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IN THE COURT OF APPEALS OF IOWA No. 8-581 / 08-0099 Filed December 31, 2008

STATE OF IOWA, Plaintiff-Appellant, vs. SHARON KAY HANSEN, Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Pottawattamie County, Timothy OGrady, Judge.

The State appeals from the district courts grant of defendants motion for judgment of acquittal. APPEAL DISMISSED.

Thomas J. Miller, Attorney General, Darrel Mullins and Mary Tabor, Assistant Attorneys General, Matthew Wilber, County Attorney, and Shelly Sedlak, Assistant County Attorney, for appellant. Michael Winter, Council Bluffs, for appellee.

Heard by Sackett, C.J., and Eisenhauer and Doyle, JJ.

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SACKETT, C.J. The State appeals from the district courts grant of the defendants motion for judgment of acquittal following her jury conviction of child endangerment causing serious injury. The State contends the court erred in weighing the

evidence and seeks reinstatement of the jurys verdict. We dismiss the appeal. I. Background The State charged Sharon Hansen with neglect of a dependent person and two counts of child endangerment. At the close of the States case the defendant moved for judgment of acquittal; the court denied the motion. At the close of the defendants case the court denied her renewed motion for judgment of acquittal. At the close of the States rebuttal evidence, the court reserved ruling on the defendants final motion for judgment of acquittal. The jury acquitted the defendant on the first two counts, but convicted her on the count of child endangerment by willful deprivation of healthcare. The district court accepted the acquittal verdicts, but refused to accept the conviction, instead granting the motion for judgment of acquittal on which it had reserved ruling. The order provided: The evidence in the record is insufficient to sustain a conviction of child endangerment with serious injury in count III. . . . An essential element [of the marshalling instruction] was that the defendant willfully deprived [the child] of necessary health care or supervision appropriate to [his] age. Willfully means acting intentionally or by fixed design or purpose and not accidentally. The evidence does not prove beyond a reasonable doubt that defendant appreciated the medical circumstances that [the child] presented on June 26, 2007. The evidence does not prove beyond a reasonable doubt that a reasonable person would have fully appreciated the medical circumstances that [the child] presented on June 26, 2007. . . .

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When viewed in the light most favorable to the State, the evidence is not sufficient to sustain a conviction that defendant acted intentionally or by fixed design or purpose and not accidentally to deny [the child] necessary health care or supervision appropriate to his age. The State appeals, contending the court erred in granting the motion for judgment of acquittal because substantial evidence supports the jurys verdict. The defendant responds that (1) the States appeal is not permitted by statute; (2) principles of double jeopardy prevent reprosecution; and (3) the district court was correct in concluding the jurys conviction was not supported by substantial evidence. II. Scope and Standards of Review Review of a district courts ruling on a motion for judgment of acquittal is for correction of errors at law. State v. Corsi, 686 N.W.2d 215, 218 (Iowa 2004). "[W]e apply a sufficiency-of-the-evidence test and view the evidence in the light most favorable to the State." State v. Shanahan, 712 N.W.2d 121, 134 (Iowa 2006). III. Discussion Before addressing the merits of the States appeal, we must determine whether either of the potential hurdles raised by the defendant would keep us from reaching the merits. First, the defendant contends the appeal is improper because it does not fit within any of the provisions of Iowa Code section 814.5 (2007). "As an initial matter, we note that the right of appeal is not an inherent or constitutional right; it is a purely statutory right that may be granted or denied by the legislature as it determines." James v. State, 479 N.W.2d 287, 290 (Iowa

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1991). Iowa Code chapter 814 governs appeals from the district court in criminal cases. Section 814.5 provides: 1. Right of appeal is granted the state from: a. An order dismissing an indictment, information, or any count thereof. b. A judgment for the defendant on a motion to the indictment or the information. c. An order arresting judgment or granting a new trial. 2. Discretionary review may be available in the following cases: a. An order dismissing an arrest or search warrant. b. An order suppressing or admitting evidence. c. An order granting or denying a motion for a change of venue. d. A final judgment or order raising a question of law important to the judiciary and the profession. This restricted list for criminal appeals contrasts sharply with the general civil rule that "a party may appeal as of right from any final order or judgment. " See In re T.R., 705 N.W.2d 6, 10 (Iowa 2005); Iowa R. App. P. 6.1(1). The State argues its appeal falls under the language in paragraphs (1)(a) or (1)(b). When defense counsel renewed the motion for judgment of acquittal at the close of the States rebuttal evidence, counsel also reviewed the insufficiency of the States evidence, then said, "The charges in my opinion should all be dismissed without the necessity of a jury hearing any more. " The State asserts, "Because the defendant sought, and the court granted, a dismissal of the charges on the motion for judgment of acquittal, the plain terms of section 814.5 confer a right of appeal." The district court order sustaining the motion for

judgment of acquittal did not "dismiss" any charges, so the statutory language, "An order dismissing an indictment, information, or any count thereof " does not appear to encompass the courts order.

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The State also argues that sustaining the motion for judgment of acquittal falls within "[a] judgment for the defendant on a motion to the indictment or the information." While the courts action certainly is a judgment for the defendant on a motion, it is a judgment after trial, not pretrial "to the indictment or the information." See State v. Bullock, 638 N.W.2d 728, 730 (Iowa 2002) (comparing a pretrial and posttrial decision, noting "[t]his distinction is material because the appeal as of right granted by the legislature is extended to a ,,judgment for the defendant on a motion to the indictment or the information"). We conclude the district courts posttrial grant of defendants motion for judgment of acquittal does not fall within any of the delineated circumstances in which the State has a right to appeal. We next examine whether the circumstances before us fall within those listed in which "discretionary review may be available." Iowa Code

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