State of Iowa v. Alison Elaine Dorsey

IN THE COURT OF APPEALS OF IOWA

No. 23-1063
Filed June 5, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ALISON ELAINE DORSEY,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Cass County, Amy Zacharias, Judge.

Defendant appeals her convictions for second-degree murder and child

endangerment causing death. AFFIRMED.

William L. Kutmus and Trevor Hook of Kutmus, Pennington & Hook, P.C.,

West Des Moines, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., and Greer and Schumacher, J.J.
2

SCHUMACHER, Judge.

Alison Dorsey appeals her convictions for second-degree murder and child

endangerment causing death, both class “B” felonies. On appeal, she raises five

challenges. Dorsey asserts the venue change from Cass County to Pottawattamie

County was improper, the verdict was not supported by substantial evidence,

evidence of a child’s rib injury was improperly admitted, she was unfairly deprived

of her right to call additional witnesses as to her relevant character traits, and the

court erred in denying her motion for a new trial.

I. Background Facts and Proceedings

Dorsey had run an in-home daycare since 2002. In 2019, she was

operating her daycare in Massena, Iowa. Eleven-week-old L.H. and his twin’s first

day of daycare was October 7, 2019. The twins’ two older siblings had attended

Dorsey’s daycare. But on October 7, only one of the older siblings accompanied

the twins to daycare, as the other had school that day.

L.H.’s father dropped the twins and their two-year-old sibling off at daycare

that morning before work, a little before 8:00 a.m. Dorsey was caring for ten

children at her daycare that day, three children under the age of one, the oldest

child being four years old.1 Shortly before 9:00 a.m., Dorsey sent a photo of the

twins to the parents commemorating their first day of daycare. Dorsey placed a

phone call to the mother at 10:35 a.m., describing that L.H. was “breathing funny,”

and he “wouldn’t eat.” Dorsey called the father at about 10:55 a.m. In the phone

calls with the mother and father, Dorsey did not relay any serious medical

1 Three more children were scheduled to be dropped at Dorsey’s daycare after

preschool on October 7.
3

concerns. The father, who worked about four blocks from the daycare, decided to

go to the daycare on his break to check on L.H. He arrived at the daycare at

11:00 a.m. to find that L.H. was limp, bluish-grey, and not breathing. Dorsey

claimed L.H. went limp just as his father arrived at the daycare. The father

attempted to administer CPR and instructed Dorsey to call 911. Dorsey had not

called for medical assistance. L.H. was taken to a local hospital where his heart

was restarted before he was life-flighted to Children’s Pediatric Hospital in Omaha

(Children’s).

L.H. received a CT scan which revealed “blood in the deep membranes

separating the brain,” and “a diffuse pattern of blood and blood involving the deep

membranes,” which “implies a rapid acceleration-deceleration type injury.” This

means “the brain is . . . moving rapidly inside [the] skull, tearing the bridging veins

that are . . . between the brain and the skull.” The appearance of the blood in the

CT scan also suggested the injury was recent. The radiologist indicated the CT

scan suggested continued swelling of L.H.’s brain, consistent with an injury that

happened “fairly recently.” The radiologist and another pediatric ICU physician

from Children’s also testified that L.H.’s injuries were “highly suspicious for abusive

head trauma.” “Abusive head trauma” was previously referred to as “shaken baby

syndrome.” L.H. never regained consciousness and was taken off life support on

October 8. He died the same day.

Dorsey was charged with first-degree murder and child endangerment

resulting in death. Dorsey’s first criminal jury trial began in Cass County in

October 2021. The seven-day trial resulted in a hung jury, and the district court

declared a mistrial. The State later moved for a change of venue, citing extensive
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pretrial publicity on social media which reflected a community deeply divided over

the case. Dorsey did not file a written resistance but orally resisted the State’s

motion at hearing. The district court granted the State’s motion for a change of

venue based on the publicity surrounding the case and the court’s experience

during jury selection in Dorsey’s first trial. Venue was transferred to Pottawattamie

County.

A second jury trial began in May 2023. The State’s witnesses included but

were not limited to L.H.’s pediatrician, a pediatric radiologist, a pediatric intensive

care unit physician, a child abuse pediatrician, and an associate medical examiner.

The defense’s witnesses included but were not limited to a retired physician, a

pathologist, and a biomedical/mechanical engineer. The State called a pathologist

and neuropathologist as a rebuttal witness.

Dorsey elicited testimony on rib injuries sustained by L.H.’s older sibling but

objected when the State attempted to introduce evidence of the possible origins of

those injuries. The court allowed the State to present that evidence.

Dorsey sought to present twelve witnesses who would testify to her peaceful

and loving character. The court permitted six of these witnesses to testify, finding

additional witnesses would be cumulative.

The jury returned a guilty verdict on the child endangerment resulting in

death charge and on a lesser included offense of murder in the second degree on

May 9, 2023. Dorsey filed a motion to dismiss and motion for a new trial. The

district court denied the motion for a new trial and merged the convictions. Dorsey

was sentenced to an indeterminate term of incarceration of fifty years, with a

mandatory minimum of thirty-five years. Dorsey appeals.
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II. Analysis

On appeal, Dorsey argues the change in venue was improper, the verdict

was not supported by substantial evidence, evidence of a child’s rib injury was

improperly admitted, she was deprived of her right to call witnesses about relevant

character traits, and the court erred in denying her motion for a new trial. We

address each argument in turn.

A. Change of Venue

Dorsey contends the district court improperly granted the State’s motion for

change of venue.2 We review a district court ruling on change of venue for abuse

of discretion. State v. Walters, 426 N.W.2d 136, 138 (Iowa 1988). Iowa Rule of

Criminal Procedure 2.11(10)(b) (2021) states:

If the court is satisfied from a motion for change of venue and the
evidence in support of the motion that such degree of prejudice exists
in the county in which the trial is to be held that there is a substantial
likelihood a fair and impartial trial cannot be preserved with a jury
selected from that county, the court . . . shall order the action be
transferred to another county in which the offensive condition does
not exist. . . .

While in many cases, it is the defendant that moves for a change of venue,

the rule does not distinguish between motions from the prosecution or defense, so

the principles remain the same. See State v. Paulsen, 293 N.W.2d 244, 247–48

(Iowa 1980) (considering abuse of discretion in a change of venue requested by

the State due to “pretrial media publicity.”). In determining whether a change of

2 Dorsey also contends venue should not have been moved to Council Bluffs

because of the city’s proximity to Children’s in Omaha. But Dorsey never argued
this at the change of venue hearing and the district court never ruled on it.
Therefore, this issue was not preserved, and we do not address it further. See
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
6

venue is warranted, “[t]he crucial determination is whether, as a result of pretrial

publicity or for other reasons, a substantial number of prospective jurors hold such

fixed opinions on the merits of the case that they cannot impartially judge the

issues.” State v. Farmer, 492 N.W.2d 239, 241 (Iowa Ct. App. 1992). But “[m]ere

exposure to news accounts does not amount to a substantial likelihood of

prejudice.” Walters, 426 N.W.2d at 138. To show a change of venue was

warranted, the moving party must demonstrate either “(1) publicity attending the

trial that is so pervasive and inflammatory that prejudice must be presumed, or (2)

actual prejudice on the part of the jury.” State v. Siemer, 454 N.W.2d 857, 860

(Iowa 1990). Publicity surrounding a case can establish presumptive prejudice,

but that coverage must be “pervasive and inflammatory.” Id. “Whether publicity

rises to the level of being presumptively prejudicial depends on the following

factors: the nature, tone, and accuracy of the articles; their timing in relation to the

trial; and the impact of the publicity on the jurors as revealed through voir dire.” Id.

Voir dire is an important tool to be used in determining whether prejudice exists

among potential jurors. Walters, 426 N.W.2d at 138. Because of the trial court’s

position in this process, we give deference to the court’s judgment on juror bias

exposed in voir dire. Siemer, 454 N.W.2d at 861.

Voir dire testimony that appears ambivalent or contradictory on a
cold record is known to be more accurately assessed by the trial
court who hears the jurors firsthand and who understands that the
testimony is often the product of leading questions and cross-
examination tactics employed by counsel against jurors who, unlike
witnesses, have no briefing by lawyers prior to taking the stand.

Id.
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The State attached around 100 pages of newspaper articles and Facebook

posts, pages, and comments discussing the facts to their motion for a change in

venue. Dorsey argues these examples of publicity were mostly unbiased, and at

best they simply show an awareness of the case. And courts have sometimes

been skeptical of social media activity that could come from outside the community

from which the jury will be selected. See United States v. Warren, 989 F.

Supp. 2d 494, 500 (E.D. La. 2013); United States v. Diehl-Armstrong, 739 F. Supp.

2d 786, 799–800 (W.D. Pa. 2010).

We do not agree that the social media posts simply show an awareness of

the case. And the court did not rely exclusively on these social media examples

in determining whether a change in venue was warranted. The court spent

significant time discussing the unique circumstances of this case in which a

previous jury selection had already happened, and it ultimately ruled “[i]t is clear

from jury selection that there is a substantial likelihood that a fair and impartial jury

cannot be selected in Cass County.” The court based this determination on its

observation of sixty-seven individual voir dire interviews, where fifty-five individuals

knew something about or someone involved in the case, and forty-one of those

individuals “said they had an incoming bias . . . no amount of evidence would

change.” As the court noted, this is starkly different from cases in which venue

was not changed. See State v. Finn, No. 18-0181, 2020 WL 5943992, at *4 (Iowa

Ct. App. Oct. 7, 2020) (observing “[t]he court noted that ‘77% of the potential jurors

responded that they could be fair and impartial jurors’”).

Dorsey focuses on the court’s use of the language “it is better to err on the

side of caution,” arguing this shows the court applied the wrong standard and could
8

not have possibly found sufficient evidence meriting a change in venue. But this

argument ignores the court’s extensive analysis of the previously-conducted jury

selection. And because we defer to the district court’s determinations on prejudice

displayed in voir dire, Siemer, 454 N.W.2d at 861, we cannot say the court’s

decision to grant the change of venue based on those observations and the

information contained in the State’s motion was an abuse of discretion.

B. Sufficiency of the Evidence

Dorsey argues the verdict was not supported by substantial evidence. We

review challenges to the sufficiency of the evidence for correction of errors at law.

State v. Crawford, 972 N.W.2d 189, 202 (Iowa 2022).

In our review of sufficiency of the evidence we are deferential to the jury’s

verdict, and it will be upheld so long as it is supported by substantial evidence. Id.

“Substantial evidence is evidence sufficient to convince a rational trier of fact the

defendant is guilty beyond a reasonable doubt.” Id. “[W]e view the evidence in

the light most favorable to the State.” Id. But “[t]he evidence must raise a fair

inference of guilt and do more than create speculation, suspicion, or conjecture.”

State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002). The jury’s verdict binds this court

if supported by substantial evidence. State v. Tipton, 897 N.W.2d 653, 692 (Iowa

2017). “What weight to give competing testimony is a credibility issue, one

properly left to the fact-finder.” Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir.

1993).

Dorsey argues the State failed to present substantial evidence showing

beyond a reasonable doubt that Dorsey inflicted the injuries causing L.H.’s death.

Dorsey points to her long history, nearly twenty years, of offering daycare services
9

with no reported incidents of Dorsey harming any children previously. She also

argues the expert testimony she presented, which she claims showed L.H.’s

injuries were in an advanced stage of the healing process, establishes a

reasonable doubt.

But “[e]vidence is not rendered insubstantial merely because it might

support a different conclusion; the only question is whether the evidence supports

the finding actually made.” State v. LuCore, 989 N.W.2d 209, 216 (Iowa Ct.

App. 2023). The State presented evidence Dorsey was the only person with L.H.

that morning, and that L.H.’s injuries were the result of a recent abusive head

trauma. This included testimony from an expert witness that L.H.’s injury were

such that he could not have participated in “tummy time” after the injuries, as set

forth in Dorsey’s timeline from the morning of October 7. Expert testimony was

also presented that there was no possibility that the injuries occurred days before

October 7 and that the symptoms from the injuries would be immediate. The jury

heard from L.H.’s parents and from Dorsey, both through law enforcement

interviews conducted shortly after L.H.’s death and Dorsey’s testimony at trial. In

our role as an appellate court, we view the evidence in the light most favorable to

the State, and we are deferential to the jury’s verdict. We conclude the record

before this court demonstrates that the State presented substantial evidence to

support Dorsey’s convictions. See Crawford, 972 N.W.2d at 202.

C. Evidence of Sibling’s Rib Injury

Dorsey challenges the admission of evidence related to the possible origin

of a rib injury suffered by L.H.’s two-year-old sibling, K.H. Dorsey argues text

message evidence of the possible origin of K.H.’s rib injury was inadmissible prior
10

bad act evidence. “We review the district court’s evidentiary rulings for abuse of

discretion.” State v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013).

Sometime after L.H.’s death, several children who had received care from

Dorsey underwent bone scans.3 This included L.H.’s two-year-old sibling, K.H.

K.H.’s bone scan revealed a prior rib injury or fracture. This rib injury was first

brought up during trial when Dorsey’s attorney questioned the doctor who

conducted the bone scans about the results, eliciting testimony K.H. had a “healing

rib fracture,” and that five other children who received scans showed no injuries.

After this questioning, the State introduced evidence, over Dorsey’s objection, that

Dorsey had texted K.H.’s parents that K.H. fell from a height and suffered a bruise.

Dorsey argues the evidence of the text message is prior bad act evidence which

was only introduced to show she has a propensity to injure children in her care.

The State argues this evidence was introduced only after Dorsey opened the door

to it by eliciting testimony on the rib injury and was necessary to rebut the

insinuation that K.H. and L.H.’s parents must have been responsible for their

injuries.

Iowa Rule of Evidence 5.404(b)(1) states: “Evidence of any other crime,

wrong, or act is not admissible to prove a person’s character in order to show that

on a particular occasion the person acted in accordance with the character.”

However, “[t]he rule allows introduction of otherwise inadmissible evidence when

an opponent has opened the door.” State v. Jones, 471 N.W.2d 833, 835

(Iowa 1991).

3 Not all of the children that attended Dorsey’s daycare participated in the bone

scans.
11

Our prior cases recognize an “opening the door” principle of
evidence. This rule pertains to the ability of a party to rebut
inadmissible evidence offered by an adversary and provides that
“one who induces a trial court to let down the bars to a field of inquiry
that is not competent or relevant to the issues cannot complain if his
adversary is also allowed to avail himself of the opening.”

State v. Parker, 747 N.W.2d 196, 206 (Iowa 2008) (quoting State v. Mitchell, 670

N.W.2d 416, 420 (Iowa 2003)). And evidence of prior bad acts have been admitted

in the past to refute theories of the defense:

We believe [defendant’s] direct examination of [the witness] was also
in furtherance of this theory of the case and thus opened the door to
refutation of that theory in the State’s cross-examination. The
questions asked on direct examination by [defendant] did not
necessarily open the door, but the inference he sought to draw from
the questioning did. Thus, the State was entitled to rebut this
conspiracy theory with evidence of the actual facts. . . .

Mitchell, 670 N.W.2d at 421–22.

Dorsey sought to introduce evidence of K.H.’s rib injury and evidence of

other children’s lack of injuries, to create the inference that K.H.’s parents injured

him and thus also injured L.H. By doing this, Dorsey “opened the door” to the

introduction of evidence to refute this insinuation. See id. The State was entitled

to introduce evidence of a possible source of K.H.’s injuries. See id.

D. Additional Character Witnesses

Dorsey argues that she “was unfairly deprived of her right to call witnesses

respecting material and critical aspects of her relevant character traits.” At trial,

six witnesses testified to Dorsey’s “peaceful and loving character,” but six more

were excluded by the trial court as cumulative. “We review the district court’s

evidentiary rulings for abuse of discretion.” Thompson, 836 N.W.2d at 476.
12

Iowa Rule of Evidence 5.403 states: “The court may exclude relevant

evidence if its probative value is substantially outweighed by a danger of . . .

wasting time, or needlessly presenting cumulative evidence.” The admission of

cumulative evidence is “largely in the discretion of the trial court.” State v. Maxwell,

222 N.W.2d 432, 435 (Iowa 1974). After all, “[t]he district court has the authority

to set time limits and limit the number of witnesses at trial.” In re Marriage of

Diercks, No. 21-0869, 2022 WL 951047, at *5 (Iowa Ct. App. Mar. 30, 2022).

Dorsey requested to present the testimony of twelve witnesses in total. The

court allowed the testimony of six, ruling the remaining witnesses were cumulative.

Dorsey made an offer of proof, and the testimony of the additional excluded

witnesses closely mirrored the testimony already presented. Because Dorsey

presented the uncontested testimony of six witnesses on her character, and the

testimony of the six excluded witnesses matched the testimony already admitted,

we cannot find the court abused its discretion in excluding the evidence as

cumulative. See Iowa R. Evid. 5.403; State v. Lacey, 968 N.W.2d 792, 807

(Iowa 2021); Maxwell, 222 N.W.2d at 435.

E. Motion for New Trial

Finally, Dorsey asserts that “even if the second jury’s verdict is supported

by substantial evidence it is not supported by the greater amount of the credible

evidence.” She asserts the weight of the evidence does not support the jury’s

verdict.

We review the district court’s denial of a motion for a new trial asserting the

verdict is against the weight of the evidence for abuse of discretion. State v. Ary,

877 N.W.2d 686, 706 (Iowa 2016). “A verdict is contrary to the weight of the
13

evidence only when ‘a greater amount of credible evidence supports one side of

an issue or cause than the other.’” Id. (quoting State v. Shanahan, 712

N.W.2d 121, 135 (Iowa 2006)).

This standard differs from sufficiency of the evidence as it allows the court

to consider the credibility of witnesses, but it also requires “more evidence

support[ ] the alternative verdict as opposed to the verdict rendered.” Id. However,

“a district court may invoke its power to grant a new trial on the ground the verdict

was contrary to the weight of the evidence only in the extraordinary case in which

the evidence preponderates heavily against the verdict rendered.” Id. “[A] district

court may invoke its power to grant a new trial on the ground the verdict was

contrary to the weight of the evidence only in the extraordinary case in which the

evidence preponderates heavily against the verdict rendered.” Id. Unlike under

the sufficiency-of-the-evidence standard, the court may weigh the evidence and

consider witness credibility. State v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004).

But an appellate court’s review is limited to the trial court's exercise of discretion

and does not extend to the underlying weight-of-the-evidence question. See id.;

Ary, 877 N.W.2d at 707.

In support of this claim, Dorsey again points to the testimony of experts at

trial. She compares and contrasts the State’s experts and the defense’s experts,

setting up a question of credibility. Dorsey asserts more credible expert testimony

showed L.H.’s injury occurred before he was dropped off for daycare. To make

this point, she alleges the State had to “attack the opinion of its own expert

pathologist,” because the manner of death was listed as “undetermined” rather

than “homicide.”
14

The State disagrees with this characterization of the expert testimony, and

the record is inconsistent with Dorsey’s assertion that the State attacked the

opinion of its own expert. The State also presented significant expert testimony to

undermine the defense’s assertion that L.H.’s injuries occurred at an earlier time.

Ultimately, “credibility of the witnesses is key in a weight-of-the-evidence

determination.” State v. Reeves, 670 N.W.2d 199, 207 (Iowa 2003). And in

examining the weight of the evidence, the district court weighs the credibility of

witnesses. See Powers v. State, 911 N.W.2d 774, 782 (Iowa 2018) (“In assessing

a motion for new trial, the judge examines the weight of the evidence offered in the

criminal trial, which includes a weighing of the credibility of the complaining

witness.”).

When the question was the credibility of one side’s experts against the other

side’s experts, we cannot say the district court abused its discretion in denying

Dorsey’s motion for a new trial. We find no abuse of discretion.

III. Conclusion

We determine that the district court did not abuse its discretion in granting

the State’s motion for change of venue. We conclude substantial evidence

supports the jury verdicts. The district court did not err in the admission of evidence

of the sibling’s injury nor in the denial of admission of an additional six character

witnesses. We also determine the district court did not abuse its discretion in the

denial of Dorsey’s motion for a new trial. Accordingly, we affirm.

AFFIRMED.