IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0297
                             Filed January 25, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TYLAN JAMES DEBEIR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Christopher C. Foy,

Judge.



      Tylan DeBeir appeals the judgment and sentence entered following his

conviction of child endangerment causing serious injury. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Doyle and McDonald, JJ.
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DOYLE, Judge.

       Tylan DeBeir appeals the judgment and sentence entered following his

conviction of child endangerment causing serious injury. He argues he received

ineffective assistance from his trial counsel because counsel failed to object to an

error in the wording of the marshaling instruction.

       I. Background Facts and Proceedings.

       DeBeir lived with his girlfriend, Megan, and cared for her children while

she worked. When Megan left for work in the early morning hours of March 30,

2013, her thirteen-month-old son, R.C., was asleep in a portable crib located

near the bed Megan and DeBeir shared. Approximately two hours after Megan

left for work, DeBeir sent Megan a frantic message about R.C.             The text

message read: “He woke me up by flipping out of [his crib] and now he’s acting

so weird! he [fell] off the bed by the window! he’s just crying he won’t take his

bottle and he’s just [screaming]!      i’m scared!!!!!”   Megan immediately called

DeBeir and heard R.C. crying in a way that was “not normal” but rather was “like

a scared, hurt cry.” DeBeir told Megan that R.C. had fallen out of the portable

crib and would not stop crying. R.C. was transported to the hospital and then

transferred to the University of Iowa Hospitals and Clinics pediatric intensive care

unit for treatment of neurological injuries.

       DeBeir consistently maintained that on the morning in question, he awoke

after hearing a “thud” and found R.C. had fallen out of his crib. He opined that

R.C. may have hit his head on the window sill as he fell. Dr. Resmiye Oral, a

pediatrician at the University of Iowa Hospitals and Clinics who is board certified

in child abuse pediatrics, examined R.C. and opined that R.C.’s injuries did not
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comport with DeBeir’s explanation of how the injuries occurred. Rather, Dr. Oral

concluded R.C. had suffered abusive head trauma “that involved rotational

acceleration deceleration forces as in shaking with or without an impact from a

soft surface.” Dr. Oral also did not believe it was possible for R.C. to fall in the

manner DeBeir described given the size of the portable crib, R.C.’s height, and

the crib’s location in the bedroom.

       The State charged DeBeir with child endangerment causing serious injury.

After trial, a jury found DeBeir guilty as charged. He was adjudicated guilty and

sentenced to a term of not more than ten years in prison.

       II. Analysis.

       The State charged DeBeir with committing child endangerment under two

alternatives set forth in Iowa Code section 726.6(1) (2013). The pertinent parts

of this section state:

               1. A person who is the parent, guardian, or person having
       custody or control over a child or a minor under the age of eighteen
       with a mental or physical disability, or a person who is a member of
       the household in which a child or such a minor resides, commits
       child endangerment when the person does any of the following:
               a. Knowingly acts in a manner that creates a substantial risk
       to a child or minor’s physical, mental or emotional health or safety.
               b. By an intentional act or series of intentional acts, uses
       unreasonable force, torture or cruelty that results in bodily injury, or
       that is intended to cause serious injury.

Iowa Code § 726.6(1).

       DeBeir challenges the wording of the jury instructions marshaling the

elements of child endangerment causing serious injury and the lesser-included

offenses of child endangerment causing bodily injury and child endangerment. In

the challenged portion of the marshaling instructions, the jury was instructed that
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to prove DeBeir was guilty of child endangerment, the State was required to

prove one of the following alternatives:

              Alternative A. [DeBeir] acted with knowledge that he was
       creating a substantial risk to the physical, mental or emotional
       health or safety of [R.C.]; OR
              Alternative B. [DeBeir] intentionally committed an act or used
       unreasonable force, torture or cruelty that resulted in physical injury
       to [R.C.]
              It is not necessary that all jurors agree as to Alternative A or
       Alternative B. It is only necessary that all jurors agree as to one of
       these two alternatives.

DeBeir complains that although section 726.6(1)(b) states a person is guilty of

child endangerment only by intentionally acting to use unreasonable force,

torture, or cruelly that results in physical injury, the use of an extraneous “or” in

“Alternative B” allowed the jury to find him guilty if he intentionally committed an

act that resulted in physical injury.

       DeBeir admits his trial counsel failed to raise an objection to the jury

instructions before the trial court and the alleged error is therefore not preserved

for our review. See State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988) (holding

error is not preserved for appeal when defendant fails to object to an erroneous

jury instruction in the trial court). On appeal, DeBeir instead claims counsel’s

failure to raise the issue below resulted in ineffective assistance of counsel, a

claim for which error preservation is not required. See State v. Ondayog, 722

N.W.2d 778, 783 (Iowa 2006).

       We review ineffective-assistance claims de novo. See id. In order to

succeed on such a claim, a defendant must show that counsel failed to perform

an essential duty and, as a result, prejudice occurred. See State v. Effler, 769

N.W.2d 880, 890 (Iowa 2009). Unless the defendant proves both prongs, the
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ineffective-assistance claim fails. See State v. Clay, 824 N.W.2d 488, 495 (Iowa

2012).

         Generally, we presume counsel was competent, and the defendant must

overcome that presumption.      See Ondayog, 722 N.W.2d at 785.          The State

concedes that the trial court worded “Alternative B” incorrectly and, therefore,

counsel should have objected to the instruction. See id. (stating the failure to

object to an erroneous jury instruction breaches an essential duty unless counsel

had a tactical reason for not objecting to the instruction).       However, even

assuming counsel breached an essential duty in failing to object to the wording of

the instruction, the State argues DeBeir cannot show the breach prejudiced him.

         In order to prove the prejudice required to succeed on an ineffective-

assistance-of-counsel claim, a defendant bears the burden of showing a

reasonable probability that the outcome of the proceeding would have been

different if counsel had performed competently. See Clay, 824 N.W.2d at 496.

“In determining whether this standard has been met, we must consider the

totality of the evidence, what factual findings would have been affected by

counsel’s errors, and whether the effect was pervasive or isolated and trivial.” Id.

(citation omitted). If the jury would have returned a guilty verdict if DeBeir’s

counsel had objected to the wording of the instruction and the court had changed

the instruction to use the statutory language, no prejudice is shown. See State v.

Thorndike, 860 N.W.2d 316, 322 (Iowa 2015) (finding no prejudice shown where

court was “confident the jury would have returned the same verdict of guilty” had

counsel objected to an erroneous jury instruction and the trial court had removed

the offending language).
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       DeBeir argues that the trial court should have instructed the jury that it

could only find him guilty if he “intentionally committed an act by use of

unreasonable force, torture or cruelty that resulted in physical injury to RC.” Had

trial counsel objected to the marshaling instructions and the trial court had

submitted the instructions with the language DeBeir now proposes, we are

unable to conclude the result would have changed. DeBeir denied having done

any act—intentional or otherwise—to injure R.C., instead claiming R.C. injured

himself by attempting to get out of his crib and falling to the floor. By finding

DeBeir guilty of child endangerment causing serious injury, the jury clearly

rejected DeBeir’s version of events. By finding DeBeir guilty as instructed, the

jury concluded DeBeir committed an act that caused R.C.’s injuries.

       Having found an act caused R.C.’s injuries, the only question remaining is

whether the jury would have found that act used unreasonable force, torture, or

cruelty. The evidence not only supports such a finding but shows the only acts

that could have caused R.C.’s injuries, such as violently shaking the child, used

unreasonable force, torture or cruelty. Dr. Oral testified that R.C.’s injuries could

only be caused by an act that “would require a significant impact trauma.”

Examples of such acts would be “being thrown out of a moving car in a car

accident or falling from a significant distance like story high.” However, there is

no evidence to support a finding that R.C. was in a car accident or fell from a

significant height. Dr. Oral also testified that R.C.’s injuries were consistent with

having been accidentally or intentionally thrown “from some distance onto a non-

yielding rigid surface” but dismissed this as a possible cause of R.C.’s injuries

because that type of impact would have also caused “bleeding within and
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underneath the scalp and/or a skull fracture,” which R.C. did not sustain. There

was no evidence R.C.’s head had impacted a hard surface. The only explanation

for R.C.’s injuries that the jury could have accepted in finding DeBeir guilty as

instructed was that DeBeir had shaken the child, which would qualify as an act

using unreasonable force, torture, or cruelty.

       If DeBeir’s trial counsel had objected to the wording of “Alternative B” in

the marshaling instruction and the trial court had instead instructed the jury as

DeBeir proposes, the jury would have found DeBeir guilty of child endangerment

causing serious injury. Because the result would have been the same, DeBeir

was not prejudiced by any error in the jury instructions.        Accordingly, his

ineffective-assistance claim fails.

       AFFIRMED.