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IN THE COURT OF APPEALS OF IOWA No. 7-833 / 06-1627 Filed December 28, 2007

STATE OF IOWA, Plaintiff-Appellee, vs. ROSETTA TAYLOR a/k/a ROSETTA VESEY, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Fae Hoover-Grinde, Judge.

Rosetta

Taylor

appeals

her

conviction

for

child

endangerment.

REVERSED AND REMANDED FOR NEW TRIAL.

Mark C. Smith, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Harold Denton, County Attorney, and Jason Burns, Assistant County Attorney, for appellee.

Heard by Vogel, P.J., Mahan, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007)

2 MAHAN, J. Rosetta Taylor appeals her conviction for child endangerment. She claims she received ineffective assistance of counsel and that the district court erred in accepting a victim impact statement from the victim's temporary guardian. We reverse and remand for new trial. I. Background Facts and Proceedings

In the fall of 2005 a teacher at Johnson Elementary School in Cedar Rapids contacted police because she was concerned about a nine-year-old student named Jazzmeika who had been absent from school for an extended period of time. Jazzmeika suffers from spina bifida and is therefore physically disabled. The child's legal guardian was her grandmother, the defendant. On October 3, 2005, the Cedar Rapids Police Department executed a search warrant on defendant's home and found nine-year-old Jazzmeika alone in the house lying on a hospital bed. She wore heavily soiled diapers and sat in urine soaked blankets. Rotting food and feces covered the area surrounding Jazzmeika on the bed. Officers found the condition of the house to be unsafe and very unsanitary. Movement throughout the house was virtually impossible due to the large amount of debris. The officers concluded Jazzmeika had been left in the house by herself for an extended period of time based on the fact other beds in the house were completely covered in debris, the sinks in the house did not appear to be operational, and the beds were not easily accessible due to the debris throughout the house. executed. The defendant was not home when the search warrant was

3 On October 7, 2005, the defendant was located and subsequently arrested and charged with child endangerment. After an adverse ruling on

defendant's motion to suppress evidence seized during the execution of the warrant on her home, the defendant chose to proceed to a bench trial on the minutes of testimony only. The district court found her guilty of child

endangerment in violation of Iowa Code section 726.6(1)(d). At the sentencing hearing, Officer Glenn Kieler provided a victim impact statement on behalf of Jazzmeika. Officer Kieler was one of the officers who executed the warrant on the defendant's home in which Jazzmeika was found. He and his wife

subsequently took Jazzmeika into their home and became her temporary guardians for a number of months. Defendant was fined $500 and sentenced to 365 days in jail, 185 days of that to be suspended until September 15, 2008, and placed on supervised probation. II. Standard of Review

We review claims of ineffective assistance of counsel de novo. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). Ineffective assistance of counsel claims are generally preserved for postconviction relief to allow the facts surrounding the record to be fully developed. State v. Taylor, 310 N.W.2d 174, 179 (Iowa 1981). If, however, the record is adequate, we will evaluate the

defendant's claim on direct appeal. State v. Schoelerman, 315 N.W.2d 67, 71 (Iowa 1982). III. Merits

On appeal, Taylor argues she was denied effective assistance of counsel due to defense counsel's failure to assure that the waiver of her right to a jury

4 trial was knowing, voluntary, and intelligent. She further claims the district court erred in accepting a victim impact statement from Officer Kieler. Because we remand this case for a new trial on the jury waiver issue, we do not reach the merits of Taylor's argument regarding the admittance of the victim impact statement. To establish an ineffective assistance of counsel claim Taylor must show that (1) her defense counsel failed to perform an essential duty and (2) that prejudice resulted therefrom. State v. Stallings, 658 N.W.2d 106, 108-09 (Iowa 2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). Failure to prove either is fatal to the claim. State v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003). We will normally preserve an

ineffective assistance of counsel claim for post-conviction relief to allow the record to be fully established. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, in this case, we find the record to be adequate to decide the issue on direct appeal. A defendant has a constitutional right to a trial by jury. U.S. Const. art. III,

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