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IN THE SUPREME COURT OF IOWA
No. 17 / 04-1361 Filed April 28, 2006 STATE OF IOWA, Appellee, vs. MARK STEVEN LECKINGTON, Appellant. Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers, Judge.

Defendant appeals his convictions for neglect of a dependent and child endangerment resulting in serious injury. DISTRICT COURT REVERSED; CASE JUDGMENT OF WITH

REMANDED

DIRECTIONS.

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.

2 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 custody 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

3 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. boys then ran cold water on Travis in hopes of reviving him. 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, 1 Sandra The

Travis's

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
1When 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 motherf***ing bastard." Sandra helped drag Travis down the stairs, but the boys refused to help her put Travis outside in the cold December air.

4 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

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