State of Iowa v. Jabari Lamar Walker

IN THE SUPREME COURT OF IOWA
No. 12–1065

Filed November 14, 2014

STATE OF IOWA,

Appellee,

vs.

JABARI LAMAR WALKER,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Linn County, Nancy A.

Baumgartner, Judge.

Defendant seeks further review of a court of appeals decision

sustaining the writ of certiorari requested by the State, vacating the

sentence imposed by the district court, and remanding for resentencing.

COURT OF APPEALS DECISION AFFIRMED, WRIT SUSTAINED, AND

CASE REMANDED.

Mark C. Smith, State Appellate Defender, and Patricia Reynolds,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant

Attorney General, Tyler J. Buller, Assistant Attorney General, and Jerry

Vander Sanden, County Attorney, for appellee.
 2

MANSFIELD, Justice.

The general assembly has enacted enhanced penalties for persons

who commit a second “sexually predatory offense” after having been

previously convicted of a sexually predatory offense. See Iowa Code

§ 901A.2 (2011). Under this law, sexually predatory offense includes

“[a]ny offense involving an attempt to commit [sexual abuse].” Id.

§ 901A.1(1)(e). Today, we must decide whether a jury finding that the

defendant committed kidnapping with intent to subject the victim to

sexual abuse, see id. § 710.1(3), means that the defendant committed an

offense involving an attempt to commit sexual abuse and therefore is

eligible for this enhancement. For the reasons set forth herein, we follow

our prior decision in State v. Harrington, 608 N.W.2d 440 (Iowa 2000),

and hold that the jury finding has that effect. We therefore sustain the

State’s requested writ of certiorari, vacate the district court’s ruling that

the jury finding cannot serve as the basis for an enhanced sentence

under Iowa Code section 901A.2(3), affirm the court of appeals decision,

and remand for further proceedings.

I. Background Facts and Proceedings.

During the early morning hours of May 7, 2011, a Linn County

sheriff’s deputy was on routine patrol in a rural, northeastern part of the

county. He noticed a vehicle parked at an abandoned farmstead with its

lights off.

The deputy decided to investigate. As he pulled up the driveway,

he saw two individuals. One was sitting in the front passenger seat of

the car. The other, a man, was standing between the open front

passenger door and the vehicle. The standing man was later identified as

the defendant, Jabari Walker, and the person seated in the front

passenger seat was later identified as the female victim, L.N. Upon the
 3

deputy’s approach, L.N. jumped out of the car and ran toward the

deputy’s vehicle crying and upset.

Walker yelled at L.N. to tell the deputy she was Walker’s girlfriend.

He started to run after her. As he ran, he zipped up his pants. L.N.,

speaking frantically, said that she did not know Walker, that she had

just met him, that she was afraid Walker was going to kill her, and that

Walker had demanded that she give him oral sex.

It later turned out that Walker and L.N. had met in an Iowa City

bar about an hour earlier and, according to the bar’s surveillance video,

walked out of the bar together. Walker and L.N. then drove their

respective vehicles to a Coralville motel where Walker dropped off two

male companions and paid for their motel room. After that, Walker and

L.N. proceeded away from the motel in Walker’s car, leaving L.N.’s car

behind in the motel parking lot.

According to L.N., the plan was for the two of them to go out to eat

at a nearby restaurant. However, Walker refused to do this and instead

drove toward Cedar Rapids on I-380. While Walker was driving,

according to L.N., he grabbed her head and forced her mouth on his

penis. Urgently seeking an excuse to get out of the car, L.N. told Walker

she needed to urinate. As related by L.N., Walker ignored her pleas and

continued north on I-380. Walker drove past the exit for his own Cedar

Rapids apartment, took a subsequent exit, drove another five miles, and

finally parked at the abandoned farmhouse in a rural area.

When they reached the deserted farmstead, as L.N. related at trial,

Walker let her out of the car to urinate but she was unable to do so.

According to L.N., Walker then made her get back into the car and was

again forcing her to engage in oral sex when the sheriff’s deputy arrived.
 4

L.N.’s DNA was found on Walker’s penis. At trial, Walker took the

stand and described a different set of events. He claimed that L.N. had

consensually committed an oral sex act on him in his vehicle in an Iowa

City parking lot right after leaving the bar. He also claimed that the plan

was for the two to go to Walker’s Cedar Rapids apartment for the night

after dropping off Walker’s companions at the motel, but that L.N.

changed her mind while they were in Walker’s car on I-380.

Walker testified he told L.N. he was too tired to turn around and

drive her back home, but when L.N. mentioned having a friend in Cedar

Falls, he agreed to take her there and proceeded to drive further north on

I-380. Walker explained that he was new to the area and did not

immediately realize how far away Cedar Falls was. According to Walker’s

version of events, L.N. then began insisting she needed to urinate, so he

took the exit after the one for his apartment and drove around

unsuccessfully looking for a restroom, finally ending up at the

abandoned farmhouse. Walker denied that he had involuntarily confined

L.N. or that he had forced or intended to force L.N. to have sex with him.

On May 31, the State filed a trial information charging Walker with

first-degree kidnapping, a class “A” felony, in violation of Iowa Code

sections 710.1 and 710.2. 1 The trial information included a proposed

1According to section 710.1,
A person commits kidnapping when the person either confines a
person or removes a person from one place to another, knowing that the
person who confines or removes the other person has neither the
authority nor the consent of the other to do so; provided, that to
constitute kidnapping the act must be accompanied by one or more of
the following:
....
3. The intent . . . to subject the person to a sexual abuse.
Iowa Code § 710.1. According to section 710.2, first-degree kidnapping occurs when
the victim “is intentionally subjected to . . . sexual abuse.” Id.
 5

enhancement under Iowa Code section 901A.2(3) based on Walker’s prior

2006 conviction in Ohio of a sexually predatory offense. 2

Trial commenced on August 22. On August 30, the jury returned a

verdict finding Walker guilty of the lesser included offense of third-degree

degree kidnapping, a class “C” felony. Kidnapping in the third-degree

required the jury to find that the defendant confined or removed the

victim with the intent to commit sexual abuse on her, but did not require

a finding that the victim had actually been subjected to sexual abuse.

See Iowa Code §§ 710.1(3), .4. In particular, according to the relevant

marshaling instruction, the jury had to find:

1. On or about the 7th day of May, 2011, Jabari Walker:
a. confined [L.N.], or
b. removed [L.N.] from one place to another.
2. Jabari Walker knew he did not have the consent of the
victim to do so.
3. Jabari Walker did so with the specific intent to subject
[L.N.] to sexual abuse, as defined in Instruction No. 21. 3

2Section 901A.2(3) provides in part:
[A] person convicted of a sexually predatory offense which is a felony,
who has a prior conviction for a sexually predatory offense, shall be
sentenced to and shall serve twice the maximum period of incarceration
for the offense, or twenty-five years, whichever is greater,
notwithstanding any other provision of the Code to the contrary. A
person sentenced under this subsection shall not have the person’s
sentence reduced under chapter 903A or otherwise by more than fifteen
percent.
Iowa Code § 901A.2(3).
3The jury was further instructed:
A person is “confined” when her freedom to move about is
substantially restricted by force, threat or deception. The person may be
confined either in the place where the restriction began or in a place to
which she has been removed.
No minimum time of confinement or distance of removal is
required. It must be more than slight. The confinement and removal
must have significance apart from the sexual abuse.
In determining whether confinement and removal exists, you may
consider whether:
 6

In the ensuing enhancement proceeding, Walker did not dispute

that he had a prior Ohio conviction for “sexual imposition,” a

misdemeanor. However, he argued the Ohio conviction did not qualify as

a sexually predatory offense within the meaning of Iowa Code section

901A.1(1). 4 He further argued that his Iowa third-degree kidnapping

conviction was not a sexually predatory offense under section 901A.1(1),

either. Walker urged that a jury finding he had intended to commit

sexual abuse did not amount to a finding he had attempted to commit

sexual abuse as required by section 901A.1(1).

The State, meanwhile, asserted that both the Ohio predicate

offense and the Iowa conviction qualified as sexually predatory offenses

within the meaning of section 901A.1(1). According to the State, the

jury’s findings that Walker had confined or removed L.N. while intending

1. The risk of harm to [L.N.] was increased.
2. The risk of detention was reduced.
3. Escape was made easier.
4Section 901A.1(1) in turn provides:
1. As used in this chapter, the term “sexually predatory offense”
means any serious or aggravated misdemeanor or felony which
constitutes:
a. A violation of any provision of chapter 709.
b. Sexual exploitation of a minor in violation of section 728.12,
subsection 1.
c. Enticing a minor away in violation of section 710.10,
subsection 1.
d. Pandering involving a minor in violation of section 725.3,
subsection 2.
e. Any offense involving an attempt to commit an offense
contained in this section.
f. An offense under prior law of this state or an offense
committed in another jurisdiction which would constitute an equivalent
offense under paragraphs “a” through “e”.
Iowa Code § 901A.1(1).
 7

to sexually abuse her, as required for the third-degree kidnapping

conviction, were enough to establish that Walker had committed an

“offense involving an attempt to commit” sexual abuse. Thus, in the

State’s view, Walker met section 901A.2(3)’s grounds for an enhanced

sentence.

On May 29, 2012, the district court ruled that the third-degree

kidnapping conviction did not qualify as a sexually predatory offense

within the meaning of Iowa Code section 901A.1(1). The district court

essentially agreed with Walker’s position; it explained that an attempt to

commit an offense and an intent to commit an offense were not

interchangeable. The district court found it unnecessary to reach the

question whether the Ohio conviction met the definition of a sexually

predatory offense. Because the court denied the enhancement, it

sentenced Walker to an indeterminate term of ten years, rather than

imposing a twenty-five-year sentence.

Walker appealed his conviction to this court. In addition, the State

sought review of the district court’s sentencing order by writ of certiorari.

We granted the State’s petition and consolidated it with Walker’s appeal.

For briefing purposes, we directed that the certiorari proceeding be

treated as a cross-appeal by the State.

Walker’s appeal raised a single argument—that his trial counsel

was ineffective in failing to move for a new trial on the ground that the

verdict was against the weight of the evidence. 5 On certiorari, the State

argued the district court erred in ruling that Walker’s third-degree

kidnapping conviction was not a sexually predatory offense within the

5Trial counsel did move for a new trial on other grounds, which were rejected by
the district court.
 8

meaning of Iowa Code section 901A.1(1). We transferred the case to the

court of appeals.

The court of appeals rendered a decision on January 9, 2014. It

rejected Walker’s appeal, finding that “the record simply does not

support Walker’s claim that the evidence preponderates heavily against

the verdict.” The court elaborated,

From our review of the evidence, we find a greater weight of
the evidence supports the jury’s verdict, and as a result,
there is no reasonable probability the district court would
have granted a new trial on this ground had Walker’s
attorney raised it. Because Walker cannot establish he was
prejudiced by any breach of his trial counsel’s duty, his
ineffective-assistance claim must fail on this ground.

The court of appeals also agreed with the State’s position that

Walker’s third-degree kidnapping conviction was a sexually predatory

offense. Relying significantly on Harrington, the court explained its

reasoning as follows:

Although kidnapping is not specifically designated as a
sexually predatory offense in section 901A.1(1), Walker’s
kidnapping conviction falls under section 901A.1(1)(e)—
“[a]ny offense involving an attempt to commit an offense
contained in this section”—as a sexually predatory offense.
Necessarily incorporated into Walker’s kidnapping conviction
was the jury’s finding Walker confined or removed [L.N.] from
one place to another, knowing he did not have [L.N.]’s
consent, and “did so with the specific intent to subject . . .
[L.N.] to sexual abuse,” for the jury, as instructed, had to
make such findings in order to find Walker guilty of
kidnapping in the third degree. (Emphasis added.)
Following the Harrington holding, we conclude Walker’s
third-degree-kidnapping offense involved an attempt to
commit another offense contained in section 901A.1. That
offense was sexual abuse, which is contained in
subparagraph (a) of that section designating “any provision
of chapter 709.”

(Footnotes omitted.) As a result, the court of appeals sustained the writ

of certiorari, vacated Walker’s sentence, and remanded for resentencing.

The court directed the trial court on remand to determine whether
 9

Walker’s prior conviction in Ohio qualified as a sexually predatory offense

and, if so, to impose the sentencing enhancement authorized by Iowa

Code chapter 901A.

One judge on the court of appeals panel concurred specially. She

agreed the court was bound by our Harrington decision, but added:

[I]f we were writing on a blank slate, I would find the
sentencing enhancement for sexually predatory offenses as
defined in Iowa Code section 901A.1(1)(e) (2011) should only
apply when the jury finds the defendant has committed the
act or acts necessary to establish an attempt to commit one
of the offenses listed in sections 901A.1(1)(a)–(d). See
generally Apprendi v. New Jersey, 530 U.S. 466, 476[, 120
S. Ct. 2348, 2355, 147 L. Ed. 2d 435, 446] (2000) (holding
any fact, other than a prior conviction, that increases the
maximum penalty beyond the prescribed statutory
maximum must be submitted to the jury and proved beyond
a reasonable doubt).

Walker applied to this court for further review, and we granted his

application.

II. Standard of Review.

We review questions of statutory interpretation, such as the

meaning of Iowa Code section 901A.1(1), for correction of errors at law.

State v. Overbay, 810 N.W.2d 871, 875 (Iowa 2012). We review

constitutional questions, such as whether Apprendi requires a separate

determination that Walker attempted to commit sexual abuse, de novo.

State v. Nail, 743 N.W.2d 535, 538 (Iowa 2007).

III. Analysis.

When we grant further review of a decision of the court of appeals,

we have discretion to let the court of appeals decision stand as the final

decision on one or more issues. State v. Becker, 818 N.W.2d 135, 140

(Iowa 2012). We exercise that discretion here. Thus, the court of

appeals decision will stand on the question whether Walker’s trial
 10

counsel committed ineffective assistance of counsel by not moving for a

new trial on the ground the jury verdict was against the weight of the

evidence.

This leaves the question whether the district court erred in its

ruling that Walker’s kidnapping conviction was not a sexually predatory

offense. Indisputably, the conviction required a jury finding that Walker

confined or removed his victim with the intent to commit sexual abuse.

Nonetheless, the district court found that this verdict did not amount to

a determination that Walker had committed an “offense involving an

attempt to commit” sexual abuse. Iowa Code § 901A.1(1)(e). The State,

however, maintains that someone who confines or removes another

person with the intent to sexually abuse her has attempted to commit

sexual abuse within the meaning of Iowa Code section 901A.1(1)(e). The

court of appeals accepted this position.

We agree with the court of appeals and the State that our

Harrington decision confronted essentially the same question we are

presented with today. Harrington had been charged with third-degree

kidnapping. See Harrington, 608 N.W.2d at 440. At trial, the State

presented evidence that Harrington had attempted to sexually abuse his

victim. Id. The jury convicted Harrington of the lesser included offense

of false imprisonment, but in a special interrogatory found that he had

committed false imprisonment with the intent to commit sexual abuse.

Id. The district court imposed an enhancement, indicating that it

“believed the conviction for false imprisonment met the statutory

definition of a sexually predatory offense because it had been an attempt

to commit kidnapping as defined in section 710.1.” 6 Id. at 441.

6At that time, the definition of “sexually predatory offense” in the enhancement
statute read as follows:
 11

On appeal, the defendant argued that the district court had erred

and that his false-imprisonment conviction was not a sexually predatory

offense for enhancement purposes. See id. We decided the district court

had followed the wrong reasoning: In our view, the false-imprisonment

conviction was not tantamount to an attempt to commit kidnapping. Id.

However, we sustained the enhancement on another ground. Id. As we

explained,

[W]e think that, based on the jury’s answer to the
interrogatory, the false-imprisonment offense involved an
attempt to commit another offense contained in section
901A.1. That offense was sexual abuse, which is contained
in subpart a of that section, which designates “any provision
of chapter 709.”

Id.

1. As used in this chapter, the term “sexually predatory offense”
means any serious or aggravated misdemeanor or felony which
constitutes:
a. A violation of any provision of chapter 709.
b. A violation of any of the following if the offense involves sexual
abuse, attempted sexual abuse, or intent to commit sexual abuse:
(1) Murder as defined in section 707.1.
(2) Kidnapping as defined in section 710.1.
(3) Burglary as defined in section 713.1.
(4) Child endangerment under section 726.6, subsection 1,
paragraph “e”.
c. Sexual exploitation of a minor in violation of section 728.12,
subsection 1.
d. Pandering involving a minor in violation of section 725.3,
subsection 2.
e. Any offense involving an attempt to commit an offense
contained in this section.
f. An offense under prior law of this state or an offense
committed in another jurisdiction which would constitute an equivalent
offense under paragraphs “a” through “e”.
Iowa Code § 901A.1(1) (1997). The district court found that Harrington’s conviction was
for a sexually predatory offense within the meaning of section 901A.1(1)(b)(2), as it then
read. See Harrington, 608 N.W.2d at 441.
 12

False imprisonment is committed when a person, “having no

reasonable belief that the person has any right or authority to do so, . . .

intentionally confines another against the other’s will.” Iowa Code

§ 710.7. Thus, we found in Harrington that intentionally confining

another person against the other person’s will with the intent to subject

the other person to sexual abuse “involved an attempt to commit” sexual

abuse as required by the enhancement statute. Harrington, 608 N.W.2d

at 441.

This case presents a similar scenario. Walker was convicted of

third-degree kidnapping, which, as instructed in this case, required the

jury to find that he “confined or removed [L.N.] from one place to

another” and “did so with the specific intent to subject [L.N.] to sexual

abuse.” Harrington would appear to govern here. If Harrington’s crime

involved an attempt to commit sexual abuse within the meaning of

section 901A.1, seemingly so would Walker’s. Both cases involved jury

determinations that the defendant had engaged in conduct (confinement

in Harrington, confinement or removal here) with the intent to subject the

victim to sexual abuse.

It is true that the jury found intent in different ways in the two

cases—in Harrington, by way of special interrogatory, here, as one of the

required elements of the crime for which the defendant was convicted.

But Walker does not explain on appeal why that should make a

difference. In fact, neither his answering brief to the State’s cross-appeal

nor his application for further review to this court discuss Harrington at

all, even though it features prominently in the court of appeals decision.

Notably, three members of our court dissented in part in

Harrington on the ground that Iowa Code section 901A.2 requires a

“conviction” of a sexually predatory offense. Id. at 442 (Neuman, J.,
 13

concurring in part and dissenting in part, joined by Lavorato and Snell,

JJ.). In their view, a conviction of an offense that was not per se sexually

predatory, i.e., that took on that status only because of a special

interrogatory answer, would not suffice. See id. However, the rationale

of the Harrington dissent seems inapplicable here. In this case, the jury

had to find the defendant intended to commit sexual abuse as an

element of the underlying offense. No special interrogatory answer was

required. 7

In this case, the district court effectively disagreed with Harrington

when it denied the enhancement. The court of appeals special

concurrence followed a different line of thinking. It concluded that we

are required to reconsider Harrington in light of the United States

Supreme Court decision in Apprendi. Against that backdrop, we will

examine again the Harrington holding.

It should be noted that shortly after Harrington was decided, the

legislature amended chapter 901A. See 2000 Iowa Acts ch. 1030

(codified at Iowa Code § 901A.1 (2001)). As part of its amendment, the

legislature struck the existing section 901A.1(1)(b), see id. ch. 1030, § 1,

which had provided that sexually predatory offenses included

b. A violation of any of the following if the offense
involves sexual abuse, attempted sexual abuse, or intent to
commit sexual abuse:

(1) Murder as defined in section 707.1.

(2) Kidnapping as defined in section 710.1.

7We do not understand the Harrington dissenters’ point to be that the defendant
must actually have been convicted of an attempt offense per se. There is no crime of
“attempted sexual abuse” (or “attempted sexual exploitation of a minor,” or “attempted
pandering”). So if section 901A.1(1)(e) only applied if the defendant were actually
convicted of something denominated as an attempt offense, it would seem to have no
function.
 14
(3) Burglary as defined in section 713.1.

(4) Child endangerment under section 726.6,
subsection 1, paragraph “e”.

See Iowa Code § 901A.1(b) (1999).

The legislature left in place the existing section 901A.1(1)(e), which

provided that sexually predatory offenses included “[a]ny offense

involving an attempt to commit an offense contained in this section.” See

Iowa Code § 901A.1(e) (2001). That was the section we had relied on to

sustain the enhancement in Harrington, noting that sexual abuse was an

offense “contained in this section” and the defendant had confined the

victim with intent to commit sexual abuse. See 608 N.W.2d at 441.

One could argue that by eliminating the express coverage for

kidnapping involving “attempted sexual abuse” or “intent to commit

sexual abuse,” the legislature meant to provide that kidnapping should

not be considered a sexually predatory offense. However, another

conclusion seems more likely: The legislature viewed Iowa Code section

901A.1(1)(b) as redundant in light of section 901A.1(1)(e). Significantly,

the legislature did not disturb the Harrington holding that false

imprisonment with intent to commit sexual abuse is a sexually predatory

offense. It seems implausible that the legislature would want false

imprisonment with intent to commit sexual abuse to be deemed a

sexually predatory offense, but not the more serious crime of kidnapping
with intent to commit sexual abuse. These changes to the statutory

scheme therefore do not affect our willingness to apply Harrington to the

present case.

We turn now to Apprendi, 530 U.S. 466, 120 S. Ct. 2348, 147

L. Ed. 2d 435. That sentencing-enhancement case arose when the

defendant fired multiple bullets into the home of an African-American
 15

family that had recently moved into his neighborhood. Id. at 469, 120

S. Ct. at 2351, 147 L. Ed. 2d at 442. Allegedly, the defendant made a

statement at the time that he had done so because the family was black.

Id. Under a plea agreement, the defendant pled guilty to possession of a

firearm for an unlawful purpose. Id. at 469, 120 S. Ct. at 2352, 147

L. Ed. 2d at 442. In addition, after the trial judge conducted an

evidentiary hearing, the judge imposed a hate-crime sentence

enhancement, finding by a preponderance of the evidence that “the crime

was motivated by racial bias.” Id. at 470–71, 120 S. Ct. at 2352, 147

L. Ed. 2d at 443 (internal quotation marks omitted).

The defendant challenged the enhancement on appeal, urging that

“the Due Process Clause of the United States Constitution requires that

the finding of bias upon which his hate crime sentence was based must

be proved to a jury beyond a reasonable doubt.” Id. at 471, 120 S. Ct. at

2352, 147 L. Ed. 2d at 443. The Supreme Court agreed. It held, “Other

than the fact of a prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted to

a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S. Ct. at

2362–63, 147 L. Ed. 2d at 455.

Thus, Apprendi makes clear that whether Walker committed an

offense that involved an attempt to commit sexual abuse must be

submitted to the jury and proved beyond a reasonable doubt. In

Harrington, we equated a jury finding that the defendant had confined

the victim with intent to abuse her with a determination he had

attempted to commit sexual abuse. However, we did so without the

benefit of Apprendi. Given the holding in Apprendi, we need to carefully

review whether a jury finding that a defendant confined or removed a
 16

victim with the intent to sexually abuse her is tantamount to a finding

that he attempted to sexually abuse her.

As the State points out, Iowa does not have a general attempt

statute. Instead, our law criminalizes attempts in certain circumstances,

sometimes with a specific definition of “attempt” or “attempted.” See,

e.g., Iowa Code § 707.11 (2013) (defining “[a]ttempt to commit murder”);

id. § 713.2 (defining “[a]ttempted burglary”). As a result, our attempt law

is relatively undeveloped. 8

When our criminal law penalizes an “attempt,” without a statutory

definition, we have previously required

(1) an intent to do an act or bring about certain
consequences which would in law amount to a crime; and

(2) an act in furtherance of that intent which . . . goes
beyond mere preparation.

State v. Spies, 672 N.W.2d 792, 797 (Iowa 2003) (internal quotation

marks and citations omitted) (applying this definition to the question

whether the defendant committed an “attempted transfer” of a controlled

substance). In another formulation, we said, “The common law

principles of attempt require the State to prove (1) intent to commit the

crime and (2) slight acts in furtherance of the crime that render

voluntary termination improbable.” Fryer v. State, 325 N.W.2d 400, 406

(Iowa 1982) (applying this standard to the question whether the

defendant had committed “attempted robbery”).

8One treatise has observed that the nature of the act required for an attempt
conviction “is not made very clear by the language which has traditionally been used by
courts and legislatures.” 2 Wayne R. LaFave, Substantive Criminal Law § 11.4, at 218,
Supp. 37 (2d ed. 2003 and Supp. 2013–2014). The author goes on to list four different
approaches to this issue, some of which surface in our own cases analyzing attempts.
Id. at 220–28, Supp. 37–39.
 17

Going back further in time, in State v. Roby, we upheld a

conviction for assault with intent to commit rape, which we treated as an

attempt crime, explaining,

In the instant case, defendant made preparation by enticing
prosecutrix by signals to go to a secluded place where the act
could be committed. They were on the ground in position to
have intercourse. Her clothing was more or less
disarranged. . . . These acts proximately led up to the
consummation of the intended crime, and were overt acts.

The [overt] act must reach far enough towards the
accomplishment of the desired result to amount to the
commencement of the consummation. It must not be merely
preparatory. While it need not be the last proximate act to
the consummation of the offense attempted to be
perpetrated, it must approach sufficiently near to it to stand
either as the first or some subsequent step in a direct
movement towards the commission of the offense after the
preparations are made.

194 Iowa 1032, 1043, 188 N.W. 709, 714 (1922) (internal

quotation marks and citations omitted).

These three formulations are not exactly the same, but they have

been quoted in other cases. See, e.g., State v. Erving, 346 N.W.2d 833,

835–36 (Iowa 1984) (applying both the Fryer and the Roby standards to

the question whether the defendant had committed attempted burglary

as defined in Iowa Code section 713.2).

In this case, we are tasked with determining if it is possible for

someone to confine or remove another person with the intent to subject

her to sexual abuse without actually committing an offense that involves

an attempt to sexually abuse her. Otherwise stated, could the

confinement or removal be a “mere preparation,” Spies, 672 N.W.2d at

797, not an act that “render[s] voluntary termination improbable,” Fryer,

325 N.W.2d at 406, or something other than a “step in a direct

movement towards the commission” of sexual abuse, Roby, 194 Iowa at
 18

1043, 188 N.W. at 714? The Harrington court concluded it was not

possible, 608 N.W.2d at 441, and although we did not have the benefit of

Apprendi at the time, our approach was consistent with Apprendi.

In Harrington, we did not discuss the specific facts of the case in

deciding the enhancement issue. See 608 N.W.2d at 440. Instead, we

held the jury’s answer to the specific-intent interrogatory, combined with

the false-imprisonment verdict, by themselves satisfied Iowa Code section

901A.1(1)(e)’s requirement that the defendant have committed an

attempt to commit sexual abuse. Id. at 441. That is the precise

approach that Apprendi dictates.

Apprendi does not establish a right to have a sentencing

enhancement found by the jury. Rather, it establishes a right to have

the underlying facts that support the enhancement found by the jury.

As one court has put it,

[The defendant] attempts to argue that Apprendi
requires the actual sentence enhancement itself to be found
by the jury. But that is not the law. The trial judge may
impose the sentence enhancement once the jury has found
all of the facts necessary to satisfy the elements of the
sentencing-enhancement statute. Apprendi requires the jury
to find not the sentence enhancement itself, but every fact
required for the sentence enhancement to be imposed. The
jury having found all of the necessary facts, the trial judge
has the authority to impose the sentence.

Taylor v. State, 137 So. 3d 283, 287 (Miss. 2014).

Our general assembly has said that a conviction for an offense

involving an attempt to commit sexual abuse warrants an enhanced

sentence if the defendant had a prior conviction for a sexually predatory

offense. In Harrington, we held that false imprisonment with intent to

commit sexual abuse equated to an offense involving an attempt to

commit sexual abuse. This is a logical reading of both section

901A.1(1)(e) and our precedents delineating the proof required for
 19

criminal attempt. While an attempt to commit sexual abuse clearly

requires more than just intent, we cannot conceive of a confinement or

removal of a victim with the intent to sexually abuse her that would not

be considered attempted sexual abuse. 9 Thus, the attempt to commit

sexual abuse is inherent in the jury’s verdict in the present case.

Apprendi is satisfied because the facts amounting to attempted sexual

abuse were found beyond a reasonable doubt by a jury.

IV. Conclusion.

For these reasons, we adhere to our holding in Harrington. We

therefore sustain the writ of certiorari, affirm the decision of the court of

appeals, affirm Walker’s conviction, vacate his sentence, and remand for

further sentencing proceedings. As noted by the court of appeals, the

district court did not decide whether Walker’s Ohio conviction qualified

as “a prior conviction for a sexually predatory offense.” Iowa Code

§ 901A.2(3). In light of our disposition of this appeal, that issue now

needs to be resolved.

COURT OF APPEALS DECISION AFFIRMED, WRIT SUSTAINED,

AND CASE REMANDED.

9We note also that a California appellate court, in an unpublished opinion, has
held that kidnapping for the purpose of rape is an attempt to commit a sexual offense
under California law. People v. Majors, No. D037968, 2004 WL 2729758, at *7–8 (Cal.
Ct. App. Dec. 1, 2004). As the court put it,
A kidnapping for the purpose of rape is not a mere act of preparation. It
demonstrates that the perpetrator is putting his plan into action and is
necessarily an attempt to commit rape. Kidnapping for the purpose of
rape is, therefore, a sexual offense within the meaning of section 1108.
Id. at *8.