugs and paraphernalia.

The State charged Folkers with child endangerment, in violation of Iowa Code section 726.6(1)(a ) (2017). As relevant here, the State was required to prove Folkers had custody of her child and she knowingly acted in a manner that created a substantial risk to her child’s physical health or safety. After a bench trial, the district court found the State met its burden of production and persuasion and found Folkers guilty as charged. Folkers appealed her conviction, contending there was insufficient evidence to support the conviction. We transferred the case to the court of appeals, and the court of appeals affirmed Folkers’s conviction. We granted Folkers’s application for further review.

Folkers challenges the sufficiency of the evidence to support her conviction. Our review is for the correction of legal error. See State v. Petithory , 702 N.W.2d 854, 856 (Iowa 2005). With respect to factual findings, this is a deferential standard of review. "The district court’s findings of guilt are binding on appeal if supported by substantial evidence. Evidence is substantial if it would convince a rational trier of fact the defendant is guilty beyond a reasonable doubt." State v. Hearn , 797 N.W.2d 577, 579–80 (Iowa 2011) (quoting State v. Hansen , 750 N.W.2d 111, 112 (Iowa 2008) ). We consider all of the evidence in the light most favorable to the verdict, including all legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record. See id. at 580 ; State v. Leckington , 713 N.W.2d 208, 212–13 (Iowa 2006).

When the evidence is viewed in the light most favorable to the verdict, the record reveals the following. Folkers, Wilson, and their two-year-old child lived in a small mobile home. The mobile home was filled with clutter. When officers searched the home after the fire, they found hash oil, several bags of marijuana, marijuana blunts, marijuana containers with residue, a glass marijuana pipe, and two glass bongs all in a cabinet back by the parents’ bedroom. Officers also found a large butane torch—approximately one and a half feet tall—on the kitchen counter by the front door near the child’s bedroom. Folkers and Wilson used the oversized butane torch "to light cigarettes and illegal drugs."

On the night before the fire, Wilson smoked hash oil around seven o’clock and again around midnight. He testified he smoked the hash oil alone and in the bathroom of the home. However, he did admit he previously told "law enforcement that [he] had smoked [the] hash oil with [his] ... wife, Ms. Folkers." The fire started at some point after two o’clock in the morning. The fire ignited on the floor of the front room near the child’s bedroom. Folkers was asleep at the time. The police "ascertained that ... the cause of the fire was the butane torch utilized to smoke cigarettes and illegal narcotics." The police based their determination on the suspicious nature of the fire, including the lack of any source "around that area that could have ignited the fire," and Wilson’s statements. One officer testified, "According to Mr. Wilson he said that they -- he had smoked some hash oil, and it was on fire." Wilson denied hash oil was the cause of the fire. Wilson testified he smoked a cigarette at approximately two o’clock in the morning using the butane torch as a lighter.

We first address the question of whether the circumstances created a substantial risk to the child’s physical health and safety. "Substantial risk is not defined in section 726.6. The phrase substantial risk, however, has been heavily defined in other contexts and enjoys a fairly ascertainable meaning." State v. Anspach , 627 N.W.2d 227, 232 (Iowa 2001). A "substantial risk" in the context of child endangerment is "[t]he very real possibility of danger to a child’s physical health or safety." Id. at 233. In the context of parental drug use, the State must show some nexus between the drug use and the creation of a substantial risk of harm to the child. See, e.g. , In re M.S. , 889 N.W.2d 675, 682 (Iowa Ct. App. 2016) (stating the mere fact of drug use does not, in and of itself, establish a risk of harm to a child and the State must prove a nexus between parental use and risk of harm to a child). The risk does not have to be likely, probable, or statistically significant. It just needs to be real or identifiable as opposed to speculative or conjectural. See State v. Schlitter , 881 N.W.2d 380, 390 (Iowa 2016).

Here, there is substantial evidence of a nexus between the parents’ use of illegal drugs in the home and the creation of a substantial risk to the child’s health and safety due to the risk of fire. The evidence showed the parents knowingly possessed hash oil, marijuana, and paraphernalia in the home and smoked the drugs in the home. They used an oversized butane torch to smoke illegal drugs and cigarettes in the home. The police concluded the torch was used in the middle of the night or early morning hours. The police concluded the fire started when the oversized torch was used to light hash oil. The police based their determination, in part, on Wilson’s admission "he had smoked some hash oil, and it was on fire."

While Wilson denied this at trial, we view the evidence in the light most favorable to the verdict. In addition, one officer testified regarding the risks created in manufacturing hash oil. These risks appear to be well known. See Ken Helm & Logan Leichtman, Implementation of Oregon’s Measure 91 in the State Legislature , 52 Willamette L. Rev. 1, 23–24 (2015) (stating the manufacture of butane hash oil "requires volatile chemicals that can be dangerous when used outside of a...