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IN THE COURT OF APPEALS OF IOWA IN THE COURT OF APPEALS OF IOWA No

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IN THE COURT OF APPEALS OF IOWA IN THE COURT OF APPEALS OF IOWA No Powered By Docstoc
					                    IN THE COURT OF APPEALS OF IOWA

                               No. 2-089 / 01-0139
                                Filed July 3, 2002

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

HEIDI LOUISE WATKINS,
      Defendant-Appellant.


       Appeal from the Iowa District Court for Dickinson County, Joseph J.

Straub and Frank B. Nelson, Judges.



       Defendant-appellant Heidi Watkins appeals her conviction, following a

bench trial, of child endangerment under Iowa Code sections 726.6(1)(a) (1999)

and 726.6(1)(e), and multiple acts of child endangerment under section 726.6A.

AFFIRMED.



       Michael Johnson of Stoller & Johnson, Spirit Lake, for appellant.

       Thomas J. Miller, Attorney General, Richard Bennett and Charles

Thoman, Assistant Attorneys General, and Edward Bjornstad, County Attorney,

for appellee.



       Heard by Sackett, C.J., and Huitink, Mahan, Hecht and Eisenhauer, JJ.
                                         2


PER CURIAM

       Following the death of defendant-appellant’s two-year-old daughter,

Shelby Duis, defendant Heidi Watkins and her boyfriend, Jessie Wendelsdorf,

were charged with Shelby’s murder, as well as with other offenses. Both were

acquitted of murder. Wendelsdorf, who was charged with murder and sexual

abuse, was fully acquitted by a jury. Defendant, who had waived a jury trial, was

acquitted of murder by the district court, but found guilty of child endangerment

under Iowa Code sections 726.6(1)(a) (1999) and 726.6(1)(e), and multiple acts

of child endangerment under section 726.6A.

       Defendant appeals from these findings, claiming that 1) the prosecution

impermissibly used inconsistent theories in Wendelsdorf’s and defendant’s

separate trials, thereby violating defendant’s due process rights; 2) the denial by

the trial court of defendant’s motion for a bill of particulars violated her due

process and Sixth Amendment rights; 3) there was insufficient evidence to find

defendant guilty of child endangerment under sections 726.6(1)(a) and

726.6(1)(e), or multiple acts of child endangerment under section 726.6A; 4) the

trial court erred by disregarding defendant’s evidence of diminished capacity; 5)

the trial court erred for failing to dismiss the charges in Count II of the trial

information as unconstitutionally vague; and 6) the trial court erred for failing to

grant defendant’s motion for a new trial. We affirm.

       I.     BACKGROUND FACTS AND PROCEEDINGS

       On January 4, 2000 at about 4:00 in the afternoon, defendant’s two-year-

old daughter, Shelby Duis, was found dead in her bed at 1501 Jackson Avenue,

Spirit Lake, Iowa.   Shelby had severe bruising to her forehead, as well as
                                       3


multiple other injuries, including broken bones, some of which she had had for

some time. It was determined that Shelby’s death was due to blunt force trauma

to her head and asphyxiation. The time of Shelby’s death was disputed, but it

was estimated likely to be between two and eight hours prior to the time the

medical examiner arrived, which was approximately between 4:30 and 4:45 that

afternoon.

       In late February of 1999, day care providers at Small World Day Care in

Spirit Lake noticed Shelby had a significant bruise on her cheek and a black eye.

Chuck Illg of the Department of Human Services was notified, and his

investigation revealed Shelby had run into a doorway while chasing her brother

around the house. To remedy this situation defendant put up a barrier to prevent

a similar accident.

       At about this time in early 1999, Jessie Wendelsdorf, who, along with

defendant, worked for defendant’s mother and stepfather, developed a romantic

relationship with defendant. Wendelsdorf began spending the night in Watkins’s

house in May. By September he had moved into the house. In early September,

day care providers noticed Shelby had blood in her diaper.

       Defendant was notified about the blood and took Shelby to Doctor

Thomas Kalkhoff on September 13, 1999. Doctor Kalkhoff had seen Shelby in

late August of 1999 for a severe diaper rash that was now healing, but he found

she had since developed a quarter-sized bleeding ulcer behind her rectum. He

set a follow-up appointment for September 20.      Defendant did not keep that

appointment.
                                          4


       On October 21, 1999 day care providers again called Chuck Illg, reporting

Shelby had a number of suspicious injuries, including a swollen hand, as well as

bruises on her back, a bloody toe, and a scratch below her right ear. Day care

providers testified at trial that Shelby, a previously friendly and enthusiastic child,

had become withdrawn and irritable during the months of September and

October 1999.

       Upon a visit to Dr. Timothy Taylor, a partner of Dr. Kalkhoff’s, Shelby was

found to have a broken hand. Finding Shelby’s injuries suspicious, Dr. Taylor

casted Shelby’s hand, contacted Chuck Illg and kept Shelby in the hospital

overnight for observation. On October 22 Shelby was released from the hospital

on the condition that her grandmother, Frances Moritz, supervise her situation.

Dr. Taylor made a follow-up appointment for November 22, which defendant

failed to keep, but defendant did bring Shelby back on November 29 to get her

cast removed.

       Just after Shelby’s October 22 release from the hospital, Chuck Illg talked

to defendant about drug testing and implementing family-centered services in the

home, to which defendant apparently agreed. Defendant also mentioned that her

mother, rather than Small World, would be taking care of Shelby. Chuck Illg had

no further contact with defendant until early December when reports were made

that Shelby was again exhibiting injuries. After meeting with defendant and a

caseworker and hearing explanations for Shelby’s injuries, Chuck Illg

recommended defendant take Shelby to a doctor. By this time defendant had

been laid off for the winter and was caring for Shelby herself.              Although

defendant had three doctor appointments scheduled for Shelby in December,
                                         5


she failed to attend any of them. Chuck Illg notified defendant that if she did not

take Shelby to a doctor, he would petition the court to adjudicate Shelby a Child

in Need of Assistance. Defendant then scheduled an appointment for January 3,

2000, for Shelby, which she kept.

       Dr. Kalkoff later testified that during this January 3 appointment Shelby ran

around the examining room and was alert and playful. He saw an old bruise on

her, as well as a sore on her vagina and severe diaper rash. He further testified

that at the time of the appointment Shelby did not have the extensive facial

bruising he would later observe on her in an autopsy photograph. Dr. Kalkoff

further testified he had noticed defendant, in moving Shelby, had held her on

either side of her ribs, and that Shelby had not exhibited pain, which would

indicate that her broken ribs had been healing. At that appointment Dr. Kalkoff

set another follow-up appointment for 10:30 a.m. the following day for a blood

test regarding the bruising.    Defendant cancelled that appointment the next

afternoon just before she apparently discovered Shelby was dead. Defendant’s

reason for canceling the appointment was that Shelby was not well.

       Upon a post-mortem examination, in addition to the severe bruising to

Shelby’s head, the cuts in her mouth and tongue, and the bruising on various

parts of her body, Shelby was found to have four broken bones in her right and

left hands and several broken ribs. There was testimony that these fractures

would have occurred weeks before Shelby’s death, and they would not have

been accidentally inflicted.

       On the day of Shelby’s death, only defendant and Jesse Wendelsdorf had

been in the house at 1501 Jackson Avenue for any significant length of time. At
                                        6


trial testimony indicated defendant put Shelby to sleep around 9:00 the night of

January 3, checked on her at 8 a.m. or 10 a.m. on January 4, looked in on her in

her bed again around noon of that day, and did not realize until her son, Tyler,

arrived home from school around 4:00 that afternoon that Shelby was dead.

Defendant testified she had spent most of the day in bed, rising to go to the

bathroom and check on Shelby only a couple of times. She admitted waking up

and eating M&M’s, having sex with Wendelsdorf, and smoking marijuana with

him for a short time in the afternoon. The rest of that time defendant claimed to

have been asleep and unaware of what may have been happening in the house.

One visitor, James Handsaker, came into the house around 2:30 to tell defendant

to call him, and phone records show several calls were made to her home that

day, though none were answered.

      There was evidence Jesse Wendelsdorf spent the night of January 3 at

1501 Jackson, awakening at 7:00 a.m. on January 4 to a phone call telling him

he was late for work. Wendelsdorf left the house within ten or fifteen minutes of

waking up. There is question as to the exact time he returned to the house,

although he admitted returning around 12:30 p.m. after stopping by his

neighbor’s house to smoke marijuana and by a convenience store to buy pizza

and pop. Wendelsdorf claims he ate the pizza, had sex with defendant, smoked

marijuana, and fell asleep until 4:00 p.m. that afternoon, when he received a call

from defendant’s mother to help with snow removal. After receiving that call

Wendelsdorf left the house.

      As a result of Shelby’s death, the State charged both defendant and

Wendelsdorf with murder.        Additionally, it charged defendant with child
                                           7


endangerment and Wendelsdorf with sexual abuse. Wendelsdorf was acquitted

of all charges, following a jury trial.

       Defendant waived her right to a jury trial and elected to be tried by the

district court.    She was found guilty of child endangerment, but acquitted of

murder, on August 24, 2000.          After the verdict additional evidence surfaced

showing Wendelsdorf had allegedly admitted to the murder and abuse of Shelby.

The district court reopened the record and admitted the evidence at a December

6, 2000 hearing, which included testimony by Wendelsdorf and one of his former

girlfriends, Julie Ballantini, to whom these confessions allegedly were made.

Following that hearing the court made revisions to its initial findings of fact but

reaffirmed its verdict, finding the additional testimony too inconsistent to be

believable.

       II.        CONSISTENCY OF THE TRIAL THEORIES

       Defendant’s first claim is that the prosecutor impermissibly used

inconsistent theories in her trial and in Jesse Wendelsdorf’s trial for the same

crime, thereby violating her due process rights.       Defendant claims the State

argued at Wendelsdorf’s trial that he caused Shelby’s death, and then proceeded

to argue at her trial that she caused Shelby’s death. Specifically, defendant

points to the State’s argument during her trial that Wendelsdorf did not have

access to Shelby when she was abused. Defendant claims this is inconsistent

with the State’s claims against Wendelsdorf at his trial that abuse of Shelby

began only after Wendelsdorf entered defendant’s and Shelby’s lives. Defendant

also claims that the State’s making Wendelsdorf’s bloody underwear, a key piece

of evidence in his trial, “virtually nonexistent” at her trial, highlights the
                                           8


inconsistency of its trial theories. She also contends it was inconsistent for the

prosecutor to advance in final argument that she could have committed sexual

abuse.

         In response the State argues that because defendant was convicted of

child endangerment, not murder or sexual abuse, any claim she now makes of

inconsistent theories is without basis. The State suggests such a claim should

have been directed toward the charges of child endangerment instead of murder,

that defendant did not preserve error on that issue, and that consequently the

argument is not preserved for review. See State v. Hanson, 286 N.W.2d 163,

165-66 (Iowa 1979). The State further argues on the merits that the theories

presented in the trials of Wendelsdorf and defendant were consistent and were

predicated upon basic principles of vicarious criminal liability, including aiding

and abetting and joint criminal conduct.

         Ordinarily our scope of review on appeal from a criminal conviction is for

errors at law. Iowa R. App. P. 6.4. However, when constitutional claims are

involved, our review is de novo. State v. White, 545 N.W.2d 552, 554 (Iowa

1996).

         A prosecutor cannot offer inconsistent theories and facts regarding the

same crime in order to convict two defendants at separate trials. See Thompson

v. Calderon, 120 F.3d 1045, 1058 (9th Cir. 1997), vacated on other grounds, 523

U.S. 538, 118 S. Ct. 1489, 140 L. Ed. 2d 728 (1998). This does not mean that

prosecutors must present identical evidence and argue identical theories in

separate trials for different defendants charged in connection with the same

crime. Rather, it is only the use of inherently factually contradictory theories
                                        9


which violates the principles of due process. See Smith v. Groose, 205 F.3d

1045, 1051 (8th Cir. 2000).

      In that defendant was not even charged with sexual abuse, and both she

and Wendelsdorf were acquitted of murder, we accept the State’s position that

any challenge to the consistency of the theories as to murder or sexual abuse

has no basis. The acquittal on the murder charge renders any challenge as to

the consistency of the two murder charges moot.         State v. Thompkins, 318

N.W.2d 194, 196 (Iowa 1982). With respect to the issue of sexual abuse, the

prosecutor’s comment regarding sexual abuse in his closing argument in

defendant’s trial was not sufficient to raise a theory of inconsistency, as

defendant was not charged with or found guilty of sexual abuse.

      The only issue as to consistency of trial theories, then, is whether the

prosecutors advanced inconsistent theories with reference to the child

endangerment charges.         The State contends error on this issue was not

preserved. If it were, we find no basis to reverse on this issue. The theory that

Wendelsdorf may have inflicted the injuries is not inconsistent with the position

that defendant committed child endangerment as it is defined in sections

726.6(1)(a), 726.6(1)(e) and 726.6A.

      We affirm on this issue.

      III.   NECESSITY OF BILL OF PARTICULARS

      Defendant next alleges that the denial by the trial court of her motion for a

bill of particulars violated her due process rights and her Sixth Amendment right

to be informed of the nature and cause of the accusation. Defendant argues that

she was initially charged with child endangerment under sections 726.6(1)(a),
                                          10


726.6(1)(e) and 726.6A, and that she responded to the charges with a motion for

a bill of particulars. Before the court ruled on the motion, the State amended the

trial information, deleting the section 726.6(1)(a) charge.      Although the State

made a subsequent amendment again adding that charge, defendant claims the

court made its ruling against her motion based upon an understanding that the

section 726.6(1)(a) charge had been dropped.

       In order to make its case against defendant for multiple acts of child

endangerment, defendant claims the State would be required to demonstrate,

under State v. Hickman, 576 N.W.2d 364, 368 (Iowa 1998), three separate acts

of child endangerment with enough precision to enable the trier of fact to

determine beyond a reasonable doubt the time and place of each of those acts.

With such a burden of proof, defendant argues, the State should have informed

defendant of those specific acts of abuse in a bill of particulars.

       The State responds that there was no error in the denial of the motion for

a bill of particulars, as the decision to deny the motion was properly within the

court’s discretion.      The State further contends the defendant was unable to

establish prejudice, a necessary element to finding error in denying a motion for

a bill of particulars.

       We review the court’s denial of defendant’s motion for a bill of particulars

for abuse of discretion. State v. Marti, 290 N.W.2d 570, 576 (Iowa 1980). With

respect to defendant’s contention that her constitutional rights were violated, we

review de novo. State v. Anspach, 627 N.W.2d 227, 231 (Iowa 2001).

       Even under a de novo review, we fail to find error in the district court’s

denial of the motion for a bill of particulars. Although the State was required to
                                         11


demonstrate       defendant   had   committed    three   separate   acts   of   child

endangerment under section 726.6A, we do not accept defendant’s argument

that her not being made aware of those three separate acts in a bill of particulars

was an error or violated her constitutional rights.

       A bill of particulars should not be allowed merely to provide defendant with

the State’s evidence or theory of the case. State v. Conner, 241 N.W.2d 447,

452 (Iowa 1976). The child endangerment charges, together with the details of

Shelby’s individual physical injuries outlined in the minutes of testimony, were

adequate to sufficiently apprise defendant of the charges against her. We affirm

on this issue.

       IV.       SUFFICIENCY OF THE EVIDENCE

       Defendant next contends that there was insufficient evidence to support

the verdict for three reasons: 1) because defendant was not charged under

section 726.6(1)(b), she could not be charged with inflicting the skeletal injuries

the district court found she inflicted; 2) the evidence did not show defendant

“knowingly” acted in a manner creating risk under section 726.6(1)(a) or

“knowingly” permitted the continuing abuse of her child under section 726.6(1)(e);

3) the evidence did not show that it was defendant who inflicted the multiple acts

of child endangerment under section 726.6A.

       We review sufficiency of the evidence claims for errors at law. Iowa R.

App. P. 6.4. We are bound by the verdict of the trier of fact unless the verdict is

not supported by substantial evidence. See State v. Lewis, 514 N.W.2d 63, 65-

66 (Iowa 1994). In making this determination, we must consider all the evidence

in the light most favorable to the State. Id. We accept all legitimate inferences
                                          12


that may fairly and reasonably be deduced from the evidence. State v. Bayles,

551 N.W.2d 600, 608 (Iowa 1996). Evidence is substantial if it could convince a

rational fact finder the defendant is guilty beyond a reasonable doubt. Id. Direct

and circumstantial evidence are equally probative; however, evidence that

merely raises suspicion, speculation, or conjecture is insufficient. See id.

       With respect to defendant’s first claim, we disagree that the failure to

charge defendant under section 726.6(1)(b) precludes finding defendant guilty of

multiple acts of child endangerment, as the district court found, under section

726.6A. Under the plain language of section 726.6A, the offense of multiple acts

of child endangerment is defined with respect to all acts defined in section 726.6,

not merely those acts falling under section 726.6(1)(b). Defendant offers no

authority for her narrow interpretation of section 726.6A, which is contrary to the

plain language of the statute. We decline to follow it.

       Defendant also argues there was insufficient evidence to show the

knowledge element in sections 726.6(1)(a) and 726.6(1)(e) had been satisfied.

Defendant argues the evidence showed Wendelsdorf was responsible for

Shelby’s death, and we can infer from the evidence it was he, not defendant, who

must have committed the acts of child endangerment. Defendant further argues

several other people did not notice Shelby’s injuries, and she cannot be faulted

for failing to discover the injuries that nobody else could detect, or to know, once

she detected them, the injuries were abuse.

       To satisfy the elements of section 726.6(1)(a), defendant must have

“knowingly [acted] in a manner . . . [creating] a substantial risk to a child[’s] . . .

physical, mental or emotional health or safety.”          To satisfy the elements of
                                          13


section 726.6(1)(e), defendant must have “knowingly [permitted] the continuing

physical or sexual abuse of a child. . . .”

       The State claims these elements were satisfied with the following

evidence: testimony showed that injuries to Shelby would have been painful, and

defendant would have had to notice them; defendant gave inconsistent reasons

for the first broken hand, discovered October 12, 1999, claiming both that it

happened at day care and that it happened when Shelby fell out of her crib; the

remaining broken hand bones, and likely the broken rib bones, occurred in

December of 1999 when defendant would have been Shelby’s primary caretaker;

defendant cancelled at least three appointments with Shelby’s doctor in

December; and defendant did not take Shelby to see her grandmother during the

last weeks of her life when her injuries would have been most apparent.

       The State has presented substantial evidence to conclude beyond a

reasonable doubt defendant was guilty of child endangerment.         Defendant’s

argument that she was unaware of Shelby’s abuse is not supported by the

evidence. Defendant told several conflicting stories as to the origin of Shelby’s

injuries, including the first broken hand.     She failed to schedule doctor’s

appointments. She failed to appear for scheduled appointments. She isolated

Shelby from people who began noticing the injuries.       She claimed she was

asleep the entire afternoon of January 4, in spite of evidence showing that the

phone rang several times.         She called Shelby’s doctor and cancelled her

appointment before allegedly discovering her body.      She attributed Shelby’s

death to her son Tyler, not Wendelsdorf, who she currently blames for the death.

She initially denied Wendelsdorf even lived with her.
                                             14


       Further, testimony shows that defendant knew Wendelsdorf may have

been a threat to Shelby.         According to testimony, defendant wondered why

Wendelsdorf paid so much attention to Shelby’s potty training, knew that he gave

Shelby “dirty looks” and harassed her about going to the bathroom. Defendant

also saw Wendelsdorf threaten Shelby, wondered why Shelby’s clothes and

medicine     would   turn   up    missing,    and   blamed   Wendelsdorf   for   their

disappearance. Shelby suffered from several apparent bruises on her face and

body. Although these acts do not rise to the level of child endangerment, they

lend credence to the conclusion that defendant knew Shelby’s well-being was

threatened.    Given the broken bones, which do rise to the level of child

endangerment, the fact that these injuries would have been too painful not to be

discovered, the fact that defendant’s explanations were totally inconsistent and

unreliable, and the fact that defendant generally suspected Wendelsdorf, and

giving due deference to the fact-findings of the trial court, we find there was

sufficient evidence to conclude beyond a reasonable doubt that the knowledge

element with respect to each count of child endangerment in this case was

satisfied.

       Defendant next argues that her conviction of multiple acts of child

endangerment under section 726.6A was not supported by sufficient evidence

because the State failed to establish three separate acts of child endangerment

with enough precision to enable the trier of fact to determine beyond a

reasonable doubt the time and place of each of those acts. State v. Hickman,

576 N.W.2d at 368, instructs that to prove multiple acts of child endangerment

beyond a reasonable doubt, there must be enough precision to show the time
                                        15


and place each act occurred. The supreme court in Hickman reversed a finding

of multiple acts of child endangerment under section 726.6A because, although

there was evidence that the defendant in that case spanked a child, the court

found there was not enough evidence that any more than one injury to the child

could be attributed to defendant. Id. The court in Hickman noted that there was

no medical evidence or testimony linking the child’s injuries to acts by the

defendant. Id. The only evidence presented was that defendant had “whupped”

the child several times. Id. From that evidence alone, along with the fact that the

child had been hospitalized one time, the court found the trial court had

erroneously convicted the defendant of multiple acts of child endangerment. Id.

         We reject defendant’s analogy between her case and Hickman. While it is

true the State could not pinpoint the exact time of the abuse resulting in Shelby’s

broken bones, defendant was Shelby’s primary caretaker during the time the

medical evidence shows the injuries occurred. We have already found there was

evidence at trial beyond a reasonable doubt finding defendant guilty of child

endangerment, as discussed above.

         Following extensive medical testimony at trial, the trial court found

defendant responsible for five acts of child endangerment, consisting of five

separate and distinct bone breaks occurring at approximately four separate

times:

         1.    Fractured second metacarpal of the right hand      occurring
         between October 2, 1999, and October 12, 1999.
         2.    Fractured third metacarpal of the right hand       occurring
         between December 7, 1999, and December 14, 1999.
         3.    Fractured second metacarpal of the left hand       occurring
         between December 14, 1999, and December 21, 1999.
         4.    Fractured third metacarpal of the left hand        occurring
         between December 14, 1999, and December 21, 1999.
                                         16


      5.    Fractures to multiple left ribs occurring between November
      23, 1999, and December 21, 1999.

      The court further found that on New Year’s Eve of 1999, plaintiff and

Wendelsdorf smoked methamphetamine near Shelby and that they drove Shelby

home afterwards, one in the car and one driving.

      Evidence at trial further established the first five acts likely occurred in the

home, at 1501 Jackson. Moreover, they likely happened while defendant was

Shelby’s primary caregiver.    Pediatric radiologist Susan Duffek testified after

comparing x-rays of Shelby taken October 22, 1999 to X-rays taken after her

death, that five of Shelby’s left ribs were fractured two to six weeks before her

death and that there were at least three separate fractures to her hands: the

first, which was to the second metacarpal on the right hand, would have occurred

ten to twenty days before October 22, 1999; the second, which was to the third

metacarpal on the right hand, would have occurred three to four weeks before

January 4, 2000; and the third, which was to the second and third metacarpals in

the left hand, would have occurred two to three weeks before January 4, 2000.

An additional injury to the fourth metacarpal of the right hand was identified only

as occurring after October 22, 1999.

      There also was medical evidence that bruising and bleeding around

Shelby’s optic nerve, as well as internal injuries, occurred a couple of weeks

before her death. It was the opinion of the doctors that all the injuries were the

result of abuse. Medical evidence pinpointed the injuries as having occurred

during the time frame found by the district court. For the most part, the injuries

happened during the period defendant was failing to keep Shelby’s doctor

appointments.   We conclude there is sufficient evidence to find multiple acts of
                                        17


child endangerment under section 726.6A with the required precision of

Hickman.

       V.     DIMINISHED CAPACITY

       Defendant next appeals the district court’s denial of her diminished

capacity defense, claiming that expert testimony demonstrated she did not have

full mental capacity to fully understand or comprehend Shelby’s abuse. The

State responds that with respect to the crime of child endangerment, there is no

diminished capacity defense, as this defense applies only to specific intent

crimes, and child endangerment only requires the mental element of

“knowledge.” State v. Jacobs, 607 N.W.2d 679, 684 (Iowa 2000).

       The diminished responsibility defense is a common law doctrine that

permits proof of a defendant's mental condition on the issue of the defendant's

capacity to form a specific intent in those instances in which the State must prove

a defendant's specific intent as an element of the crime charged.         Id.   The

diminished responsibility defense is not available for a crime that requires only a

general criminal intent. Id.

       Defendant appeals her conviction for child endangerment. The mental

element required for child endangerment is “knowledge,” a lesser degree of

culpability than “general intent.”    As the diminished capacity defense is

unavailable even for “general intent” crimes, we agree that it must also be

unavailable here.

       VI.    CONSTITUTIONALITY OF §§ 726.6(1)(a) AND 726.6(1)(e)

       Defendant further claims on appeal that the statutes under which she was

convicted, sections 726.6(1)(a) and 726.6(1)(e) are unconstitutionally vague. To
                                           18


withstand a due process challenge, a penal statute must “define the criminal

offense with sufficient definiteness that ordinary people can understand what

conduct is prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.” Anspach, 627 N.W.2d at 232, citing Kolender v.

Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 1858, 75 L. Ed. 2d 903, 909 (1983).

We review a constitutional challenge to a statute de novo. Anspach, 627 N.W.2d

at 231.

         Defendant claims that the phrase “substantial risk” in section 726.6(1)(a),

which defines as child endangerment “knowingly [acting] in a manner that

creates a substantial risk. . . [to] a child or minor. . . ” is unconstitutionally vague.

The Iowa Supreme Court has already addressed such a vagueness challenge

and found the statute constitutional. See State v. Anspach, 627 N.W.2d at 233.

Although the court in Anspach was determining the constitutionality of the statute

as applied, we find the facts in this case which demonstrate defendant’s actions

subjected her child Shelby, who suffered numerous fractures and later died, to a

“substantial risk” are much more egregious than the “substantial risk” of merely

driving recklessly with children in a truck, as was the case in Anspach.              Id.

Defendant’s actions fall well within the proscription of the statute under any

construction. See id. at 232 (citation omitted).

         We make a similar finding regarding section 726.6(1)(e).           Under that

section, an individual commits child endangerment if he or she “knowingly

permits the continuing physical or sexual abuse of a child or minor.” See Iowa

Code § 726.6(1)(e). Defendant claims that the language, “knowingly permits” is

vague.     A statute is constitutional if its meaning is fairly ascertainable by
                                       19


reference to similar statutes, prior judicial determinations, reference to the

dictionary, or if the questioned words have a common and generally accepted

meaning. See State v. Aldrich, 231 N.W.2d 890, 894 (Iowa 1975). Under the

facts of this case defendant did not object to the abuse of her daughter in her

own house. In fact, she told conflicting stories to mask the abuse. We believe

this behavior would fall within a generally understood definition of “knowingly

permit.” Again, under the facts of this case leading to the child endangerment

conviction, we conclude that the statute is not vague, and that the defendant’s

acts fall clearly within what an ordinary person would understand to be prohibited

conduct. See Anspach, 627 N.W.2d at 233. We reject defendant’s claim that

sections 726.6(1)(a) and 726.6(1)(e) are unconstitutionally vague.

      VII.   MOTION FOR A NEW TRIAL

      Defendant’s last argument on appeal is that the trial court erred by failing

to grant a new trial on the basis of newly discovered evidence.         Following

defendant’s trial, new evidence surfaced which defendant claimed supported her

innocence. Allegedly Wendelsdorf had stated to a new girlfriend, Julie Ballantini,

that he had killed Shelby and that he had abused Shelby in the weeks prior to her

death when defendant was out of the house. This evidence, if believed, would

lend some credibility to defendant’s claims that she was unaware Shelby was

being abused.    Based upon this newly discovered evidence, the trial court

exercised its discretion to reopen the record pursuant to former Iowa Rule of

Criminal Procedure 23(2)(c) (current rule 2.24(2)(c)), rather than grant a new

trial. The State argues that the defendant did not object to the court’s denying

her a full new trial, and that her current claim that a full new trial should have
                                         20


been granted is therefore waived. See State v. Jackson, 397 N.W.2d 512, 513-

14 (Iowa 1986).

       We address the issue without determining if error was preserved. We

review for an abuse of discretion. State v. Weaver, 554 N.W.2d 240, 244 (Iowa

1996). We conclude the district court did not abuse its discretion in reopening

the record rather than granting a new trial.     A new trial based upon newly-

discovered evidence is warranted if 1) the evidence was discovered after the

verdict; 2) defendant could not have discovered the evidence earlier through the

exercise of reasonable diligence; 3) the evidence is material to the issues and

not merely cumulative or impeaching; 4) the evidence probably would change the

result of the trial. Weaver, 554 N.W.2d at 246. The district court found all four of

these elements were met and re-opened the record so it, as fact finder, could

consider the new evidence with the evidence introduced earlier. The fact finder

had all the evidence available to it. Defendant cannot show she suffered any

prejudice in being denied a new trial.

       The defendant also disputes the trial court’s amended verdict following the

introduction of newly discovered evidence as not being supported by sufficient

evidence.   We review challenges to the sufficiency of the evidence for the

correction of errors at law. State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000).

A trial court's findings of guilt are binding if supported by substantial evidence.

Id.; Iowa R. App. P. 6.14(6)(a). We conclude the trial court’s amended findings

of fact and verdict were supported by substantial evidence. After a thorough

analysis of the new testimony by Wendelsdorf and Ballantini, the trial court

determined they were not credible witnesses, even though the court did amend
                                        21


its findings of fact to conclude that Wendelsdorf had spent time alone with

Shelby. In determining Wendelsdorf and Ballantini were not credible, the court

found Wendelsdorf was forced to admit during cross-examination that he was

perjuring himself, that Wendelsdorf’s testimony was largely inconsistent with

Ballantini’s, and that the substance of Wendelsdorf’s testimony was that his

earlier statements regarding Shelby’s abuse and death were statements of

fantasy for Ballantini’s sexual gratification.    Moreover, Ballantini’s statements

regarding her relationship with Wendelsdorf and her lack of familiarity with his

trial were directly refuted, by him and by at least one other witness.         Most

significantly, however, was the fact that Wendelsdorf’s own earlier statement that

he had killed Shelby at 3 a.m. on January 4 was not consistent with expert

opinion regarding her death. Based upon science and defendant’s own claims

that she had checked on Shelby the morning of January 4, the expert opinion at

trial was that Shelby had died between roughly two and eight hours prior to the

4:30 p.m. arrival of the medical examiner. Given these and other problems with

the credibility of the newly discovered evidence, the district court maintained its

initial verdict. We give weight to the lower court's findings concerning witness

credibility.   Iowa R. App. P. 6.14(6)(g).       Given the district court’s detailed

reasoning as to why the newly admitted evidence was not credible enough to

alter the verdict, coupled with our earlier conclusions as to the evidence in this

case, we affirm the amended verdict.

        AFFIRMED.

				
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