IN THE COURT OF APPEALS OF IOWA
No. 18-0559
Filed May 15, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOSHUA JAMES SULLIVAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Gary P.
Strausser, District Associate Judge.
Joshua Sullivan appeals from his conviction on two counts of indecent
exposure. AFFIRMED.
Mark C. Smith, State Appellate Defender, (until withdrawal), and Theresa
R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee.
Considered by Vogel, C.J., Mullins, J., and Danilson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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DANILSON, Senior Judge.
Joshua Sullivan appeals from his conviction on two counts of indecent
exposure, each in violation of Iowa Code section 709.9 (2017). He challenges the
sufficiency of the evidence supporting the jury’s findings of guilt and a jury
instruction. Because there is substantial evidence to support both convictions and
we find no error in the jury instruction given, we affirm.
I. Background Facts and Proceedings.
In June and July of 2017, Sullivan was working for a construction company
on a project in Muscatine. Sullivan and other employees of the construction
company would be in town for a week at a time and stay at a hotel in Muscatine.
The lobby of the hotel has a sitting area and a public restroom. The lobby restroom
is unisex, and its door opens directly out into the lobby and locks from the inside.
There is no stall around the toilet; when the door is fully open, the toilet and sink
are visible.
On June 5, Sullivan was staying at the hotel and had been there frequently
enough that he was acquainted with Denaa Burger, who worked the 3:00 to
11:00 p.m. shift at the front desk. The evening of June 5, Sullivan approached
Burger and told her that the toilet in the lobby restroom was not flushing. Because
there was no maintenance person on duty after about 3:00 p.m., Burger told
Sullivan she would “get to it.” Before she went to check on the restroom, Burger
went outside with another guest to have a cigarette. While they were outside, the
guest saw Sullivan walk back into the restroom, so Burger waited about half an
hour more to go check on the toilet. Burger knocked on the restroom door, waited
“a few minutes” to make sure there was no one in the restroom. Getting no
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response and finding the door unlocked, she walked into the restroom. Burger
observed Sullivan standing by the toilet with his back to the door—he was not
urinating. Burger did not see Sullivan’s penis or any part of his genitalia. She
quickly left the room. Later, Burger reentered the restroom to try to fix the problem.
She discovered the toilet was not broken; the water to the toilet had been turned
off at the valve behind the toilet. While Burger did not know who turned off the
water to the toilet, no other guest had reported a problem with the toilet, and there
would have been a note in the hotel log book if the maintenance person had turned
off the water.
Later that same evening, Lisa Luna was working the overnight shift
(11:00 p.m. to 7:00 a.m.) at the front desk. Shortly after Luna got to work, Sullivan
approached her at the front desk. He told Luna the toilet in the lobby restroom was
not working properly. Luna told Sullivan she was going to finish her paperwork
and then she would go check on the toilet. Luna finished her paperwork and went
to check on the problem. The door to the lobby restroom was “wide open,” so she
just walked in. Luna saw Sullivan standing over the toilet and saw his penis. At
trial, Luna explained Sullivan had one hand “cuffed like he was holding himself
while he was going to the bathroom.” Luna was shocked and embarrassed. She
turned and walked right back out of the restroom. Luna later returned to the
restroom to check the toilet. She discovered the chain inside the toilet was
disconnected. The chain was not broken or rusty and did not appear to be
malfunctioning in any way. After the incident, Luna made a notation in the hotel’s
log book, describing the incident.
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The next time Luna worked with Burger, Luna told her what had happened
and learned that something similar had happened to Burger involving Sullivan and
the lobby restroom.
Several weeks later, on the night of July 18 to 19, 2017, Audra Garcia was
working the night shift at the hotel. It was Garcia’s practice upon arriving at work
to go first into the laundry room behind the front desk to sign in. She then would
do a “walkthrough” to check on things before starting her paperwork for the night.
After finishing her paperwork, Garcia would clean the lobby and then the pool area.
To get to the pool, she walked by the lobby restroom. That evening, Garcia walked
past the restroom on the way to clean the pool area and noticed that the restroom
door was shut, the light was on, and water could be heard running. Garcia thought
there might be someone in the restroom, so she did not investigate at that time.
Garcia cleaned the pool area. When she returned to the lobby about an hour later,
she passed the restroom again and could still hear water running. Garcia was
aware of the prior incidents of Sullivan reporting problems with the lobby restroom
and was hesitant to check on the running water. No one came out of the restroom.
Garcia started mopping the lobby floor and opened the restroom door part
way as she mopped past it. The door was unlocked. Garcia saw a shadow, so
she knew someone was in the restroom. She could hear the sink water was still
running. She let the door go but the door did not close completely. No one shut
the door from inside the restroom. Garcia “waited and waited” but no one came
out of the restroom or said anything about being in the restroom or not to enter.
Garcia went back behind the front desk and called her husband to come to the
hotel and check the restroom for her because she did not want to “walk in on
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anything.” Garcia was concerned that she would see something she did not want
to see.
Garcia’s husband arrived five to ten minutes later and found her standing
behind the lobby counter. She asked him to check the lobby restroom. Garcia
seemed afraid to check the restroom herself and “was kind of frantic.” Garcia
stayed behind the lobby counter while her husband listened at the restroom door.
The door was open “a crack,” and Mr. Garcia could hear the sink running. He told
his wife the sink water was still running and she asked him to check what was
going on. Mr. Garcia returned to the restroom door and knocked on the door. He
waited “a few seconds.” When he did not get a response, he pulled the door open
and walked into the restroom. There, he saw Sullivan sitting on the toilet
masturbating. Sullivan’s pants were around his ankles and he was holding a
cellphone at eye level. Mr. Garcia “didn’t really see” Sullivan’s penis because
Sullivan was sitting on the toilet and Garcia “was not gonna sit there looking at it.”
Mr. Garcia “saw the motion [Sullivan’s] hand was doing.” He could see that
Sullivan’s hand was on his genitals, making a “masturbating motion,” and Mr.
Garcia could hear the slap of Sullivan’s hand hitting his thigh. Mr. Garcia
confronted Sullivan. Sullivan’s face got bright red and he immediately started to
apologize. Sullivan did not deny that he had been masturbating and said he
thought he locked the door. Mr. Garcia asked why Sullivan had not used his own
restroom and Sullivan told him he had a roommate and he felt it was better to use
the lobby restroom. After “exchanging words” for a few minutes, Sullivan asked
Mr. Garcia to leave the restroom so that he could pull up his pants.
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Surveillance video from the hotel shows Sullivan enter the lobby restroom
at about 11:06 p.m. on July 18, 2017. At about 12:03 a.m., the video shows Mr.
Garcia entering the lobby. The video shows Mr. Garcia approach the restroom
door, knock on the door, and then step away for a minute before entering the
restroom. The video then shows Sullivan leave the restroom.
Sullivan was charged with three counts of indecent exposure: count I
involved the incident with Burger; count II, involving Luna; and count III, involving
Garcia. The district court granted Sullivan’s motion for judgment of acquittal as to
the encounter with Burger. The remaining counts were sent to the jury.
Over Sullivan’s objection, the court instructed the jury:
The word exposed means to lay open to view, exhibit, display.
To cause to be visible or open to view. Exposed requires the act is
either in the actual presence and sight of other(s) or in such a place
or under circumstances that the exhibition is liable to be seen by
other(s). Exposure requires that the defendant indulged in such
practices at a time and place where as a reasonable person, he
knows, or ought to know, his act is open to the observation of
other(s).
Indecent exposure does not require the act(s) of the
defendant involve the specific viewer be targeted by the defendant.
(Jury Instruction #10.) The jury found Sullivan guilty on counts II and III.
On appeal, Sullivan contends there is insufficient evidence to support the
convictions and the trial court erred in giving Jury Instruction #10.
II. Scope and Standard of Review.
We review a challenge to the sufficiency of evidence for correction of errors
at law. State v. Isaac, 756 N.W.2d 817, 819 (Iowa 2008). “[W]e examine whether,
taken in the light most favorable to the State, the finding of guilt is supported by
substantial evidence in the record.” State v. Meyers, 799 N.W.2d 132, 138 (Iowa
2011). “Substantial evidence exists when the evidence ‘would convince a rational
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fact finder the defendant is guilty beyond a reasonable doubt.’” State v. Kelso-
Christy, 911 N.W.2d 663, 666 (Iowa 2018) (citation omitted).
“We review challenges to jury instructions for correction of errors at law. In
doing so, we determine whether the challenged instruction accurately states the
law and whether substantial evidence supports it. State v. Albright, 925 N.W.2d
144, 157 (Iowa 2019).
III. Discussion.
Indecent exposure as alleged here is defined in Iowa Code section 709.9:
A person who exposes the person’s genitals or pubes to
another not the person’s spouse . . . 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.
The crime of indecent exposure thus consists of four elements:
(1) The exposure of genitals or pubes to someone other than
a spouse . . . .;
(2) That the act is done to arouse the sexual desires of either
party;
(3) The viewer was offended by the conduct; and
(4) The actor knew, or under the circumstances should have
known, the victim would be offended.
State v. Isaac, 756 N.W.2d 817, 819 (Iowa 2008) (quoting State v. Adams, 436
N.W.2d 49, 50 (Iowa 1989)). Sullivan argues his convictions each fail because
one of the four elements was not proved. With respect to count II, Sullivan
concedes his penis was exposed to Luna but he argues the evidence does not
establish the exposure was “done to arouse the sexual desires of either party.” As
to count III, Sullivan asserts there was no “exposure” because the evidence does
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not establish that Mr. Garcia actually viewed his penis. We will address these
claims in reverse order.
A. Exposure. The supreme court has twice recently considered section
709.9’s undefined term “expose.” In State v. Jorgensen, 758 N.W.2d 830, 835
(Iowa 2008), the court reiterated that indecent exposure is “essentially a visual
assault crime.” After reviewing several dictionary definitions of the term “expose,”
the court ruled:
[T]he first element of the crime requires the defendant to expose or
“cause to be visible or open to view” his or her genitals or pubes to
someone other than a spouse. As this court noted in discussing a
predecessor indecent exposure statute: “The words ‘indecent
exposure’ clearly imply that the act is either in the actual presence
and sight of others, or is in such a place or under such circumstances
that the exhibition is liable to be seen by others, and is presumably
made for that purpose, or with reckless and criminal disregard of the
decencies of life . . . . The exposure becomes ‘indecent’ only when
[the actor] indulges in such practices at a time and place where, as
a reasonable person, he knows, or ought to know, his act is open to
the observation of others.” . . .
. . . The statute does not require the actor to be aware or have
knowledge of the specific person or persons to whom he is exposing
himself. The statute also does not explicitly restrict the mode of
exposure. The only limitation on the first element is that the exposure
or act of making visible must be to another person not the
defendant’s spouse.
Jorgensen, 758 N.W.2d at 835-36 (citations omitted).
The court again considered the meaning of the word “exposes” in State v.
Lopez, 907 N.W.2d 112, 116 (Iowa 2018). The court again referred to the
dictionary definitions, noting the term means “[t]o make visible.” Lopez, 907
N.W.2d at 117.
Additionally, the term visible in this context can mean, alternatively,
“capable of being seen,” “capable of being discovered or perceived,”
or “devised to keep a particular part or item always in full view or
readily seen or referred to.” Visible, Merriam Webster’s Collegiate
Dictionary (11th ed. 2014). Open, on the other hand, can mean
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either “having no protective covering” or “completely free from
concealment: exposed to general view or knowledge.” Open,
Merriam Webster’s Collegiate Dictionary.
Id.
The Lopez court considered whether section 709.9 was violated if “one
exposes one’s genitals by transmitting an image of them via text message because
the image is made visible for a recipient.” Id. at 118. The court found the statute
ambiguous and, therefore, considered “the object sought to be attained.” Id.
(quoting Iowa Code § 4.6(1)). Returning to the notion that the offense is a visual
assault, the court observed that an assault requires either an apparent ability—
meaning “a reasonable person in the defendant’s position would expect the act to
be completed under the existing facts and circumstances”—to cause pain or injury
through physical contact or to place another in fear of immediate physical contact.
Id. at 118 n.3 (quoting Iowa Criminal Jury Instruction 800.6).
In light of the contours of “exposure” outlined above, a jury could reasonably
infer that Sullivan’s action of leaving the water running in the hotel restroom with
the door unlocked would bring someone to the room to investigate—as it had in
the past. Sullivan failed to respond to the knock on the door. Sullivan awaited an
investigator while masturbating with his pants at his ankles. If he had responded
to the knock and alerted any potential investigator, there would not have been a
public exposure. Thus, a reasonable jury could conclude Sullivan “exposed” his
genitals because a reasonable person in his position would understand his
genitalia would be capable of being seen. See Jorgensen, 758 N.W.2d at 836
(explaining that indecent exposure could occur where the exposure was “in such
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a place or under such circumstances that the exhibition is liable to be seen by
others”). We affirm the count III indecent-exposure conviction.
B. Intent. Sullivan admits his penis was exposed to Luna as asserted in
count II. However, he argues there is not sufficient evidence that the exposure
was done to arouse the sexual desires of either party. “The requisite intent to
arouse or gratify the sexual desire of any person can be inferred from an accused’s
conduct, remarks, and all surrounding circumstances.” Id. There was substantial
evidence presented that twice on June 5, Sullivan lured female hotel staff to the
public restroom reporting seemingly self-engineered problems with the toilet. He
then waited in the restroom while leaving the door unlocked. The first time Burger
investigated, Sullivan’s back was to the door when Burger opened the door. When
Luna came to investigate at a later shift, “[t]he door was wide open, so [she] just
walked in.” Sullivan was standing with his penis in his hand. She did not wait to
determine whether his penis was erect as she was “embarrassed” and “shocked.”
The jury could find that Sullivan’s conduct was intended to gratify his sexual
desires. The jury could reasonably question why else Sullivan would walk into a
restroom that he recently reported was not working and then hold his penis out
waiting and leaving the door open. We conclude substantial evidence supports
the conviction under count II.
C. Jury Instruction #10. We have reviewed Jury Instruction #10 and
conclude no error was committed by giving the instruction to the jury. The
instruction consists of language from Jorgensen, 758 N.W.2d at 835-36, which
remains a correct statement of the law. Finding no error, we affirm.
AFFIRMED.
State of Iowa v. Joshua James Sullivan
Combined Opinion