State of Iowa v. Aquiles Gonzalez Alvarado
2016 Iowa Sup. LEXIS 23
| Iowa | 2016Background
- Defendant Aquiles Alvarado was convicted by a jury of two counts of lascivious acts with a child for touching his nine-year-old granddaughter’s genitals over her clothing in a store back room.
- Victim I.M. testified Alvarado hugged her, kissed her upper chest/neck, reached between her legs and touched her genitals over clothing, and had done so on other occasions that summer.
- Alvarado moved for directed verdicts arguing Iowa Code § 709.8(1) requires skin-to-skin contact; the motions were denied and he was convicted.
- The court of appeals affirmed, reasoning “touch” includes tactile perception through clothing; the Iowa Supreme Court granted further review.
- The central legal question was whether § 709.8(1)’s prohibition on touching a child’s “pubes or genitals” requires direct skin-to-skin contact.
- The Supreme Court held skin-to-skin contact is not required and affirmed the convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 709.8(1) requires skin-to-skin contact to "touch the pubes or genitals of a child" | State: “Touch” plainly includes tactile perception through clothing; no textual limit to skin-to-skin contact; requiring it produces absurd results (e.g., gloves) | Alvarado: Omission of "over the clothes" language in § 709.8(1) shows legislature intended skin-to-skin contact; otherwise § 709.12 (which mentions clothing) would be redundant | Court: § 709.8(1) does not require skin-to-skin contact; tactile perception through clothing suffices; convictions affirmed |
Key Cases Cited
- State v. Pearson, 514 N.W.2d 452 (Iowa 1994) (held skin-to-skin contact not required for statutory "sex act"; intervening material assessed objectively)
- State v. Phipps, 442 N.W.2d 611 (Iowa Ct. App. 1989) (rejected insulation by clothing; touching over underwear can constitute sex act)
- State v. Schnaidt, 410 N.W.2d 539 (S.D. 1987) (grabbing genitals through clothing falls within statute prohibiting any touching)
- State v. Brown, 420 N.W.2d 5 (N.D. 1988) (touching over pajamas/underwear constituted prohibited touching; absurd to require bare skin)
- State v. Samson, 388 A.2d 60 (Me. 1978) (statute protects against sexual indignities; requiring flesh-to-flesh contact would frustrate legislative intent)
- Miles v. State, 247 S.W.2d 898 (Tex. Crim. App. 1952) (grabbing penis through pants violated statute; no skin-to-skin requirement)
- Resnick v. State, 574 S.W.2d 558 (Tex. Crim. App. 1978) (touching through fabric allows tactile perception; glove requirement would produce absurd results)
- State v. Jacobs, 144 P.3d 226 (Utah Ct. App. 2006) (contrasting statutes that expressly criminalize touching through clothing; interpreted omission as deliberate)
- State v. Baldwin, 291 N.W.2d 337 (Iowa 1980) (recognized gap that led to later enactment of § 709.12)
- State v. Shearon, 660 N.W.2d 52 (Iowa 2003) (distinguished lascivious acts from indecent contact by body-part focus)
- State v. Perry, 440 N.W.2d 389 (Iowa 1989) (prosecutor may charge one of multiple overlapping offenses; overlap does not invalidate a charge)