State v. White
| Docket Number | 22-0522 |
| Decision Date | 30 August 2023 |
| Parties | STATE OF IOWA, Plaintiff-Appellee, v. DEREK MICHAEL WHITE, Defendant-Appellant |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Osceola County, Shayne Mayer, Judge.
A defendant appeals his convictions for one count of neglecting a dependent person and two counts of child endangerment. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Rachel C. Regenold Assistant Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Genevieve Reinkoester and Susan Krisko, Assistant Attorneys General, for appellee.
Considered by Bower, C.J., and Tabor and Greer, JJ.
During an unannounced visit to D.C.'s home, a social worker found the two-year-old's face and neck covered with bruises in different stages of healing. After police investigated those injuries, the State charged his mother's live-in boyfriend, Derek White, with neglect of a dependent person and two counts of child endangerment. A jury convicted White on all three felony counts.
Seeking to reverse his convictions, White raises five issues: (1) closed-circuit testimony by two child witnesses violated his right to confrontation under the Iowa Constitution; (2) the State did not prove that he caused the child's injuries or had custody when they were inflicted; (3) the district court erred by denying his request for a jury instruction approved in civil cases; (4) the court abused its discretion by not clarifying the marshalling instructions in response to a jury question; and (5) the court erred in finding he had the reasonable ability to pay over $10,000 in category "B" restitution. Finding no constitutional violation, substantial evidence to support the verdicts, and proper instructions for the jury, we affirm his convictions. We also uphold the restitution order.
As part of her duties in D.C.'s ongoing child-welfare case, service provider Linda Diekevers dropped by his home one morning in early May 2020 to check on the toddler. D.C. and his mother, Donna Reisdorfer, lived with White and his two sons-eight-year-old J.W. and ten-year-old M.W.[1] White answered the door. He denied Diekevers entry, claiming that the children were all napping. When she returned that afternoon, D.C. was sitting at the table. Even from a distance, Diekevers could see bruising on the child's face. As she drew closer, she could distinguish "yellow and gray bruises as well as the red ones [she] had noticed from across the room." She testified that in her sixteen years of social work she had "never seen a child whose head was beat up so much."
Later that day, Deputy Tyler Bos and child protection worker Adrian Warnke arrived at D.C.'s house. At first, Reisdorfer and White kept them outside. When Warnke insisted that they needed to see if D.C. was safe, White let them in. They found D.C. "curled up in a fetal position" on a mattress upstairs. Among the many bruises, Bos noticed what looked like a belt mark on the side of the child's face. Bos and Warnke urged Donna to seek medical attention for D.C.
At the emergency room, nurse practitioner Nicholas Vust treated D.C. Like the other professionals, Vust noted "multiple levels of bruising that had different stages of healing"-anywhere from fresh red marks to fading yellow bruises that could be five to fourteen days old. On closer assessment, Vust discovered bruises extending into the child's right ear canal. Beyond the child's head and neck area, Vust recorded bruising to D.C.'s shoulders, back, thighs, and ankles.
Reisdorfer suggested that D.C. sustained the injuries by rolling out of bed, perhaps onto a toy. But in Vust's medical opinion, that suggestion did not match the extent and severity of the bruising. Instead, the nurse practitioner believed that the timing, pattern, and sheer number of bruises pointed to child abuse.
In recalling D.C.'s condition, Vust offered this disturbing description:
He was the right size for a [two]-year-old, but he did not walk like a [two]-year-old should walk. He did not interact with us like a [two]-year-old should interact. He liked to walk on his tiptoes which made us question what was going on. He tiptoed around. Wouldn't-he didn't talk at all. He was very-did not like to be touched, screamed if anybody tried holding him, anything like that. He just was not a normal [two]-year-old at the time.
From the emergency room, D.C. went into the custody of the Iowa Department of Human Services. After six months in foster care, D.C. made great strides in his development. D.C. was at the hospital for physical therapy and speech therapy, when Vust observed the transformation:
Another expert agreed with Vust that D.C.'s constellation of injuries signaled that he was the victim of child abuse. Suzanne Haney, a child abuse pediatrics specialist at Children's Hospital and Medical Center in Omaha, saw D.C. about three weeks after he was placed in foster care. By that time, his bruises were healed. But after reviewing his medical records, she believed that his extensive injuries could not be explained by childhood accidents.
In October 2020, the State charged White and Reisdorfer jointly with neglect of a dependent person and four counts of child endangerment. In January 2022, the State amended the trial information to charge White separately with one count of neglect of a dependent person and two counts of child endangerment. See Iowa Code §§ 726.3, 726.6(1)(a), (b) (2020).
At trial, White's two sons testified by closed-circuit television. They told the jury that White was the disciplinarian in the home and would spank D.C. with his belt. The jury found White guilty as charged. The court sentenced him to concurrent five-year terms on the child-endangerment counts to run consecutive with the ten-year term for the neglect-of-a-dependent-person count, for a total prison term not to exceed fifteen years. The court suspended the applicable fines and surcharges. But the court ordered him to pay nearly $11,000 in restitution.
White appeals.
As his opening salvo, White claims that the closed-circuit testimony of his two sons violated his right to be "confronted with the witnesses against him" as guaranteed by article I, section 10 of the Iowa Constitution.[2] Because White invokes a constitutional provision, we review his claim de novo. See State v. Rogerson, 855 N.W.2d 495, 498 (Iowa 2014). Under that standard, we examine all the evidence anew without deference to the district court's findings. State v. Williams, 972 N.W.2d 720, 724 (Iowa 2022). The State bears the burden to show compliance with the confrontation clause. State v. Liggins, 978 N.W.2d 406, 419 (Iowa 2022).
We start with the State's request under Iowa Code section 915.38(1)(a) to allow White's sons, J.W. and M.W., to testify by closed-circuit television. The previous summer, the juvenile court terminated White's legal relationship with his sons after the State proved that he abused and neglected them. For the criminal trial, the State moved for a protective order, alleging the accommodation was necessary to protect the boys from trauma they would experience by testifying in the presence of their biological father. The boys' therapist concluded that forcing M.W. to testify in front of White would cause him serious emotional distress that could impair the child's reasonable ability to communicate-the measure in section 915.38(1)(a). M.W. told the therapist and his foster parents that he still has nightmares about his father. The therapist had similar views on J.W.'s welfare. She testified that it would be difficult for the younger brother to confront his father face to face. In her professional opinion, the closed-circuit option was necessary for both boys to provide accurate and honest information in the prosecution without being further traumatized.
The district court granted the State's motion. And the boys testified by closed-circuit television. On appeal, White argues their testimony violated his confrontation right under the state constitution.[3] His argument tugs on two threads running through confrontation clause precedents. First thread: White contends that "Sixth Amendment jurisprudence is unstable" because older cases on face-to-face confrontation, like Maryland v. Craig 497 U.S. 836 (1990), are undercut by Crawford v. Washington, 541 U.S. 36 (2004) and its progeny. Second thread: because federal case law is "messy," White urges us to diverge from Craig and recognize a more robust protection under the state constitution.[4] In Craig, the Supreme Court found use of a one-way, closed-circuit television to obtain the testimony of a child sex-abuse victim did not violate the Confrontation Clause where the technology was "necessary to protect [the] child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child's ability to communicate." 497 U.S. at 857. Face-to-face confrontation was not absolutely required. Id. at 847-48 (). In Crawford, the Supreme Court found that a police interview of a wife's domestic abuse report could not be played at trial against the husband. 541 U.S. at 65-66. The court decided that allowing the recording, given its testimonial nature, violates the Confrontation Clause unless the...
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