author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Heidi Louise WATKINS, Appellant.
    No. 01-0139.
    Supreme Court of Iowa.
    April 2, 2003.

      Michael H. Johnson of Stoller & Johnson, Spirit Lake, for appellant.
    Thomas J. Miller, Attorney General, Richard Bennett and Charles Thoman, Assistant Attorneys General, and Edward W. Bjornstad, County Attorney, for appellee.
   CARTER, Justice.

Defendant, Heidi Watkins, appeals from a conviction of multiple acts of child endangerment in violation of Iowa Code section 726.6A (1999). That judgment was entered following a bench trial. The court of appeals affirmed the district court judgment. We granted further review.

Defendant urges that we should reverse her conviction based on the following contentions: (1) The prosecutor acted improperly in seeking to convict her on a theory-that was factually inconsistent with matters alleged and attempted to be proved in the trial of another person for the murder and sexual abuse of the same victim, (2) the district court should have granted defendant’s motion for a bill of particulars, (3) defendant established at trial that she suffered from diminished capacity, (4) the trial information was unconstitutionally vague, (5) the district court should have granted a new trial, and (6) the finding of guilt was not sustained by substantial evidence. We have considered each of these contentions and conclude that the decision of the court of appeals and the district court judgment should be affirmed.

At the time of trial in August 2000, defendant was twenty-nine years of age. The evidence reveals that sometime in 1998 she began working as a foreman at her stepfather’s concrete business. Working with her on this job was Jesse Wen-delsdorf. At this time defendant had two children, Tyler McKnight, born August 14, 1991, and Shelby Duis, born March 29, 1997. Defendant and Wendelsdorf developed a friendship through their association at work. Gradually, their relationship became intimate, and in May 1999 Wendels-dorf began staying overnight at defendant’s house. In September of that year, he moved all of his belongings into her home.

Prior to October 21, 1999, defendant used Small World Day Care as her childcare provider. That organization, which provided day care twenty-four hours a day seven days a week, provided care for Shelby during the week while defendant was working and also on some weekends. Tyler McKnight also occasionally stayed at Small World:

In February 1999 the employees at Small World began noticing bruises on Shelby. As a mandatory child-abuse reporter, a Small World manager informed an investigator for the Iowa Department of Human Services (DHS). The investigator interviewed defendant and defendant’s mother, each of whom told him that the bruises were sustained when Shelby ran into a door while running in a. circular path throughout the house. At the suggestion of DHS, defendant placed a wooden panel across a doorway to close off this path.

Although Shelby initially interacted well with Wendelsdorf, that situation reversed itself sometime in October 1999. Thereafter, Shelby reacted negatively in Wendels-dorf s presence. By November 1999 defendant and Wendelsdorf were' arguing a great deal. He wanted defendant to relinquish custody of both of her children to their respective fathers. In response, to this request, defendant asked Wendelsdorf to move out. One of their mutual friends attempted to mediate their differences and apparently succeeded. Wendelsdorf remained in the home.

Although the DHS investigator found no evidence of child abuse with respect to the bruises observed in February 1999, the employees of Small World continued to be concerned. Frequently, they observed Shelby being brought to the day care center with fresh bruises. In addition, her general hygiene was not good. She had a severe diaper rash, which produced blistering sores. During the period between February 1999 and the end of that calendar year, Shelby incurred other visible injuries. On one occasion in September 1999, blood was observed in Shelby’s diaper, prompting Small World employees to insist that defendant take the child to a doctor.

On October 21, 1999, Shelby came to Small World with bruises on her back and her right hand was swollen. Employees of Small World contacted the DHS investigator, who came and photographed the child. The photograph revealed red marks below Shelby’s right eye and a scratch below her right ear. The investigator also observed that Shelby’s right hand was red and swollen, and she had old and almost healed bruises on her back. The investigator contacted defendant and directed her to take the child to a doctor. Shelby was seen by Dr. Timothy Taylor later that day. Dr. Taylor ordered an x-ray of Shelby’s right hand, which reflected a transverse fracture in the middle of the back of the hand. In Dr. Taylor’s opinion, this fracture was between ten days and one-month old. Dr. Taylor also ordered a long-bone survey. Such a survey consists of x-rays of the longer bones in the arms and legs. No other fractures were found at this time.

When giving a history to Dr. Taylor on October 21, defendant told him that she had no idea how Shelby’s injuries were sustained. Later, however, she told other people that the hand was injured when Shelby caught it in her crib. Dr. Taylor placed a cast on Shelby’s hand and ordered that she be hospitalized overnight. He notified the DHS of the injuries he had observed and advised the agency that in his opinion defendant had given an unsatisfactory explanation. The next morning a DHS investigator met with defendant and her mother and admonished defendant concerning the numerous and continuous injuries that her child had sustained.

Shelby did not return to Small World after October 21. From that date until the first week of December, her care was provided by defendant’s mother. Thereafter, defendant, who had been laid off at work, stayed at home and cared for Shelby until the child’s death on January 4, 2000. On December 3 a DHS investigator came to defendant’s home and observed a faint discoloration near Shelby’s eye, a bruise on her forehead, and old bruises on her stomach. She told defendant to have the child examined by a doctor. Thereafter, during the month of December, defendant made three separate doctor’s appointments for Shelby, each of which she failed to keep. She finally took Shelby to a doctor on January 3, 2000, the day before the child’s death. On that date the doctor examined a sore on the child’s vagina and also a diaper-rash sore. He discovered a bruise on her face over the bridge of her nose, which was yellowish and fading.

Defendant testified that, on the morning of January 4, 2000, she awakened, signed a form that her son required for his school, and then went back to bed. She stated that she had looked in on Shelby about 10:30 a.m., saw that the child was still sleeping, and again returned to bed. According to her testimony, Wendelsdorf had gone to work that morning but returned home around noon. Wendelsdorf ate some lunch and then he and defendant engaged in sexual intercourse. Following this, Wendelsdorf received a telephone call from defendant’s mother around 3:50 p.m. advising him to take care of a snow-removal job for a customer. He left the house immediately after receiving that call. Shortly after 4 p.m., defendant entered Shelby’s room to check on the child. She determined that the child was not breathing and called 911. Shelby was dead when the response team arrived.

Various x-rays were taken of Shelby’s body following her death. Dr. Susan Duf-fek, a pediatric radiologist, compared those x-rays with those taken by Dr. Taylor the previous October when the broken hand was discovered. The postdeath x-rays revealed four new broken bones in Shelby’s right and left hands. Based on the appearance of aging with respect to these fractures, Dr. Duffek was able to form an opinion that these injuries had occurred on separate occasions between December 7 and December 21, 1999. Dr. Duffek also discovered several broken ribs, which, based on the appearance of ■ aging, occurred between November 23 and December 21, 1999. Dr. Duffek testified that in her opinion none of these fractures were accidental and had been inflicted by acts of physical child abuse.'

The State charged Wendelsdorf with first-degree murder with respect to Shelby’s death. ■ He was also charged with sexual abuse. Defendant was also charged with first-degree murder and, in addition, with multiple acts of child endangerment. Wendelsdorf and defendant had separate trials. He was- acquitted by a jury on both the murder charge and the sexual-abuse charge. Defendant waived trial by jury and, following a bench trial, was acquitted on the murder charge but convicted on the charge of multiple acts of child endangerment.

Following the district court’s findings on the issues of her guilt, defendant filed a motion for new trial. The motion was later enlarged to include a claim of newly discovered evidence. The evidence proffered in support of that motion was testimony of Wendelsdorfs most recent girlfriend that he had confessed to her that he had murdered and otherwise abused Shelby. Wendelsdorf also testified at the new-trial hearing and denied the material aspects of her testimony.

In lieu of granting a new trial, the district court invoked the provisions of Iowa Rule of Criminal Procedure 2.24(2)(c), which allows the court in a bench trial to avoid granting a new trial by reopening the record, considering the newly discovered evidence, and then rendering new findings and judgment based on the court’s consideration of the enlarged record. After proceeding in this manner, the district court essentially reaffirmed its initial findings concerning defendant’s guilt of multiple acts of child endangerment. Other facts that may bear on the issues will be discussed in connection with our analysis of the claims made on this appeal.

I. The State’s Reliance on Inconsistent Theories of Guilt in the Separate Trials of Defendant and Wen-delsdorf

Defendant argues that it is a denial of due process of law for a prosecutor, in order to convict two defendants at separate trials, to offer inconsistent theories and facts regarding, the same- crime. In support of that contention, she relies on the decisions of two federal courts, i.e., Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000), and Thompson v. Calderon, 120 F.3d 1045 (9th Cir.1997). In Smith the prosecutor used different, and inconsistent, testimony and pretrial statements of the same witness at separate trials of two defendants. In so doing, the prosecutor both adopted and rejected each of the versions given by this witness regarding the crime. The court concluded that the prosecutor’s conduct was tantamount to a denial of due process. Smith, 205 F.3d at 1048-49. In the Thompson case, a majority of the court held that due-process rights of the defendant had been violated when the prosecutor used different witnesses at different trials to materially change the prosecution’s theory of who was responsible. Thompson, 120 F.3d at 1055-57.

We are convinced that these .two decisions only stand for the proposition that a selective use of evidence by the prosecution in order to establish inconsistent factual contentions in separate criminal prosecutions for the same crime may be so egregious and lacking in good faith as to constitute a denial of due process. We view those situations as a narrow exception to the right of the prosecution to rely on alternative theories in criminal prosecutions albeit that they may be inconsistent. See State v. Marti, 290 N.W.2d 570, 577 (Iowa 1980) (not improper for state to pursue conflicting alternative theories as to who fired the weapon in murder prosecution resulting in finding of manslaughter). This right is particularly obvious in cases in which the evidence is not clear concerning which of two persons is the active perpetrator of the crime and which of them is an aider and abettor of the active perpetrator. Id. There is, after all, a safeguard against abuse as a result of the prosecution’s burden to prove any theory it asserts by evidence beyond a reasonable doubt.

We are convinced that defendant has failed to establish denial of due process based on the State’s theory of prosecution in the Wendelsdorf trial and defendant’s trial. The theories of prosecution on the murder charges against the respective defendants are not a consideration in deciding this issue because both defendants were acquitted of that charge. Similarly, the sexual-abuse charge against Wendelsdorf is not a consideration because defendant was not charged with sexual abuse of Shelby. To the extent that the State may have contended at defendant’s trial that she was guilty of child endangerment as a result of not preventing Wen-delsdorf from sexually abusing Shelby, that contention was not inconsistent with any theory of prosecution advanced by the State in Wendelsdorf s prosecution.

With respect to the allegations of child endangerment made against defendant, they are not inconsistent with any theory of prosecution pursued against Wendelsdorf. He was not charged with child endangerment. To the extent that evidence was offered at his trial that he had physically abused Shelby, there was no effort to link that evidence to the specific skeletal injuries that were the basis for the district court’s findings of child endangerment on defendant’s part.

II. The Denial of Defendant’s Motion for a Bill of Particulars.

Defendant contends that the district court erred in failing to grant her motion for a bill of particulars seeking a statement of the precise acts on which the charge of multiple acts of child endangerment was based. She urges that the information is too imprecise because our decision in State v. Hickman, 576 N.W.2d 364, 368 (Iowa 1998), requires in prosecutions under Iowa Code section 726.6A that the state establish three separate acts “with enough precision to enable a [trier of fact] to be satisfied beyond a reasonable doubt of a time and place where each of the "three acts occurred.”

We have clarified the specificity requirer ment laid down in Hickman in State v. Yeo, 659 N.W.2d 544 (Iowa 2003). In the latter case, we recognize

this [.Hickman ] rule does not mean that evidence of the 'precise time and place of each incident or act is required, but merely means the three or more acts must be separated by time and place.

Id. at 550.

The trial information under which defendant was prosecuted (substituted second amended trial information) alleged that the State

accuses the defendant of child endangerment, a class B felony, in violation of sections 726.6(l)(a) and/or 726.6(l)(e), 726.6A, 703.2 and 703.1 of the Code of Iowa committed as follows:
Said defendant Heidi Louise Watkins commencing in February, 1999, and continuing through January 4, 2000, committed three or more acts of child endangerment, at least one of which resulted in serious injury or skeletal injury to Shelby Duis, by: acting in a manner that created a substantial risk to the physical, mental or emotional safety of Shelby Duis; and/or knowingly permitting the physical or sexual abuse of Shelby Duis.

A bill of particulars is a request for a more specific statement of the details of the' offense charged. State v. Bowers, 656 N.W.2d 349, 353 (Iowa 2002); State v. Conner, 241 N.W.2d 447, 452 (Iowa 1976). Its purpose is to provide- additional information that the indictment and minutes of testimony do not give. Conner, 241 N.W.2d at 452. A bill of particulars should be allowed when the charge and minutes do not sufficiently inform the defendant of the criminal acts of which she is accused. Id. Ordinarily, whether or not to grant a motion for bill of particulars rests in the discretion of the trial court, and its decision will not be disturbed absent an abuse of discretion. Marti, 290 N.W.2d at 576; State v. Gartin, 271 N.W.2d 902, 912 (Iowa 1978).

We recognized in Bowers that the specificity with which the State must charge a crime varies depending on the nature of the evidence available to the prosecution. Bowers, 656 N.W.2d at 354. If the State seeks to prove its case by evidence that separate and distinct criminal acts were perpetrated within a specified range of time, but is unable to provide evidence of the precise time and place of those criminal acts, it cannot be expected to provide more detailed information in a bill of particulars. Id.

In the present case, the State’s proof of the criminal acts was based on the interpretation of the postdeath x-rays by Dr. Duffek indicating separate and distinct skeletal injuries had occurred at different points of time. This evidence was supplemented by Dr. Duffek’s opinion that the nature of these fractures could only have resulted from physical abuse. This evidence did not identify with precision when the physical abuse occurred. It only fixes it within a range of time. Based on our conclusions in Bowers, criminal allegations based on this evidence do not need to be more precise than the evidence itself. Other means of discovery were available to defendant for the purpose of narrowing the evidence that Dr. Duffek would provide for purposes of preparing for trial.

A bill of particulars was also not required in order to force the State to designate whether defendant or Wendels-dorf was the actual perpetrator of the acts of physical abuse on Shelby. See Marti, 290 N.W.2d at 577 (it was not improper for the state to pursue conflicting alternative theories as to who fired the weapon in murder prosecution and state could not be compelled to provide that information in bill of particulars). We find no error in the denial of the bill of particulars.

III. The Diminished Capacity Claim.

At her trial defendant proffered a defense of diminished capacity intended to show that her mental condition was such that she was unable to recognize the signs and symptoms of abuse occurring in her home. A practicing mental health counsel- or testified on her behalf and indicated that because defendant had herself been abused as a young child she would be more susceptible to tolerating abuse of Shelby. A witness from a batterers education facility testified that defendant suffered from posttraumatic stress disorder, borderline personality disorder, and depression. She testified that this mental status rendered defendant unable to separate herself from Wendelsdorf. A psychiatrist who had treated defendant testified that she was suffering from severe depression and post-traumatic stress disorder. He conceded, however, that she was competent to stand trial and capable of forming the intent to hurt someone. The State’s expert, Dr. Michael Taylor (a physician different from the Dr. Taylor who treated Shelby on October 21), testified that defendant was capable of understanding and appreciating reality.

We conclude that the trial court was correct in failing to uphold the proffered defense of diminished responsibility for two reasons. First, the evidence was insufficient to show a diminished responsibility on defendant’s part with respect to any particular volitional act. Second, this defense, as urged, had no theoretical application to this crime because the only mental element involved is that the defendant act “knowingly.” See State v. McVey, 376 N.W.2d 585, 588 (Iowa 1985) (statutory requirement of acting knowingly does not introduce a mental element subject to defense of diminished responsibility).

IV. Alleged Vagueness of Section 726.6A.

Defendant urges that the statutes under which she was convicted of multiple acts of child endangerment are void for vagueness. She focuses her argument on the provisions of section 726.6(l)(a) and (e), which define the type of conduct on which the present charge was based. Section 726.6(l)(a) provides that a person commits child endangerment if that person

knowingly acts in a manner that creates a substantial risk to a child or minor’s physical, mental or emotional health or safety.

Section 726.6(l)(e) provides that a person commits child endangerment when that person

knowingly permits the continuing physical or sexual abuse of a child or minor.

Defendant asserts that these-statutory definitions are both vague and overbroad and would allow prosecutions for taking a child hang gliding or scuba diving.

To withstand a due process challenge based on vagueness, a penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and provide an adequate standard for those who administer the law. State v. Todd, 468 N.W.2d 462, 465 (Iowa 1991); State v. Duncan, 414 N.W.2d 91, 96 (Iowa 1987). A statute is not unconstitutionally vague if its meaning is fairly ascertainable by reference to a common =and generally accepted meaning. State v. Aldrich, 231 N.W.2d 890, 894 (Iowa 1975).

We considered a vagueness challenge to section 726.6(l)(a) in State v. Anspach, 627 N.W.2d 227 (Iowa 2001). Resorting to dictionary definitions, we upheld the statute as a reasonable description of the prohibited conduct based on the nature of this crime. We are convinced that the same conclusion should be drawn with respect to section 726.6(l)(e).

A Nebraska court in State v. Crowdell, 234 Neb. 469, 451 N.W.2d 695, 695 (1990), has accurately observed:

As a matter of practicability for general application, child abuse statutes, by virtue of the nature of their subject matter and the nature of the conduct sought to be prohibited, usually contain broad and rather comprehensive language.

Crowdell, 451 N.W.2d at 699. We uphold the application of the statute in the present prosecution against defendant’s claim of unconstitutional vagueness and over-breadth.

Y. The Motion for New Trial.

As we have previously discussed, following the original verdict of guilt handed down against defendant, she filed a motion for new trial based on a claim of newly discovered evidence. This evidence consisted of testimony by Wendelsdorfs newly acquired girlfriend that he had confessed to her that he had murdered and otherwise abused Shelby. Acting under the authority of Iowa Rule of Criminal Procedure 2.24(2)(c), the district court, in lieu of granting a new trial, reopened the record and considered the additional testimony. Following that consideration, the court rendered néw findings and judgment based on the enlarged record, which-essentially reaffirmed its initial finding of guilt. Given this circumstance, defendant’s claim for relief based on the newly discovered evidence can only succeed if the newly proffered evidence was such as to entitle her to acquittal as a matter of law. Clearly it did not. The district court had adequate reason to reject the new evidence on credibility grounds. The motion for new trial was properly disposed of by the district court.

VI. Sufficiency of Evidence of Guilt

As a final matter, we consider defendant’s contention that there was insufficient evidence of any actions on her part that would constitute child endangerment. She argues that, although Shelby had suffered several broken bones and bruises, the record is devoid of any evidence that these injuries could be attributed to any act on her part.

The critical findings of the district court were as follows:

This statute [section 726.6A] provides for an enhancement of the penalty if the defendant is guilty of multiple acts of child endangerment. In order for the State to prove that this code section is applicable, the State must prove the following elements beyond a reasonable doubt:
1. The defendant committed three or more acts of child endangerment as defined in section 726.6.
2. The three or more acts occurred within a period of 12 months.
3. The three or more acts involved the same child.
4. One or more of the acts must have resulted in serious injury to the child or it must have resulted in a skeletal injury to a child under the age of four years.
The court concludes that the State has proved each and every element of the class B felony defined in section 726.6A of the Code of Iowa. The court finds that the defendant inflicted the following injuries on Shelby:
1. The fractured second metacarpal of the right hand which occurred between October 2, 1999, and October 12, 1999.
2. The fractured third metacarpal of the right hand which occurred between December 7, 1999, and December 14, 1999.
3. The fractured second metacarpal of the left hand which occurred between December 14, 1999, and December 21, 1999.
4. The fractured third metacarpal of the left hand which occurred between December 14, 1999, and December 21, 1999.
5. Fractures to several left ribs which occurred between November 23, 1999, and December 21,1999.

All of those acts resulted in skeletal injuries to Shelby, a child under the age of 4 years. In addition, the rib fractures come within the definition of a serious injury as that term is defined in section 702.18 of the Code.

In support of these findings, the court stated “[t]he Court gives credit to all of Dr. Duffek’s testimony.” Dr. Duffek had testified as to her belief that the injuries that the trial court found to have occurred were inflicted during the time periods that the trial court found and were the consequence of physical force inflicted on the child. The district court further found

after [the first week of December 1999] until the date of Shelby’s death, the defendant was the sole care provider. She was with Shelby virtually twenty-four hours a day, seven days a week for the last month of Shelby’s life. As noted earlier, Jesse Wendelsdorf was rarely, if ever, alone with the child. There is no evidence whatsoever to attribute Shelby’s injuries to Frances Moritz (defendant’s mother and the only other care taker during the period between October 21,1999, and January 4, 2000).

The court further found:

The Court believes the defendant herself caused the broken bones described by Dr. Duffek, and even if it be conceded that Jesse Wendelsdorf caused those fractures, the defendant’s attempt to coverup and hide the injuries from outside eyes, supports a finding that she knowingly permitted the continuing physical abuse of the child.

If we disregard the fracture of Shelby’s right hand that took place between October 2 and October 12, 1999, the remaining skeletal injuries found to have occurred all took place when defendant was exclusively responsible for Shelby’s well-being. We believe that the district court’s conclusion that defendant herself inflicted these injuries is supported by substantial evidence. Moreover, based on the district court’s finding of her continuous proximity to the child, if Wendelsdorf had been the perpetrator of these acts, defendant would be guilty of knowingly permitting this continuing physical abuse of Shelby in violation of Iowa Code section 726.6(l)(e).

Defendant argues that the district court’s finding that she personally inflicted physical abuse on Shelby was impermissible in light of the statutes referred to in the information. She notes that an earlier allegation that she had violated section 726.6(l)(b) was withdrawn. That statute provides:

1. A person who is the parent, guardian, or person having custody or control over a child ... commits child endangerment when the person does any of the following:
6. By an intentional act or series of intentional acts, uses unreasonable force, torture or cruelty that results in physical injury, or that is intended to cause serious injury.

Defendant urges that, given the removal of paragraph (b) of subsection 726.6(1) from the information, a finding that she herself personally committed physical abuse on the child does not state a basis for guilt under either of the paragraphs of the statute that remained after the final amendment of the trial information. We disagree with defendant’s interpretation of paragraph (a) of subsection 726.6(1). If, as the district court found, defendant personally inflicted physical abuse upon the child, causing injury, that act would create a substantial risk to the child’s physical, mental, or emotional health or safety. Consequently, contrary to defendant’s assertion, physical abuse of Shelby by defendant would constitute conduct that is criminalized under paragraph (a). We have reviewed defendant’s claims of insufficiency of proof and conclude that they are wanting.

We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

      . The precise language of the statute is as follows:
      A person who engages in a course of conduct including three or more acts of child endangerment as defined in section 726.6 within a period of twelve months involving the same child or a minor with a mental or physical disability, where one or more of the acts results in serious injury to the child or minor or results in a skeletal injury to a child under the age of four years, is guilty of a class "B” felony. Notwithstanding section 902.9, subsection 1, a person convicted of a violation of this section shall be confined for no more than fifty years.
      Iowa Code § 726.6A.


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Kenny Dean CRAWFORD, Appellant.
    No. 02-0105.
    Supreme Court of Iowa.
    April 2, 2003.

      Eric D. Tindal of Nidey, Peterson, Er-dahl & Tindal, .P.L.C., Williamsburg, for appellant.
    Thomas J. Miller, Attorney General, Darrel L. Mullins,. Assistant Attorney General, and Barbara A. Edmondson, County Attprney, for appellee.
   LAVORATO, Chief Justice.

Kenny Dean Crawford appeals following his conviction and sentence for operating while intoxicated, second offense. He contends the district court erred in denying his motion to suppress. Crawford’s specific complaint is that the court erred by finding that an otherwise unconstitutional stop was constitutional by applying the community caretaking exception to the Fourth Amendment. Finding no error, we affirm.

I. Background Facts and Proceedings.

In the early morning hours of April 1, 2001, City of Washington Police Officer Chad Ellis received a call from the dispatcher at the Washington County Law Center. The dispatcher informed the officer that a Patricia Quintanilla had called from her apartment at 1302 North Second Street in Washington, Iowa. According to the dispatcher, Quintanilla was complaining that a male subject in her apartment “had taken some pills, woken up, was becoming physically aggressive towards [her] and was yelling and shouting.” Quintanilla identified the male subject as David But-terbaugh. She also told the dispatcher that Butterbaugh did not know where he was and that he wanted a police officer to come and take him home. Officer Ellis knew Butterbaugh but did not know Quin-tanilla.

En route to Quintanilla’s apartment, Officer Ellis received a second call from the dispatcher informing him that Quintanilla had again called and said that David But-terbaugh had just left in a dark Ford flatbed truck.

As Officer Ellis was heading to Quintan-illa’s apartment, he noticed a vehicle that matched the description of the truck. The officer followed the truck and eventually activated his overhead lights. The truck proceeded for a block and a half and then pulled off to the side of the road. At the time of the stop, it was close to 5:00 a.m. and there was very little traffic on the road.

As Officer Ellis approached the truck, he did not recognize the driver. He did recognize Butterbaugh, who was sitting in the passenger seat. The driver identified himself to the officer as Kenny Crawford.

The officer told Crawford about the report and that he wanted to talk to Butter-baugh to make sure “everything was okay.” At this point Crawford left the vehicle, contrary to the officer’s command to remain seated. Crawford went back to the officer’s patrol car and the officer followed him. When the two were back at the patrol car, the officer smelled an odor of alcohol, at which point the officer began investigating Crawford for operating while intoxicated. During that investigation, Crawford admitted he had been drinking and submitted to a preliminary breath test that registered over the legal limit. Crawford, however, refused to perform any further sobriety tests.

The State charged Crawford with operating while intoxicated, second offense. Crawford moved to suppress “any of defendant’s statements or products of the search of defendant or of defendant’s vehicle.” Crawford alleged the search was in violation of the Fourth Amendment because the officer did not have “a specific and articulable [suspicion] to support a reasonable belief that criminal activity may have occurred.” The district court denied the motion.

The district court agreed with Crawford that Officer Ellis did not have a reasonable and articulable suspicion to believe that a crime had occurred when the officer stopped the truck. However, the court concluded that the officer was engaged in a legitimate community caretaking function when he stopped the truck, which the court concluded was permissible under the Fourth Amendment.

At the bench trial of the operating-while-intoxicated charge, the district court received into evidence a booking tape and a deposition of Officer Ellis. In addition, the parties stipulated that the court could consider the minutes of testimony in reaching its decision. The court found Crawford guilty and sentenced him to thirty days in the county jail.

II. Issue.

Crawford contends the district court erred by finding that an otherwise unconstitutional stop in violation of the Fourth Amendment was constitutional by applying a community-earetaking-function exception.

III. Scope of Review.

Because Crawford raises a constitutional challenge, our review is de novo. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). In our review we “ ‘make an independent evaluation of the totality of the circumstances as shown by the entire record.’ ” Id. (citation omitted). We consider both the evidence presented during the suppression hearing and that introduced at trial. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998). We give “deference to the district court’s fact findings due to its opportunity to assess the credibility of witnesses, but are not bound by those findings.” Turner, 630 N.W.2d at 606.

IV. Community Caretaking Function.

A. Applicable law. The Fourth Amendment to the United States Constitution provides that “[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable causeU.S. Const, amend. IV. The Fourth Amendment, which is made applicable to the states through the Fourteenth Amendment, gives citizens broad protection against warrantless searches and seizures. State v. Brecunier, 564 N.W.2d 365, 367 (Iowa 1997). “The purpose of this protection is to safeguard the privacy and security of individuals against arbitrary intrusion by government officials.” Id.

Subject to a few carefully drawn exceptions, warrantless searches are- per se unreasonable. State v. Carlson, 548 N.W.2d 138, 140 (Iowa 1996). Evidence obtained in violation of the Fourth Amendment is inadmissible unless the state proves by a preponderance of the evidence that a recognized exception to the warrant requirement applies. Id.

One of the exceptions to the warrant requirement is that formulated in Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 U.Ed.2d 706, 714-15 (1973). In that case, the Court held that a search of the trunk of a disabled car was not unreasonable under the Fourth Amendment even though done without a warrant. Id. at 446-48, 93 S.Ct. at 2530-31, 37 L.Ed.2d at 717-19. In reaching that conclusion, the Court explained that local police officers, unlike federal officers, frequently “engage .in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. at 441, 93 S.Ct. at 2528, 37 L.Ed.2d at 714-15. In addition, the Court explained “[t]he fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, by itself, render the search unreasonable.” Id. at 447, 93 S.Ct. at 2531, 37 L.Ed.2d at 718.

One writer has asserted that the community caretaking exception encompasses three separate doctrines: (1) the emergency aid doctrine, (2) the automobile im-poundment/inventory doctrine, and (3) the “public servant” exception noted in Cady. Mary E. Naumann, The Community Caretaker Doctrine: Yet Another Fourth Amendment Exception, 26 Am. J.Crim. L. 325, 330-41 (1999) [hereinafter “Naumann”].

Here only the first and third doctrines— emergency aid and public servant — are relevant. The two, doctrines, however, are closely related. See id. at 333. According to Naumann,

only a narrow distinction separates the emergency aid doctrine from the public servant exception. Under the emergency aid doctrine, the officer has an immediate, reasonable belief that a serious, dangerous event is occurring.... [I]n contrast, the officer in a public servant situation might or might not believe that there is a difficulty requiring his general assistance. For example, an officer assists a motorist with a flat tire under the public servant doctrine, but an officer providing first aid to a person slumped over the steering wheel with a bleeding gash on his head acts pursuant to the emergency aid doctrine.

Id. at 833-34. See also State v. Míreles, 133 Idaho 690, 991 P.2d 878, 880 (Ct.App.1999) (“The community caretaking function involves the duty of police officers to help citizens an officer reasonably believes may be in need of assistance.”).

We have applied the community caretak-ing exception in several cases. See., e.g., State v. Moore, 609 N.W.2d 502, 503-04 (Iowa 2000) (holding that although there was no evidence of a criminal violation, a park ranger had authority and duty based upon public safety and speed statute to stop defendant’s vehicle in order to warn him that his speed posed a danger to park campers); State v. Carlson, 548 N.W.2d 138, 142-43 (Iowa 1996) (holding that officer’s entry into a home to investigate a missing person’s report, where defendant gave conflicting stories about the disappearance of his live-in girlfriend, coupled with a history of domestic abuse and other unsettling circumstances, was, under the “totality of the circumstances,” justified based upon the emergency-aid exception to the warrant requirement); State v. Mitchell, 498 N.W.2d 691, 693-94 (Iowa 1993) (holding that trooper had legitimate public safety responsibility, arising from burned-out taillight, to stop defendant even though no violation of the law had occurred).

In State v. Kersh, this court held that an officer was justified in opening a car door to check the condition of the defendant, who was slumped behind the wheel. 313 N.W.2d 566, 568-69 (Iowa 1981). Before arriving on the scene, the officer had received a report of a possibly intoxicated subject who had backed his car off the street and up onto a lawn. Id. at 567. The court held that although the report itself was not enough, when combined with the officer’s observations, these circumstances made the officer’s actions reasonable. Id. at 569. The court concluded that the officer should be “commended rather than criticized for checking on defendant’s state of sobriety.” Id. The court reached its decision without citing to the community caretaking doctrine of Cady.

The ultimate standard under the Fourth Amendment is whether the search and seizure were reasonable in light of the facts and circumstances of the case. Bies v. State, 76 Wis.2d 457, 251 N.W.2d 461, 466 (Wis.1977). In a community caretaker case, a court determines reasonableness by balancing the public need and interest furthered by the police conduct against the degree and nature of the intrusion upon the privacy of the citizen. Mireles, 991 P.2d at 881.

This balancing requirement to determine reasonableness requires an objective analysis of the circumstances confronting the police officer: Under the circumstances, would a reasonable person have thought an emergency existed? Carlson, 548 N.W.2d at 142-43. To establish “reasonableness,” the state has the burden of

showing specific and articulable facts that indicate their actions were proper. In addition, the scope of the entry and search “must be limited to the justification thereof, and the officer may not do more than is reasonably necessary to determine whether a person is in need of assistance, and to provide that assistance.”

Id. at 142 (citation omitted). The specific- and-articulable-facts standard is of course less than the probable-cause requirement applied in criminal searches. Id.

Implicit in any community caretaking case is the fact that there has been a seizure within the meaning of the Fourth Amendment. Otherwise there would be no need to apply a community caretaking exception. Additionally, there must be a bona fide community caretaking activity justifying the intrusion. Finally, if the first two conditions exist, the court must balance the public need and interest against the degree and nature of the intrusion upon the citizen’s privacy.

In sum, community caretaking cases require a three-step analysis: (1) was there a seizure within the meaning of the Fourth Amendment?;® if so, was the police conduct bona fide community caretaker activity?; and (3) if so, did the public need and interest outweigh the intrusion upon the privacy of the citizen? State v. Anderson, 142 Wis.2d 162, 417 N.W.2d 411, 414 (Wis.Ct.App.1987).

B. The merits. Applying this three-step analysis, we first conclude there was a seizure within the meaning of the Fourth Amendment when Officer Ellis stopped the truck. When the police stop a vehicle and temporarily detain a citizen, that detention is a “seizure” within the meaning of the Fourth Amendment. This is so even though the detention is only for a brief period of time and for a limited purpose. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89, 95 (1996).

The second step in the analysis — whether the action taken by the police officer was a bona fide community caretaker activity — turns on whether the facts available to the officer at the moment of the seizure would have warranted a reasonable person to believe an emergency existed.

As to this step, we consider what Officer Ellis knew at the moment he stopped the truck. The officer had received a report informing him of the following. A male subject had taken “some pills” either before going to sleep or after waking up. When he awoke he was agitated and was “physically aggressive” to a woman in her apartment. The man was confused, stating that he did not know where he was and that he wanted the police to take him home. The man abruptly left in a Ford flatbed truck. One fact that the officer did not know was whether Butterbaugh, in that condition, was behind the wheel of the truck. We think a reasonable person would conclude the action Officer Ellis took in the interest of public safety and emergency aid was justified. As we observed in Carlson, Officer Ellis’ conduct

was model police conduct, deserving of commendation, and not condemnation. Although the public cannot always demand, or even expect, model police conduct, it would doubtlessly have been surprised — and disappointed — if the officer[ ] had done less.

548 N.W.2d at 143.

Moreover, Officer Ellis did no more than was reasonably necessary to determine whether Butterbaugh was in need of assistance. In fact, the officer was in the process of making such a determination when Crawford interfered by not cooperating with him. Based on the totality of the circumstances, we conclude the public need and interest required Officer Ellis to determine Butterbaugh’s condition, and such need and interest outweighed the minimal intrusion here — the stop — upon Crawford’s rights.

Because Officer Ellis had a right to be where he was when he made the observations about Crawford’s suspected intoxicated condition, the incriminating evidence the officer discovered was admissible. See Mitchell, 498 N.W.2d at 694 (“When evidence is discovered in the course of performing legitimate community caretaking or public safety functions, the exclusionary rule is simply not applicable.”) Accordingly, we find no constitutional violation. The district court correctly denied Crawford’s motion to suppress. We therefore affirm its decision.

AFFIRMED.


author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Clarence Adrian YEO, Jr., Appellant.
    No. 01-1653.
    Supreme Court of Iowa.
    April 2, 2003.

      Brian L. Earley of Earley Law Office, Montezuma, for appellant.
    Thomas J. Miller, Attorney General, Bridget A. Chambers and Scott Brown, Assistant Attorneys General, and Charles A. Stream, County Attorney, for appellee.
   CADY, Justice.

In this appeal, we consider a challenge to the sufficiency of the evidence underlying the defendant’s conviction for child endangerment, particularly with respect to accomplice testimony he asserts was insufficiently corroborated. The defendant also challenges the district court’s finding of four separate acts of child endangerment and argues that he was found guilty under a theory not described in his indictment. For the reasons that follow, we affirm the judgment and sentence of the district court.

I. Background Facts and Proceedings.

Frank Charbonneau, Jr. (Frankie), was born on September 14, 1998. From the time of his birth until March 7, 2000, Frankie lived with his parents, Miranda and Frank Charbonneau, Sr. On March 7, Frankie’s parents chose to separate and Frank moved from the marital home. The same day, Miranda’s boyfriend — Frank’s half brother — Clarence A. Yeo, Jr., moved in with Miranda and Frankie.

Within a month after Clarence arrived in the home, Frankie’s father and paternal grandmother reported suspicious bruises on Frankie to the Iowa Department of Human Services (DHS) and expressed concerns that he was being abused. In response to their report, the DHS contacted a local doctor who examined Frankie on April 10. The doctor observed three small bruises on Frankie’s forehead. She opined the bruises indicated his head recently had been “palmed” like a basketball. After the examination, Frankie went to live with his father and grandmother for a short time. Unfortunately, Frank was unable to care for his son in the long term, and the child was soon returned to his mother and her boyfriend.

Frankie was subjected to several episodes of abuse over the next six weeks. On one occasion in mid-August, Clarence grew angry with Frankie while trying to feed him. He then picked Frankie up by the head, and threw the child across the room into a wall. Frankie slid down the wall, hit his head on a living room couch, and began to cry. When he stood-up and walked away, he walked with a noticeable limp. Near the end of August, Clarence lifted Frankie up by grabbing him around the chest and slammed his “bottom” onto the floor. This incident rendered Frankie unable to sit comfortably for a period of time. Yet, these injuries were only a prelude to September 3, when his abuse reached a watershed. On that day, Clarence and Miranda decided to run some errands. They brought Frankie with them even though he was ill. While the three drove through town, Frankie vomited in the car. Clarence told Miranda to stop the car. He then snatched Frankie from his soiled car seat, and forcefully sat him down on the trunk of the car. Although Miranda reacted angrily to this act, the threesome eventually returned to the car and drove to a local Casey’s General Store so that Frankie could be cleaned up.

As they headed toward the local Casey’s, tempers flared between Clarence and Miranda. Frankie was now in the front seat of the car, having been placed between the couple at some point. While the car was stopped at a stop sign, Miranda jerked Frankie toward her, only to have Clarence take him right back. Miranda angrily exited the car and walked away from her son and boyfriend. She eventually returned to the car, and the group continued to the Casey’s.

After arriving at the Casey’s, the group went to the restroom to clean up Frankie. When Frankie began to cry during the cleaning process, Clarence slammed the child’s head into a toilet. This act made Miranda “hysterical” and caused her to flee the restroom. Clarence later emerged with Frankie. The threesome left the Casey’s and went home.

Once home, Clarence and Miranda put Frankie on a living room couch. Clarence claimed Frankie was alone on the couch when they both heard a thud. Clarence went to check on Frankie and found he had rolled off of the couch and was limp, barely breathing, and his eyes were rolled back in his head. Miranda gave Frankie CPR, and the couple brought him to Ma-haska County Hospital. He was later transported to Blank Children’s Hospital in Des Moines where he was admitted in critical condition.

When initially questioned about Frankie’s injuries by medical personnel, Miranda claimed that Frankie had been playing in the house,and fell, hitting his head. Clarence did not dispute this account. Later, Clarence told investigators that Frankie had been injured when he fell off the couch while sleeping. Neither story was consistent with Frankie’s injuries: a serious closed head injury caused by non-accidental shaking, a healing fracture of the foot, a healing compression fracture of the spine, and a number of bruises of varying age, location, and severity.

Clarence was later charged with committing multiple acts of child endangerment against Frankie in violation of Iowa Code sections 726.6(1), 726.6(2), and 726.6A (1999). His first trial resulted in a conviction, but he was granted a new trial due to the trial court’s failure to include a jury instruction pertaining to the accomplice testimony of Miranda. Clarence consented to a bench trial following his successful motion for a new trial.

On retrial, Clarence argued he had not caused Frankie’s injuries, including the closed head injury. He claimed the head injury was caused when Frankie struck his head on September 3 after Miranda jerked him from his seat in the car. The district court rejected Clarence’s defense and, although noting evidence of additional incidences of abuse, found that he committed four separate acts of child endangerment to Frankie resulting in (1) bruises and abrasions when Frankie was “palmed” sometime “during the first few days of April 2000,” (2) a broken bone in Frankie’s foot when Clarence threw him against a wall “near the middle of August, approximately three weeks before September 3rd,” (3) an injury when Clarence grabbed Frankie and forcefully sat him down on the trunk of the car on September 3, and (4) injuries when Clarence slammed Frankie’s head into the toilet at Casey’s on September 3.

Based on these findings, Clarence was found guilty of committing three or more separate acts of child endangerment, one of which involved a skeletal injury, in violation of Iowa Code sections 726.6(1) and 726.6A. In its conclusions of law, the district court noted that the evidence in the case supported a finding that Clarence violated subsections (a) and (6) of section 726.6(1) in particular. Under those subsections, child endangerment occurs when a “person having custody or control over a child]):]”

a. Knowingly acts in a manner that creates a substantial risk to a child[’s] ... physical, mental or emotional health or safety[; or]
b. [Intentionally] ... uses unreasonable force, torture or cruelty that results in physical injury, or that is intended to cause serious injury.

Iowa Code § 726.6(l)(a), (b). The district court also concluded that Clarence violated Iowa Code section 726.6A by engaging

in a course of conduct including three or more acts of child endangerment ... within a period of twelve months involving the same child ... where one or more of the acts ... resulted] in a skeletal injury to a child under the age of four years....

Id. § 726.6A. Clarence was sentenced to a term of imprisonment not to exceed fifty years. See id He appeals from the district court’s judgment and sentence.

II. Standard of Review.

Each of Clarence’s challenges on appeal focuses on the sufficiency of the evidence underlying his judgment and sentence. Our review of challenges to the sufficiency of the evidence is for correction of errors at law. State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000) (citing State v. Thomas, 661 N.W.2d 37, 39 (Iowa 1997)). We are bound by the trial court’s finding of guilt if it is supported by substantial evidence upon which “a rational trier of fact could conceivably find the defendant guilty beyond a reasonable doubt.” Id. To determine whether the evidence was substantial, we consider the entirety of the evidence presented in a “light most favorable to the State, including all legitimate inferences and presumptions which may be fairly and reasonably deduced from the record.” Id. Evidence is not substantial if it raises only suspicion, speculation, or conjecture. Id.

III. Corroboration of Miranda’s Testimony.

The district court concluded that Miranda was Clarence’s accomplice and, therefore, pursuant to Iowa Rule of Criminal Procedure 2.21(3), her testimony describing the time, place, and details of Frankie’s abuse required corroboration if it was to support the court’s conclusion that Clarence was responsible for three or more separate acts of child endangerment. Iowa Rule of Criminal Procedure 2.21(3) provides:

A conviction cannot be had upon the testimony of an accomplice or a solicited person, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

Corroborating evidence, which may be direct or circumstantial, “ ‘need not be strong and need not be entirely inconsistent with innocence.’ ” State v. Bugely, 562 N.W.2d 173, 176 (Iowa 1997) (quoting State v. Dickerson, 313 N.W.2d 526, 529 (Iowa 1981)). The evidence is sufficient as long as it “support[s] some material part of the accomplice’s testimony and tend[s] to connect the accused to the commission of the crime.” Id.

The district court found Miranda’s testimony was corroborated by the testimony of Frank Charbonneau, Sr., Dr. Ronda Dennis-Smithhart, Linda and Heather Horn, Dr. Michael Rubin, and Dr. Karen Gerdes. The bulk of Frank’s testimony focused on the period of time during which Frankie lived with his father and grandmother, and included testimony about the injuries that led to the investigation by the DHS in April 2000. Dr. Dennis-Smithhart examined Frankie on April 10 after the abuse concerns were raised, and testified to her findings during that examination. Linda and Heather Horn witnessed the incident when Clarence set Frankie down forcefully on the trunk on September 3 and testified about that event, particularly the force applied by Clarence. Finally, Dr. Gerdes and Dr. Rubin, who had both provided care to Frankie in the aftermath of September 3, testified to the nature and cause of the injuries inflicted that day. Both physicians concluded Frankie suffered from shaken baby syndrome.

Clarence challenges the sufficiency of this evidence, asserting Miranda’s testimony was insufficiently corroborated. He first argues that the testimony relating to Frankie’s injuries established only that Frankie was injured and did not further corroborate Miranda’s account of how the injuries were caused. He also claims that Miranda’s testimony was inherently flawed because it came after the corroborating witnesses’ depositions were taken thus allowing Miranda to simply “parrot” the others’ testimony. However, after examining the record as a whole, we believe the district court properly determined Miranda’s testimony relating to the four separate incidences of abuse was sufficiently corroborated.

The evidence indicated that each of Frankie’s injuries occurred only after Clarence moved in with Miranda. In fact, there was no evidence that Frankie suffered abnormal injuries at any time other than when he resided in the same household as his mother’s boyfriend. See State v. Doss, 355 N.W.2d 874, 880 (Iowa 1984) (affirming the district court’s finding that limited testimonial evidence of defendant’s presence at planning and execution of murder plot was corroborating). Frankie was injury-free before Clarence moved in in March 2000 and between mid-April and late July when he lived with his father and grandmother. Thus, there was evidence of a direct correlation between Frankie’s injuries and Clarence’s regular presence in his life.

Moreover, the impact of Clarence’s presence was further borne out by the testimony of witnesses who corroborated Miranda’s testimony relating to the timing and extent of Frankie’s abuse, particularly the occasions when he was bruised and his foot was broken. In the case of the bruises, Dr. Dennis-Smithhart testified to a reasonable degree of medical certainty that Frankie had been bruised as a result of being “palmed” by the head, a conclusion which was consistent with Miranda’s testimony that Clarence had at one point picked Frankie up by the head and slammed him into a chair. Both Dr. Gerdes and Dr. Rubin testified to the reaction a child would have as a result of breaking a bone in his foot. This testimony corroborated Miranda’s description of Frankie’s reaction — crying and limping away — after falling to the floor after being thrown against a wall by Clarence in mid-August.

The events of September 3 were likewise corroborated. The first stage of Clarence’s abuse of Frankie that day was actually witnessed by Linda and Heather Horn who later testified about Clarence setting Frankie down forcefully on the trunk of the car. Dr. Gerdes and Dr. Rubin corroborated Miranda’s testimony about the second stage of the September 3 abuse. Both testified that Frankie suffered from shaken baby syndrome, a specialized diagnosis that indicated not only that Frankie was injured, but also that he was injured in an especially traumatic way that deviated from the initial explanations that Frankie had merely hit his head while playing or falling off the couch. Although Clarence later argued at trial that Frankie struck his head after being jerked from his seat in the car by his mother, Dr. Rubin testified, even if Frankie had struck his head, such an incident would not cause the injuries Frankie suffered. Thus, Dr. Gerdes’ and Dr. Rubin’s findings corroborated Miranda’s claim that Frankie’s most horrific injuries were tied directly to Clarence slamming Frankie’s head into the toilet at Casey’s.

Ultimately, Miranda’s testimony about each of the four abuse events the district court determined Clarence caused was sufficiently corroborated. Clarence’s argument to the contrary fails in the face of the substantial evidence of his cruelty and its effect on Frankie.

IV. Three Separate Acts.

In State v. Hickman, 576 N.W.2d 864, 368 (Iowa 1998), we found substantial evidence to support a conviction for child endangerment, but reversed the conviction under the enhanced punishment provisions of section 726.6A. In determining the evidence was too vague to support a finding of three separate acts of endangerment, we stated that the three or more acts required under section 726.6A “should be established with enough precision to enable a jury to be satisfied beyond a reasonable doubt of a time and place where each of the three acts occurred.” Id. Clarence seizes on the “time and place” language of Hickman and argues a similar failure occurred in this case. He asserts that the State failed to establish the time and place of the four separate incidents of abuse of Frankie beyond a reasonable doubt as required by Hickman.

Our “time and place” requirement' in Hickman was prompted by the lack of evidence in the record separating one particular act of abuse from other acts of abuse. A finding of “a time and place where each of the three acts occurred” was not supported by the evidence. Id. Thus, the rule we established was that the three or more separate acts must be shown with reasonable specificity to enable a jury to be satisfied beyond a reasonable doubt of a time and place where each act occurred. However, this rule does not mean that evidence of the precise time and place of each incident or act is required, but merely means the three or more acts must be separated by time and place so that each incident is separate and distinct.

This approach is consistent with the language of the statute, as well as our general rule that the State is not required to prove the precise time and place of a crime. See State v. Griffin, 386 N.W.2d 529, 532 (Iowa App. 1986); State v. Washington, 356 N.W.2d 192, 196 (Iowa 1984). It is also compatible with the very nature of child abuse, and the inherent difficulty of establishing precise times and places of abuse to children due to the frequent delay in the discovery of the abuse, as well as other factors based on the nature of the crime. See Griffin, 386 N.W.2d at 532; see also People v. Jones, 51 Cal.3d 34, 270 Cal.Rptr. 611, 792 P.2d 643, 659 (Cal.1990); Pace v. United States, 705 A.2d 673, 677 (D.C.1998). We do not think our legislature intended to impose the strict requirement urged by Clarence. In this case, there is substantial evidence of “a time and place where each of the [four] acts occurred” even if the time the injuries were inflicted cannot be pinpointed to the precise hour, or even the precise day. Hickman, 576 N.W.2d at 368. This is all the Hickman rule requires.

Miranda’s testimony, corroborated by the testimony of Frank, as well as Linda and Heather Horn, established that Clarence was present when Frankie was abused. Moreover, Linda and Heather Horn actually witnessed one of the abuse incidents, when Clarence forcefully sat Frankie down on the trunk of the car on September 3. Additional testimony by Frankie’s medical providers established the timing of the other abuse. Dr. Dennis-Smithhart described the bruises that were caused by Frankie’s head being palmed and established a limited range of time — “four to seven or eight days” before the April 10 examination — in which they were inflicted. Dr. Rubin testified to the nature of the fracture in Frankie’s foot, establishing that the injury also occurred within a limited timeframe, likely “3 to 5 or 3 to 6 weeks” prior to Dr. Rubin’s examination. Finally, both Dr. Gerdes and Dr. Rubin testified that Frankie’s injuries in the immediate aftermath of being slammed into the toilet supported a finding that his injuries occurred on September 3.

This accumulated testimony — which was far more specific than that presented in Hickman — established with reasonable specificity and precision the separate times and places of Frankie’s injuries. Our standard requires these elements to be established beyond a reasonable doubt, and this was done in this case.

Y. The Finding of Guilt.

Clarence’s final challenge focuses on the nature of the district court’s conclusion that he was guilty of child endangerment. He argues that he was ultimately found guilty of child endangerment causing skeletal injury rather than child endangerment causing serious injury, the charge stated in the trial information filed in his case. See Iowa Code § 726.6A. The difference in these charges, although semantically minor, signals major differences in the injury inflicted and the defense that must be mounted on behalf of a defendant charged under either of the theories.

Recognizing the inherent injustice of forcing a defendant to defend against a crime with which he has not been charged, we have observed, “[w]hen a crime may be committed in different ways, and the State specifies one way, the offense must be proved to have been committed in the way charged.” State v. Willet, 305 N.W.2d 454, 457 (Iowa 1981); see also State v. Pexa, 574 N.W.2d 344, 347 (Iowa 1998); State v. Grice, 515 N.W.2d 20, 22-23 (Iowa 1994); State v. Kirby, 391 N.W.2d 243, 244-45 (Iowa 1986). Accordingly, if “there is a variance between the crime charged and the proof at trial, we will require a new trial if a substantial right of the defendant is prejudiced.” Willet, 305 N.W.2d at 457. However, “[a] variance between the information and the proof is prejudicial” only “if the defendant is not fairly notified of the charges against him so that he may prepare to defend.” Id.

The State concedes that Clarence was found guilty under the skeletal injury alternative instead of the serious bodily injury alternative under which he was charged in the trial information. However, the State responds to Clarence’s claim the variance was prejudicial by first arguing that he failed to preserve this issue for review. In the alternative, the State argues that the variance between charge and conviction simply was not prejudicial because Clarence had notice that the State was proceeding with both endangerment alternatives and ultimately defended against both alternatives.

The State points to Clarence’s prior trial in this case, arguing the charges he faced at that stage of the case warned him that the skeletal injury would again be a consideration in the new trial. The minutes of testimony included with the trial information also may have notified Clarence that Frankie’s skeletal injury would be an issue in the new trial, especially because it would likely be a key part of Frankie’s medical providers’ testimony. See Grice, 515 N.W.2d at 23; Kirby, 391 N.W.2d at 245. Yet, no matter how Clarence was notified that the skeletal injury alternative was at issue, an examination of the record reveals that the State produced substantial evidence supporting the skeletal injury alternative, and more importantly, Clarence anticipated and defended against the alternative at nearly every stage of his trial.

Moreover, despite his protestations on appeal that the alternative was not charged, Clarence failed to challenge the trial information at any point during his trial while otherwise defending against the alternative. Given the State’s presentation of substantial evidence supporting the alternative and Clarence’s defense against the charge, we can only conclude that Clarence had notice that the alternative was in play. If he hoped to avoid its consideration by the district court a timely objection to the trial information during trial would have been appropriate. Even assuming that this challenge was properly preserved — and we note several deficiencies in its preservation, including the absence of such an objection — Clarence’s argument on this issue is repudiated by an examination of the record. Clarence cannot now claim his trial was corrupted by a faulty trial information given he defended against the alternative and otherwise suffered no prejudice from the flawed information.

VI. Conclusion.

Despite Clarence’s arguments that his judgment and sentence were not supported by sufficient evidence, we conclude that the district court’s findings were sufficiently supported. We affirm the judgment and sentence of the district court.

AFFIRMED.

      . The description of these episodes was based largely on the testimony of Miranda, who testified against Clarence at trial on behalf of the State. Miranda was also charged with committing multiple acts of child endangerment against Frankie, but later pled guilty to a charge of child endangerment causing serious injury in violation of Iowa Code section 726.6(l)(e) (1999) ('‘[k]nowingly permitting] the continuing physical or sexual abuse of a child”). Her plea was the product of an agreement whereby she avoided trial for multiple acts of endangerment in exchange for her testimony against Clarence. Miranda was sentenced to a term of incarceration not to exceed ten years for her role in Frankie’s abuse.

      . Frankie remained in the hospital for ten weeks — part of the time sustained by a respirator — and went to live with his maternal grandparents after he was released. He has since undergone speech, physical, and occupational therapies to overcome the physical and mental disabilities that arose in the aftermath of his injuries.

      . Shaken baby syndrome (SBS) is "a condition of whiplash-type injuries ranging from bruises on the arms and trunk to retinal hemorrhages, coma, or convulsions, as observed in infants and children who have been violently shaken.” Mosby’s Med., Nursing & Allied Health Dictionary 1485 (5th ed.1998). Some cases involving severe brain damage can result from “blunt impact trauma to the skull” as well as shaking, "and the term 'shaken-impact syndrome’ has been suggested as a more accurate description of the event.” Roger Cicala, Shaken Baby Syndrome, in Attorneys’ Textbook of Medicine 128-1, 128-2 (Roscoe N. Gray & Louise J. Gordy eds., 2001).

      . Dr. Gerdes elaborated her conclusions regarding the incongruity between the severity of Frankie’s injuries and the claimed causation in her testimony:
      A: Falls from less than 3 feet, which is about the height of a couch, especially onto carpeted floor, do not result in the type of brain injury that Frankie had. The literature currently states that it needs to be a fall usually greater than 8 feet on to some type of hard surface or a significant motor vehicle crash or another type of injury that involves significant shaking with some type of deceleration/acceleration injury to cause that type of brain injury.
      Q: Whenever you talk about acceleration/deceleration, what do you mean by that? A: Something that moves very quickly forward and backwards.
      Q: And what’s moving quickly forward and backwards? A: The child’s head....

      . The evidence related to Frankie possibly striking his head after being jerked from his seat in the car by Miranda came through the testimony of the Longs, a married couple who had been driving by Clarence and Miranda's car when it was stopped at a stop sign on September 3. Bryan Long testified that he was "sure” that Frankie had struck the right side of his head on the driver's side door when Miranda pulled him out of his seat. Jolene Long stated that she had not seen any part of Frankie’s body strike the car, "but it very easily could have hit.”
      Dr. Gerdes later testified that the only bruising detected on Frankie’s head on September 3 was above his left eyebrow. This testimony seemingly contradicted Bryan Long's explanation that the right side of Frankie’s head had struck the driver's side door. However, the testimony of Dr. Rubin further undermined an alternative conclusion that Miranda's jerking of her son had caused his most serious injuries:
      Q: Okay. For purposes of the next question, I want you just to assume the following fact; okay? Let’s assume that you have two people sitting in a stationary car, you have a driver and you have a passenger, both adults. They have a 23-month-old normal-sized child, and he's in the lap of the passenger. The driver pulls the child .across the seat, and in so doing that, the child hits his head on the steering wheel or possibly hits his head on the driver’s side door, just one time, bumped his head or hits his head. Would you expect to see the type of injuries that you saw in Frankie Jr.? A: No.


text:
    Wendy Jane SCHMIDT, Individually and as Next Friend of Dylan Schmidt, Minor, Appellant, v. Mark MAHONEY, Appellee.
    No. 01-1881.
    Supreme Court of Iowa.
    April 2, 2003.

      Gregory T. Racette and Marci B.H. Too-man of Hopkins & Huebner, P.C., Des Moines, for appellant.
    Steve Scharnberg, Thomas A. Finley, and Tamara K. Hackmann of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaff-ney, P.C., Des Moines, for appellee.
   CARTER, Justice.

Plaintiff, Wendy Jane Schmidt, was injured when an approaching driver experienced a seizure, lost control of her vehicle, and crashed into the motor vehicle occupied by plaintiff. Plaintiff appeals an order sustaining a motion to dismiss in her action against Dr. Mark Mahoney, a physician who allegedly advised the seizure victim concerning her ability to operate a motor vehicle. The district court sustained Dr. Mahoney’s motion to dismiss on the ground that his duty to provide treatment to his patient did not extend to protecting the public at large from possible adverse consequences of her seizure disorder. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

Plaintiffs claim against Dr. Mahoney is based on four legal theories. These are (1) negligent performance of an undertaking so as to establish liability under Restatement (Second) of Torts section 324A (1965), (2) negligent misrepresentation involving the risk of physical harm so as to impose liability under Restatement (Second) of Torts section 311, (3) negligent failure to control the conduct of a third person so as to impose liability under Restatement (Second) of Torts section 315, and (4) medical malpractice.

All of the following facts are alleged by plaintiff in support of her legal theories. Dr. Mahoney was aware that his patient, Kathleen Oxley, had suffered from a seizure disorder since early infancy. He prescribed medications and otherwise treated the seizure disorder. Prior to the event that gave rise to this action, Dr. Mahoney was aware of instances in which Kathleen Oxley lost control of her motor vehicle because of oncoming seizures. Dr. Mahoney failed to warn Kathleen Oxley of the dangers involved in driving a motor vehicle with her seizure disorder and affirmatively advised her that such driving on her part could be safely undertaken.

It is also alleged that Dr. Mahoney provided favorable documentation to the Iowa Department of Transportation as a condition precedent to Oxley obtaining an operator’s permit. It is also alleged that all of these acts and omissions created an unreasonable risk to Oxley and other persons sharing the public highways with her. That risk, plaintiff alleges, was realized when Oxley’s motor vehicle crashed into a vehicle occupied by plaintiff, causing serious injury to plaintiff.

Dr. Mahoney moved to dismiss plaintiffs claims prior to answer. The district court sustained the motion after considering each of plaintiffs legal theories. The court concluded that all of these claims fell under the general rule that a medical doctor does not owe a duty to members of the general public with respect to the treatment of an individual patient. The court specifically ruled that “there is no duty running from a doctor to a member of the general public to control the conduct of a patient as to prevent her from causing a motor vehicle accident.”

Plaintiff argues that this court has already decided the issues favorable to her position in Freese v. Lemmon, 210 N.W.2d 576 (Iowa 1973). In that case, this court by a five-four vote held that a petition alleging a medical doctor’s negligence in counseling a patient concerning a seizure disorder stated a valid claim on the part of a third party with whom the seizure patient collided on the highway. In so ruling, a plurality of the justices relied in part on section 311 of the Restatement (Second) of Torts in reaching that conclusion. That provision states:

(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results
(a) to the other, or
(b) to such third persons as the actor should expect to be put in peril by the action taken.
(2) Such negligence may consist of failure to exercise reasonable care
(a) in ascertaining the accuracy of the information, or
(b) in the manner in which it is communicated.

Restatement (Second) of Torts § 311. Comment b of this section of the Restatement specifically refers to the duty of a physician to give correct information as to the character of a disease when such knowledge is necessary for the safety of the patient or others.

Dr. Mahoney points out that, since our decision in Freese, we have declared that it is an unwarranted intrusion on the relationship between health-care providers and their patients to recognize a right of action in favor of a member of the general public based on actions of a health-care provider in directing the activities of a patient. The most decisive decision in this regard is J.A.H. v. Wadle & Associates, P.C., 589 N.W.2d 256 (Iowa 1999). In that case, we concluded that there was no duty to a nonpatient third party in the medical malpractice context, stating:

“A number of considerations relevant to the duty analysis strongly militate against imposition of duty here.... Concern about how a course of treatment might affect third parties could easily influence the way in which therapists treat their patients. Under a rule imposing a duty of care to third parties therapists would feel compelled to consider the possible effects of treatment choices on third parties and would have an incentive to compromise their treatment because of the threatened liability. This would be fundamentally inconsistent with the therapist’s obligation to the patient.... Hoping to avoid liability to third parties, ... a therapist might instead find it necessary to deviate from the treatment the therapist would normally provide, to the patient’s ultimate detriment. This would exact an intolerable high price from the patient-therapist relationship and would be destructive of that relationship.”

Wadle, 589 N.W.2d at 262-63 (quoting Doe v. McKay, 183 I11.2d 272, 233 Ill.Dec. 310, 700 N.E.2d 1018, 1023-24 (1998)). Wadle involved the alleged acts and omissions of mental health care providers. We made a similar analysis in Leonard v. State, 491 N.W.2d 508 (Iowa 1992), a case involving alleged acts and omissions of the medical staff at a state hospital. We recognized a special relationship between physician and patient, but concluded that “the risks to the general public posed by the negligent release of dangerous mental patients would be far outweighed by the disservice to the general public if treating physicians were subject to civil liability for discharge decisions.” Leonard, 491 N.W.2d at 512.

Dr. Mahoney urges, and we agree, it is highly likely that a consequence of recognizing liability to members of the general public on the facts of this case will be that physicians treating patients with .seizure disorders will become reluctant to allow them to drive or engage in any other activity in which a seizure could possibly harm a third party. In order to curtail liability, physicians may become prone to make overly restrictive recommendations concerning the activities of their patients and will exercise their role as reporters to the department of transportation in an inflexible manner not in their patient’s best interest. We are unable to distinguish, on public-policy grounds, the potential for disrupting the physician-patient relationship that would arise from recognizing liability in the present case from the potential for damaging that relationship recognized in Wadle and Leonard.

Consequently, although the allegations of plaintiffs petition appear to state a claim for liability under the broad general rules espoused in section 311 and section 324A of the Restatement, we are convinced that application of those rules to a claim by a member of the general public would run counter to the public-policy considerations that we recognized in Wadle and Leonard. To the extent that Freese v. Lemmon espouses a different view, that decision is overruled.

Plaintiffs malpractice claim and her claim based on section 315 of the Restatement have a like potential for compromising the physician-patient relationship. Our existing cases interpreting section 315 of the Restatement negate any right to claim under that section on the present facts. Leonard, 491 N.W.2d at 510-11; Fitzpatrick v. State, 439 N.W.2d 663, 667-68 (Iowa 1989). Plaintiffs malpractice claim is also defective based on a lack of legal duty between physician and a third party. Wadle, 589 N.W.2d at 260.

We believe our failure to recognize a basis for liability in the present case is consistent with the position that the legislature has taken with respect to actions by health care providers. With respect to permitting persons with health impediments to operate a motor vehicle on the highways, the legislature has provided:

A physician ... may report to the department the identity of a person who has been diagnosed as having a physical or mental condition which would render the person physically or mentally incompetent to operate a motor vehicle in a safe manner.... A physician ... making a report under this section shall be immune from any liability, civil or criminal, which might otherwise be incurred or imposed as a result of the report. A physician ... has no duty to make a report or to warn third parties with regard to any knowledge concerning a person’s mental or physical competency to operate a motor vehicle in a safe manner....

Iowa Code § 321.186. The language of this statute precludes recovery on plaintiffs claims involving the documentation that Dr. Mahoney provided to the department of transportation. Although the language of the statute does not embrace claims based on advice that doctors give their patients, we believe that the same policies that justify immunity from suit with respect to licensing recommendations to government officials preclude us from recognizing liability to members of the general public based on advice that is communicated to a patient by a physician.

In affirming the judgment of the district court, we recognize that an order granting a motion to dismiss for failure to state a claim may only be upheld if the petition on its face fails to set forth facts upon which relief could be granted under any circumstances. Fitzpatrick, 439 N.W.2d at 665; Cole v. Taylor, 301 N.W.2d 766, 767 (Iowa 1981); Weber v. Madison, 251 N.W.2d 523, 525 (Iowa 1977). Nevertheless, in other cases decided on the basis that no legal duty existed, we have approved disposition by means of such a motion. Keller v. State, 475 N.W.2d 174, 179 (Iowa 1991); Callahan v. State, 385 N.W.2d 533, 537-38 (Iowa 1986); Smith v. State, 324 N.W.2d 299, 301-02 (Iowa 1982). For the reasons that we have discussed, we are prompted to approve the same disposition in the present case. The district court did not err in granting Dr. Mahoney’s motion to dismiss.

AFFIRMED.