IN THE COURT OF APPEALS OF IOWA
No. 13-1766
Filed March 25, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DENNIS CLARENCE VRBA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, Annette L.
Boehlje, District Associate Judge.
A defendant appeals his conviction for indecent exposure. AFFIRMED.
Michael G. Byrne of Winston & Byrne, P.C., Mason City, for appellant.
Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant
Attorney General, Carlyle D. Dalen, County Attorney, and Andrew D. Olson,
Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
2
VAITHESWARAN, J.
Dennis Vrba committed sex acts at an athletic facility. Following a bench
trial, the district court found him guilty of indecent exposure, in violation of Iowa
Code section 709.9 (2013). On appeal, Vrba contends the record lacks sufficient
evidence to support the intent element of the crime and the district court should
have given greater weight to evidence of his good character.
I. Sufficiency of the Evidence
Iowa Code section 709.9 defines indecent exposure as follows:
A person . . . who commits a sex act in the presence of or view of a
third person, commits a serious misdemeanor, if:
1. The person does so to arouse or satisfy the sexual
desires of either party; and
2. The person knows or reasonably should know that the act
is offensive to the viewer.
Vrba argues the State failed to prove he knew or reasonably should have known
the act was offensive to the viewer. This element “requires the State to show the
state of mind of both the actor and the victim-viewer.” State v. Bauer, 337
N.W.2d 209, 212 (Iowa 1983). “It must be shown that the viewer was offended
by the conduct. It must also be shown that the actor knew, or under the
circumstances, should know the viewer would be offended.” Id.
As a preliminary matter, Vrba contends the district court morphed the
State’s burden of proof with our standard of review. We disagree. The State is
obligated to establish each element of a crime by proof beyond a reasonable
doubt. See In re Winship, 397 U.S. 358, 364 (1970). On appeal, we are bound
by the district court’s findings of guilt if they are supported by substantial
evidence. See State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008). The
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district court repeatedly and explicitly concluded the State proved each element
of the crime by proof beyond a reasonable doubt. There is no indication the
court confused or conflated this burden with our standard of review. Accordingly,
we proceed to the merits.
The district court made the following pertinent findings. The men’s locker
room of a YMCA houses a sauna with a transparent glass door. A janitor
cleaning the locker room saw a naked man inside the sauna. The man was
engaging in a sex act with another man. The janitor noticed a cosmetic bag on
the bench near the sauna that he knew belonged to Vrba.
Several days later, the janitor was again cleaning the locker room when he
again saw two men performing sex acts in the sauna. He identified one of the
men as Vrba. The janitor testified these acts, like the one he witnessed earlier,
offended him. Vrba was subsequently questioned by police. He admitted his
involvement in both incidents.
These fact findings are supported by substantial evidence. Indeed, they
are essentially undisputed.1
This brings us to the disputed issue: Vrba’s knowledge that his conduct
could offend a viewer. The district court determined Vrba knew or reasonably
should have known the act was offensive to a third-party based on: (1) his
request to have officers question him outside the presence of his wife, (2) his
request to keep the incident from the media, and (3) his delay in informing his
wife. In connection with another element, the court also noted Vrba “verbalized
1
Vrba back-pedaled from some of his pretrial statements to police, but transcripts of
those recorded statements were admitted at trial, and as the district court found, they
unequivocally established key elements of the crime.
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‘precautions’ that he undertook to avoid others seeing his sexual behavior and
acknowledged that being observed by another would upset him, and possibly
disgust the other person.” The court further found Vrba “knew that he could be
seen out of the sauna.” Substantial evidence supports these fact-findings.
Accordingly, the district court did not err in determining Vrba knew or reasonably
should have known his sexual activity was offensive to a viewer. See Jorgensen,
758 N.W.2d at 837 (noting defendant’s decision to stop fondling himself on
seeing two store employees approaching him suggests he knew the employees
would find the conduct offensive); see also State v. Guthrie, No. 10-1285, 2011
WL 2694713, at *3-4 (Iowa Ct. App. July 13, 2011) (rejecting assertion
defendant’s embarrassment and effort to cover himself reflected his sexual
activity was unintentional).
II. Evidence of Vrba’s Character or Reputation
Vrba called an expert to render a professional opinion about his character
traits. The expert stated he spoke to Vrba on thirteen occasions following the
incidents in question. Over the State’s objection, the district court allowed the
expert to testify on a limited basis about Vrba’s quiet, non-exhibitionist nature.
The expert stated Vrba was “gentle as a lamb.”
In its findings and conclusions, the court essentially discounted the
expert’s testimony on the ground he never discussed the specifics of the YMCA
incidents with Vrba. Vrba now contends the district court “failed to properly
consider” this character evidence.
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The admissibility of opinion evidence falls squarely within the trial court’s
sound discretion. State v. Hulbert, 481 N.W.2d 329, 332 (Iowa 1992).2 We will
reverse only for an abuse of discretion. Id.
Iowa Rule of Evidence 5.404(a) generally requires the exclusion of
evidence relating to a person’s character or character trait to prove the person
acted in conformity with it on a particular occasion. There is an exception for
“[e]vidence of a pertinent trait of the person’s character offered by an accused.”
Iowa R. Evid. 5.404(a)(1). Despite this exception, “expert psychological evidence
may not be used to merely bolster a witness’s credibility” or “as a direct comment
on the guilt or innocence of the defendant.” Hulbert, 481 N.W.2d at 332. Expert
opinions based on postcrime interviews are especially questionable. See id. at
332-33 (expressing concern with expert’s proposed testimony based on
defendant’s “performance on after-the-fact interviews and standardized test
scores”).
We discern no abuse of discretion in the district court’s decision to admit
the character opinion but to essentially afford it no weight. The opinion was
based on sessions beginning three months after the second incident, added little
if anything to lay testimony about Vrba’s good character, and came close to
impermissible vouching for the credibility of a witness.
We affirm Vrba’s judgment and sentence for indecent exposure.
AFFIRMED.
2
The State suggests this issue is being raised as an appeal from the court’s denial of
Vrba’s new trial motion and, accordingly, should be reviewed under a weight-of-the-
evidence standard. See State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). In our
view, this issue simply raises a challenge to an evidentiary ruling.