IN THE SUPREME COURT OF IOWA
No. 23–0560
Submitted March 21, 2024—Filed April 19, 2024
STATE OF IOWA,
Appellee,
vs.
CHRISTOPHER JAMES WILSON,
Appellant.
Appeal from the Iowa District Court for Story County, Steven P. Van Marel,
Judge.
The defendant appeals his conviction and sentence of two counts of inde-
cent exposure, arguing that the unit of prosecution is per exposure, not per
viewer; therefore, there was insufficient evidence to convict him on two separate
counts of indecent exposure. AFFIRMED.
Christensen, C.J., delivered the opinion of the court, in which all justices
joined.
Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant
Appellate Defender, for appellant.
Brenna Bird, Attorney General, and Joshua A. Duden, Assistant Attorney
General, for appellee.
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CHRISTENSEN, Justice.
After masturbating in public within the view of two women, the defendant
was charged with two counts of indecent exposure under Iowa Code sec-
tion 709.9 (2022). On appeal, the defendant asserts the unit of prosecution for
indecent exposure is per exposure, not per viewer. As a result, the defendant
argues there was insufficient evidence to support a conviction on two counts of
indecent exposure, thereby rendering the imposed sentence illegal. Finally, the
defendant argues that the district court did not state sufficient reasons for im-
posing a consecutive sentence under Iowa Rule of Criminal Procedure 2.23(3)(d)
(2022).
We hold that the unit of prosecution for indecent exposure is one count
per viewer, not one count per exposure. Thus, we affirm the defendant’s convic-
tion of two counts of indecent exposure. Additionally, the district court provided
sufficient reasoning for imposing a consecutive sentence; therefore, we affirm the
sentencing order of the district court.
I. Background Facts and Proceedings.
On the evening of November 28, 2022, E.H. and T.A. arrived at a Hy-Vee
gas station at approximately 9:30 p.m. E.H. parked her vehicle by the front doors
of the gas station and attempted to go inside. The gas station was closed but
E.H. briefly spoke with the store attendant. When E.H. began to walk back to
her vehicle, T.A. told her to get into the car. E.H. and T.A. then saw the defend-
ant, Christopher James Wilson, approximately six feet away from the vehicle.
While making eye contact with E.H. and T.A., the defendant openly masturbated
with his penis pulled through a hole in his pants.
E.H. and T.A. called 911. The two women remained on the line with the
dispatcher and moved their car to a nearby Hobby Lobby parking lot on the other
side of the gas station. After relocating, E.H. and T.A. could not see the defendant
3
for a period of time. However, the defendant had followed them to the other side
of the gas station. He weaved in and around cars and continued walking toward
E.H. and T.A.’s vehicle. He eventually became visible, and the defendant again
openly masturbated while directly making eye contact with E.H. and T.A.
The police arrived shortly thereafter. The two responding officers noted a
hole in the defendant’s pants that went from underneath the crotch area toward
the inner part of his right knee. The defendant was ultimately arrested and
charged with two counts of indecent exposure. After a jury trial, he was convicted
as charged on both counts. The defendant was sentenced to an enhanced sen-
tence under Iowa Code section 901A.2(1) to an indeterminate prison term of two
years for the first count and an indeterminate prison term of two years for the
second count. A special sentence was imposed under Iowa Code section 903B.2
for a period of ten years. The sentence for count one was ordered to run consec-
utive to the sentence for count two. The defendant timely appealed.
II. Standards of Review.
We review rulings on questions of statutory interpretation for correction of
errors at law. State v. Copenhaver, 844 N.W.2d 442, 447 (Iowa 2014). We will
uphold a verdict if there is substantial evidence in the record to support it.
State v. Neiderbach, 837 N.W.2d 180, 216 (Iowa 2013). Evidence is substantial
if, “when viewed in the light most favorable to the State, it can convince a rational
jury that the defendant is guilty beyond a reasonable doubt.” Id. (quoting State v.
Sanford, 814 N.W.2d 611, 615 (Iowa 2012)).
We are permitted to review a challenge that a sentence is illegal at any
time, and such a challenge is generally reviewed for correction of errors at law.
Jefferson v. Iowa Dist. Ct., 926 N.W.2d 519, 522 (Iowa 2019). “An illegal sentence
is a sentence that is not permitted by statute.” Copenhaver, 844 N.W.2d at 447.
“It is well established in Iowa law that a single course of conduct can give rise to
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multiple charges and convictions.” State v. Velez, 829 N.W.2d 572, 584 (Iowa
2013). If the legislature has criminalized “two separate and distinct acts, sepa-
rate sentences on each act are not illegal.” Copenhaver, 844 N.W.2d at 447.
Therefore, to determine what conduct the legislature has criminalized, we must
“ask what unit of prosecution the legislature intended in enacting the statute.”
Id.
“We review sentencing decisions for an abuse of discretion when the sen-
tence is within the statutory limits.” State v. Gordon, 921 N.W.2d 19, 24 (Iowa
2018). A district court abuses its discretion if it “exercises its discretion on
grounds or for reasons that were clearly untenable or unreasonable.” Id. (quoting
State v. Thompson, 856 N.W.2d 915, 918 (Iowa 2014)). “Grounds or reasons are
untenable if they are ‘based on an erroneous application of the law or not sup-
ported by substantial evidence.’ ” State v. Plain, 898 N.W.2d 801, 811 (Iowa
2017) (quoting State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014)).
III. Analysis.
On appeal, the defendant argues that the unit of prosecution for indecent
exposure is one count per exposure, not one count per viewer. Thus, the defend-
ant argues there was insufficient evidence to convict him of two counts of inde-
cent exposure, and therefore, the resulting sentence is illegal. The defendant also
contends that the district court abused its discretion by not properly stating its
reasons for ordering his sentences to run consecutively under Iowa Rule of Crim-
inal Procedure 2.23(3)(d). For the reasons expressed below, we hold that the unit
of prosecution for indecent exposure is per viewer and that the district court did
sufficiently state its reasoning for ordering the defendant’s sentences to run con-
secutively.
A. Sufficiency of the Evidence. The defendant first argues that the unit
of prosecution for indecent exposure is one count per exposure, not one count
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per viewer. Thus, the defendant contends that the State did not present sufficient
evidence to sustain a conviction on two counts of indecent exposure under Iowa
Code section 709.9.
1. Whether the unit of prosecution for indecent exposure is per exposure or
per viewer. To determine whether the evidence was sufficient to support the ver-
dict, we must determine what act Iowa Code section 709.9 criminalizes. Cf.
State v. Ross, 845 N.W.2d 692, 698 (Iowa 2014). Iowa Code section 709.9 pro-
vides:
1. A person who exposes the person’s genitals or pubic area
to another not the person’s spouse, or who commits a sex act in the
presence of or view of a third person, commits a serious misde-
meanor if all of the following apply:
a. The person does so to arouse or satisfy the sexual desires
of either party.
b. The person knows or reasonably should know that the act
is offensive to the viewer.
2. a. A person who masturbates in public in the presence of
another, not a child, commits a serious misdemeanor.
b. A person who masturbates in public in the presence of a
child commits an aggravated misdemeanor.
c. For the purpose of this subsection, “masturbate” means
physical stimulation of a person’s own genitals or pubic area for the
purpose of sexual gratification or arousal of the person, regardless
of whether the genitals or pubic area is exposed or covered.
We first “look to statutory language to determine what the legislature in-
tended as a ‘unit of prosecution’ for a particular crime.” Velez, 829 N.W.2d at 579
(collecting cases). A plain reading of the statute indicates the legislature intended
to criminalize three alternative acts that would constitute indecent exposure. The
first act is when a person exposes their genitals or pubic area to another who is
not the person’s spouse, with the intent to arouse or satisfy the sexual desires
of either party, and the person knew or reasonably should have known the act
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was offensive to the viewer. Id. § 709.9(1). The second act is when a person com-
mits a sex act in the presence or view of a third person with the intent to arouse
or satisfy the sexual desires of either party, and the person knew or reasonably
should have known the act was offensive to the viewer. Id. The third act is when
a person masturbates in the public presence of another. Id. § 709.9(2).
We note that for all versions of the crime, it consists of the defendant ex-
posing themselves “to another” or masturbating “in the presence of another.”
Thus, we have previously held that indecent exposure is “essentially a visual
assault crime,” and to successfully convict a defendant, the state must produce
a victim who saw the exposure. State v. Isaac, 756 N.W.2d 817, 819 (Iowa 2008)
(quoting State v. Bauer, 337 N.W.2d 209, 211 (Iowa 1983) (en banc)). This is
because the legislature criminalized “only visual sexual assaults upon unwilling
viewers.” Bauer, 337 N.W.2d at 211. In addition, the unit of prosecution for this
visual assault crime is the act of doing something “to another,” not to “the world
generally,” “a person or persons,” “one or more persons,” or “any number of per-
sons.” This indicates each person—i.e., each “another”—who is a victim of the
indecent exposure amounts to a separate offense that can be prosecuted. There-
fore, we hold that the unit of prosecution for indecent exposure under Iowa Code
section 709.9(2)(a) is per viewer, not per exposure.
Our holding is consistent with other jurisdictions that require a third per-
son to have witnessed the defendant’s exposure. See United States v. Lacy, 53
M.J. 509, 510 (N-M Ct. Crim. App. 2000) (adopting a “different victims” standard
as the unit of prosecution for indecent exposure); cf. State v. Sandoval, 857 P.2d
395, 398–400 (Ariz. Ct. App. 1993) (determining the allegation that a defendant
exposed his genitals in the presence of two minor females was sufficient to permit
a conviction of two counts of indecent exposure); Commonwealth v. Andrulewicz,
911 A.2d 162, 167 (Pa. Super. Ct. 2006) (upholding a conviction on two counts
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of indecent exposure when the record showed two minor children observed the
defendant masturbating).
There are many states that have defined the unit of prosecution for inde-
cent exposure as per exposure, not per viewer; however, unlike Iowa, these ju-
risdictions do not require a third person to view the exposure. See People v.
Smith, 147 Cal. Rptr. 3d 314, 317 (Ct. App. 2012) (“The language of the statute
prohibits the exposure itself and not the specific exposure to a person.”); Peo-
ple v. Vronko, 579 N.W.2d 138, 142 (Mich. Ct. App. 1998) (per curiam) (“For these
reasons, we hold that there is no requirement that the defendant’s exposure ac-
tually be witnessed by another person in order to constitute ‘open or indecent
exposure’. . . .”); Ebeling v. State, 91 P.3d 599, 601–02 (Nev. 2004) (per curiam)
(“A violation of NRS 201.220(1) does not require that the indecent exposure be
witnessed. . . . Since Ebeling committed only one act of indecent exposure, NRS
201.220(1) only provides for one charge of indecent exposure, regardless of the
number of witnesses.”); State v. King, 151 S.E.2d 566, 567 (N.C. 1966) (per cu-
riam) (“ ‘It is not essential to the crime of indecent exposure that someone shall
have seen the exposure . . . .’ ‘[T]he offense does not depend on the number of
people present . . . .’ ” (alteration in original) (first quoting 33 Am. Jur. 19; then
quoting 67 C.J.S. Obscenity § 5, at 26); Harris v. State, 359 S.W.3d 625, 631
(Tex. Crim. App. 2011). (“After considering all of these factors, we believe that
the clear language of Section 21.11(a)(2)(A) indicates that the exposure, not the
number of children present, constitutes the unit of prosecution.”). As a result,
we do not find these jurisdictions to be influential to our analysis.
2. Whether the resulting sentence was illegal. Because the legislature de-
fined the unit of prosecution for indecent exposure as per viewer, not per expo-
sure, there is sufficient evidence to support the defendant’s conviction on two
counts of indecent exposure. On the 911 call, E.H. indicated she and T.A. had
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seen the defendant masturbating while looking at them in the Hy-Vee gas station
parking lot. After moving their vehicle to the Hobby Lobby parking lot, they both
screamed on the call as the defendant came back into their view and again mas-
turbated while looking at them. Such testimony was further corroborated when
both E.H. and T.A. reiterated during trial that they witnessed the defendant mas-
turbating in the Hy-Vee gas station parking lot and in the Hobby Lobby parking
lot. Based on this evidence, it is clear that there were two individuals who viewed
the defendant’s exposure. Therefore, we find the evidence was sufficient to con-
vince a rational jury that the defendant was guilty beyond a reasonable doubt
on both counts of indecent exposure. Thus, the defendant’s sentence was not
illegal.
B. Whether the District Court Properly Stated its Reasons for Impos-
ing a Consecutive Sentence. The defendant’s final argument on appeal is that
the district court failed to provide adequate reasoning for ordering his sentences
to run consecutively as required under Iowa Rule of Criminal Procedure
2.23(3)(d). Rule 2.23(3)(d) states:
If no sufficient cause is shown why judgment should not be pro-
nounced, and none appears to the court upon the record, judgment
shall be rendered. Prior to such rendition, counsel for the defendant,
and the defendant personally, shall be allowed to address the court
where either wishes to make a statement in mitigation of punish-
ment. In every case the court shall include in the judgment entry
the number of the particular section of the Code under which the
defendant is sentenced. The court shall state on the record its rea-
son for selecting the particular sentence.
Iowa R. Crim. P. 2.23(3)(d); see also State v. Hill, 878 N.W.2d 269, 273 (Iowa
2016) (“Rule 2.23(3)(d) applies to the district court’s decision to impose consec-
utive sentences.”). “Without such a record, there would be nothing from which
we could discern any abuse of sentencing discretion.” State v. Luedtke, 279
N.W.2d 7, 8 (Iowa 1979). A terse and succinct statement is sufficient provided
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that the brevity of the court’s statement does not prevent appellate review of the
exercise of the trial court’s sentencing discretion. State v. Thacker, 862 N.W.2d
402, 408 (Iowa 2015). Additionally, the reasoning for imposing consecutive sen-
tences may be the same reasons the district court relied on for the imposition of
incarceration. Hill, 878 N.W.2d at 275.
Here, the district court’s statements during sentencing were as follows:
Well, Mr. Wilson, the purpose of sentencing is to do two things. It’s
meant to rehabilitate you and to protect our community from further
offenses from you. The record shows that you have a relatively long
prior criminal record. Most disturbingly, you have prior convictions
for this very same offense, including one that you were sentenced on
just before you committed these two offenses.
Mr. Wilson, at this point in time, I think really the only appro-
priate sentence here is to send you to prison for as long of a period
of time as I can, which still won’t be all that long. But hopefully it’s
enough time that’ll give you an opportunity to get some treatment.
It’ll give you an opportunity to take a step back and look at yourself,
look at your life, make some decisions about what kind of a future
you want to be and what kind of a person you want to be.
And if you use that time productively, Mr. Wilson, then there’s
no reason why, when you get out of prison, you can’t go out there
and work towards accomplishing your goals. But that’s obviously
only going to happen if you change the way you make decisions.
And hopefully when you’re in prison, you can do that. You can
change the way you make decisions and you can get appropriate
treatment. But I think at this stage, you just need to go to prison for
the maximum penalty, because I don’t think you’ll stop committing
this offense until you serve a significant amount of time in custody.
So, Mr. Wilson, you are adjudged guilty of two counts of inde-
cent exposure, masturbating in public, in violation of Section 709.9
and Section 709.9(2)(a) of the Iowa Code, and Section 903B.2 of the
Iowa Code. In each case, pursuant to Chapter 901A.2(1), you are
sentenced to serve -- you are committed to the custody of the Direc-
tor of the Iowa Department of Corrections for an indeterminate term
not to exceed two years, with credit for time served.
These sentences shall be served consecutively and consecu-
tively to any other sentence you’re serving here in Iowa. You shall
pay a $430 fine on each case, a 15 percent surcharge, court costs,
court-appointed attorney fees. The State has 30 days to file a
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statement of pecuniary damages. I find that you do not have the
reasonable ability to pay category “B” restitution.
On each case you do have a right to appeal your judgment and
conviction. If you wish to appeal, you must do so by filing a written
notice of appeal with the clerk within 30 days. If you cannot afford
the cost of an appeal, those will be provided for you at the public
expense. Bond on appeal is $2,000 per charge. You shall also comply
with the sex offender registry requirements pursuant to
Chapter 692A of the Iowa Code.
Based on the record, we can discern that the district court sentenced the
defendant to a term of incarceration due to his extensive criminal record that
included convictions for the same offenses at issue here, one of which occurred
just before he committed these two acts of indecent exposure, and the fear that
the defendant would continue to commit this type of offense unless he was
incarcerated. The district court also stated that the most appropriate sentence
was the sentence that would result in the longest period of incarceration to allow
the defendant the opportunity to receive treatment and evaluate how to best
move forward with his life upon being released. While the district court did not
expressly state this was its reason for imposing consecutive sentences, it was
saying virtually the same thing because, in its own words, it was explaining that
“the only appropriate sentence here is to send you to prison for as long of a period
of time as I can.” That means consecutive sentences. As a result, we find this to
be a sufficient statement of the district court’s reasoning for ordering the
sentences to run consecutively. However, in the future, we encourage sentencing
courts to explicitly state that it is referring to the subject matter of consecutive
sentencing. See Hill, 878 N.W.2d at 275.
IV. Conclusion.
For these reasons, we affirm the conviction and sentence for two counts of
indecent exposure.
AFFIRMED.