State v. Petithory

• Decision Date: 26 August 2005
• Docket Number: No. 03-1679.,03-1679.
• Citation: 702 N.W.2d 854
• Parties: STATE of Iowa, Appellee, v. David Anthony PETITHORY, Appellant.
• Court: Iowa Supreme Court

702 N.W.2d 854

STATE of Iowa, Appellee, v. David Anthony PETITHORY, Appellant.

No. 03-1679.

Supreme Court of Iowa.

August 26, 2005.

Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John P. Sarcone, County Attorney, and Jeffrey Noble and Frank Severino, Assistant County Attorneys, for appellee.

STREIT, Justice.

Parents can commit a crime by exposing their children to danger — even if the parents themselves pose the danger. In this case, a baby girl lost her life because of her father's meth abuse; coming down from a high, he fell asleep while she sat in a running bathtub. The father, who was convicted of involuntary manslaughter, child endangerment, neglect of a dependent person, possession of a controlled substance, and domestic assault causing bodily injury, appeals his convictions. He claims his trial counsel was ineffective and the district court should have merged some of his sentences. We affirm.

I. Facts and Prior Proceedings

On the night of February 12, 2003, Brooklin Petithory celebrated her first birthday with her three-year old sister, K.C., at the Chuck E. Cheese Restaurant in West Des Moines. That night, while Brooklin and K.C. slept, their parents, David Petithory and Amy Champoux, smoked methamphetamine together in the basement of the house the four shared. Both parents were chronic meth abusers.

High on meth, David Petithory stayed up late that night playing video games. He eventually came down from his meth binge and slept most of the next day while Champoux took care of the girls. Meth is a stimulant that often keeps addicts awake for long periods of time; inevitably, however, the body's need for sleep overcomes the effects of the drug and the addict "crashes" into a deep sleep from which it can be difficult to awake.

When Petithory awoke in the middle of the afternoon, Champoux told him she was going to run a few errands and asked him to give the girls a bath. Petithory put the girls in the bathtub, placing Brooklin in a tub chair.¹ Petithory turned on the water and left. He fell asleep on a stairway outside the bathroom.

K.C.'s screams later dragged Petithory back to consciousness. He found Brooklin face down in the water. The tub was beginning to overflow. Tests later revealed the tub would have had to run for over eight minutes at full force to do so.

Brooklin was deprived of oxygen for between three and ten minutes. She sustained irreversible brain damage and died on March 23, 2003.

The State charged Petithory with a host of crimes, including involuntary manslaughter (two counts), child endangerment, neglect of a dependant person (three counts), and possession of a controlled substance (two counts). The State also charged Petithory with domestic abuse assault causing injury stemming from a previous altercation with Champoux. Following a bench trial, the district court convicted Petithory of all counts except for a count of involuntary manslaughter and a count of possession of a controlled substance. The court sentenced Petithory to twenty-seven years in prison.

Petithory appealed, and the court of appeals affirmed. In his application for further review, Petithory raises the same issues as he did before the court of appeals. First, he maintains the district court erred when it failed to merge his convictions for involuntary manslaughter, neglect, and child endangerment. See Iowa Code §§ 701.9 (2003) (merger statute), 707.5(1) (involuntary manslaughter by public offense), 726.3 (neglect of a dependant person), 726.6(1) (child endangerment). Second, he claims his trial counsel was ineffective because he failed to (1) make a specific motion for acquittal arguing the State's evidence was insufficient to convict him on one of the counts of neglect, (2) object to a videotape showing Brooklin suffering in the hospital, or (3) move to suppress evidence obtained from a warrantless search of the home.

We granted further review to consider Petithory's first allegation of ineffective assistance of counsel, i.e., his claim that there was insufficient evidence to convict him on one of the counts of neglect. Specifically, Petithory maintains there is not substantial evidence to show he neglected K.C. in the months leading up to the bathtub incident.

II. The Merits: Neglect of a Dependant Person

The district court convicted Petithory of neglecting K.C. from November 1, 2002 until February 13, 2003 because during that time he had "knowingly or recklessly expose[d] [her] to a hazard or danger against which [she could not] reasonably be expected to protect [her]self." Iowa Code § 726.3. The alleged hazard or danger was Champoux and Petithory himself — two "illegal drug using parents."² Although Petithory's trial counsel moved for a judgment of acquittal, Petithory contends his trial counsel was ineffective because he did not specifically argue in the motion that there was insufficient evidence to sustain his conviction.

A. A Question of Sufficiency, Not Ineffectiveness

In truth, the question posed in this case is not whether Petithory's trial counsel was ineffective, but rather whether there was sufficient evidence to support his conviction. Unlike a jury trial, in a bench trial the defendant is not required to move for a judgment of acquittal to preserve error on a sufficiency of the evidence claim. See State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997) (citing what is now Iowa R.Crim. P. 2.19(8)). The district court's finding of guilt necessarily includes a finding that the evidence was sufficient to sustain Petithory's conviction. Id. Petithory's trial counsel nonetheless made a motion for acquittal. The fact that he did not specifically point out alleged deficiencies in the sufficiency of the evidence cannot constitute ineffective assistance of counsel, because he was not required to make the motion in the first place.

We decline the State's invitation, however, to rule adversely to Petithory on this basis alone. Properly framed, the question in this case is simply whether the evidence was sufficient to support Petithory's conviction. Our review, therefore, is not de novo, but for errors at law. See, e.g., State v. Evans, 671 N.W.2d 720, 724 (Iowa 2003) (reviewing sufficiency-of-the-evidence claim for errors at law); State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct. App.1998) (same). We will uphold the district court's finding of guilt so long as there is substantial supporting evidence in the record. State v. Spies, 672 N.W.2d 792, 796 (Iowa 2003),cert denied, 541 U.S. 1089, 124 S.Ct. 2820, 159 L.Ed.2d 253 (2004). Evidence is substantial if a rational trier of fact could conceivably find the defendant guilty beyond a reasonable doubt. Id. We are obliged to view the evidence in the light most favorable to the State, affording it all legitimate and reasonable assumptions that may be deduced from the evidence in the record. Id. That said, we consider not only the evidence that supports the verdict, but also that which detracts from it. State v. Henderson, 696 N.W.2d 5, 7 (Iowa 2005).

B. Leaving Your Kids With Meth Addicts Can Constitute Criminal Neglect

Iowa's neglect statute makes it a crime for

[a] person . . . having custody of a child. . . who knowingly or recklessly exposes [the child] to a hazard or danger against which such person cannot reasonably be expected to protect [herself]. . . .

Iowa Code § 726.3. It is not disputed that Petithory had custody of K.C. from November 1, 2002 to February 13, 2003. Only two elements of the neglect charge are at issue in this case: whether, on account of his and Champoux's meth abuse, during that same time frame Petithory (1) knowingly or recklessly (2) exposed K.C. to a hazard or danger against which she could not reasonably be expected to protect herself.

We conclude there is substantial evidence in the record to support the district court's findings that Petithory knowingly (or at least recklessly) exposed K.C. to a hazard or danger against which she could not reasonably be expected to protect herself. We consider the scienter and hazard/danger elements of the statute simultaneously because, as is often the case, a finder of fact may impute scienter to a defendant from the normal consequences of his actions. See State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003); State v. Chang, 587 N.W.2d 459, 462 (Iowa 1998).

It is not disputed that Petithory used meth on a daily basis during the period alleged in the trial information. Petithory also regularly left himself alone with the children after Champoux left for work. When Champoux was home, she often used meth, too — as much as twice a week by her own account. These admissions are corroborated by methamphetamine residue and paraphernalia found in the house. It is abundantly clear from the record that during the alleged time frame Petithory repeatedly left his daughter, K.C., in the custody of meth addicts — whether in the person of himself or Champoux. This clearly posed an ongoing danger or hazard to the children.

Petithory stresses that there is no evidence K.C. had any meth in her system and disputes whether the girls ever had access to the drug. He maintains he was a careful drug abuser, smoking it only in the basement, where the children were not allowed. It remains, however, that both parents handled and consumed the illegal drug in the very house wherein the girls resided. The hazards the girls faced were not limited to the possibility of accidentally ingesting methamphetamine residue. Champoux testified Petithory became "mean" and "frustrated" when coming down from methamphetamine. Importantly, the State presented expert testimony which detailed — in intricate and comprehensive fashion — the dangers a parent's meth use poses to his custodial children. The State's expert witness testified:

Parents who are addicted to methamphetamine are

...