IN THE COURT OF APPEALS OF IOWA
No. 22-0522 Filed August 30, 2023
STATE OF IOWA, Plaintiff-Appellee,
vs.
DEREK MICHAEL WHITE, Defendant-Appellant. ________________________________________________________________
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. 2
TABOR, Judge.
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.
I. Facts and Prior Proceedings
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
1 Donna’s teenaged son also lived with them, but she took him to stay with his
grandmother in North Dakota a few days earlier. 3
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 4
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: “[H]e ran into the
hospital, smiling, laughing, talking. I believe his foster mom at the time came over,
and she picked him up and she was hugging him and he was hugging her. Just a
completely different kid than I saw in the ER.”
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 5
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.
II. Analysis
A. Face-to-Face Confrontation
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
2 White also raised a Sixth Amendment challenge in the district court. But he does not renew that federal constitutional claim on appeal. 6
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
3 The State argues that White did not preserve error. It asserts that White’s objection to the closed-circuit testimony at trial was narrower than the one he presents on appeal. And, in the State’s view, the district court did not address the broader objection. In his reply brief, White highlights the parts of the record where trial counsel argued for “more protection” under the state constitution. He also quotes the district court’s rejection of that “stricter approach” urged by the defense. On this record, we find error was preserved. 4 White asked our supreme court to retain this case so that it could resolve this
emerging area of constitutional law. But the supreme court transferred the case to us. 7
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 (comparing absence of a face-to-face encounter with the
admission of hearsay statements “despite the defendant’s inability to confront the
declarant at trial”). 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 witness is
“unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” Id. at 53–54.
The State ties off the loose threads. First, calling the Sixth Amendment
terrain “messy” is “overstated” in the State’s view. It points out that the Crawford
majority did not mention Craig, much less disavow it. See Crawford, 541 U.S.
at 38−69. The State maintains there’s “no question Craig remains good law.”
Second, the State contends “the Iowa Supreme Court has recently rejected
requests to apply a different standard to confrontation clause issues under the
Iowa Constitution.” See In re J.C., 877 N.W.2d 447, 452 (Iowa 2016) (citing State
v. Kennedy, 846 N.W.2d 517, 522 (Iowa 2014)).
Both sides make valid points. On the one hand, White is not alone in
believing that “Crawford’s reasoning has a potentially profound impact on Craig.” 8
See Marc C. McAllister, The Disguised Witness and Crawford’s Uneasy Tension
with Craig: Bringing Uniformity to the Supreme Court’s Confrontation
Jurisprudence, 58 Drake L. Rev. 481, 509 (2010). On the other hand, the State is
correct that Crawford and Craig can co-exist. That’s because the two cases
govern distinct confrontation clause issues. Craig held that while the Confrontation
Clause favors face-to-face confrontation, sometimes physical presence must yield
to public policy considerations and the necessities of a case. 497 U.S. at 849.
Meanwhile, Crawford held that the Confrontation Clause prohibits the “admission
of testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” 541 U.S. at 54−55.
But here’s where the tapestry unravels: Ohio v. Roberts, 448
U.S. 56 (1980). Craig relied on Roberts, and Crawford overruled Roberts.
Compare Craig, 497 U.S. at 852 (comparing “assurances of reliability” for
admission of hearsay with children’s closed-circuit testimony), with Crawford, 541
U.S. at 61 (declining to leave Sixth Amendment protections to “amorphous notions
of ‘reliability’”). Yet courts, including our supreme court, continue to apply the test
in Craig to questions of remote testimony. See Rogerson, 855 N.W.2d at 499.
Conceding some measure of messiness in the federal precedents, we
consider White’s invitation to go a different direction under the Iowa Constitution.
Our ability to entertain that invitation depends on whether our supreme court has
already provided guidance or if it is an open question. If the supreme court has 9
weighed in, we are precedent-bound.5 State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct.
App. 2014). But when open questions are presented to us, as an intermediate
appellate court, we have the power to decide. See Walnut St. Assocs., Inc. v.
Brokerage Concepts, Inc., 20 A.3d 468, 480 (Pa. 2011). The State suggests that
the supreme court has already spoken by “reject[ing] requests” to apply a different
standard under Iowa’s confrontation clause in J.C. and Kennedy. But in neither
case did the defendant argue for a particular test under the state constitution,
instead, citing only case law decided under the Sixth Amendment. J.C., 877
N.W.2d at 452. By contrast, White argues for more protection for his right to face-
to-face confrontation under the state constitution. Because our supreme court has
not decided this question, we have the power to do so. See State v. Spates,
No. 19-0749, 2020 WL 6156739, at *5 (Iowa Ct. App. Oct. 21, 2020) (“And so this
case calls on us to plow some fairly new ground.”).
So on to the merits. White contends that the closed-circuit testimony
approved by Iowa Code section 915.38(1)(a) violates article I, section 10 of the
Iowa Constitution. We start with the clause’s text: “In all criminal prosecutions, and
in cases involving the life, or liberty of an individual the accused shall have a
right . . . to be confronted with the witnesses against him, . . . .” Iowa Const. art. I,
§ 10.6 White insists that our courts have long interpreted this clause as
guaranteeing an accused “the right to see the witnesses against him, face to face.”
5 This concept is known as vertical stare decisis. In short, intermediate appellate courts and trial courts are bound by the decisions of their state supreme court. See Rice v. Rice, 533 S.W.3d 58, 62 (Tex. Ct. App. 2017). 6 This phrasing is much like the federal clause: “In all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. 10
See State v. Reidel, 26 Iowa 430, 437 (1869). In Reidel, the court held that the
deposition of a notary could not be used against the defendant in a criminal
prosecution because the state constitution “forbids it.” Id.
In its response, the State does not go back to Reidel. Rather, it jumps
ahead to State v. Strable, 313 N.W.2d 497, 501 (Iowa 1981). Strable—citing both
the federal and state confrontation rights—assumed without deciding that the trial
court should not have allowed a blackboard to be placed between the defendant
and the sexual abuse victim during her testimony. Id. But the court found that any
error was harmless beyond a reasonable doubt because the key purposes of the
Confrontation Clause were served. Those purposes were (1) cross examination
and (2) observation of the demeanor of the witness by the trier of fact. Id.
Strable was the precursor to State v. Coy, 397 N.W.2d 730, 734
(Iowa 1986), where our supreme court held that the defendant’s federal
confrontation right was not infringed by using a screen to shield child witnesses
from his view. The United States Supreme Court reversed that ruling in Coy v.
Iowa, reiterating the importance of “the irreducible literal meaning of the
[confrontation clause]: ‘a right to meet face to face all those who appear and give
evidence at trial.’” 487 U.S. 1012, 1020–21 (1988) (cleaned up). Coy left for
another day whether any exceptions exist to the mandate for face-to-face
confrontation. Id. at 1021. The Court added: “the exception created by the Iowa
statute, which was passed in 1985, could hardly be viewed as firmly rooted. Since
there have been no individualized findings that these particular witnesses needed
special protection, the judgment here could not be sustained by any conceivable
exception.” Id. 11
“Another day” came two years later when the Supreme Court decided Craig.
The Craig majority recognized that face-to-face confrontation “enhances the
accuracy of factfinding by reducing the risk that a witness will wrongfully implicate
an innocent person.” 497 U.S. at 846. But it also recognized that face-to-face
confrontation was “not the sine qua non[7] of the confrontation right.” Id. From
there, the majority reasoned that a defendant’s right to confront witnesses may be
satisfied absent face-to-face confrontation when excusing the witness’s physical
presence is “necessary to further an important public policy” and “the reliability of
the testimony is otherwise assured.” 497 U.S. at 850. The court held that the Sixth
Amendment did not prohibit the use of a closed-circuit television procedure where
necessary to protect a 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. Id. at 857.
As White emphasizes, that holding did not sit well with Justice Scalia. He
believed the closed-circuit exception for child witness testimony was the
“subordination of explicit constitutional text to currently favored public policy.” Id.
at 861 (Scalia, J., dissenting). In Justice Scalia’s view, face-to-face confrontation
was not merely a preference under the Sixth Amendment, but “a constitutional right
unqualifiedly guaranteed.” Id. at 863.
7 “Sine qua non” translates from Latin to “without which not”—it means “[a]n indispensable condition or thing; something on which something else necessarily depends.” Sine qua non, Black’s Law Dictionary (11th ed. 2019). 12
Back to Iowa. Five years after Craig, our supreme court decided that the
closed-circuit procedures to protect child witnesses in the state statute8 preserved
“the defendant’s basic right of confrontation while protecting minor victims from the
trauma which often results from testifying in a defendant’s physical presence.”
State v. Rupe, 534 N.W.2d 442, 444 (Iowa 1995) (relying on Craig analysis). The
court also rejected Rupe’s claim that the district court overemphasized the child’s
inability to tell the truth when facing his abuser. “Had the district court ignored this
feature of B.F.’s response to trauma, it would have effectively undermined one of
the fundamental goals of every trial—the truthful assertion of reliable evidence.”
Id.
Rupe addressed only the federal right to confrontation. But we find no
compelling reason in White’s briefing to take a different approach under the state
confrontation clause. See Spates, 2020 WL 6156739, at *7 n.7 (rejecting invitation
to interpret impartial-jury clause of state constitution as less nuanced than Sixth
Amendment). Beginning with its text, the wording of article I, section 10 does not
support the absolutist guarantee to face-to-face confrontation endorsed by Justice
Scalia’s dissent in Craig and advocated by White here. Like the federal clause,
article I, section 10 does not mention face-to-face or physical confrontation.
Moving to case law, our supreme court’s interpretation of article I, section 10 has
paralleled the United States Supreme Court’s interpretation of the Sixth
Amendment. See Strable, 313 N.W.2d at 500 (describing primary aim of both
8 What is now located at Iowa Code section 915.38(1)(a) was then found at Iowa
Code section 910A.14 (1995). 13
confrontation clauses as securing the “opportunity of cross examination” not “the
idle purpose of gazing upon the witness, or being gazed upon by him”).
Against this backdrop, we reject White’s argument that the closed-circuit
procedures allowed by section 915.38(1)(a) violate Iowa’s confrontation clause.
The preference for face-to-face confrontation under both the federal and state
clauses “must occasionally give way to considerations of public policy and the
necessities of the case.” See Rogerson, 855 N.W.2d at 499 (quoting Craig, 497
U.S. at 849). Here, the testimony of the children’s therapist justified allowing them
to testify against their father by closed-circuit television.
B. Substantial Evidence
White also challenges the sufficiency of the State’s evidence against him.
We review for legal error. State v. Crawford, 974 N.W.2d 510, 516 (Iowa 2022).
We consider whether, when taken in the light most favorable to the State, the
verdicts are supported by substantial evidence. Id. Evidence is substantial if it
would convince a rational fact finder that White is guilty beyond a reasonable
doubt. See id.
To address White’s challenge, we start with the jury instructions. For the
first count, neglect or abuse of a dependent child, the State had to prove these
elements:
1. On or between May 2, 2020, to May 5, 2020, the defendant was the parent or person having custody of a child, D.C. . . . 2. D.C. was a person under the age of 14 years. 3. The defendant knowingly or recklessly exposed D.C. to a hazard or danger against which D.C. could not reasonably be expected to protect himself. 14
The court also instructed the jury that the definition of “custody” in the first element
was not limited to legal custody. It also means “to hold the responsibility to care
for that individual.” See State v. Johnson, 528 N.W.2d 638, 642 (Iowa 1995) (“It is
the manifest intent of the legislature to hold section 726.3 applicable to all
situations in which one individual may be charged with the care and control of
another.”). White contests the State’s proof that he was responsible for D.C.’s
care. He acknowledges living with Reisdorfer and D.C. But he points to a dearth
of testimony that he was charged with the child’s care. But as the State notes, the
evidence showed that Reisdorfer left D.C. with White when she drove her older
son to North Dakota. The State also presented testimony that White was the adult
in the home who meted out physical punishment to D.C. And state social workers
were supervising White’s relationship with the child. In fact, White dictated their
access to D.C. when they stopped by to check on him. All told, the State’s proof
was sufficient to show White took responsibility for D.C.’s care.
For the second count, the State had to prove these elements:
1. On or about May 2, 2020, to May 5, 2020, the defendant was the parent, guardian, or person having custody or control of D.C. or a member of the household in which D.C. resided. 2. D.C. was under the age of 14 years. 3. The defendant acted with knowledge that he was creating a substantial risk to D.C. physical health or safety. 4. The defendant’s act resulted in bodily injury to D.C.
Similarly, for the third count, the State had to prove these elements:
1. On or about May 2, 2020, to May 5, 2020, the defendant was the parent, guardian, or person having custody or control of D.C. or a member of the household in which D.C. resided. 2. D.C. was under the age of 14 years. 3. The defendant intentionally committed an act or series of acts which used unreasonable force, torture, or cruelty that resulted in physical injury to D.C. 15
4. The defendant’s act resulted in bodily injury to D.C.
White contends the State’s proof fell short on the third and fourth elements
of both child-endangerment counts. In short, he claims the State presented
insufficient evidence that he was the person who harmed D.C. White points out:
“There was no eyewitness to D.C.’s injuries. D.C. himself did not testify.”
But viewing the evidence in the light most favorable to the State, we find
sufficient proof that White inflicted D.C.’s injuries. First, it is common for physical
abuse to occur behind closed doors. See J.C., 877 N.W.2d at 459 (noting absence
of eyewitnesses in many child-abuse cases). Second, testimony would not be
expected from a two-year-old victim. See id. at 456 (noting very young children
may not be competent to testify). Still, the circumstantial evidence was substantial.
See State v. Ernst, 954 N.W.2d 50, 59 (Iowa 2021) (“Juries must necessarily make
inferences when finding facts based on circumstantial evidence.”).
On this record, the jury was free to consider White’s reluctance to allow the
social worker to check on D.C. Investigators testified that when they did see the
child, an injury to his face “looked like a belt mark.” While executing a search
warrant, they found a belt belonging to White that “closely resembled” the markings
on the child’s face.
And not only did White own the belt, he was the one who used it, according
to his son. J.W. testified that White spanked D.C. with his belt. J.W. recalled White
taking D.C. upstairs to the bedroom to punish him and, from downstairs, J.W. could
hear the child crying out: “He screamed pretty loud.” J.W. also testified that 16
Reisdorfer “never spanks.”9 M.W. shared similar memories of D.C. “crying out
loud” from upstairs and White sounding “mad.” M.W. recalled hearing a “big thud”
when D.C. was taking a nap and then seeing bruising on D.C.’s face. M.W. thought
D.C. fell out of bed. And that was the explanation that Reisdorfer ventured for the
injuries. But the child’s bed was a mattress on the floor, and medical professionals
testified that the number, location, and pattern of D.C.’s injuries contradicted that
explanation. Viewing the circumstantial evidence as a whole, a reasonable jury
could believe that White inflicted D.C.’s injuries.
C. Proposed Jury Instruction
Beyond his sufficiency argument addressing D.C.’s injuries, White alleges
that the district court should have given this jury instruction: “The mere fact that a
person suffered an injury does not mean a party committed a crime.” White
borrowed the proposed language from Iowa Civil Jury Instruction 700.8:
Accident Does Not Constitute or Raise Presumption of Negligence. The mere fact an accident occurred or a party was injured does not mean a party was [negligent] [at fault].
At trial, White’s counsel argued the instruction was “an accurate statement of the
law, more so with crimes than it is with torts.” The State objected to that instruction,
asserting it was not appropriate to “basically get another version of what his
defense is in the jury instructions.” The court declined to give the instruction,
doubting its application outside the tort context.10
9 Given the timing of the bruising, the State’s evidence also ruled out D.C.’s biological father and older brother as the perpetrators. 10 The parties debate the standard of review. White urges us to review for errors
at law because his proposal was a correct statement of law and not embodied in the other instructions. See Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016). By contrast, the State contends review is for an abuse of discretion 17
On appeal, White maintains that “principles of causation normally
associated with civil tort litigation have a proper application in criminal cases.” See
State v. Murray, 512 N.W.2d 547, 550 (Iowa 1994). So, in his view, it was
appropriate for the defense to propose this civil instruction in his criminal case. He
relies on the discussion of the instruction in a medical malpractice appeal—Smith,
757 N.W.2d at 681. He contends that like Smith, where the jury “might improperly
use a bad medical result to find negligence,” here “a jury would be tempted to infer
guilt because a young child was injured and only White was on trial to be held
accountable for those injuries.”
But even if we assume White’s proposed instruction was an accurate
statement of the law, its exclusion was not reversible error. See State v.
Coleman, 907 N.W.2d 124, 138 (Iowa 2018) (finding reversal is required only if
instructions misled the jury or the court materially misstated the law). As noted in
Smith, the “injury is not fault” instruction “tends to state an obvious proposition.”
Id. And other instructions conveyed the same message to White’s jury. For
instance, the court instructed that White’s plea of not guilty placed the burden on
the State to prove guilt beyond a reasonable doubt.
The court also instructed that he was presumed innocent. It told the jurors:
“This presumption of innocence requires you to put aside all suspicion that might
arise from the arrest, charge, or the present situation of the defendant.” The court
because the proposed instruction was neither required nor prohibited by law. See State v. Plain, 898 N.W.2d 801, 816 (Iowa 2017) (carving out exception to Alcala standard for “cautionary instructions”). Finding White’s proposed instruction was more than cautionary, we review for the correction of legal error. See Smith v. Koslow, 757 N.W.2d 677, 679 (Iowa 2008), overruled on other grounds by Alcala., 880 N.W.2d at 708 n.3. 18
admonished the jurors not to be influenced by their sympathies or emotions.
Finally, the court instructed the jurors: “To commit a crime a person must intend to
do an act which is against the law. While it is not necessary that a person knows
the act is against the law, it is necessary that the person was aware he was doing
the act and he did it voluntarily, not by mistake or accident.” When considered as
a whole, the instructions fairly and accurately conveyed to the jury that D.C.’s
injuries alone did not prove that White committed a crime.
D. Response to Jury Question
White next contends that the district court abused its discretion by failing to
clarify the child-endangerment instructions in response to a jury question. During
their deliberations, the jurors sent the court this note:
Here’s the element referenced: “3. The defendant intentionally committed
an act or series of acts which used unreasonable force, torture, or cruelty that
resulted in physical injury to D.C.” See Iowa Code § 726.6(1)(b).
After receiving the note, the court conferenced with the attorneys. The
prosecution insisted: “We can’t supplement and start giving new instructions. The
instructions are what they are.” Defense counsel disagreed and asked the court 19
to clarify for the jurors that the element required a “volitional act.” He urged,
“inaction does not qualify. It must be action.” The court directed the jurors to “re-
read the instruction.”
On appeal, White first attacks the State’s absolutist position that no other
instructions were possible. No doubt, “the court may, at the request of the jury,
give further instructions, since the interest of justice requires that the jury have a
full understanding of the case.” State v. Martens, 569 N.W.2d 482, 485
(Iowa 1997). But the question remains whether the court abused its discretion in
declining to give a clarifying instruction in response to the jury’s question. See
State v. McCall, 754 N.W.2d 868, 872 (Iowa Ct. App. 2008).
On that substantive question, White argues the court should have
disabused the jury of the notion that “not bringing the child in” (presumably for
medical care) amounted to an intentional act as required for count three, child
endangerment under section 726.6(1)(b). He reasons: “While that may have
satisfied count II, which charged White with acting ‘with knowledge that he was
creating a substantial risk to D.C.’s physical health or safety,’ it did not satisfy the
element of count III requiring him to have ‘intentionally committed an act or series
of acts which used unreasonable force, torture, or cruelty that resulted in physical
injury to D.C.’”
We need not embrace White’s position that failure to provide medical care
for a child could never be an intentional act that used cruelty resulting in physical
injury. See State v. Arends, No. 03-0420, 2004 WL 1159730, at *3 (Iowa Ct. App.
May 26, 2004) (noting that Iowa Code section 702.2 defines “act” to include “a
failure to do any act which the law requires one to perform.”). Rather, we find the 20
court properly exercised its authority in directing the jury to re-read the marshalling
instruction. See State v. Wissing, 528 N.W.2d 561, 565 (Iowa 1995) (finding no
abuse of discretion regarding the district court’s decision not to define an
instruction that was a correct statement of the law). White is not entitled to relief
on this claim.
E. Reasonable Ability to Pay Restitution
In his final issue, White contests the order requiring him to pay nearly
$11,000 in “category B” restitution.11 That category of restitution is subject to an
offender’s reasonable ability to pay. Iowa Code § 910.2A; State v. West Vangen,
975 N.W.2d 344, 353 (Iowa 2022). White contends the court abused its discretion
in assessing his financial condition.12
Not so fast, says the State. It argues that because White did not file a
financial affidavit, as required by Iowa Code section 910.2A(2)(b), he waived any
challenge to his reasonable ability to pay. In reply, White argues that the district
court’s act of questioning him under oath at the sentencing hearing “was the
11 Iowa Code section 910.1(2) defines category “B” restitution, which includes court-appointed attorney fees and court costs. These costs stand in contrast to category “A” restitution (fines, penalties, and surcharges) and pecuniary damages (crime victim restitution). Iowa Code § 910.1(1), (6). 12 Again, the parties debate the standard of review. The State argues review is for
legal error because our “sole task” is to decide whether the restitution order lacks evidentiary support or misapplies the law. See State v. DeLong, 943 N.W.2d 600, 604 (Iowa 2020). For his part, White asserts that we review reasonable-ability-to-pay determinations for an abuse of discretion. See Iowa Code § 910.2A(5) (presuming proper exercise of discretion); State v. Hawk, 952 N.W.2d 314, 320 (Iowa 2020). Both parties are correct. We review restitution orders for the correction of errors at law. State v. Klawonn, 688 N.W.2d 271, 274 (Iowa 2004). But “[b]ecause restitution issues implicate the sentencing court’s discretion, a defendant is entitled to have it exercised.” State v. Mai, 572 N.W.2d 168, 171 (Iowa Ct. App. 1997). 21
equivalent of signing a financial affidavit.” He adds that the State did not object to
substituting in-person testimony for an affidavit. Nor did it take a position on his
reasonable ability to pay. Because the State did not raise a challenge under
section 910.2A(2)(b) in the district court, it cannot do so here. See DeVoss v.
State, 648 N.W.2d 56, 63 (Iowa 2002) (“[O]ne party should not ambush another by
raising issues on appeal, which that party did not raise in the district court.”). So,
we reject the State’s claim that White waived his reasonable-ability-to-pay
challenge and turn to the merits.
By statute, the district court started with the presumption that White had the
reasonable ability to make payments toward the full amount of category “B”
restitution. See Iowa Code § 910.2A(1). The legislature placed the burden on
White to rebut that presumption. See id. § 910.2A(2)(a). At the sentencing
hearing, the court placed White under oath and asked him questions about his
financial status. The court confirmed that White had his general equivalency
diploma, a job, and a history of steady employment. White had no current
disability. His only outstanding debt was $3000 in back child support. His monthly
child support payments of $269 were deducted from his paycheck. After hearing
that evidence, the court expressed concern that White was behind in his child
support payments. But overall, the court was optimistic that White could afford to
make restitution payments:
[B]ased on your representations and based on what I’ve seen in the [presentence investigation], you have been able to maintain and obtain full-time employment. Like I said, don’t have a crystal ball and neither do you. But I would assume that upon your release from prison, you will be able to seek full-time employment. And I would encourage you to do so. It will probably be a term of your release of some sort pending something that we can’t predict. 22
The court then decided that White had the reasonable ability to pay “not more than
$10,000 of court-appointed attorney fees. And you'll be ordered to pay the rest of
the category B restitution that would be the court reporter fees and the court costs.”
White seeks to vacate that restitution order. He maintains that the district
court abused its discretion deciding he had the resources to repay $10,000 in
court-appointed attorney fees, plus court costs, which amounted to $880.75. White
acknowledges the court considered his potential income after prison and his child-
support obligation. But he contends the court failed to factor in the expenses he
faced in providing for his “basic human needs such as food, shelter, and clothing.”
See Hawk, 952 N.W.2d at 321.
The State defends the thoroughness of the court’s restitution analysis. It
also points out that White presented no evidence to rebut the statutory
presumption that he could make payments toward the capped attorney fees and
court costs. We agree that White did not meet his burden under section
910.2A(2)(a) and affirm the restitution order.
AFFIRMED.