author: STREIT, Justice.

text:
    STATE of Iowa, Appellee, v. Sandra Joy Stella LECKINGTON, Appellant.
    No. 04-1368.
    Supreme Court of Iowa.
    April 28, 2006.

      Penelope R. Souhrada, Davenport, for appellant.
    Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, William E. Davis, County Attorney, and Julie A. Walton, Assistant County Attorney, for appellee.
   STREIT, Justice.

When children fail in their own judgment, responsible adults must step up. A mother made some horrible decisions concerning her son’s drunken friend, almost costing him his life. A jury convicted the defendant, Sandra Leckington, of neglect of a dependent child, child endangerment resulting in serious injury, and providing alcohol to a minor. On appeal, Lecking-ton contends there was insufficient evidence to prove key elements of the neglect and child endangerment charges. In addition, she contends the trial court abused its discretion by making her sentences for the neglect and child endangerment charges consecutive. She also argues her trial counsel was ineffective for failing to file a motion to suppress and for making misstatements during his motion for judgment of acquittal. Because we find there was sufficient evidence to support the verdict, the trial court did not abuse its discretion in sentencing, and her trial counsel’s misstatements during his motion for judgment of acquittal did not amount to ineffective assistance, we affirm. However, the question of whether her trial counsel was ineffective for failing to file a motion to suppress is preserved for postconviction proceedings.

I. Facts and Prior Proceedings

On December 17, 2003, Sandra Lecking-ton purchased a half-gallon of vodka to help her eighteen-year-old son, Curtis Jenkins, “celebrate” his impending stint of probation. Jenkins and a group of friends procured more vodka and alcohol so that they could make “jungle juice” for a party at Dominic Major’s apartment.

Eleven days later, Sandra allowed her younger son, Shawn Yuille, to have his friend, Travis Talbot, spend the night at their home. The next day, the two thirteen-year-old boys left the Leckington home and went a few houses down the block to Travis’s home so that Travis could check in with his mother. The two boys then joined Sandra for lunch at a restaurant. After lunch, the boys told Sandra they were going to ride their bicycles around the neighborhood. The boys went down the block to the apartment of Dominic Major. Travis and Shawn proceeded to play video games and drink the leftover vodka. Travis consumed three to four glasses of vodka and started to become a problem for Major.

At 2:07 p.m., Major called Sandra and told her to pick up the two boys because Travis was “pretty trashed.” On the way to Major’s apartment, Sandra picked up her husband, Mark Leckington, from the local convenience store. By the time Sandra arrived at the apartment, Travis was so intoxicated he was having difficulty standing and walking. At one point, he fell and hit his head on one of the pillars of the apartment building. Major carried Travis from the apartment building to the car. Once Travis was placed in the back seat of the car, he immediately slumped over. One witness thought Travis was unconscious when he was placed in the car. Mark asked whether Travis had been drinking, but Sandra, even though she had been told Travis was “pretty trashed,” told Mark that Travis had not been drinking. Mark then asked Shawn what was wrong with Travis. Shawn told him that they had been wrestling around and Travis hit his head. Sandra drove around the block to the Leckington home. According to Sandra, Mark, and Shawn, Travis walked, unaided, out of the car and into the home. After the boys entered the home, Sandra and Mark left to run errands.

Once inside the Leekington home, Travis collapsed on the kitchen floor. Shawn tried to revive Travis by pouring milk down his throat. When this did not work, he went back outside and found some friends to help carry Travis upstairs to the bathtub. The boys then ran cold water on Travis in hopes of reviving him. Travis did not wake up, and he began to foam at the mouth.

Approximately an hour after they left the boys at their home, Sandra and Mark returned home. Mark went to a room in the back of the home. One of the children in the house told Sandra that Travis was “dead” and lying in the bathtub. Sandra “freaked out.” She told the boys they had to get Travis out of the bathtub and out of the house. While moving Travis out of the tub, Sandra proclaimed “You know how much trouble I’m going to get into, this little f* * *er had to drink alcohol, I’m not going to jail for this motherf’ ⅜ *ing bastard.” She helped drag Travis down the stairs, but the boys refused to help her put Travis outside in the cold December air. Sandra went to Mark and told him about Travis. Mark told her to call Travis’s mom. Travis’s mother told Sandra to call 911.

When the paramedics arrived, Travis had a very weak pulse, his mouth was clenched shut, he was extremely cold, his skin had a blue coloring, and his clothing was wet. Travis was rushed to University of Iowa Hospitals and Clinics in Iowa City via helicopter and placed in pediatric intensive care. Travis regained consciousness fourteen hours later. A doctor testified that his blood alcohol content was approximately .3 when he reached the hospital, and that he was at risk of death from the high level of alcohol in his blood.

The State filed a multi-count trial information charging Sandra Leekington with the offenses of child endangerment resulting in serious injury in violation of Iowa Code section 726.6(4) (2003), neglect of a dependent person in violation of section 726.3, and providing alcohol to a minor resulting in serious injury in violation of section 123.47(5).

Sandra Leekington was convicted of child endangerment resulting in serious injury, neglect of a dependent person, and the lesser offense of providing alcohol to a minor. The court sentenced her to consecutive terms of ten years for the child endangerment and neglect charges and a one-year, concurrent term for providing alcohol to a minor.

II. Issues

A. Sufficient Evidence

Sandra challenges the sufficiency of the evidence supporting various elements of her convictions for child endangerment resulting in serious injury and neglect of a dependent person. In regards to the child-endangerment-resulting-in-serious-injury conviction, she claims there was insufficient evidence to prove: (1) she had “control” or “custody” of Travis; (2) she knowingly acted in a manner which created risk to Travis; (3) she willfully deprived Travis of health care or supervision; or (4) her actions resulted in serious injury to Travis. In regards to the neglect-of-a-dependent conviction, she claims there was insufficient evidence to prove she had custody of Travis or that she knowingly or recklessly exposed Travis to a hazard or danger from which he could not reasonably be expected to protect himself. We will discuss each argument in turn.

1. Standard of Review

The standard of review for insufficient-evidence claims is for correction of errors of law. State v. Petithory, 702 N.W.2d 854, 856 (Iowa 2005). The jury’s findings of guilt are binding on appeal if the findings are supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence is evidence that could convince a rational trier of fact that a defendant is guilty beyond a reasonable doubt. Id. When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, including legitimate inferences and presumptions which may fairly and reasonably be deduced from the evidence in the record. State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999).

2. Child Endangerment Resulting in Serious Injury

In order to convict Sandra of child endangerment resulting in serious injury, the jury had to find: (1) Sandra was the parent, guardian, or person having custody or control over Travis; (2) Travis was under the age of fourteen; (3) Sandra knowingly acted in a manner creating a substantial risk to Travis’s physical, mental, or emotional health or safety, or Sandra willfully deprived Travis of necessary health care or supervision appropriate to Travis’s age when she was reasonably able to make the necessary provisions and which deprivation substantially harmed Travis’s physical, mental, or emotional health; and (4) Sandra’s act resulted in serious injury to Travis. See Iowa Code § 726.6.

a. Control

Jury instruction no. 35 defined “a person having control over a child” as either of the following:

a. A person who has accepted, undertaken, or assumed supervision of a child from the parent or guardian of the child.
b. A person who has undertaken or assumed temporary supervision of a child without explicit consent from the parent or guardian of the child.

These two definitions, which are repeated nearly verbatim from the statute setting forth the crime of child endangerment, are appropriate definitions of the term “control.” See id.

Sandra contends she did not have “control” of Travis because she did not have control of the instrumentality creating the risk to Travis (the vodka). She points out that she was not present when Travis consumed the vodka and that the State did not prove she purchased the specific vodka Travis actually consumed.

Even if we agree that Sandra did not have control over the instrumentality creating the risk to Travis, this fact would not change our analysis of whether there was sufficient evidence to find Sandra had control over Travis.

Sandra’s exercise of control over Travis begins with her decision to go to Major’s apartment to pick him up after Major told her that Travis was “pretty trashed.” When she then chose to move Travis, in his vulnerable condition, to a different location she undertook the supervision of Travis and therefore exhibited the control necessary for the crime of child endangerment. See id. § 726.6(3).

b. Knowingly Acted in a Manner Creating a Substantial Risk

Sandra contends there was not sufficient evidence to establish she had conscious awareness, or actual knowledge, that she was acting in a manner that created a substantial risk to Travis’s health. The statute at issue prohibits “knowingly aet[ing] in a manner that creates a substantial risk to the child or minor’s physical, mental, or emotional health or safety.” See id. § 726.6(l)(a). We interpret the word “knowingly” in this statute to mean “the defendant acted with knowledge that [he or] she was creating substantial risk to the child’s safety.” State v. James, 693 N.W.2d 353, 357 (Iowa 2005). Sandra claims she had no idea how much alcohol Travis had consumed. She further argues that, based on the time she picked him up, Travis was not showing symptoms of a severely intoxicated person. In essence, she argues that knowledge requires more than she “should have known” Travis was in a vulnerable position.

Sandra’s argument that she was not cognizant of Travis’s condition is not supported by the record. Major specifically told her that Travis had been drinking and was “pretty trashed.” She saw Travis stumble and fall and hit his head. She watched Major carry Travis to her car. She also saw Travis slump over in the car. The jury was not required to believe her self-serving version of the facts. See State v. Arne, 579 N.W.2d 326, 328 (Iowa 1998) (stating a jury is not required to accept the defendant’s version of the facts); State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994) (“Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence.”).

There was abundant evidence to prove Sandra knew Travis was severely intoxicated. Expert testimony, along with a good dose of common sense, would enable a rational trier of fact to conclude Sandra knowingly created a substantial risk to Travis’s physical health when she left him at her home without further adult supervision.

c. Willful Deprivation of Health Care or Supervision

Sandra also contends there was not sufficient evidence to establish she willfully deprived Travis of necessary health care. The jury instructions did not provide a definition of the word “willful.” We have previously held “[a] dictionary definition of ‘willful’ fixes the meaning of that word as ‘said or done deliberately or intentionally.’ ” State v. Tippett, 624 N.W.2d 176, 178 (Iowa 2001) (quoting Webster’s Twentieth Century Dictionary 2093 (unabr. ed.1979)). We have also stated willfulness is established by proof of intentional and deliberate conduct undertaken with a bad purpose, in disregard for the rights of another, or contrary to a known duty. In re Marriage of Jacobo, 526 N.W.2d 859, 866 (Iowa 1995). Either definition is appropriate for this case.

Sandra alleges the seriousness of Travis’s condition was not evident during the short period of time in which she picked Travis up and dropped him off at her house. She also contends she obtained care for Travis as soon as she returned home and realized the nature of his condition. Therefore, she argues, there was no evidence to support the finding that she made a deliberate, intentional, or conscious decision to deprive Travis of necessary medical care or supervision. The facts belie her arguments.

Sandra knew of Travis’s condition when she picked him up from Major’s apartment — Major told her Travis was “pretty trashed,” she saw Travis fall and hit his head, and she saw him carried to her car. Rather than taking him to the hospital or to his mother or at least monitoring his condition, she decided to move him to an unsupervised location and leave him there. Her decision, to leave the boy in an unsupervised location rather than to provide necessary health care or at least supervision, was intentional and deliberate.

Sandra’s further actions are also significant. Even after she returned home and found Travis unconscious in her bathtub, she did not immediately call for help. Instead, she tried to move him out of her house because, as she stated at the time she was dragging him out of the bathtub and down the stairs, “I’m not going to jail for this motherf* * *ing bastard.” There was substantial evidence to support the conclusion that she tried to move Travis out of her house — rather than call for medical help — because she did not want to be implicated in any potential criminal investigation. The decision to put her own fear of criminal prosecution above the medical needs of a child who was unconscious and foaming at the mouth was an intentional and deliberate decision. Although she was unable to completely execute her plan because the other children refused to help her move Travis outside, she nonetheless deprived Travis of medical care until at least the time the other children thwarted her plan. Iowa Code section 726.6 does not have a temporal requirement for the length of time a person must willfully deprive a child of health care, but we find the delay caused by Sandra, when coupled with the seriousness of Travis’s condition, was sufficient to satisfy section 726.6. The record contains substantial evidence to support a finding that Sandra willfully deprived Travis of necessary health care.

d. Act Resulting in Serious Injury to Travis

Sandra claims the serious injury to Travis was the result of the quantity of alcohol that he drank and the hypothermia resulting from being placed in the bathtub of cold water, not from any action on her part.

A rational trier of fact did not have to conclude Sandra made Travis drink the alcohol or that she placed him in the tub full of cold water in order to find her actions resulted in serious injury to Travis. Her action, moving Travis to a private location and leaving him there without adult supervision, allowed a group of minors to make life-threatening choices regarding Travis’s physical care. Her actions also were an obstruction to adequate medical assistance. During the time she was gone, Travis’s breathing slowed to only five or six breaths per minute and he vomited in his own mouth. Either condition was potentially lethal and subjected Travis to serious injury. See Iowa Code § 702.18 (“ ‘Serious injury’ means ... [bjodily injury which ... [cjreates a substantial risk of death.”).

3. Neglect of a Dependent Person

In order to convict Sandra of neglect of a dependent person, the State had to prove: (1) Sandra was a person having custody of Travis on the day in question, (2) Travis was a person under the age of fourteen, and (3) Sandra knowingly or recklessly exposed Travis to a hazard or danger against which he could not reasonably be expected to protect himself. See id. § 726.3. As we have already decided Sandra knowingly exposed Travis to a hazard or danger, we only analyze Sandra’s argument that there was no evidence she had “custody” of Travis.

In State v. Johnson, 528 N.W.2d 638, 642 (Iowa 1995), we held that the term custody in section 726.3 is'not limited to legal custody. We concluded custody under this statute meant “[t]o be in charge of an individual and to hold the responsibility to care for that individual.” Johnson, 528 N.W.2d at 641. We also stated that custody implicates not only a power of oversight, but also a responsibility for the care of an individual. Id.

Although Travis’s parents did not expressly ask Sandra to take custody of their son, Sandra voluntarily undertook this responsibility by taking Travis from Major’s apartment and moving him to her home. The key facts in this decision are Travis’s helpless condition, Sandra’s knowledge of that condition, and Sandra’s decision to physically move Travis to a different location. When one chooses to move someone in a helpless condition, they not only take charge of that person, but they also assume responsibility for that person, at least until a third person assumes responsibility for the dependent person. See id. (stating “ ‘custody’ implicates not only a power of oversight but also a responsibility for the care of an individual” (emphasis added)). By electing to move Travis to her home while he was in a helpless condition, Sandra assumed custody of Travis for the purpose of this statute.

B. Abuse of Discretion in Sentencing

Sandra contends the district court abused its discretion when it sentenced her to consecutive ten-year sentences for child endangerment resulting in serious injury and neglect of a dependent person.

We review a district court’s decision to impose consecutive sentences for abuse of discretion. State v. August, 589 N.W.2d 740, 744 (Iowa 1999). An abuse of discretion will only be found when a court acts on grounds clearly untenable or to an extent clearly unreasonable. State v. Mudra, 532 N.W.2d 765, 766-67 (Iowa 1995). When applying its discretion, the court should

[w]eigh and consider all pertinent matters in determining proper sentence, including the nature of the offense, the attending circumstances, defendant’s age, character and propensities and chances of his reform. The courts owe a duty to the public as much as to defendant in determining a proper sentence. The punishment should fit both the crime and the individual.

August, 589 N.W.2d at 744 (quoting State v. Cupples, 260 Iowa 1192, 1197, 152 N.W.2d 277, 280 (1967)); accord Iowa Code § 901.5 (providing that an appropriate sentence “will provide maximum opportunity for the rehabilitation of the defendant, and for the protection of the community from further offenses by the defendant and others”).

Sandra argues the district court abused its discretion because it imposed consecutive sentences solely because of the nature of the offense. See State v. McKeever, 276 N.W.2d 385, 387 (Iowa 1979) (holding the nature of the offense is but “one factor to be considered ... the punishment must fit the particular person and circumstances under consideration ... and no single factor, including the nature of the offense, will be solely determinative”). The court’s statement at sentencing does indicate the court placed considerable emphasis on the serious nature of the crimes committed. The court stated:

I note that the defendant does not have a prior criminal history of any serious extent whatsoever; however the sentence imposed today is imposed because of the very serious nature of the charges [of] which you were convicted, Ms. Leck-ington. I think that, in hearing the testimony in this case, this was a real disaster in the making, and I think we all feel — I’m sure including you — very thankful that Travis pulled out of this as well as he did. But the fact that your conduct was so serious, in failing to provide this child with the assistance that he required at the time he was transported to your home and in your home, simply causes the Court to find that it’s appropriate to impose the serious sentence of consecutive sentences on Counts 1 and 2.

However, further analysis of the court’s statement shows that the court considered other factors pertinent to sentencing. In the following passage, the court considered Sandra’s character and propensities and chances for reform when it stated:

I note that there are issues that are identified in your presentence investigation as needs, that you need to address, and the first one is to be responsible for your actions, and to work toward a better understanding of your behaviors with respect to responsibility and consequences. You need to be sober and drug free, complete all recommended substance abuse treatment and aftercare, need to obtain mental health treatment, and need to work on health-related issues.

The court went on to state that it believed she would need a long time to address all of the issues before her. The court also stated consecutive periods of incarceration would be needed to “make sure that other young people in the community are safe, because this showed very, very bad judgment on your part, ... and I frankly would be concerned that if your children weren’t in danger, that other children in the community would be.”

All of these statements indicate the court considered multiple factors when making its sentencing decision. We find no abuse of discretion. See, e.g., State v. Johnson, 476 N.W.2d 330, 335 (Iowa 1991) (finding trial court did not abuse its discretion in imposing consecutive sentences for robbery and sexual abuse convictions where the sentences “fit both the crime and the individual”).

C. Ineffective Assistance of Counsel

Sandra claims her trial counsel was ineffective for two reasons: (1) he made an inadequate motion for judgment of acquittal that did not sufficiently distinguish between the elements of control and custody; (2) he failed to file a motion to suppress a videotaped interview that was conducted hours after Travis was taken to the hospital.

Ineffective-assistance-of-eoun-sel claims are reviewed de novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). Ineffective-assistance claims are generally reserved for postconviction relief actions in order to allow full development of the facts surrounding counsel’s conduct. State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). However, when the record is adequate, we will consider such claims on direct appeal. Straw, 709 N.W.2d at 133. As discussed below, the record is adequate to consider Sandra’s claim that her trial counsel made an inadequate motion for judgment of acquittal, but it is not adequate to consider whether her trial counsel improperly failed to file a motion to suppress.

To establish ineffective assistance, the defendant has the burden to prove: (1) his or her trial counsel failed in an essential duty and (2) prejudice resulted from counsel’s error. Id. To prove the prejudice element of ineffective assistance, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). Ineffective-assistance claims fail if the defendant cannot prove both prongs. State v. Martin, 704 N.W.2d 665, 669 (Iowa 2005).

Sandra contends she received ineffective assistance because her trial counsel inadequately distinguished between the concepts of custody and control when, in his oral motion for judgment of 'acquittal, he stated “if there is no control, there can be no abandonment.” Sandra claims this was an erroneous statement because, under the elements of the charge of neglect or abandonment of a dependent person, if there is no custody there can be no abandonment.

While her trial counsel may have misstated the distinction between control and custody, Sandra cannot show this misstatement prejudiced her in any way. As discussed above, there was sufficient evidence to find that Sandra had both control and custody of Travis at the time of this incident. Therefore, Sandra is unable to show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Without proof of prejudice, her ineffective-assistance claim necessarily fails. See State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003) (recognizing failure to prove either prong is fatal to ineffective-assistance-of-counsel claims).

Sandra also argues her trial counsel provided ineffective assistance because he did not file a motion to suppress a videotaped interview. Sandra’s claim is hampered by her trial counsel’s decision not to make a record about the circumstances surrounding the interview. Because the record is inadequate for our review, we preserve this claim for postconviction relief proceedings.

III. Conclusion

Sufficient evidence supports the verdict. The trial court did not abuse its discretion in imposing consecutive sentences, and Sandra did not prove she received ineffective assistance of counsel. We therefore affirm the judgment of the district court. Her ineffective-assistance claim pertaining to the taped interview is preserved for postconviction relief proceedings.

AFFIRMED.

      . According to Wikipedia,
      Qjungle juice is the name given to a mix of liquor that is usually served for the sole purpose of becoming intoxicated .... Often, it may include leftovers of many liquors along with a mixer (juice, cola, etc.) to make the clash of liquors easier to swallow .... Jungle juice made with Kool-Aid is called “Hunch Punch.”
      Jungle juice, http://en.wikipedia.org/wiki/Jun-gle_Juice (last visited March 28, 2006).

      . Sandra also argues her act of driving the vehicle did not establish that she had control over the instrumentality creating the risk to Travis because there was no evidence she drove the vehicle in a manner that put Travis at risk. This argument is irrelevant because the jury was not instructed that a person who operates a motor vehicle with a child present in the vehicle has control for the purposes of child endangerment. See Iowa Code § 726.6(2).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Mark Steven LECKINGTON, Appellant.
    No. 04-1361.
    Supreme Court of Iowa.
    April 28, 2006.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, William E. Davis, County Attorney, and Julie A. Walton, Assistant County Attorney, for appellee.
   STREIT, Justice.

The defendant, Mark Leckington, was convicted of neglect of a dependent child and child endangerment resulting in serious injury for being involved in his wife’s decision that endangered a drunken child. On appeal, Leckington contends there was insufficient evidence to prove he had eusto-dy or control of the child. After considering the arguments presented and reviewing the record made below, we conclude the evidence was insufficient to support a finding that Mark Leckington had custody or control of the child. This conclusion requires a reversal of both the neglect of a dependent child conviction and the child endangerment resulting in serious injury conviction. Consequently, we reverse the judgment of the district court.

I. Facts and Prior Proceedings

The facts in this case are the same as those set forth in State v. Leckington, 713 N.W.2d 208, 211 (Iowa 2006), a case we also decide today. We repeat only those facts necessary to our analysis of this case.

On a December afternoon in 2003, Sandra Leckington received a phone call from one of her son’s friends, Dominic Major. Major told Sandra to come over to his apartment to pick up her son, Shawn Yuille, and one of his friends, Travis Talbot, because the boys had been drinking and Travis was “pretty trashed.” Sandra got in her car and went to pick up the two thirteen-year-old boys. On the way to Major’s apartment, Sandra stopped at the local convenience store and picked up her husband, Mark Leckington. Mark stayed in the car while Sandra went into Major’s apartment to get the boys. As the two boys emerged from the apartment, Mark noticed Travis was wobbling, and that Major had to eventually carry Travis to the car. Once Travis was placed in the back seat of the car, he immediately slumped over. One witness thought Travis was unconscious by the time he entered the car. Mark asked whether Travis had been drinking, and Sandra told him that Travis had not been drinking. Mark then asked Shawn what was wrong with Travis. Shawn told him that Travis had hit his head while wrestling around in the apartment. After a brief discussion, they drove around the block to the Leckington home. According to Sandra, Mark, and Shawn, Travis walked, unaided, out of the car and into the home. Mark and Sandra watched the boys enter the home and then drove away to run some errands.

Once inside the Leckington home, Travis collapsed on the kitchen floor. Shawn went back- to Major’s apartment for help, and he was told to give Travis milk. When this did not work, he went back outside and found some friends to help carry Travis upstairs to the bathtub. The boys then ran cold water on Travis in hopes of reviving him. Travis’s eyes remained open, but he began to foam at the mouth.

Approximately an hour after they had left the boys at their home, Sandra and Mark returned home. Mark went to a room in the back of the house. One of the children in the house told Sandra that Travis was “dead” and lying in the bathtub. After an inexplicable delay, Sandra told Mark about Travis, and he told her to call Travis’s mother.

Travis was rushed to University of Iowa Hospitals and Clinics in Iowa City via helicopter and placed in pediatric intensive care. He regained consciousness after fourteen hours and remained at the hospital for three days. A doctor testified that his blood-alcohol level was approximately .3, and that he was at risk of death from the high level of alcohol in his blood.

The State charged Mark with the offenses of child endangerment resulting in serious injury and neglect or abandonment of a dependent person. See Iowa Code §§ 726.3, .6 (2003). The State charged Sandra with the same crimes, and with the additional charge of providing alcohol to a minor resulting in serious injury. See id. § 123.47(5).

Mark and Sandra were tried in a joint trial. The jury found Mark and Sandra each guilty of child endangerment resulting in serious injury and neglect of a dependent child. The jury also found Sandra guilty of providing alcohol to a minor. Mark received two, ten-year, consecutive sentences for his crimes.

On appeal, Mark contends there was insufficient evidence to support his convictions. He emphasizes he was not present when Travis consumed the alcohol, he was only a passenger in the car, and he never did anything to assume responsibility for Travis. He also argues there was no evidence that he knowingly created a risk endangering Travis, or knowingly exposed him to a hazard. Mark also contends his trial counsel was ineffective in failing to make a motion to sever his trial from that of his wife. He additionally argues the court abused its discretion in imposing consecutive ten-year sentences given the circumstances of the case. Because the sufficiency-of-the-evidence claim is disposi-tive, we do not reach his other arguments on this appeal.

II. Discussion

A. Sufficiency-of-the-Evidence Claim

Mark made a motion for judgment of acquittal asserting there was insufficient evidence to support the charges against him. He raises the same argument on appeal.

1. Scope of Review

Review of sufficiency-of-evidence claims is for errors at law. State v. Petithory, 702 N.W.2d 854, 856 (Iowa 2005). The verdict must be supported by substantial evidence which is “such evidence as could convince a rational trier of fact that [the] defendant is guilty beyond a reasonable doubt.” State v. Robinson, 288 N.W.2d 337, 339 (Iowa 1980); State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App.1999) (stating the jury’s findings of guilt are binding if supported by substantial evidence). In determining whether there is substantial evidence, the record is viewed in a light most favorable to the State, and this includes all legitimate inferences that may fairly and reasonably be deduced from the evidence. State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). We consider all the evidence presented, not just that of an inculpatory nature. State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996). Evidence that only raises suspicion, speculation, or conjecture is not substantial. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997).

2. Neglect or Abandonment of a Dependent Person

The elements of the crime of neglect of a dependent child are set forth in Iowa Code section 726.3. The relevant portion states:

A person who is the father, mother, or some other person having custody of a child[] ... who knowingly or recklessly exposes such person to a hazard or danger against which such person cannot reasonably be expected to protect such person’s self or who deserts or abandons such person, knowing or having reason to believe that the person will be exposed to such hazard or danger, commits a class “C” felony.

Iowa Code § 726.3 (emphasis added). The term “custody,” as it pertains to neglect or abandonment of a dependent person, is not defined in the Iowa Code. Two cases guide our analysis of the term “custody.”

In State v. Sparegrove, 134 Iowa 599, 600, 112 N.W. 88, 84 (1907), the State charged an individual with “exposing and abandoning a child,” a predecessor to section 726.3, when he abandoned a baby on a woman’s doorstep at the direction of the baby’s parents. The applicable code provision provided as follows:

If the father or mother of any child under the age of 6 years, or any person to whom such child has been intrusted or confided, expose such child in any highway, street, field or outhouse, or in any other place with intent wholly to abandon it, he or she, upon conviction thereof, shall be imprisoned in the penitentiary not exceeding 5 years.

Iowa Code § 4766 (1897) (emphasis added). The defendant argued the language “intrusted or confided” only referred to situations in which an individual held legal custody of a child. Sparegrove, 134 Iowa at 601, 112 N.W. at 84. We held that the statute was not so limited and concluded that the State properly charged the defendant with the crime because he “undertook ... to take charge of [the baby] and care for it.” Id.

In State v. Johnson, 528 N.W.2d 638 (Iowa 1995), we analyzed the term “custody” within the current statute. In Johnson, the defendant, Paula, provided the daily care and maintenance for her husband, Wallace, who suffered from Parkinson’s disease, hypertension, depression, and hyperuricemia. 528 N.W.2d at 639. One day, Wallace fell to the floor and was unable to get back up. He yelled to Paula for assistance and, after about an hour, Paula came and kicked and punched him in the face. After Paula left, Wallace called a friend and told him to call “911.” Paramedics and police arrived at the scene after Paula had returned home. Paula told the paramedics she was the only person living at the address. However, Wallace made noises in the background and the paramedics entered to find Wallace lying on the floor with a broken nose and lacerations on his ears. The State charged Paula with, among other things, neglect or abandonment of a dependent person. Id. The district court dismissed the charge of neglect or abandonment of a dependent person on the ground that custody, an element of the crime, required the existence of legal custody. Id. at 640. We disagreed. We determined the legislature’s use of the phrase “custody” in section 726.3 did not mean legal custody. Id. at 641. Citing Sparegrove, we concluded “custody” in the context of chapter 726 meant “[t]o be in charge of an individual and to hold the responsibility to care for that individual.” Id. We therefore reversed the trial court’s dismissal of the charge of neglect or abandonment of a dependent person. Id. at 642.

In the present case, Mark contends the State did not prove he had custody of Travis for the purposes of this crime. The State argues Mark had custody because he undertook the supervision of, and responsibility for, Travis. The State claims Mark had custody of Travis during at least three points in time. First, when Mark allowed Travis in the car; second, when he took Travis to the Leckington home and left him there with no other adults present; and finally, when he did not immediately call for help when he came back home.

The first and third arguments are without merit. First, merely allowing a minor into a car does not establish a custodial relationship. The third argument — Mark did not immediately call for help — is not supported by the record. All of the evidence indicates that Mark went to a different part of the home as soon as he and Sandra returned home from running errands. A child then approached Sandra and told her that Travis was “dead” in the bathtub. Mark remained unaware of the situation until Sandra came and told him about it. As soon as Mark found out, he instructed Sandra to call Travis’s mother. There was no evidence to support a finding that Mark did anything to purposefully delay medical attention for Travis, and therefore no evidence to conclude he personally took charge of Travis’s well being.

The State’s second argument — Mark took charge of Travis and had the responsibility to care for him when he actively participated in the decision to leave Travis at the Leckington home — requires more analysis.

The State contends Mark’s testimony about what happened during the brief car ride illustrates Mark was actively involved in the decision to leave Travis at his unsupervised home. The State points to the following testimony by Mark:

Well, I said, So what is going on, to Sandi, and she says, I don’t know. I said, What are you guys planning on doing? And they wanted to go to our house to play PlayStation. Well, with the kids that were at home, and being Brandon was there, I said, Call Travis’s mom and dad, see if they’re home, because I really don’t want Travis over at the house without us being there. Which I did not know that he had spent the night that night before anyway. And Sandi had tried calling Travis’s parents, got no answer. I ain’t going to abandon a child out on the street, you know, saying, no, you can’t come over to our house. I just said, We got some things we got to do, me and Sandi got to go and do some things, will you guys promise me that you’ll behave?

After the boys promised they would behave, Mark told the boys to stay downstairs away from the other children in the home. Mark then testified “Me and Sandi stayed until they got in the porch area. I made sure they were in the back door of the house.' Once I saw the back kitchen door close, that’s when we left.” The State argues that once the Leckingtons left Travis at their own home, without adult supervision, Mark and Sandra both undertook charge of Travis.

The State makes a persuasive argument that Sandra decided to take charge of the care and responsibility of Travis, but the record does not support such a finding for Mark.

In fact, the evidence shows Mark had very little involvement in the decision to pick up Travis and the decision to leave Travis at the Leckington home. Dominic Major called Sandra and told her to pick up her son and Travis. On the way to Major’s apartment, Sandra stopped and picked up Mark at the convenience store. Mark remained in the car while Sandra went inside to retrieve the boys. Neither Mark’s inquiry about Travis’s condition nor his further inquiry about what the boys planned to do next demonstrates Mark made the conscious choice to place the boys at the Leckington home. While there was at least some dispute as to who drove the vehicle, the State presented insufficient evidence to conclude Mark decided what to do with Travis. At best, Mark acquiesced in Sandra’s decision to move the children to their home. Without proof that Mark played a significant role in the decision to move Travis, there is not enough evidence to find Mark was in charge of Travis, and therefore insufficient evidence to support a finding that Mark had custody of Travis.

3. Child Endangerment Resulting in Serious Injury

The crime of child endangerment resulting in serious injury is set forth in Iowa Code section 726.6. The relevant portions of this statute state:

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:
a. Knowingly acts in a manner that creates a substantial risk to a child or minor’s physical, mental or emotional health or safety.
d. Willfully deprives a child or minor of necessary food, clothing, shelter, health care or supervision appropriate to the child or minor’s age, when the person is reasonably able to make the necessary provisions and which deprivation substantially harms the child or minor’s physical, mental or emotional health.

Iowa Code § 726.6(1) (emphasis added). In order to sustain a conviction for child endangerment resulting in serious injury, the State must prove, beyond a reasonable doubt, Mark had either control or custody of Travis. We discuss control and custody separately.

a. Control

Iowa Code section 726.6(3) states a person has “control” for the purposes of child endangerment if he or she has: (1) “accepted, undertaken, or assumed supervision” of a child from the parent or guardian of the child; (2) “undertaken or assumed temporary supervision of a child without explicit consent from the parent or guardian of the child”; or (3) operated a motor vehicle with a child present in the vehicle.

The district court did not instruct the jury on the third definition of control. Also, there was no evidence to prove Mark accepted, undertook, or assumed supervision of Travis with the consent of Travis’s parents or guardians. Therefore, we must analyze whether Mark undertook or assumed the temporary supervision of Travis without the explicit consent of Travis’s parents or guardians.

Mark claims his mere presence as an adult in the vehicle does not mean he had control of Travis for even a brief period of time. We agree. Mark’s role in this situation was peripheral. He did not decide to pick up the boys; he did not decide where to leave the boys. At best he acquiesced in his wife’s decision to leave the boys at the Leckington home. His inactivity does not rise to the level of control.

b. Custody

As noted above, chapter 726, “Protection of the Family and Dependent Persons,” does not define the term custody. In Johnson, we equated the term “custody” in section 726.3 (neglect of a dependent child) with the term custody in section 726.6 (child endangerment resulting in serious injury). 528 N.W.2d at 641. Because we have already concluded Mark did not have custody of Travis for purposes of neglect or abandonment of a dependent person, we must also find he did not have custody for the purposes of the crime of child endangerment resulting in serious injury.

III. Conclusion

Our decision does not condone Mark Leckington’s behavior. The level of indifference he displayed towards the health and welfare of a child was appalling, but his actions (or inaction) did not rise to the level of criminal liability. The evidence was not sufficient to establish the elements of custody or control for either crime. Therefore, the State failed, as a matter of law, to tender substantial proof on each of the essential elements of the offenses. We reverse the district court’s judgment of conviction and remand for entry of a judgment of acquittal.

JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED WITH DIRECTIONS.

      . When Sandra saw Travis lying in the bathtub, she "freaked out.” She told the boys they had to get Travis out of the bathtub and out of the house. While moving Travis out of the tub, Sandra proclaimed "You know how much trouble I'm going to get into, this little f* * *er had to drink alcohol, I'm not going to jail for this motherP * *ing bastard.” Sandra helped drag Travis down the stairs, but the boys refused to help her put Travis outside in the cold December air.

      . A child is defined in Iowa Code section 702.5 as any person under the age of fourteen.

      . Sandra, Mark, Dominic Major, and Major's roommate all testified that Sandra was the driver. On the other hand, Kara Lake, a neighbor viewing the incident from the doorway of her apartment, testified the driver was male.


author: TERNUS, Justice.

text:
    HALLETT CONSTRUCTION COMPANY, Appellee, v. Francis A. MEISTER, Irene M. Meister, Michael F. Meister, and Thomas J. Meister, Appellants.
    No. 04-0525.
    Supreme Court of Iowa.
    May 5, 2006.

      Thaddeus Cosgrove of Cosgrove Law Firm, Holstein, and Joseph J. Heidenreich of Dresselhuis & Heidenreich, Odebolt, for appellants.
    David P. Jennett, Storm Lake, for ap-pellee.
   TERNUS, Justice.

This case involves a dispute over the sand and gravel rights in real property owned by the appellants, Francis Meister, Irene Meister, Michael Meister, and Thomas Meister. The Meisters sought to evict the appellee, Hallett Construction Company, from the property and also claimed damages for holding over, breach of contract, and fraud. The district court granted Hallett’s summary judgment motion, ruling the Meisters’ claims were barred by the applicable statutes of limitation.

The Meisters’ appeal was transferred to the Iowa Court of Appeals. That court reversed the district court, holding there was a factual dispute as to when the Meis-ters’ claims accrued. This court granted Hallett’s request for further review. Upon consideration of the record and the arguments of the parties, we think the district court correctly dismissed the Meisters’ fraud claim on statute-of-limitations grounds, but incorrectly ruled the remaining claims were time barred. Accordingly, we vacate the court of appeals decision, affirm in part and reverse in part the judgment of the district court, and remand this case for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

Because this case comes before us on a summary judgment ruling, we view the facts in a light most favorable to the Meisters, the parties opposing summary judgment. See Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000).

Michael and Thomas Meister are the sons of Francis and Irene Meister. Together they own ninety acres of real estate in Sac County. In 1987, the Meisters and Hallett negotiated a lease for the sand and gravel rights to this property. A proposed ten-year lease was presented to the Meis-ters at a meeting in Hallett’s offices on July 7, 1987. The Meisters objected to paragraph 11 in this pre-printed form that would allow Hallett to renew the lease “for an additional period of 10 years from the date of its termination.” Hallett agreed to remove this provision, and it did so by striking the number “10” with x’s and typing “0” in its place. After this change, the Meisters signed two copies of the lease. They were given one copy, which Irene placed in a file at her home. The Hallett representatives took the other copy to be signed by company officers.

On August 4, 1987, a Hallett representative visited the Meisters’ farm with a copy of the lease that had been signed by Hal-lett’s officers. The representative said it was necessary for the Meisters to initial each page; so the Meisters and the Hallett representative initialed each page, with the exception of the signature page. Unknown to the Meisters, this copy of the lease contained the original provision giving Hallett an option to renew. Without any notice from Hallett that the lease again contained an option to renew, the Meisters assumed they were signing the lease as it had been modified on July 7. Irene was given a copy of the initialed lease [lease 2], and she placed it in a separate file in her home.

In 1996, the Meisters, who believed Hal-lett was not paying them for sand it had taken off the property, contacted an attorney about this issue and also about the termination of the lease at the conclusion of the ten-year term. After reviewing lease 2, the lawyer informed Michael Meis-ter that the lease contained a ten-year option to renew. Although the Meisters believed they had not agreed to an option to renew, they concluded their recollection was mistaken, and so they continued to perform under the lease. On May 15, 1998, pursuant to paragraph 11 of lease 2, Hallett exercised its option to renew the lease until July 7, 2008.

Sometime in 2001, the Meisters came across the original lease signed on July 7, 1987, and realized their recollection that the renewal provision had been eliminated was correct. Meanwhile, disagreements over payment for materials being removed by Hallett continued, and on December 18, 2002, the Meisters served Hallett with a termination of tenancy pursuant to Iowa Code section 562.4 (2001). The Meisters asserted Hallett had failed to pay for materials removed from their land and demanded that Hallett vacate the premises.

Hallett then filed this action on March 18, 2003,' seeking a declaratory judgment establishing its rights in the property pursuant to lease 2. In addition, Hallett sought damages based on interference with contractual relationships, oral ■ and written defamation, and breach of implied and express covenants of the lease. The Meisters filed a counterclaim in four counts on April 3, 2003. In count I, they claimed there was no valid written contract and an at-will tenancy existed; they sought to recover the real property. In count II, the Meisters sought damages based on Hallett’s alleged intentional and unlawful holding over. In count III, the Meisters claimed Hallett had failed to pay the agreed-upon rents and royalties. And in count IV, they asked for damages based on Hallett’s alleged fraud in altering the lease.

Hallett moved for summary judgment on the Meisters’ counterclaims, arguing they were barred by the five-year statute of limitations for fraud and unwritten contracts. See Iowa Code § 614.1(4). Applying the discovery rule, the district court held the undisputed facts established as a matter of law that the Meisters’ claims accrued no later than 1996, when they learned the lease contained an option to renew. The court concluded that because the Meisters’ claims against Hallett were filed in 2003, more than five years after they accrued, those claims were barred by the statute of limitations. Upon receiving this favorable summary judgment ruling, Hallett dismissed without prejudice its requests for declaratory relief and damages.

On the Meisters’ appeal, the court of appeals held count I was governed by the ten-year statute of limitations for actions to recover possession of real property. See id. § 614.1(5). Noting the Meisters had not demanded that Hallett relinquish the land until December 2002, the court held there had been no showing that Hal-lett’s occupancy of the land had been other than permissive within the ten years prior to suit being filed. Therefore, it held, the statute of limitations had not run on the claim stated in count I. Although the court of appeals agreed with the district court that the remaining claims were governed by the five-year statute of limitations, the appellate court held there had been no showing these claims accrued more than five years before suit was brought. We granted Hallett’s application for further review.

II. Scope of Review.

We review summary judgment rulings for correction of errors of law. Crippen, 618 N.W.2d at 565. “To obtain a grant of summary judgment on some issue in an action, the moving party must affirmatively establish the existence of undisputed facts entitling that party to a particular result under controlling law.” Interstate Power Co. v. Ins. Co. of N. Am., 603 N.W.2d 751, 756 (Iowa 1999). In determining whether summary judgment is appropriate, the court considers the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits. Christy v. Miulli, 692 N.W.2d 694, 699 (Iowa 2005).

III. Fraud Claim.

Since many of the parties’ arguments rely on a resolution of the timeliness of the Meisters’ fraud claim, count IV, we begin with that issue. The parties disagree on the appropriate limitations period to apply and on when the Meisters’ fraud claim accrued.

A. Applicable statute of limitations. The Meisters argue the ten-year statute of limitations provided for written contracts is the applicable limitations period for count IV. See Iowa Code § 614.1(5) (providing actions “founded on written contracts” must be brought “within ten years”). Hallett contends the five-year statute of limitations for fraud applies. See id. § 614.1(4) (providing actions “for relief on the ground of fraud in cases heretofore solely cognizable in a court of chancery” must be brought “within five years”). In resolving this dispute, we look beyond the label placed on the claim by the parties and instead focus on “the actual nature of the action” to determine the applicable limitations period. Bob McKiness Excavating & Grading, Inc. v. Morton Bldgs., Inc., 507 N.W.2d 405, 411 (Iowa 1993); accord Sandbulte v. Farm, Bureau Mut. Ins. Co., 343 N.W.2d 457, 462 (Iowa 1984) (“It is the nature of the right sued upon and not the elements of relief requested that governs the selection of the appropriate statutory period for the basic right.”).

The Meisters alleged in count IV that by reason of Hallett’s “material alteration” of the lease without their knowledge or consent, “there [is] no valid contract.” They further alleged that the acts of Hallett’s representative were “false, deceitful and fraudulent” and the Meisters “relied upon the false and fraudulent representation” made by Hallett’s representative. The Meisters sought compensatory and punitive damages.

We think the actual nature of this claim is one of fraud and not of breach of a written contract. As we have noted in the past, a claim is not founded on a written contract “ ‘merely because [the claim] is in some way remotely or indirectly connected with [a written] instrument or because the instrument would be a link in the chain of evidence establishing the cause of action.’ ” Motherly v. Hanson, 359 N.W.2d 450, 455 (Iowa 1984) (citation omitted). Here, the lease is merely part of the context within which Hallett’s alleged fraud occurred. The Meisters do not seek damages for breach of the written contract; they seek damages for the alleged fraudulent representation made by Hallett. Clearly the core of the claim made in count IV is fraud. Therefore, the applicable statute of limitations is the five-year period for fraud actions contained in Iowa Code section 614.1(4).

B. Accrual of fraud claim. The five-year limitations period of section 614.1(4) begins to run upon accrual of the claim. See Iowa Code § 614.1(4). “Generally, a claim accrues when ‘the wrongful act produces injury to the claimant.’ ” K & W Elec., Inc. v. State, 712 N.W.2d 107, 115 (Iowa 2006) (citation omitted). The court of appeals held the Meisters were not damaged by Hallett’s fraud until the option to renew was exercised in May 1998. Therefore, it reasoned, the fraud claim — filed in April 2003 — was commenced within five years of its accrual.

We disagree. Although the Meis-ters complained only of the damage caused to them by the actual renewal of the lease, the option to renew was a contractual right claimed by Hallett since 1987 and was a burden on the property as of that date. See Jensen v. Sheker, 231 Iowa 240, 249, 1 N.W.2d 262, 268 (1941) (“‘The right to operate a mine and carry on the business of mining therein is property .... It is a right as distinct and real as the ownership of the fee itself.’ ” (Citation omitted.)). In fact, the applicable measure of damages is the difference in value of the Meisters’ rights at the time of transfer, not at some later date. See B & B Asphalt Co. v. T.S. McShane Co., 242 N.W.2d 279, 285 (Iowa 1976) (“When the fraud occurs in the sale of personal property, the usual measure of that loss is the difference between the actual value of the property at the time of the transaction and the value it would have had if the representations had been true, the loss of benefit of the bargain.”); Likes v. Baer, 8 Iowa 368, 370 (1859) (holding true measure of plaintiffs damage is the “difference between the actual value of the land and what it would have been worth, had it answered the description given of it by the defendant”). Thus, as of the date lease 2 was signed, the Meisters’ retained rights were diminished, and therefore, they sustained damage at that time. See Gollon v. Jackson Milling Co., 224 Wis. 618, 273 N.W. 59, 61 (1937) (holding property owner was damaged when deed granting greater rights than owner intended was delivered, not at later date when greater right was exercised by grantee). Consequently, the fraud claim accrued in 1987.

The Meisters claim that even if they were damaged in 1987, they did not discover Hallett’s fraud until 2001 when they discovered their copy of the original lease. The discovery rule tolls the statute of limitations until the plaintiff has discovered “ ‘ “the fact of the injury and its cause” ’ ” or by the exercise of reasonable diligence should have discovered these facts. K & W Elec., Inc., 712 N.W.2d at 116 (citation omitted); see also Nixon v. State, 704 N.W.2d 643, 646 (Iowa 2005) (applying discovery rule to claim of fraudulent misrepresentation). Once a claimant learns information that would inform a reasonable person of the need to investigate, the claimant “ ‘is on inquiry notice of all facts that would have been disclosed by a reasonably diligent investigation.’ ” K & W Elec., Inc., 712 N.W.2d at 117 (citation omitted). A claimant can be on inquiry notice without knowing “the details of the evidence by which to prove the cause of action.” Vachon v. State, 514 N.W.2d 442, 446 (Iowa 1994).

It is undisputed the Meisters knew in 1987 they had signed a lease without the option to renew. In 1996, they learned the lease signed by all the parties contained the renewal provision to which they had objected. At that point, they had actual knowledge of their injury — their property was arguably burdened by a lease that could be renewed for ten years — and they were clearly on inquiry notice of the cause of that injury — Hallett’s alteration of the original lease. Though the Meisters may have questioned their collective memory and not realized they possessed evidence to establish Hallett’s alleged fraud, they certainly had enough information in 1996 to alert them of the need to investigate. Had the Meisters exercised reasonable diligence to investigate the facts at that time, they would have discovered the original lease in their own files. Because the Meis-ters were on inquiry notice in 1996, they discovered their fraud claim then, and accordingly, the five-year statute of limitations began to run at that time. The district court correctly held the fraud claim asserted in this action, filed more than five years later, is time barred as a matter of law.

C. Estoppel by fraudulent concealment. The Meisters also claim Hallett is estopped from relying on the statute of limitations due to its fraudulent concealment of the Meisters’ fraud claim. The doctrine of fraudulent concealment requires proof of “some affirmative act to conceal the ... cause of action independent of and subsequent to the liability-producing conduct.” Christy, 692 N.W.2d at 702. The Meisters have not pointed to any evidence of false or misleading conduct by Hallett, other than the alleged fraud itself, that dissuaded them from investigating a possible claim or that caused them to refrain from filing suit. Due to the absence of supporting evidence, their assertion of fraudulent concealment is insufficient to prevent summary judgment on the basis of the statute of limitations.

IV. Claim to Recover Real Property.

A. Applicable statute of limitations. In count I, the Meisters sought to recover their real property, alleging there was no valid written contract and an at-will tenancy existed. They contend this claim is subject to the ten-year statute of limitations “for the recovery of real property.” See Iowa Code § 614.1(5). Hallett argues that because fraud is the basis for the Meisters’ claim there was no contract, resulting in a tenancy at will, and because the fraud claim is time barred, the Meis-ters’ claim to recover their real property is also necessarily time barred.

Looking to the nature of the claim asserted in count I, we think the ten-year statute of limitations “for the recovery of real property” applies. See id. This court has said, “If the purpose and object of the action is the recovery of real property, it is entirely immaterial on what ground the relief is sought.” Tilton v. Bader, 181 Iowa 473, 480-81, 164 N.W. 871, 874 (1917). We held in Tilton that “[t]he mere fact that a litigant alleges and must prove fraud in order to establish his title does not render the action other than one for the recovery of real property.” Id. at 478, 164 N.W. at 873. In such cases, “evidence of fraud is merely incidental to the relief granted.” Id.

That is the case here. The relief sought is the recovery of real property; evidence of fraud is simply part of the proof that no valid contract transferring an interest in the property exists. Therefore, the claim stated in count I is governed by a ten-year limitations period.

We do not agree with Hallett’s contention that because an independent claim for damages based on fraud is time barred, the Meisters may not use Hallett’s alleged fraud to establish that Hallett’s tenancy was at will. If that were the case, any claim for recovery of real property that had some component of fraud would be unprovable after five years, a result contrary to our test for determining the applicable statute of limitations. In other words, although the Meisters cannot sue for compensatory damages resulting from Hallett’s alleged alteration of the lease because the five-year statute of limitations for fraud expired before they filed their claims, they may seek to recover possession of their property under the ten-year statute of limitations for recovery of real property, provided this claim accrued within ten years of their claim being filed in 2003.

B. Accrual of claim. The Meis-ters argue the statute of limitations did not commence to run on their claim to recover their property until December 18, 2002, when they terminated Hallett’s permissive, at-will tenancy. Hallett, focusing on the fraud aspects of this claim, asserts the claim accrued at the time lease 2 was executed. We think the Meisters have the better argument.

This court has noted the doctrine of adverse possession, which requires a ten-year period of possession adverse to the owner, “is based on the ten-year statute of limitations for recovery of real property.” Carpenter v. Ruperto, 315 N.W.2d 782, 784 (Iowa 1982). Here, until the occupancy by Hallett became adverse rather than permissive, the Meisters had no claim for the recovery of the property: it was not being held adversely to them. A claim clearly arose, however, when they terminated the tenancy in 2002, and Hallett refused to vacate the property. Thus, the Meisters’ claim for recovery of real property accrued on December 18, 2002. Consequently, the present suit, filed within ten years of this date, is timely. The district court erred in granting Hallett summary judgment on count I based on the statute of limitations.

V. Holding-Over Claim.

A. Applicable statute of limitations. In count II, the Meisters seek damages resulting from Hallett’s holding over after termination of its tenancy. The court of appeals concluded this claim was either “founded on [an] unwritten contract,” or “not otherwise provided for,” and therefore, was subject to a five-year limitations period. Iowa Code § 614.1(4) (providing for five-year statute of limitations for claims “founded on [an] unwritten contract” or “not otherwise provided for”). We agree the five-year statute of limitations applies, and consequently, this claim is barred if it accrued more than five years prior to this action being filed in April 2003.

B. Accrual of claim. The Meis-ters’ holding-over claim is explicitly tied to their claim for recovery of real property. Hallett cannot be deemed to be holding over until there has been a demand by the Meisters to relinquish the property. The undisputed facts show the Meisters did not demand that Hallett vacate the property until 2002, within five years of the filing of this lawsuit in 2003. Therefore, the Meis-ters filed their holding-over claim within the statute of limitations. The district court erred in ruling to the contrary.

VI. Claim for Unpaid Rents and Royalties.

A. Applicable statute of limitations. In count III, the Meisters allege there was no valid written contract between the parties, but there was an agreement for an at-will tenancy. They further allege Hallett “agreed to pay certain sums in consideration as rentals and royalties.” This claim falls within the five-year statute of limitations for those “founded on unwritten contract.” Id.

B. Accrual of claim. Hallett has made no showing of undisputed facts establishing the alleged failure to pay rent and royalties occurred more than five years prior to suit being filed in 2003. See Interstate Power Co., 603 N.W.2d at 756 (stating “the moving party must affirmatively establish the existence of undisputed facts entitling that party to a particular result under controlling law”). Therefore, it has failed to demonstrate this claim is barred by the statute of limitations as a matter of law. (Of course, any recovery under this count would necessarily be limited to sums payable in the five-year period preceding April 3, 2003.) The district court erred in granting summary judgment to Hallett on count III.

VII.Summary and Disposition.

The Meisters’ fraud claim is barred by the five-year statute of limitations applicable to fraud actions and was properly dismissed by the district court. Although we affirm that aspect of the district court’s judgment, we reversé the balance of its judgment dismissing the other claims filed by the Meisters. Hallett has not demonstrated these claims are barred by the governing statutes of limitations. Therefore, the district court erred in granting summary judgment to Hallett on the Meis-ters’ claims for recovery of real property, holding over, and failure to pay rents and royalties. The case is remanded for reinstatement of these three claims and for further proceedings on them.

DECISION OF COURT OF APPEALS VACATED. DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART. CASE REMANDED.

      . Section 562.4 requires “thirty days' notice in writing” of a property owner's intent to terminate a tenancy at will.