State of Iowa v. Kashenna Nichole Tucker

IN THE COURT OF APPEALS OF IOWA
No. 17-0673
Filed July 5, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
KASHENNA NICHOLE TUCKER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Wapello County, Daniel P. Wilson,
Judge.
Kashenna Tucker appeals her conviction for child endangerment resulting
in death. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nerissa N. Jennisch,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., Doyle, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
2
VOGEL, Presiding Judge.
Kashenna Tucker appeals her conviction for child endangerment resulting
in death. She argues the evidence is insufficient to prove she knowingly acted in
a manner that created a substantial risk to the decedent’s safety. We find the
evidence is sufficient to support her conviction, and we affirm.
I. Background Facts and Proceedings
In January 2014, Tucker lived in Ottumwa with W.E, who was born in
January 2011.1 Tucker met W.E.’s mother in Chicago, and Tucker agreed to
temporarily act as caretaker for W.E. Even though Tucker and W.E. were
unrelated, she referred to W.E. as her nephew.
In a series of interviews with investigators, Tucker said she left W.E. with
her friend Latisha Johnson for a few hours on Sunday, January 19, 2014. Johnson,
although uncertain of the date, testified W.E. was “real quiet” when she watched
him but he ate that afternoon and otherwise seemed normal at the time. In her
interview, Tucker said she took W.E. to a park later that day where he fell down a
series of concrete steps. Tucker said W.E. cried and complained that his “tummy”
hurt after the fall and she took him home. She noticed a scrape on his eye and a
bump on his head from the fall. She said on Monday he stayed in bed and
complained his tummy hurt, but she thought “it was something that I could handle.”
That Monday, she scheduled an appointment at their usual medical clinic for W.E.
to be seen on Thursday, January 23.
1
Tucker also lived with her son, who was also three years old at the time.
3
Tucker told investigators that when W.E. woke on Tuesday, January 21,
she made him stand up and move around, at which point he began throwing up
“brown, red vomit” that appeared to contain blood. She said she called the medical
clinic and asked for an earlier appointment, but they said they could not see him
sooner and she should take him to the emergency room. Tucker’s phone showed
she called the clinic at 8:07 that morning. Her phone also showed she received a
call from and exchanged five texts with an unidentified person around 10:00 that
morning. She sent one text at 10:04 that said, “Im home.” Investigators later found
receipts inside a shopping bag in Tucker’s home. The receipts show purchases
from two separate Ottumwa stores on Tuesday morning at 9:38 and 9:48. The
items purchased include bath tissue, moist wipes, baking soda, and ointment. The
items were purchased using debit cards that match the last four digits of cards in
Tucker’s name. She said she tried cleaning the vomit that morning. Investigators
later found several stains that appeared to be brown vomit throughout her home,
including on carpet and hard flooring in several locations, on tissues in the trash,
and on unwashed children’s bedding inside a washing machine.2 Some of the
stains on the carpet were covered with baking soda, and there was a mop with a
bucket and water in the kitchen.
Around noon on Tuesday, January 21, Tucker brought W.E. into the
emergency room in Ottumwa. He had minor, inefficient breathing and no pulse.
Medical staff performed CPR for forty-five minutes before he regained a pulse, at
which point they arranged to transport him to the University of Iowa Hospitals and
2
The record contains several photographs of the stains in Tucker’s home.
4
Clinics (UIHC) in Iowa City for advanced care. At 2:38, Tucker told her boyfriend
via text message, “if im arrested please come iowa city.” W.E. remained in the
Ottumwa emergency room for a couple of hours and showed some improvement
before being airlifted to UIHC later that afternoon. During the flight to Iowa City,
he lost his pulse around 3:55. Staff continued providing emergency care in the air
and at UIHC. He never regained a pulse at UIHC, and he was pronounced dead
at 4:45 that afternoon.
W.E.’s emergency physician at UIHC noted bruises and abrasions across
his head, which led him to be concerned W.E. had suffered a head injury. The
physician also noted W.E.’s bruises were different colors in different locations,
which suggested they resulted from non-accidental injuries occurring at multiple
times. On January 23, a full autopsy was performed, and W.E.’s cause of death
was determined to be “[a]cute peritonitis due to duodenal perforation due to blunt
force injuries of the abdomen.” Peritonitis is an infection of the lining of the
abdomen, which typically results from an abdominal injury. W.E.’s duodenum, a
part of the small intestine, had a hole that allowed his bowel contents to enter his
abdominal cavity. W.E. had internal bruising that suggested his abdominal injuries
resulted from a single impact. Dr. Dennis Firchau, who performed the autopsy at
UIHC, determined W.E.’s death was a homicide, opining, “the abdominal injuries
that resulted in the peritonitis were highly unlikely to be from an accidental cause
and were most likely the result of an inflicted injury.”
Investigators interviewed Tucker multiple times in the days and weeks
following W.E.’s death. Police eventually arrested her in Utah in December 2015
and charged her with first-degree murder and child endangerment resulting in
5
death. After waiving her right to a jury trial, the matter was tried to the district court
on January 3, 2017. Among the State’s witnesses were Dr. Charles Jennissen,
who treated W.E. at UIHC:
Q. Is peritonitis something that you would die from
immediately upon receiving the injury that caused the tear in the
intestine? A. No.
Q. How does it progress? A. Well, once there is entry of
bacterial content into the peritoneum, over time, there can be a
reaction to that. And increasing numbers of growth of bacteria, and
then inflammation of the lining, and the mesentery, the lining of the
intestines related to this, you know, bacterial content from the bowel
that’s now in the abdomen, which is not normally there. And this can
cause increasing inflammation, abdominal pain. And typically for
that then, if you have a child with appendicitis and has peritonitis,
they are complaining of abdominal pain and have findings on exam.
And often, that needs to be treated with antibiotics or surgery. So to
die from that, you usually would have to have a progressive infection
that’s getting worse and worse over a period of time, perhaps even
days. And then the patient has bacteria that enters into the blood
stream causing sepsis. Eventually, a decrease in blood flow from
the septic shock. And so a decrease in blood flow to the brain, the
heart, other vital organs causing eventually, cardiopulmonary arrest.
So this isn’t something that happens over, you know, a sudden
period of time. This is something that happens over a period of time.
Q. Is it fair to say that not treated, and it results in death, that
it would be a long and painful death? A. It would be very
uncomfortable. Now eventually a child might become very, not lucid
because they’re not getting enough blood flow to the head. But yes,
it would eventually be very painful and discomforting. Anyone seeing
that child would say this child is sick. They need to be seen. And
they need to be taken care of.
Q. And when you say this child is sick, could it be easily
thought that it was just a flu or something simple like that? Or would
it be more obvious? A. Well, you know, initially, these might not
have been very significant as far as the symptoms that they have.
But as peritonitis develops and as they have worsening symptoms
and then perhaps developing into septic shock, it would have been
clear and clearer this child was not very responsive and is getting
sicker and sicker.
The State also presented testimony from Dr. Firchau:
Q. What is the progression of [peritonitis]? I mean, once the
perforation occurs, does everything happen right away? Or is it a
6
slow progression? A. Usually not. Usually it takes some time
depending on the size of the defect and the amount of material in the
area where the defect was. It takes some time for the contents to
spill and then the inflammation to begin and spread. And again, there
could be some variability. But this is a process that generally takes
some time. And usually there’s often, or not uncommonly, there is a
period where an individual is quite symptomatic with your symptoms
of pain, nausea, vomiting, and very likely a fever prior to becoming
more medically unstable.
Q. Is it unusual for it not to be caught before someone dies
from it? A. It usually presents itself clinically. So the person who
has it will generally know that there’s something wrong. And if the
person has, let’s say an adult who has the ability to make decisions
for him or herself, it would be their choice to seek medical
intervention or not. Or inform somebody else. But generally, there
is some time where it’s quite clinically pronounced where people
would often seek medical intervention or medical assistance for this.
On February 3, 2017, the court entered its verdict. Regarding the count of
murder in the first degree, the court found a lack of evidence Tucker committed a
violent act that caused W.E.’s injuries, and it found her not guilty of murder.
Regarding the count of child endangerment resulting in death, the court found
Tucker had custody or control of three-year-old W.E. during the period at issue,
and she knowingly acted in a manner that created a substantial risk to the physical
health or safety of W.E., which resulted in W.E.’s death. Therefore, the court found
her guilty of child endangerment resulting in death. The court sentenced her to
incarceration for no more than fifty years.
Tucker now appeals. She argues the evidence is insufficient to prove she
knowingly acted in a manner that created a substantial risk to the W.E.’s safety.
II. Standard of Review
We review claims of insufficient evidence for correction of errors at law.
State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). In doing so, we view the
evidence “in the light most favorable to the State.” Id. “[W]e will uphold a verdict
7
if substantial record evidence supports it.” Id. “Evidence is considered substantial
if, when viewed in the light most favorable to the State, it can convince a rational
jury that the defendant is guilty beyond a reasonable doubt.” Id. The factfinder is
“free to reject certain evidence, and credit other evidence.” Id.
III. Analysis
“When [a sufficiency-of-the-evidence] claim is made on appeal from a
criminal bench trial, error preservation is no barrier.” State v. Anspach, 627
N.W.227, 231 (Iowa 2001).
The district court convicted Tucker of child endangerment resulting in death
under Iowa Code section 726.6(1)(a) (2014) (“A . . . person having custody or
control over a child . . .commits child endangerment when the person . . .
[k]nowingly acts in a manner that creates a substantial risk to a child or minor’s
physical, mental or emotional health or safety.”). As used in the statute, “‘act’
includes a failure to do any act which the law requires one to perform.” Iowa Code
§ 702.2. Additionally, “knowingly” means “the defendant acted with knowledge that
[he or] she was creating substantial risk to the child’s safety.” State v. Leckington,
713 N.W.2d 208, 214 (Iowa 2006).
Tucker argues the evidence does not support a conclusion that, prior to
W.E.’s death, she acted with the required knowledge that she was creating
substantial risk to W.E.’s safety. See id. At most, she asserts the evidence shows
she should have known of the risks.
Tucker is correct that the record shows she should have known W.E.’s
deteriorating and dire condition. Dr. Jennissen testified about the progression of
peritonitis and the resulting pain, which would cause “[a]nyone seeing that child
8
[to] say this child is sick. They need to be seen.” Similarly, Dr. Firchau testified
advanced peritonitis is generally “quite clinically pronounced where people would
often seek medical intervention or medical assistance.”
Beyond this general medical evidence of the obvious distress
accompanying peritonitis, the record contains sufficient evidence specific to the
gravity of W.E.’s condition. Tucker described W.E. as clearly ill the entire day
before his death. By the morning of his death, W.E.’s health had declined
significantly as he repeatedly vomited blood throughout the home. The
investigators’ testimonies and evidentiary photographs show the volume and
spread of the vomit. Tucker’s statements to investigators—made hours after
W.E.’s death—show she thought the vomit contained blood at the time. She knew
about the bloody vomit no later than 8:07 that morning when she called the clinic.
While her attempt to seek medical attention was appropriate, she ignored the
clinic’s advice to seek emergency care. Instead, she apparently left home to
purchase cleaning supplies and other items,3 talked and texted on her phone when
she returned home, and began cleaning. Finally, she brought W.E. into the
emergency room when he had no pulse and was near death. That occurred
around noon, about four hours after she called the medical clinic and was advised
to take W.E. to the emergency room. W.E.’s bloody vomit and deteriorating
condition clearly showed he needed immediate medical care, and Tucker’s
decision to delay emergency care for about four hours—if not longer—after she
3
The record does not explain who, if anyone, watched W.E. while Tucker was shopping.
9
found him listless and vomiting blood, provides sufficient evidence that she acted
with the required knowledge of creating a substantial risk to his safety. See id.
We recognize the evidence could have supported a different verdict. W.E.’s
symptoms of stomach pains and vomiting are consistent with many non-serious
childhood illnesses. Tucker repeatedly told investigators she did not know the
severity of the situation and she thought she could handle it. However,
contradictory evidence does not render other evidence insufficient. See Sanford,
814 N.W.2d at 615. Sufficient evidence supports the knowledge element under
Iowa Code section 726.6(1)(a). Therefore, we affirm her conviction for child
endangerment resulting in death.
AFFIRMED.