STATE of Iowa, Appellee, v. Darrell Allen SHOWENS, Appellant.
No. 12-2168.
Supreme Court of Iowa.
April 11, 2014.
845 N.W.2d 436
Nicoletto obviously had “fair warning” that sleeping with a student was wrong—he acknowledged as much and went to great lengths to keep his relationship with the victim secret. See Crandon v. United States, 494 U.S. 152, 160, 110 S.Ct. 997, 1002, 108 L.Ed.2d 132, 141 (1990) (“[C]onstruction of a criminal statute must be guided by the need for fair warning....“).5 He told her never to phone him because he did not want her number on his phone bills. Yet, they exchanged thousands of text messages, ninety-one in one day. He warned her never to tell anyone about their relationship. He got very angry when she told a friend. Nicoletto told the victim that his family “would disown him” if they knew what he was doing. He ended their relationship only because a suspicious principal began asking them both questions. He had sex with the victim the morning he ended their relationship. When Nicoletto later tearfully confessed to his adult girlfriend, he asked if she “thought he was a pedophile.” After the relationship ended, Nicoletto “wouldn‘t even look at [the victim] at practice.” When confronted by her mother and later the police, the victim initially denied any relationship with Nicoletto and later came clean. She testified at his jury trial. The jury found him guilty.
For those reasons, I would affirm the district court‘s rulings that Nicoletto‘s misconduct is criminal under
MANSFIELD, J., joins this dissent.
Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant Attorney General, Michael J. Walton, County Attorney, and Alan R. Havercamp and Robert C. Bradfield, Assistant County Attorneys, for appellee.
A registered sex offender was arrested after sitting on a bench facing a public library. It was the middle of the day and he had been there approximately forty-five minutes. We must decide whether sufficient evidence exists to support the defendant‘s conviction by the district court for loitering within 300 feet of a public library in violation of
For the reasons discussed herein, after construing the statute to avoid constitutional difficulties, we are uncertain whether the district court applied the correct legal standard in finding the defendant guilty. Accordingly, we reverse the conviction and remand for further proceedings.
I. Facts and Procedural History.
Darrell Showens has a 1999 conviction for third-degree sexual abuse involving a minor. Because of that conviction, he is required to register as a sex offender. See
On Friday, May 11, 2012, at around 1:30 p.m., Showens was seated on a park bench located across the street from the main entrance to the downtown Davenport Public Library. He was facing the library, and the bench was seventy-two feet from the front door of the library.
Deputy Bawden of the Scott County Sheriff‘s Office, whose primary job is to register sex offenders and ensure compliance with the sex offender registry, was leaving the library on a separate investigation. He spotted Showens. Deputy Bawden could identify Showens based on his previous familiarity with him. The deputy proceeded to his vehicle which was parked outside the library. From the vehicle, he confirmed that Showens was still a registered sex offender required to comply with
At this point, Deputy Bawden approached Showens and asked him what he was doing. Showens first said he was waiting for a friend, but when Deputy Bawden offered to wait with him, Showens said his friend had left twenty minutes ago. When Deputy Bawden asked Showens what he had been doing since his friend left, Showens stated he had been scratching lottery tickets. Because Deputy Bawden did not observe any residue from scratch tickets around, he asked Showens to show him the lottery tickets. Showens responded that he had already thrown them away.
Deputy Bawden then asked Showens why he was sitting across from the library. Showens indicated he was waiting for a bus. Deputy Bawden pointed out that the bench was not a bus stop, and Showens responded that he was planning to catch a bus to his home at a stop that was two blocks away. As Deputy Bawden later noted, Showens‘s home was only seven
Several times during the conversation, Showens indicated he was “just hanging out” on the bench. He told Deputy Bawden he was not loitering and that he did not think he was within 300 feet of the library. However, when Deputy Bawden asked him if he believed he was a football field away from the library, Showens admitted he was not. At the end of the conversation, Deputy Bawden arrested Showens and transported him to the Scott County Jail.
By the time Deputy Bawden arrested Showens, twenty minutes had passed since he had first seen Showens sitting on the bench. Showens later admitted he had been sitting across from the library for forty-five minutes. Showens also admitted that he had been informed of the prohibition on entering a public library without permission from the administrator, as well as the prohibition on loitering within 300 feet of a public library.
Showens was charged with failure to comply with the sex offender exclusion zone requirements based on loitering within 300 feet of a public library. See
Showens did not contest that he was a registered sex offender, that he was subject to the restriction in
In a written ruling on September 18, the district court denied the defense‘s motion for directed verdict and found Showens guilty of failure to comply with the sex offender exclusion zone requirements, in violation of
The Court finds there is substantial evidence in the record that would warrant a reasonable person to believe that Mr. Showens was seated in front of the Davenport library in order to become familiar with a location where a potential victim could be found, or to locate a potential victim. This is sufficient to satisfy the element that Showens was engaged in “loitering” within three hundred feet of the Davenport Public Library.
Showens was sentenced to 240 days in jail with all but three days suspended. Additionally, Showens was ordered to pay a fine of $625 and serve 213 hours of community service.
Showens appealed, arguing that there was insufficient evidence he was “loitering” in violation of
II. Standard of Review.
We review sufficiency-of-the-evidence claims for correction of errors at law. State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013).
In reviewing challenges to the sufficiency of evidence supporting a guilty verdict, courts consider all of the record
“We review claims of ineffective assistance of counsel de novo.” State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).
III. Analysis.
A. The Statutory Background.
Showens argues that the State failed to present sufficient evidence to sustain his conviction.
Under
remaining in a place or circulating around a place under circumstances that would warrant a reasonable person to believe that the purpose or effect of the behavior is to enable a sex offender to become familiar with a location where a potential victim may be found, or to satisfy an unlawful sexual desire, or to locate, lure, or harass a potential victim.
These statutes are contained within
In 2009, the earlier provisions of
Since 2009, residency restrictions only apply to sex offenders convicted of an aggravated offense against a minor. See
Based on the statutory definition of loitering in the 2009 legislation, the State had to prove that Showens:
- was “remaining in a place or circulating around a place” within 300 feet of a public library;
- “under circumstances that would warrant a reasonable person to believe that the purpose or effect of the behavior“;
- was to enable Showens “to become familiar with a location where a potential victim may be found, or to satisfy an unlawful sexual desire, or to locate, lure, or harass a potential victim.”
See
As noted above, the district court convicted Showens after determining that the facts “warrant a reasonable person to believe that Mr. Showens was seated in front of the Davenport library in order to become familiar with a location where a potential victim could be found, or to locate a potential victim.” In short, according to the court‘s ruling, a reasonable person would believe that Showens‘s purpose was either to become familiar with a location where a potential victim could be found or to locate a potential victim.
B. Construing the Statute to Avoid Void-for-Vagueness Concerns.
Before we assess whether there was sufficient evidence to sustain the district court‘s finding of guilt, we need to consider what the statute requires. In doing so, we are guided by “our mandate to construe statutes in a fashion to avoid a constitutional infirmity where possible.” State v. Walker, 804 N.W.2d 284, 293-94 (Iowa 2011) (citation and internal quotation marks omitted); see also Simmons v. State Pub. Def., 791 N.W.2d 69, 74 (Iowa 2010) (“If fairly possible, a statute will be construed to avoid doubt as to constitutionality.“).
We previously went through the process of construing one of our sex offender laws to sidestep a potential vagueness defect. In Formaro v. Polk County, 773 N.W.2d 834, 837 (Iowa 2009), a sex offender brought a constitutional challenge, including a void-for-vagueness challenge, to the residency restrictions in the former version of
We have said that
The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits vague statutes.
A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.
Accordingly, we will review the constitutional due process requirement in the context of loitering laws. We will then apply what has been called “avoidance theory” to see if we need to clarify the meaning of
In 1999, the United States Supreme Court addressed the constitutionality of a loitering ordinance in a significant case. See City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999).2 Morales involved a Chicago ordinance that prohibited gang members from loitering with any person in any public place. Id. at 45-46, 119 S.Ct. at 1853, 144 L.Ed.2d at 74. Loitering was defined by the ordinance as “remain[ing] in any one place with no apparent purpose.” Id. at 47, 119 S.Ct. at 1853, 144 L.Ed.2d at 74 (internal quotation marks omitted). If a police officer reasonably believed that one or more persons gathered in a public place were gang members and had no purpose for remaining in the location, the ordinance required the officer to order all persons that were gathered to disperse. Id. Any person who disobeyed the order, whether a gang member or not, was guilty of violating the ordinance and subject to a fine of up to $500, imprisonment of up to six months, and up to 120 hours of community service. Id.
In a 6-3 decision, the Supreme Court found the ordinance unconstitutionally vague in violation of the Fourteenth Amendment‘s Due Process Clause. Id. at 51, 119 S.Ct. at 1856, 144 L.Ed.2d at 77. Writing for the Court on this point, Justice Stevens faulted the ordinance‘s broad definition of “loitering” as meaning “to remain in any one place with no apparent purpose.” Id. at 61, 119 S.Ct. at 1861, 144 L.Ed.2d at 83 (internal quotation marks omitted). He noted that this definition confers “vast discretion” on the police, “is inherently subjective because its application depends on whether some purpose is ‘apparent’ to the officer on the scene,” and “extends its scope to encompass harmless conduct.” Id. at 61-63, 119 S.Ct. at 1861-62, 144 L.Ed.2d at 83-84.
Again writing for the Court, Justice Stevens also noted that the Illinois Supreme Court had declined to narrow what “no apparent purpose” meant. Id. at 61, 119 S.Ct. at 1861, 144 L.Ed.2d at 83. As he put it, “[P]ersons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent.” Id. at 60, 119 S.Ct. at 1861, 144 L.Ed.2d at 82. He added, “We have no authority to construe the language of a state statute more narrowly than the construction given by that State‘s highest court.” Id. at 61, 119 S.Ct. at 1861, 144 L.Ed.2d at 83. Yet he seemingly concluded that the ordinance would be constitutional if it “only applied to loitering that had an apparently harmful purpose or ef-
Concurring in part and concurring in the judgment, Justice O‘Connor, joined by Justice Breyer, highlighted her concerns:
As it has been construed by the Illinois court, Chicago‘s gang loitering ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement officers. In particular, it fails to provide police with any standard by which they can judge whether an individual has an “apparent purpose.” Indeed, because any person standing on the street has a general “purpose“—even if it is simply to stand—the ordinance permits police officers to choose which purposes are permissible.
Id. at 65-66, 119 S.Ct. at 1863-64, 144 L.Ed.2d at 86 (O‘Connor, J., concurring in part and concurring in the judgment). Justice O‘Connor further observed,
In my view, the gang loitering ordinance could have been construed more narrowly. The term “loiter” might possibly be construed in a more limited fashion to mean “to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.” Such a definition would be consistent with the Chicago City Council‘s findings and would avoid the vagueness problems of the ordinance as construed by the Illinois Supreme Court.
Id. at 68, 119 S.Ct. at 1864-65, 144 L.Ed.2d at 87.3
In a dissent joined by Chief Justice Rehnquist and Justice Scalia, Justice Thomas emphasized that the ordinance “does not criminalize loitering per se. Rather, it penalizes loiterers’ failure to obey a police officer‘s order to move along.” Id. at 106, 119 S.Ct. at 1883, 144 L.Ed.2d at 111 (Thomas, J., dissenting). As he put it, “There is nothing ‘vague’ about an order to disperse.” Id. at 112, 119 S.Ct. at 1886, 144 L.Ed.2d at 114. Yet Justice Thomas also disputed the notion that the definition of loitering itself failed to provide adequate notice: “Members of a group standing on the corner staring blankly into space, for example, are likely well aware that passersby would conclude that they have ‘no apparent purpose.‘” Id. at 114, 119 S.Ct. at 1887, 144 L.Ed.2d at 116.
In his own separate dissent, Justice Scalia mentioned several of these same points. See id. at 90, 119 S.Ct. at 1875, 144 L.Ed.2d at 101 (Scalia, J., dissenting) (noting the ordinance criminalizes “the refusal to obey a dispersal order, as to which there is no doubt of adequate notice of the prohibited conduct“); id. at 93, 119 S.Ct. at 1877, 144 L.Ed.2d at 103 (observing that
As we read this portfolio of opinions, it seems clear that one constitutional flaw in the Chicago ordinance was its effort to criminalize staying in one place “with no apparent purpose“—assuming other elements of the crime were also met. Too vague; too much discretion. At the same time, the Court indicated a definition of loitering would be constitutional if it was limited to hanging out that had an apparently improper purpose. See id. at 62, 119 S.Ct. at 1862, 144 L.Ed.2d at 84 (majority opinion); id. at 68, 119 S.Ct. at 1864-65, 144 L.Ed.2d at 87 (O‘Connor, J., concurring in part and concurring in the judgment).4
This distinction, we believe, is captured by a recent decision of the South Dakota Supreme Court, State v. Stark, 802 N.W.2d 165 (S.D. 2011). That case involved a sex offender who, after getting off work in the early evening, circled a park where numerous children were playing for approximately twenty minutes in his van. Id. at 167-68. The court there had to determine the constitutionality of a South Dakota statute that prohibited convicted sex offenders from loitering in a “community safety zone.” Id. at 167. Under the statute, loitering was defined as “remain[ing] for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors[.]” Id. at 168 (citation and internal quotation marks omitted).
The court pointed out the statute in question was different from the ordinance invalidated in Morales:
First, SDCL 22-24B-24 only applies to persons required to register as sex offenders in South Dakota, a meticulously defined class of individuals. Second, by defining the term “community safety zone,” SDCL 22-24B-22 describes the precise area to which SDCL 22-24B-24 applies. The statute does not use amorphous terms like “neighborhood” or “locality,” which are “elastic and dependent upon the circumstances.” Finally, and perhaps most importantly, SDCL 22-24B-24 distinguishes between innocent and harmful conduct. By requiring that the loitering be “for the primary purpose of observing or contacting minors,” the South Dakota Legislature limited the statute‘s application to loitering that has an “apparently harmful purpose or effect.”
Id. at 171 (citations omitted) (emphasis added). The court concluded the statute was sufficient to provide the defendant with notice that his conduct was prohibited, and it upheld the defendant‘s conviction as supported by sufficient evidence. Id. at 171, 172-73.
Iowa‘s sex offender loitering statute, which we have already quoted, is somewhat different from South Dakota‘s. It prohibits remaining in an area when a reasonable person would believe “the purpose or effect of the behavior is to enable a sex offender to become familiar with a location where a potential victim may be found, or to satisfy an unlawful sexual desire, or to locate, lure, or harass a potential victim.” See
Alternatives (b) and (c) are improper purposes. Alternative (a) requires some additional discussion. Arguably, it is ambiguous. It could be read as rendering unlawful the act of remaining in a place when a reasonable person would believe the defendant‘s purpose is to become familiar with a location because that location has or will have one or more potential victims. Or it could be read as prohibiting remaining in a place when a reasonable person would believe the defendant‘s purpose is to become familiar with a location that coincidentally happens to have one or more potential victims. In other words, would a reasonable person believe the defendant was casing the joint or, instead, does the behavior appear to be benign or at worst innocuous?
This strikes us as a critical distinction. Practically anybody who passes time within 300 feet of a property is going to become more familiar with that property.6 This is analogous to allowing a crime to be triggered when a person remains in a place with “no apparent purpose“—the formulation that the Supreme Court overturned in Morales for being too vague. The same dangers of lack of notice and unbridled government discretion would arise if we construed
We express no view on whether the legislature could enact a statute that prohibits convicted sex offenders from loitering in an exclusionary zone, where loitering is defined as remaining in the zone for any reason. In such event, there would be less uncertainty as to what the statute prohibits. See United States v. Zobel, 696 F.3d 558, 575 (6th Cir. 2012) (upholding against a vagueness challenge lifetime supervision conditions that include a prohibition on “loitering where minors congregate, such as playgrounds, arcades, amusement parks, recreation parks, sporting events, shopping malls, swimming pools, etc.” (internal quotation marks omitted)); In re Rusty Nail Acquisition, Inc., 186 Vt. 195, 980 A.2d 758, 766-67 (2009) (rejecting a vagueness attack on an ordinance that prohibits licensed establishments from allowing intoxicated persons to “loiter” on the premises, and noting loiter in this context means simply to “remain“); see also Formaro, 773 N.W.2d at 837 (rejecting various constitutional challenges including a vagueness challenge to the residency restrictions in the previous version of
Thus, we have simply decided today that if
Showens goes somewhat farther and argues that a loitering statute suffers from constitutional defects whenever the definition of loitering turns on how a “reasonable person” would view the defendant‘s purpose. In short, Showens concedes it would be constitutional to prohibit sex offenders from remaining in an area for a particular improper purpose, but argues it is unconstitutional to prohibit them from remaining in an area “under circumstances that would warrant a reasonable person to believe” they were engaged in that same improper purpose.
We are not persuaded. For one thing, both Justice Stevens and Justice O‘Connor indicated in Morales that an ordinance prohibiting loitering with an improper “apparent” purpose would be constitutional. 527 U.S. at 62, 119 S.Ct. at 1862, 144 L.Ed.2d at 84 (majority opinion); id. at 68, 119 S.Ct. at 1864, 144 L.Ed.2d at 87 (O‘Connor, J., concurring in part and concurring in the judgment). They did not believe a standard based on how a hypothetical outsider viewed the defendant‘s conduct would invalidate the ordinance; rather, it would preserve it. And the South Dakota statute at issue in Stark also employed a reasonable person test. See Stark, 802 N.W.2d at 168.8
Moreover, our criminal law has other examples of statutes where the commission of a crime depends, in part, on what a hypothetical “reasonable person” would conclude. An element of stalking is met when a person purposefully engages in a course of conduct directed at a person “that would cause a reasonable person to fear bodily injury.”
We also allow the determination of whether a defendant has a “dangerous weapon,” which often has a tremendous impact on the available criminal penalties, to depend in certain instances on the ap-
In Lewis v. Jaeger, 818 N.W.2d 165, 170-71, 185 (Iowa 2012), we upheld the constitutionality of an ordinance that had been relied upon to lock a tenant out of her apartment who was leaving her water and gas stove on unattended for extended periods of time. The ordinance read:
Whenever, in the judgment of the city manager, an emergency exists which requires immediate action to protect the public health, safety or welfare, an order may be issued, without a hearing or appeal, directing the owner, occupant, operator or agent to take such action as is appropriate to correct or abate the emergency.
Id. at 174 (citation and internal quotation marks omitted). To address the concern that an “emergency” could be whatever city officials deem to be an emergency in
In State v. Milner, 571 N.W.2d 7 (Iowa 1997), we dealt with a constitutional challenge to Iowa‘s criminal threat statute, which makes it a felony when a person “threatens to place...any incendiary or explosive device or material, or any destructive substance or device in any place where it will endanger persons or property.” State v. Milner, 571 N.W.2d 7 (quoting
Otherwise stated, a statute that criminalizes remaining in a place or circulating around a place, by a sex offender convicted of a sex offense against a minor, “under circumstances that would warrant a reasonable person to believe” the sex offender‘s purpose is to look for potential victims or to check out a location because it contains potential victims, is not void for vagueness under the Fourteenth Amendment‘s Due Process Clause.10
Showens also maintains that even if the foregoing standard is sufficiently clear to meet federal due process requirements, it does not satisfy Iowa‘s due process clause—article I, section 9 of the Iowa Constitution. To overcome any Iowa due process objections, according to Showens, it must be an element of the crime that he actually intended to scout for potential victims or scout out a location because it had potential victims. It is not enough that a reasonable person would believe
While we reserve the right to interpret article I, section 9 in a manner different from the Fourteenth Amendment‘s Due Process Clause, we are not persuaded the Iowa Constitution renders sections
There is a trade-off here. Under the versions of sections
C. Was the Evidence Sufficient?
We now review the record for sufficiency of the evidence with these considerations in mind. By his own admission, Showens sat on the park bench for around forty-five minutes with a clear unobstructed view of the public library. The bench was less than seventy-five feet from the library property. Furthermore, Showens admitted to Deputy Bawden that he knew he was within a football field (i.e., 300 feet) of the property. For the entire time that Deputy Bawden observed Showens, he was “facing” the library. His explanations for waiting there were inconsistent and made little sense. First, he was waiting for a friend, who had already left. Then, he was scratching lottery tickets, but no tickets could be found. Finally, he was waiting for a bus to take him home, although the bus stop was two blocks away and his home was only seven blocks away.
Undoubtedly, Showens was “remaining in a place” within 300 feet of the library property. We also agree that substantial evidence could support a finding that Showens had violated
The problem is that the district court did not have the benefit of our construction of the statute, so we are unsure whether it applied the appropriate legal standard. Again, an apparent purpose merely to become familiar with the library
Some of the evidence here could potentially be viewed as supporting Showens‘s innocence. He was eating a bag of chips while sitting on the bench. The record does not indicate how large a bag it was. Showens was found outside the public library around 1:30 p.m. on a school day—not the time when large numbers of school-age children would normally be present. Showens‘s refusal to get up and leave when Deputy Bawden arrived could possibly be viewed as a sign of orneriness, rather than deviance. Perhaps, as the defendant claimed at times, he was “just hanging out.” In any event, we are not the trier of fact.11
IV. Conclusion.
For the foregoing reasons, we reverse the judgment of conviction below and remand for new findings, conclusions, and judgment on the existing record consistent with this opinion.
REVERSED AND REMANDED.
Notes
A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order based on the officer‘s own knowledge of the identity or affiliations of other persons with whom the citizen is congregating; nor may the citizen be able to assess what an officer might conceive to be the citizen‘s lack of an apparent purpose.Morales, 527 U.S. at 69-70, 119 S.Ct. at 1865, 144 L.Ed.2d at 88 (Kennedy, J., concurring in part and concurring in the judgment). Similarly, in his separate opinion concurring in part and concurring in the judgment, Justice Breyer worried that the phrase “with no apparent purpose” results in “open-ended discretion” because “one always has some apparent purpose.” Id. at 70, 119 S.Ct. at 1866, 144 L.Ed.2d at 89 (Breyer, J., concurring in part and concurring in the judgment).
Gang loitering means remaining in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to enable a criminal street gang to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.Chi., Ill., Mun.Code § 8-4-015(d)(1) (2013); see also Kim Strosnider, Anti-Gang Ordinances After City of Chicago v. Morales: The Intersection of Race, Vagueness Doctrine, and Equal Protection in the Criminal Law, 39 Am. Crim. L.Rev. 101, 135-36 (2002) (quoting this language and stating, “This language is taken verbatim from dicta in Justice O‘Connor‘s Morales concurrence.“).