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IN THE COURT OF APPEALS OF IOWA No. 9-748 / 08-1956 Filed October 21, 2009

STATE OF IOWA, Plaintiff-Appellee, vs. CONNIE SUE WRIGHT, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.

Connie Wright appeals from the judgment and conviction entered on the charge of operating a child care center without a license. AFFIRMED.

Mark C. Smith, State Appellate Defender, David Adams, Assistant Appellate Defender, and Sean C. Beaver, student intern, for appellant. Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, John P. Sarcone, County Attorney, and Olubunmi Salami, Assistant County Attorney, for appellee.

Considered by Vogel, P.J., and Potterfield, J., and Huitink, S.J.* *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).

2 POTTERFIELD, J. I. Background Facts and Proceedings In 2005, Connie Wright registered her home with the Iowa Department of Human Services (DHS) as a category A child development home. This

registration allowed her to provide child care to a maximum of eight children.1 Iowa Admin. Code r. 441-110.8. On April 17, 2007, DHS completed a spot check at Wright's home and found that she had fourteen children in her care. Another spot check on May 8, 2007, revealed Wright had thirteen children in her care. Accordingly, on May 18, 2007, DHS sent a letter to Wright revoking her registration. Wright was allowed to continue to operate her category A child development home until a final decision was rendered on appeal. The revocation was affirmed in a decision dated July 17, 2007. DHS sent a letter to Wright on August 1, 2007, informing Wright that the revocation of her registration had been upheld on appeal and she was to discontinue all child care services as a registered child development home.2 In February and March of 2008, DHS received two complaints about the number of children in Wright's care. Bill Dickey, a child protective worker with DHS, went to Wright's house three times to talk to her about whether she was operating a daycare. On his third attempt, on March 18, 2008, Dickey went to Wright's home accompanied by a police officer.

1

Of these eight children, only six could be in daycare all day. Iowa Admin. Code r. 441110.8. Two of the children had to be school-aged children who were in daycare for less than two hours at a time. Id. 2 Wright asserted that she did not receive this letter.

3 There is conflicting testimony as to the number of children in Wright 's home when Dickey arrived. Dickey and the police officer who assisted him both testified that when they arrived at Wright's home, there were twenty-one children and two adults inside. Dickey testified that the other adult, Shelby Burns,

identified three of the children as her own. Wright testified that when Dickey arrived, there were sixteen children in her house--ten children in her care and six children in the care of Shelby Burns. Wright was charged with operating a child care center without a license in violation of Iowa Code sections 237A.2(1) and 237A.19(1) (2007). After a twoday trial, a jury found Wright guilty. Wright appeals, arguing her counsel was ineffective for failing to: (1) argue in the motion for judgment of acquittal that there was insufficient evidence that her child care business fit the statutory definition of "child care center"; (2) object to testimony and exhibits that were unfairly prejudicial; and (3) object to the prosecutor's inflammatory and misleading comments. II. Standard of Review Because Wright asserts a constitutional violation, we review the totality of the circumstances de novo. Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984). III. Ineffective Assistance of Counsel In order to prove her counsel was ineffective, Wright must show that: (1) counsel failed to perform an essential duty; and (2) prejudice resulted from that failure. Id. In order to establish the first prong of the test, Wright must show that her counsel did not act as a "reasonably competent practitioner" would have. State v. Simmons, 714 N.W.2d 264, 276 (Iowa 2006). In evaluating counsel's

4 effectiveness, we require more than a showing that counsel 's strategy failed. Taylor, 352 N.W.2d at 684. In addition, there is a strong presumption that

counsel performed competently. Id. To satisfy the second prong, prejudice, Wright "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. If we can dispose of Wright's claim under the prejudice prong, we need not evaluate her counsel's performance. Id. Ordinarily, we preserve

ineffective-assistance-of-counsel claims for postconviction proceedings to enable full development of the record and to afford trial counsel an opportunity to respond to the claims that have been made. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). We may resolve the claim of ineffective assistance of counsel on direct appeal if we find the record is sufficient to do so. State v. Hildebrant, 405 N.W.2d 839, 840-41 (Iowa 1987). Upon review of the record here, we

conclude the record is adequate to address the claim on direct appeal. A. Motion for Judgment of Acquittal Wright asserts her counsel should have argued in the motion for judgment of acquittal that there was insufficient evidence presented to show her child care business was a child care center under Iowa Code section 237A.19(1). Wright asserts that the facts instead support a violation of Iowa Code section 237A.19(3), which states that it is a simple misdemeanor to continue involvement with child care after being prohibited from doing so. The State agrees that such a charge would have been appropriate, but contends that Wright 's conduct also violated section 237A.19(1), which is a serious misdemeanor. When a single act

5 violates more than one criminal statute, the prosecutor may exercise discretion in selecting which charge to file. State v. Perry, 440 N.W.2d 389, 391 (Iowa 1989). The State chose to charge Wright with operating a child care center without a license, and was therefore required to prove: (1) Wright operated a child care center (as distinguished from a child care home or a child development home); and (2) Wright did not have a license to do so. Iowa Code

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