State v. Neiderbach, 11-1082

CourtUnited States State Supreme Court of Iowa
PartiesSTATE OF IOWA, Appellee, v. JONAS DORIAN NEIDERBACH, Appellant.
Docket NumberNo. 11-1082,11-1082
Decision Date23 August 2013

STATE OF IOWA, Appellee,

No. 11-1082


Filed August 23, 2013

Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Arthur E. Gamble, and Artis I. Reis, Judges.

Defendant appeals from his convictions for child endangerment. AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED WITH INSTRUCTIONS.

Gary D. Dickey Jr. and Angela L. Campbell of Dickey & Campbell Law Firm P.L.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, John P. Sarcone, County Attorney, and Steven M. Foritano, Nan M. Horvat, and Jeffrey K. Noble, Assistant County Attorneys, for appellee.

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WATERMAN, Justice.

A Polk County jury found Jonas Neiderbach guilty of six counts of child endangerment, and the district court imposed a fifty-year prison sentence. The victim is his son, E.N., who was less than seven weeks old when he suffered a broken arm, fifteen rib fractures, and a permanent brain injury over a three-week period. The victim's mother, Jherica Richardson, pled guilty to child endangerment and is serving a twenty-year prison sentence. Jonas appeals his convictions on numerous grounds. For the reasons that follow, we vacate his convictions as to two counts for the baby's broken ribs because we find the evidence insufficient. We also find the district court erred in denying Jonas's motion for an in camera review of Jherica's mental health records under Iowa Code section 622.10(4) (Supp. 2011), a statute we uphold today as constitutional in State v. Thompson, ___ N.W.2d ___, ___ (Iowa 2013). We affirm the district court on all other issues. We remand the case for the district court to perform an in camera review and for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

"We recite the facts in the light most favorable to the verdict." State v. Garcia, 616 N.W.2d 594, 595 (Iowa 2000). E.N. was born on May 27, 2009. His parents, Jonas and Jherica, were age twenty at that time and living with Jonas's parents, Jon and Mary Neiderbach. Although E.N. was full term and appeared healthy overall, he spent the first four days following his birth in the neonatal intensive care unit (NICU) because his physicians feared he may have aspirated fecal matter in utero. In addition to this potentially life-threatening concern, E.N. was born with the umbilical cord wrapped around his neck, exhibited tremor activity, and did not feed well. E.N. also tested positive for marijuana at

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birth, which triggered a notification to the Iowa Department of Human Services (DHS).

The new parents brought baby E.N. home to the Neiderbach residence. In light of the positive marijuana test, DHS provided the family with a visiting nurse who came to the house on a biweekly basis to check on the baby and to answer questions. E.N. was seen by either the visiting nurse or his pediatrician four times during the first two weeks after he left the hospital and appeared healthy at each visit.

On the evening of June 13, E.N. vomited or coughed up a small amount of blood. The next morning, Jonas and Jherica took him to a clinic. The baby was diagnosed with acid reflux and was prescribed Zantac. The visiting nurse came to check in on E.N. three days later, and he appeared normal with the coughing and vomiting of blood resolved.

Five days later, on June 18, E.N. was taken to the hospital again— this time for a broken arm. That morning, Jonas, Jherica, and E.N. returned from Jonas's paper route with the baby asleep. E.N. awakened crying. Jherica handed him to Jonas and left the room to prepare a bottle. She heard the baby's cries escalate to a scream and returned to find E.N. lying on the bed with his right arm above his head and his left arm limp beside him. Jonas stood over the baby. Jonas told Jherica that E.N.'s arm became pinned behind his back as Jonas laid him on the bed and that he had heard a pop. Jherica checked whether E.N. could grasp her finger with his hand and found that he could not.

Jonas and Jherica took E.N. to the emergency room where the attending physician determined that the baby had a spiral fracture of his humerus, the upper arm bone. E.N. was hospitalized overnight to be

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examined for other signs of abuse. The hospital reported the injury to DHS.

DHS notified Detective Tim Tyler of the Des Moines Police Department who came to the hospital with two DHS workers to interview the attending physician, Jonas, and Jherica. Jonas repeated the story he had told Jherica and the doctor. Jonas and Jherica were separately instructed that going forward there would be a safety plan in place under which Jonas would not be allowed alone with E.N.

After his discharge from the hospital on June 19, E.N. was seen by his pediatrician, Dr. Eric Andersen. Aside from his broken arm, E.N. appeared to be in good health. He had gained two pounds since his last visit and remained calm during the examination. Dr. Lynn Lindaman, E.N.'s pediatric orthopedic surgeon, saw E.N. again on June 26 for a follow-up appointment for his broken arm. Dr. Lindaman found E.N.'s arm to be healing in good alignment.

E.N. was next seen by a physician on July 8, when Jonas and Jherica rushed him to the hospital after he stopped breathing. That afternoon, Jonas, Jherica, and E.N. had returned home from errands, including visiting Jonas's father and Jherica's mother, Connie Richardson, at work. Jon, Connie, and their coworkers noted E.N. appeared healthy that day. E.N. was sleeping when they returned home; however, he soon awakened crying. Jherica tried to feed the baby, but he was not taking his bottle. Jherica handed E.N. to Jonas while she went outside to smoke a cigarette.

Jherica was outside when she heard E.N.'s crying stop abruptly, within three to five minutes after she had handed the infant to Jonas. As she returned inside, Jonas was walking down the stairs holding E.N. Jonas was crying; E.N. was still. Jonas told Jherica that E.N. had

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stopped breathing. Jherica noticed a yellowish substance oozing from E.N.'s mouth. Jherica cleared his mouth as best she could, but the baby did not resume breathing. Jherica called her mother to ask what to do and was told to take E.N. to the hospital. Jherica returned to the living room and saw Jonas shaking E.N. while saying, "Why aren't you f___ breathing?" Jherica yelled at Jonas to stop and told him that they should take E.N. to the hospital. Jonas initially refused to go to the hospital, mentioning it was the "third time," but Jherica convinced him to go together.

Jonas and Jherica strapped E.N. into his car seat and drove to the emergency room at Blank Children's Hospital. Upon arrival they told Dr. Carlin that E.N. had screamed, started gasping, and then stopped breathing altogether. E.N.'s physicians diagnosed the baby with subdural hematomas on both sides of his brain, fifteen rib fractures (some old and some new), and the broken arm. They also found a hypoxic ischemic injury, which is damage to the brain due to lack of oxygen. Dr. Tracy Ekhardt, E.N.'s pediatric critical care specialist, determined E.N.'s "brain injury was due to a force to his head" and that "[t]he explanation that [she] got from the family was not consistent with the amount of force that would be needed to cause that damage to his head."

E.N. was hospitalized seven weeks and then was transferred to a nursing home for children with special needs, where he spent the next five months. Jherica's sister, Shannon Nelson, and Shannon's husband adopted E.N. in November 2009. E.N. remains unable to move his legs and can only barely move his arms. He can move his head side to side, but cannot hold his head up on his own. E.N. is also unable to communicate verbally, has a feeding tube in his stomach, and a

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tracheostomy tube that requires regular suctioning. Doctors expect no significant improvement in E.N.'s condition.

The State's initial trial information, filed August 26, charged Jonas and Jherica with eight counts of child endangerment, in violation of Iowa Code section 726.6 (2009), and one count of multiple acts of child endangerment, in violation of section 726.6A. On January 21, 2010, Jherica reached a plea agreement, under which she pled guilty to child endangerment causing serious injury, child endangerment causing bodily injury, and neglect of a dependent person. The plea colloquy shows she admitted to smoking marijuana with the baby in utero, to leaving E.N. alone with Jonas in violation of the safety plan, and to failing to get medical care for E.N. after being told he had broken ribs. Jherica agreed to testify for the State at Jonas's trial. In exchange, the State agreed to recommend that Jherica receive a total sentence of twenty years in prison.

The State amended its trial information on March 11, to drop Jherica as a codefendant and eliminate one count of child endangerment. The jury trial began May 4, 2011. During trial, the State dismissed two more counts. The balance of the case was submitted to the jury on May 18. On May 20, after two days of deliberation, the jury found Jonas guilty on all six remaining counts. The district court sentenced Jonas to fifty years in prison.

Jonas appealed, and we retained his appeal. Additional facts and procedural history will be provided in the discussion of specific issues below.

II. Issues Raised on Appeal.

Jonas raises the following issues on appeal: (1) whether the district court erred by failing to dismiss counts two through six as lesser

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included offenses of count one pursuant to Iowa Rule of Criminal Procedure 2.6(1) or by failing to grant his motion to sever those counts; (2) whether the district court violated Jonas's due process rights by refusing to issue a subpoena for Jherica's mental health records sought as exculpatory evidence under State v. Cashen, 789 N.W.2d 400 (Iowa 2010), and Iowa Code section 622.10(4) (Supp. 2011); (3)...

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