IN THE COURT OF APPEALS OF IOWA

No. 17-0232

Filed March 7, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

DIANNA MARIE WINDER,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Sioux County, Patrick H. Tott, 

Judge.

Dianna Winder appeals her convictions of child endangerment causing 

bodily injury and assault causing bodily injury. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Zachary C. Miller, Assistant 

Attorney General, for appellee.

Considered by Danilson, C.J., Vaitheswaran, J., and Mahan, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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MAHAN, Senior Judge.

Dianna Winder appeals her convictions of child endangerment causing 

bodily injury and assault causing bodily injury. She contends her attorney was 

ineffective in failing to properly challenge the sufficiency of the evidence 

supporting the jury’s findings of guilt and claims the district court erred in ordering 

restitution for the costs of prosecution. We affirm.

I. Background Facts and Proceedings

The jury could have found the following from the evidence presented at 

trial. At around 7:00 a.m. on November 11, 2015, Kaitlin Rollins left her fifteenmonth-old son, L.J., in the care of Dianna Winder. Winder provided daycare 

services for children out of her home in Maurice. At around 5:00 p.m., as she 

was getting done with work for the day, Rollins received a text message from 

Winder saying L.J. was “having an allergic reaction.” Rollins was “surprise[ed]”

because L.J. had no known allergies. Rollins went to Winder’s house to get L.J. 

and observed “thick red lines” on L.J.’s face “from his ear to his forehead” and 

L.J.’s “ear was purple and red”; she did not think the marks looked like a rash. 

As Rollins and Winder discussed what may have happened to L.J., Winder 

“threw her hands in the air” and “said she didn’t hit him.” Winder said L.J. had 

fallen that day while he was playing. Rollins recalled that L.J.’s face looked 

“normal,” with no visible injuries, when she left him in Winder’s care that morning.

Rollins took L.J. to the emergency room, arriving around 5:15 p.m. L.J. 

was alert and calm. A paramedic examined L.J. and noted he had “abrasions 

from the middle of the forehead around to the left ear” with “purple bruising” and 

“what looks like some possible finger marks near the left temple.” The paramedic 
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noted, “The left ear is especially purple with scrapes.” A physician examined L.J. 

and noted he had “[h]ead and facial abrasions” and “evidence of what looks to be 

trauma on the left side of his head and face.” A sheriff’s deputy and a 

department of human services (DHS) caseworker were called to the hospital to 

investigate. The deputy concluded L.J.’s injury came from a right hand wearing 

rings. A nurse examined L.J. the next day and opined his injuries were 

“indicative of inflicted injuries likely from a hand,” with the perpendicular marks 

“possibly [caused by] a ring.” Winder wore two rings on her right hand on the day 

L.J. was injured. The other people L.J. was around that day were interviewed; 

investigators did not suspect they caused L.J.’s injuries. 

The State charged Winder with child endangerment causing bodily injury

and assault causing bodily injury. At the close of the State’s evidence, Winder’s 

attorney made a general motion for judgment of acquittal, which the district court 

overruled. A jury subsequently found Winder guilty. Winder appealed following 

imposition of sentence. Additional facts will be discussed below as are relevant 

to her claims on appeal. 

II. Ineffective Assistance of Counsel

Winder claims her attorney was ineffective in failing to make a detailed 

challenge to the sufficiency of the evidence supporting the jury’s findings of 

guilt. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (analyzing a 

defendant’s challenge to the sufficiency of the evidence under an ineffectiveassistance-of-counsel rubric when a general motion for judgment of acquittal was 

inadequate to preserve error on the sufficiency-of-the-evidence claim). “A claim 

of ineffective assistance of trial counsel based on the failure of counsel to raise a 
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claim of insufficient evidence to support a conviction is a matter that normally can 

be decided on direct appeal.” State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 

2004). If the record “fails to reveal substantial evidence to support the 

convictions, counsel was ineffective for failing to properly raise the issue and 

prejudice resulted. On the other hand, if the record reveals substantial evidence, 

counsel’s failure to raise the claim of error could not be prejudicial.” Id. Our 

review is de novo. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015). 

The jury was instructed the State would have to prove the following 

elements of child endangerment causing bodily injury:

1. On or about the 11th day of November, 2015, Ms. Winder 

was the person having custody or control of [L.J.]

2. [L.J.] was under the age of fourteen years.

3. Ms. Winder acted with knowledge that she was creating a 

substantial risk to [L.J.’s] physical health or safety. (See Instruction 

No. 14 for definition of “acted with knowledge.”)

4. Ms. Winder’s act resulted in bodily injury to [L.J.] as 

defined in Instruction No. 14.

See Iowa Code § 726.6 (2015). The jury was instructed the State would have to 

prove the following elements of assault causing bodily injury:

1. On or about the 11th day of November, 2015, Ms. Winder 

did an act which was intended to cause pain or injury or result in 

physical contact which was insulting or offensive to him.

2. Ms. Winder had the apparent ability to do the act.

3. Ms. Winder’s act caused a bodily injury to [L.J.] as defined 

in Instruction No. 14.

See id. §§ 708.1(2), 708.2(2).

The jury was further instructed in Instruction No. 14: “for Ms. Winder to 

have knowledge of something means she had a conscious awareness that she 

was creating a substantial risk to [L.J.’s] physical health or safety by her 

action(s)”; “‘bodily injury’ means physical pain, illness, or any impairment of 
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physical condition”; and “‘apparent ability’ means a reasonable person in the 

defendant’s position would expect the act to be completed under the existing 

facts and circumstances.” 

Winder challenges the identity element of both convictions, claiming the 

State failed to prove she was the cause of L.J.’s injuries. According to Winder, 

“While she did have custody and control of L.J. between 7:00 a.m. and 5:15, she 

was not the only person who had contact with L.J.” She claims, “The interaction 

of so many people with L.J. that day prevents the jury from inferring Winder was 

the cause of L.J.’s injuries and [that she] assaulted him.” 

The jury heard testimony that L.J. was in Winder’s exclusive control 

throughout the day except for approximately one hour during the late morning 

when she left L.J. in the care of her friend, Brenda VanEngelenhoven, while she 

took her nine-year-old daughter, P.V., to the doctor. But there was no indication 

L.J. was injured while he was with VanEngelenhoven, and he had no visible 

injuries when VanEngelenhoven returned him to Winder’s care. Indeed, the 

other people L.J. was around that day (VanEngelenhoven, VanEngelenhoven’s

husband, and P.V.) were interviewed by law enforcement and DHS. The DHS 

caseworker testified she did not have any concerns about those individuals and 

she did not suspect they caused L.J.’s injuries. See, e.g., State v. Parmer, No. 

13-2033, 2015 WL 2393652, at *10 (Iowa Ct. App. May 20, 2015) (“The child’s 

last injuries occurred during times the child was in [the defendant’s] care.”). The 

jury also heard testimony that L.J.’s injuries were consistent with being struck by 

a right hand wearing rings; Winder wore rings on her right hand. Finally, the jury 

learned Winder made the unprompted statement to Rollins that “she didn’t hit 
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him.” These facts amount to substantial evidence from which the jury could 

conclude Winder was the cause of L.J.’s injuries. 

Winder also challenges the knowledge element of her child-endangerment 

conviction. Winder claims, “Should this court find that there is sufficient evidence 

[she] caused the injuries to L.J. by slapping him, . . . she did not act with 

knowledge that she was creating a substantial risk to L.J.’s physical health and 

safety as required by the third element of child endangerment.” Winder states, 

“Not to down play the seriousness of someone hitting a child, but . . . the 

evidence was insufficient to find the act of slapping was done with a conscious 

awareness that she was creating a substantial risk to [L.J.’s] physical health and 

safety.” 

To prove this element the jury had to find Winder “had a conscious 

awareness that she was creating a substantial risk to [L.J.’s] physical health or 

safety by her action(s).” A “substantial risk” means “[t]he very real possibility of 

danger to a child’s physical health or safety.” State v. Schlitter, 881 N.W.2d 380, 

390 (Iowa 2016) (citation omitted). “The risk does not have to be likely, just real 

or identifiable.” Id. 

L.J. was a fifteen-month-old child. The jury heard testimony that a strike 

to a toddler’s head poses a particular risk of injury to the child’s health or safety, 

and there is “[m]ore concern” of a brain injury. The nurse who examined L.J. 

testified, “Sudden impacts to the head put a child of this age at more risk for 

serious injury.” She further explained:

Toddlers, specifically, their heads are larger in proportion to the rest 

of their body, so their heads are heavy. They have less neck 

control than an older child, so with an impact there may be more of 
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a[n] acceleration of the head impacting other objects or other 

furniture or whatever the case may be. Also, a toddler cannot 

anticipate the force of . . . a hand coming at them. An older child is 

more of one [whose] development . . . could anticipate something 

like that happening, could move away from a potential situation or 

an injury or impact coming at them. Toddler[s] at this age 

developmentally would not see that coming.

The jury viewed evidence depicting L.J.’s visible injuries, hours after their 

infliction. The jury also learned that Winder told Rollins that L.J. was having an 

allergic reaction, which indicates she knew hitting a child was wrong. The State 

presented substantial evidence from which the jury could conclude Winder knew 

she created a very real possibility of danger to L.J.’s health or safety when she 

struck him. 

As the record reveals substantial evidence to support the jury’s findings of 

guilt, trial counsel was not ineffective in failing to make a more detailed challenge 

to the sufficiency of the evidence. See Truesdell, 679 N.W.2d at 616 (“[I]f the 

record reveals substantial evidence, counsel’s failure to raise the claim of error 

could not be prejudicial.”). We affirm on this issue.

III. Restitution

The sentencing court is required to order a defendant to pay certain fees 

and costs associated with the prosecution of the case. See Iowa Code § 910.2 

(governing the court’s ability to order the defendant to pay restitution “[i]n all 

criminal cases in which there is a plea of guilty, verdict of guilty, or special verdict 

upon which a judgment of conviction is rendered”). In addition, section 815.13 

allows the county or city to recover fees and costs incurred in prosecuting a 

criminal action “unless the defendant is found not guilty or the action is 

dismissed.”
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Winder claims the court erred in ordering her to pay restitution in the 

amount of $818.50 for the cost of prosecution under section 815.13. That 

section provides:

The county or city which has the duty to prosecute a criminal 

action shall pay the costs of depositions taken on behalf of the 

prosecution, the costs of transcripts requested by the prosecution, 

and in criminal actions prosecuted by the county or city under 

county or city ordinance the fees that are payable to the clerk of the 

district court for services rendered and the court costs taxed in 

connection with the trial of the action or appeals from the judgment. 

The county or city shall pay witness fees and mileage in trials of 

criminal actions prosecuted by the county or city under county or 

city ordinance. These fees and costs are recoverable by the county 

or city from the defendant unless the defendant is found not guilty 

or the action is dismissed, in which case the state shall pay the 

witness fees and mileage in cases prosecuted under state law.

Iowa Code § 815.13. We review this claim for correction of errors at law. See 

State v. Louisell, 865 N.W.2d 590, 596 (Iowa 2015).

As the supreme court has instructed, section 815.13 “authorizes the 

collection of costs of a criminal prosecution from a defendant ‘unless the 

defendant is found not guilty.’”

1

 State v. Petrie, 478 N.W.2d 620, 622 (Iowa 

1991) (quoting Iowa Code § 815.13). “[T]he defendant should only be ordered to 

pay restitution on the counts on which the State obtains a conviction.” State v.

Johnson, 887 N.W.2d 178, 181 (Iowa Ct. App. 2016) (citing Petrie, 478 N.W.2d 

at 622). Here, there is no question Winder was assessed costs “clearly 

attributable to the charges on which [she was] convicted,” because no charges 

 

1 Winder points to this court’s decision in State v. Valdez, No. 13-0183, 2014 WL 

1495485, at *7 (Iowa Ct. App. Apr. 16, 2014), as support for her contention. In that 

case, we accepted the State’s concession that “the court erred in ordering the recovery 

of the costs of prosecution under section 815.13,” and we vacated the restitution order 

without considering the merits of the defendant’s claim. Here, the State submits Valdez

“conflicts with Iowa Supreme Court and Court of Appeals decisions.” In any event, 

Valdez is not persuasive or binding with regard to Winder’s claim in this appeal.
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were dismissed. See id. (“A defendant may be assessed costs clearly 

attributable to the charges on which the defendant is convicted but may not be 

assessed costs clearly attributable to dismissed charges.”). The court’s 

restitution order was authorized under the statute. We affirm on this issue.

Upon consideration of the issues raised on appeal, we affirm Winder’s

convictions for child endangerment causing bodily injury and assault causing 

bodily injury. 

AFFIRMED.