State v. Millsap, 03-1504.

• Decision Date: 02 September 2005
• Docket Number: No. 03-1504.,03-1504.
• Citation: 704 N.W.2d 426
• Parties: STATE of Iowa, Appellee, v. Richard Allen MILLSAP, Sr., Appellant.
• Court: Iowa Supreme Court

704 N.W.2d 426

STATE of Iowa, Appellee, v. Richard Allen MILLSAP, Sr., Appellant.

No. 03-1504.

Supreme Court of Iowa.

September 2, 2005.

Rehearing Denied October 12, 2005.

Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant, and Richard Allen Millsap, Sr., pro se.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Jim Ward, Assistant County Attorney, for appellee.

TERNUS, Justice.

The defendant, Richard Allen Millsap, Sr., was convicted in a bench trial of two counts of child endangerment in violation of Iowa Code section 726.6(1)(a) (2001) and one count of driving while barred in violation of Iowa Code section 321.561. Millsap's convictions resulted from the deaths of his two young nephews who fell from the bed of a truck that the defendant was driving. Millsap appeals, raising five issues: (1) the evidence was insufficient to prove the necessary mens rea for child endangerment; (2) the trial judge abused his discretion in refusing to recuse himself; (3) the trial court failed to exercise its discretion when sentencing the defendant to prison on the driving-while-barred conviction; (4) the trial court considered an improper factor in sentencing the defendant to consecutive prison terms; and (5) section 726.6(1) is unconstitutionally vague. Upon our review of the record and the arguments of the parties, we affirm with one exception. We agree the court failed to exercise its discretion when it imposed sentence on the driving-while-barred charges. Therefore, we vacate that sentence and remand for resentencing.

I. Background Facts and Proceedings.

We view the evidence in the light most favorable to the State. See State v. Arnold, 543 N.W.2d 600, 602 (Iowa 1996)

.

The tragic accident giving rise to this case occurred on September 7, 2002, when Millsap enlisted the assistance of his two nephews, Mark, age 10, and Fred, age 9, in removing brush and tree limbs from a property in Des Moines. The boys often helped their uncle in performing handyman jobs, and the record showed the defendant had a history of providing his nephews with guidance and assistance.

On the day in question, the defendant drove his truck to the job site, notwithstanding the prior revocation of his driving privileges. The defendant's one-ton truck had an open bed equipped with side panels. The boys rode in the back. On the way to the work site, another driver pulled along side the truck and informed the defendant that one of the boys was hanging his legs over the back end of the truck bed. The defendant yelled through the sliding window in the cab for the boy to "Get up there like I told you and sit down." The other driver noted the boys did as they were told by their uncle. The defendant testified the boys were good kids and always minded him.

The group proceeded to the work site, where they removed brush and tree limbs and loaded them on the bed of the truck. When they were finished, the defendant placed the boys within the brush on the truck bed, and proceeded to drive through the city. Witnesses who saw the truck testified that the tree limbs extended beyond the height of the truck's cab and side panels. They also said the branches were lifted up by the wind when the vehicle accelerated. Some drivers, noting the likelihood that branches might fly off, slowed down to create a greater distance between their vehicle and the defendant's truck. Witnesses also reported they saw the two boys sitting on top of the branches, trying to hold them down.

As the truck proceeded down Southeast 14th Street, a combination of wind and the vehicle's momentum caused the unsecured branches to blow up in the air, taking the defendant's nephews with them. The boys were hurled to the concrete pavement, sustaining fatal head injuries.

The State charged the defendant with two counts of child endangerment in violation of Iowa Code section 726.6(1)(a), two counts of homicide by vehicle in violation of Iowa Code section 707.6A(2)(a), and one count of driving while barred in violation of Iowa Code section 321.561. The case was tried to the court. The court granted the defendant's motion for judgment of acquittal on the two homicide-by-vehicle counts, but found the defendant guilty of the remaining charges. After receiving consecutive prison sentences, the defendant appealed.

II. Sufficiency-of-the-Evidence.

A. Claim. The defendant contends the district court erred in denying his motion for directed verdict on the child-endangerment charges. He asserts the State failed to establish his guilt on those counts because the evidence was insufficient to support a finding that he knowingly subjected his nephews to a substantial risk of physical harm.

B. Scope of review. Challenges to the sufficiency of the evidence are reviewed for the correction of errors of law. Arnold, 543 N.W.2d at 602. Our goal is "`to determine whether a rational trier of fact could have found the defendant guilty of the offense charged' beyond a reasonable doubt." State v. Anspach, 627 N.W.2d 227, 231 (Iowa 2001) (citation omitted).

C. Discussion. We begin our discussion with a review of the statute under which the defendant was convicted, as the parties disagree on the requirements of this law. The defendant was convicted of violating section 726.6(1)(a), which provides in pertinent part:

1. A person who is the parent, guardian, or person having custody or control over a child or a minor under the age of eighteen with a mental or physical disability, commits child endangerment when the person does any of the following:

a. Knowingly acts in a manner that creates a substantial risk to a child or minor's physical, mental or emotional health or safety.

Iowa Code § 726.6(1)(a). The parties' dispute centers on the knowledge element of the statute, specifically, whether "knowingly" modifies "acts" or modifies "acts in a manner that creates a substantial risk."

We recently addressed this precise issue in State v. James, 693 N.W.2d 353 (Iowa 2005). In James, this court held that to establish a violation of section 726.6(1)(a), the State must prove a defendant acted with knowledge that he or she was creating a substantial risk to the child's safety. 693 N.W.2d at 357. Thus, it is the appreciation of the risk to the child or minor posed by one's conduct that creates criminal culpability under this statute.

Notwithstanding the defendant's protestations to the contrary, we think there is sufficient evidence he acted with the required knowledge. In this regard, we note the defendant's knowledge may be proved not only by direct evidence, but also by reasonable inferences drawn from the circumstances surrounding the accident. See State v. Miller, 308 N.W.2d 4, 7 (Iowa 1981)

("Knowledge or intent is seldom capable of direct proof, but usually is established from the surrounding circumstances.").

The trial court specifically found the defendant was aware there was substantial risk associated with children riding in the back end of an unenclosed truck. The court noted the defendant testified his nephews had ridden in the back of the truck on a number of occasions, and each time the defendant would instruct them how to ride there. The court concluded the fact the defendant thought it necessary to instruct his nephews as to how to ride in the back of the truck indicated the defendant's awareness of the substantial risk to children riding in that location. The court also discounted the defendant's testimony that the children always obeyed his instructions, observing the defendant had been made aware earlier the same day that one of the boys was not following the rules. Although the defendant contended he had placed the children among the brush, the testimony of witnesses clearly placed the boys atop the brush pile. As the court pointed out, even if the children had been situated down in the brush initially, "the boys, acting as kids do, repositioned themselves" later. The court further observed, "Kids being kids always require close monitoring, especially when they have been placed in questionable safety situations." We think there was substantial evidence to support the court's decision on this disputed issue of fact, as the court itself explained in its ruling.

The defendant argues, however, that children have long ridden in the back of pickup trucks and surely adults permitting this activity are not guilty of child endangerment. The problem with the defendant's example is that the situation presented by the case before us is more egregious than children simply riding in the back of a pickup. Cf. Anspach, 627 N.W.2d at 233

(considering the totality of the circumstances in determining whether person would know his actions placed children in articulable danger). The bed of the defendant's truck was equipped with side panels, but only had a wooden plank across the end that provided little protection against persons or branches falling or being blown out the back of the truck. Moreover, the children were young, and the defendant had placed them amidst improperly loaded tree limbs that had not been secured to the truck bed. It was easily foreseeable that the branches might be blown off the truck, taking the children with them. See Miller, 308 N.W.2d at 7 (stating knowledge may be inferred from circumstances). Such an event presented a substantial risk to their safety. That is all the State was required to prove: defendant's knowledge that the children were in a position of substantial risk. See State v. Riggs, 2 S.W.3d 867, 873 (Mo.1999) (holding, under identical statutory language, that prosecution need not prove defendant knew death would result from his conduct, only that child would be endangered by his conduct); see also Anspach, 627 N.W.2d at 232-33 (holding section 726.6(1)(a) does not require proof that injury was likely, only that there was a "very real possibility of danger...