IN THE COURT OF APPEALS OF IOWA
No. 3-1204 / 13-0087
Filed August 27, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JUSTIN DAVID SIMPSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Robert E. Sosalla,
Judge.
Justin D. Simpson appeals the sentences imposed after the jury’s verdicts
of guilty to sexual abuse in the third degree and lascivious acts with a child.
REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Rachel Regenold, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, Jerry Vander Sanden, County Attorney, and Nicholas Scott, Assistant
County Attorney, for appellee.
Considered by Doyle, P.J., and Tabor and Bower, JJ.
2
BOWER, J.
Justin D. Simpson appeals the sentences imposed after the jury’s verdicts
of guilty for sexual abuse in the third degree and lascivious acts with a child. He
claims the district court violated his double jeopardy rights under the United
States Constitution when the court sentenced him for both the sexual abuse
conviction and the lascivious acts conviction. He also claims the court should
have merged the sentences pursuant to Iowa Code section 701.9 (2011). We
reverse and remand.
I. Background Facts and Proceedings
Simpson is a self-employed owner of a karaoke business and was friends
with thirteen-year-old M.M.’s parents. Simpson hired M.M. as a babysitter for his
two children, and M.M. would often spend the entire weekend at Simpson’s
residence due to his late work hours. Sometime between April 1, 2011, and May
31, 2011, M.M. was babysitting for Simpson’s children and was staying at
Simpson’s apartment while he was working.1 During the course of the evening,
Simpson sent M.M. a sexually explicit text message, and M.M. testified the text
message frightened her.
Upon arriving home, Simpson, who appeared to have been drinking, sat
on a couch next to M.M. Simpson initially tried to put his hand down M.M.’s
pants, which M.M. thwarted without any contact between Simpson and her pubes
or genitals. After trying to convince her to consent, Simpson removed M.M.’s
pants and underwear, had sex with her by putting his penis in her vagina, and left
1
Because M.M. did not report the incident until approximately one month later, the exact
date of the incident is unknown.
3
her crying on the couch. The next morning he told M.M. he would lose his
children if anyone found out. M.M. continued to babysit for Simpson without
incident.
About a month later, M.M. discovered text messages on her mother’s
phone in which Simpson accused her of having a crush on him and acting
inappropriately. After M.M. talked with her stepfather, she was taken to the
police station and later to St. Luke’s Regional Child Protection Center where she
was interviewed and underwent a physical examination.
Subsequently, the State charged Simpson with one count of sexual abuse
in the third degree and one count of lascivious acts with a child. Simpson was
convicted by a jury on both counts and sentenced to two consecutive terms of
imprisonment, each term not to exceed ten years. He now appeals.
II. Standard of Review
To the extent that Simpson is making a constitutional double jeopardy
claim, our review is de novo. See State v. Constable, 505 N.W.2d 473, 477
(Iowa 1993). We review Simpson’s challenge that the sentences imposed violate
Iowa Code section 701.9 for correction of errors at law. State v. Reed, 618
N.W.2d 327, 335 (Iowa 2000).
III. Merits
In this single prosecution, the court imposed consecutive sentences on
Simpson’s convictions for one count of third-degree sexual abuse and one count
of lascivious acts with a child. It is undisputed that both offenses “arose out of
the same sex act.” On appeal, Simpson claims the district court imposed illegal
4
sentences in violation of his double jeopardy rights under the Fifth Amendment to
the United States Constitution. Related to this issue, Simpson argues the
elements of third-degree sexual abuse are “subsumed” by the elements of
lascivious acts with a child.2
“Our legislature has both the power and responsibility to describe crimes
and fix punishments.” State v. Wells, 629 N.W.2d 346, 353 (Iowa 2001). “The
Double Jeopardy Clause of the federal Constitution3 protects defendants against
. . . multiple punishments for the same offense.” Constable, 505 N.W.2d at 477
(emphasis added). The clause is binding on the states through the Fourteenth
Amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). The Double
Jeopardy Clause “is limited in its application” to cases in which, as here, “multiple
punishments are imposed pursuant to a single prosecution.” Reed, 618 N.W.2d
at 336.
Multiple punishments may be imposed without a “double jeopardy
problem” where the sentences are based on “distinct acts.” State v. Jacobs, 607
N.W.2d 679, 688 (Iowa 2000) (“Each time the defendant improperly took funds
from his client he committed a theft.”). Further, by “enacting separate statutes
the legislature may address ‘separate evils’ even when the offenses grow out of
the same incident.” Id. at 688 n.5 (quoting State v. Butler, 415 N.W.2d 634, 637
(Iowa 1987) (ruling the “legislature addressed separate evils” by enacting
separate statutes for burglary and for the possession of burglar’s tools)). Thus, it
2
Based on our resolution of this case, we need not address this claim.
3
The clause states that no person shall “be subject for the same offence to be twice put
in jeopardy of life or limb.” U.S. Const. amend. V.
5
“is well established in Iowa law that a single course of conduct can give rise to
multiple charges and convictions.” State v. Velez, 829 N.W.2d 572, 584 (Iowa
2013).
“In considering a double jeopardy claim within the multiple punishments
context, we are guided by the general principle that the question of what
punishments are constitutionally permissible is no different from the question of
what punishments the legislature intended to be imposed.” State v. McKettrick,
480 N.W.2d 52, 57 (Iowa 1992); see Reed, 618 N.W.2d at 336 (stating the
multiple-punishment prohibition prevents the sentencing court from proscribing
greater punishment than the legislature intended). “The courts, however, must
presume that ‘in the absence of a clear indication of contrary legislative intent,’
the legislature ordinarily does not intend cumulative punishment.” Reed, 618
N.W.2d at 336 (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)); see Wells,
629 N.W.2d at 353 (“Any doubt as to the legislative intent of the appropriate units
of prosecution must be resolved in favor of the accused.”).
In 1993, our supreme court discussed a defendant’s double jeopardy
concerns in Constable, 505 N.W.2d at 477-78. In 2014, our supreme court
explained its Constable ruling:
We determined any single physical contact was a separate
act sufficient to meet the definition of “sex act.” Therefore, when
the defendant engaged in five distinct acts of physical contact, each
act alone was sufficient to charge the defendant with a count of
sexual abuse, and the State did not violate the defendant’s double
jeopardy protection.
....
6
[In Constable] we found the legislature intended the unit of
prosecution for sexual abuse . . . to be each act of physical
conduct.[4] Thus, multiple acts can constitute separate and distinct
criminal offenses . . . . [T]he legislative intent was to criminalize
each act of physical conduct.
State v. Copenhaver, 844 N.W.2d 442, 448-49 (Iowa 2014) (citations omitted)
(ruling the State was required to prove the defendant intended to commit two
separate and distinct thefts to support two convictions of robbery).
In the instant case, Simpson committed only one “physical contact” or sex
act—Simpson penetrated the child’s vagina with his penis. Thus, the issue is
whether Simpson can be sentenced for two offenses charged under separate
statutory provisions when both offenses are based on a single sex act/single
physical contact. Do the two offenses constitute the same offense for double
jeopardy purposes?
A. Analysis Process. “[O]ur analysis begins with a search for legislative
intent.” See Reed, 618 N.W.2d at 336. If our legislative-intent analysis does not
resolve the issue, “we then resort to the ‘same elements’ test—a rule of statutory
construction—articulated in Blockburger v. United States, 284 U.S. 299, 304
(1932).” Id. We need not resort to the same-elements test here because, for the
4
The statutory definition of “sex act” or “sexual activity” at that time included:
any sexual contact between two or more persons by: penetration of the
penis into the vagina or anus; contact between the mouth and genitalia or
by contact between the genitalia of one person and the genitalia or anus
of another person; contact between the finger or hand of one person and
the genitalia or anus of another person . . . ; ejaculation onto the person
of another; or by use of artificial sexual organs or substitutes therefor in
contact with the genitalia or anus.
Iowa Code § 702.17. The section was rewritten in 2014 to make each sex act a
separately-numbered subsection. See 2014 Iowa Acts ch. 1092, § 144.
7
reasons that follow, we think the legislature intended to prohibit cumulative
punishment for a single act under the statutes at issue.
B. Legislative Intent. “[I]ntent may generally be gleaned from the face of
the statute. ‘If the statutory language is plain and the meaning is clear, we do not
search for the legislative intent beyond the express terms of the statute.’” State
v. Perez, 563 N.W.2d 625, 628 (Iowa 1997).
“Chapter 709 is a comprehensive set of laws generally defining the scope
of sex acts that are deemed offensive.” State v. Meyers, 799 N.W.2d 132, 142
(Iowa 2011). The State charged Simpson under two alternatives of third-degree
sexual abuse—by “force and against the will” and by the child’s age. See Iowa
Code § 709.4(1), (2)(b). Due to the general verdict forms, it is unclear whether
the jury found Simpson committed the sexual abuse by having sex by force or
against the will of M.M, or by having sex when M.M. was underage.
Consequently, we set out both statutory provisions below. The third-degree
sexual abuse statute provides, in pertinent part:
A person commits sexual abuse in the third degree when the
person performs a sex act under any of the following
circumstances:
1. The act is done by force or against the will of the other
person, whether or not the other person is the person’s spouse or is
cohabiting with the person.
2. The act is between persons who are not at the time
cohabiting as husband and wife and . . . . (b) The other person is
twelve or thirteen years of age.
Id. Either violation is a class “C” felony. Id.
8
Our supreme court recently discussed the statutory structure of third-
degree-sexual-abuse crimes in the context of a victim’s alleged psychological
inability to consent:
While the categories describe fact-specific circumstances, each
category continues to involve the absence of consent. Thus,
consent remains the lynchpin of the crime, and the legislature has
sought over the years to identify more specific circumstances of
nonconsent while leaving the broader “against the will” standard in
place to capture all circumstances of actual nonconsent. The
structure of the statute does not foreclose psychological
circumstances that could work to establish nonconsent [from being]
included in the “against the will” language of Iowa Code section
709.4(1).
Meyers, 799 N.W.2d at 142. The Meyers court believed it important that “the
statute as a whole expresses no limit on the conduct or circumstance that can be
used to establish nonconsent under section 709.4(1).” Id. at 143. The court
stressed that “sexual abuse today remains a crime predicated on sex acts done
by imposition” and that the sex-by-imposition concept “remains at the heart of the
statute.” Id. at 143, 146 (concluding “psychological force or inability to consent
based on the relationship and circumstance of the participants may give rise to a
conviction under the ‘against the will’ element of section 709.4(1)”).5 Here, the
facts show Simpson’s crimes were “predicated on [one] sex act [ ] done by
imposition.”
We turn to the State’s second charge against Simpson. The lascivious
acts with a child statute provides, in pertinent part:
5
In addition to finding substantial evidence to show Meyers performed sex acts against
the victim’s will, the court agreed substantial evidence showed Meyers coerced the
victim to disrobe to satisfy his sexual desires under lascivious conduct with a minor.
Meyers, 799 N.W.2d at 147 (citing Iowa Code section 709.14).
9
It is unlawful for any person sixteen years of age or older to
perform any of the following acts with a child [under the age of
fourteen] with or without the child’s consent unless married to each
other, for the purpose of arousing or satisfying the sexual desires of
either of them:
1. Fondle or touch the pubes or genitals of a child.
Iowa Code § 709.8(1). A violation of this section is a Class “C” felony. Id. Thus,
both sections manifest the intent of the legislature to punish the offenses at issue
as a Class “C” felony.
We first note that neither Iowa Code section 709.4 nor Iowa Code section
709.8 contains specific language precluding cumulative punishment for the two
crimes.6 Nevertheless, we find clear legislative intent to prohibit multiple
punishments for the same sex act under these two provisions.
Second, we turn again to the Constable case, where the court supported
its ruling by examining the Newman case and its “related question of whether the
same sex acts which constituted a sexual abuse charge could also apply toward
a defendant’s kidnapping charge in which sexual abuse was a necessary
element.” Constable, 505 N.W.2d at 478 (citing State v. Newman, 326 N.W.2d
788, 793 (Iowa 1982)). Even though Newman had performed at least two
separate and distinct acts of sexual abuse and even though the State argued on
appeal that only one of those acts formed the basis for the kidnapping charge,
the court reversed Newman’s conviction for sexual abuse “because the State had
6
Examples of such express statutory language include McKettrick, 480 N.W.2d at 58
(explaining the statute’s plain language prevents conviction for assault with intent and
assault without intent to commit serious injury in single assault) and Iowa Code §
708.2(3) (expressly limiting penalty for assault with dangerous weapon in a prosecution
for section 708.6 (intimidation with a dangerous weapon) or section 708.8 (going armed
with intent)).
10
tried and submitted to the jury the sexual abuse as one continuing event.” Id.
(citing Newman, 326 N.W.2d at 793 (“The prosecution from start to finish was
treated by all concerned as a single episode. The State cannot depart from that
course now.”)). The Newman court explained:
We do not foreclose the State’s right to convict a defendant
of both kidnapping in the first degree and sexual abuse if the case
is presented to the jury in that way and the jury makes findings
accordingly. A defendant should not be allowed to repeatedly
assault his victim and fall back on the argument his conduct
constitutes but one crime. Other jurisdictions have met this
problem in considering whether there can be separate charges
based on multiple sexual assaults. A number of courts have held a
defendant may be convicted separately for each attack.[7]
Newman, 326 N.W.2d at 793. Again, here we have “one attack.” Simpson
claims the State likewise presented its case to the jury as one sex act in opening
statements, where the prosecutor stated:
[M.M.] went downstairs and sat on the couch. Her mom was going
to pick her up in the morning. [Simpson] sat down next to her and
began trying to put his hand down her pants. [M.M.] said, “No.” At
7
The Newman court cited:
E.g. People v. Saars, 584 P.2d 622, 629 (Colo. 1978) (separate and
distinct acts of sexual abuse on same victim may be prosecuted and
punished separately even though all occurred within period of two hours);
Vaughan v. State, 614 S.W.2d 718, 722 (Mo. Ct. App. 1981) (two rapes
committed on same victim at same place within fifty-five minutes may
constitute separate crimes if each was intended by defendant as separate
gratification of his sexual desires); State v. Bussiere, 392 A.2d 151, 153
(N.H. 1978) (defendant may be separately tried and convicted for acts of
sexual abuse committed by different means and in different ways); State
v. Ware, 372 N.E.2d 1367, 1368 (Ohio Ct. App. 1977) (convictions for
invasions of different bodily orifices upheld as separate and distinct
offenses although arising out of same incident); State v. Eisch, 291
N.W.2d 800, 801 (Wis. 1980) (four sex acts, each of different kind and
character, constitute four separate crimes, even when occurring at same
location within two-and-one-half-hours); Hamill v. State, 602 P.2d 1212,
1216 (Wyo. 1979) (sexual acts, even if closely related in time and place,
may constitute separate offenses where occurring in different ways).
326 N.W.2d at 793.
11
that point [Simpson] pulled her pants off, got on top of her and
sexually abused her. When he was finished, he drunkenly
stumbled to the stairs leaving [M.M.] on the couch in tears and in
complete shock about what just happened to her.
Simpson also claims the State presented the case to the jury as one sex act in
closing statements. After our review of the record, we agree that throughout the
trial the State presented its case on the basis of Simpson committing one
physical sex act.
Under Constable, we construe the statutes at issue to determine the
nature of the offense: whether the offense is accomplished by a single act,
therefore allowing for multiple charges upon repetition of the proscribed act. See
State v. Schmitz, 610 N.W.2d 514, 517 (Iowa 2000). The third-degree sexual
abuse offense proscribes the defendant from performing a sex act. The
lascivious acts offense proscribes the defendant from performing one specific
type of sex act—“fondle or touch the pubes or genitals.” Under Constable, each
separate physical sex act can be a separate sexual abuse offense and each
separate physical sex act can be a separate lascivious acts offense. In such
circumstances, where the statutory offense at issue in both statutes proscribes
the evil of and criminalizes a single physical sex act, under both statutes the
State can charge multiple offenses for multiple physical sex acts.
But Simpson committed only one physical sex act. The sex act of placing
his penis in the victim’s vagina is the same sex act the State used for his act of
“fondled or touched the pubes or genitals.” It is undisputed that the State herein
tried the case and submitted it to the jury as only one physical sex act imposed
12
by Simpson on M.M.8 When we consider (1) the evil sought to be prevented by
both statutes, (2) the Reed presumption that “the legislature ordinarily does not
intend cumulative punishment,” and (3) the teachings of Constable, Newman,
and Meyer, we conclude the legislature intended to prevent the evil of the
imposition of the proscribed sex act—here, the same physical sex act. It
therefore follows, in the specific circumstances of this case, that Simpson, who
has committed a single physical sex act, may not be convicted of and receive
multiple punishments for both third-degree sexual abuse and lascivious acts.
Under our statutory scheme, the legislature did not intend Simpson to be
cumulatively punished. We therefore reverse and remand to the district court for
resentencing and the entry of orders consistent with this opinion.
REVERSED AND REMANDED.
8
We note we would have a completely different case and analysis if Simpson had been
successful in his initial attempt to put his hand down M.M.’s pants, depending on what
part of M.M.’s body his hand was able to “touch or fondle.”