*1 inсluding provision in eight specified crimes section 907.3. Section 907.3 provides sentencing options, express- 702.11. This list did Iowa Code but is abuse. § ly of lascivious acts with inapplicable felony. not include the crime to a forcible This not, may Ordinarily, the court option a child. section also denies the of a deferred construction, guise judicial judgment under if the “offense is a violation of change modifying words to a statute or add years section 709.8 and the child is twelvе Brewer, Kelly its terms. age or under.” (Iowa 1976). interpret To section exception super later This to include lascivious acts with a 702.11 fluous, if we deemed the crime of lascivious modify is to this section under the child felony. child a acts with a forcible We guise of construction. statutory avoid construction which renders Second, theory accept we cannot part superfluous statute or redun abuse, interprets the crime of sexual dant, presume аnd instead we that each 702.11, equiva in section as used to be part purpose. George of the statute has a lent or the same as the crime of lascivious Wentz, Sabasta, H. Inc. v. Although acts with a child. defendant’s (Iowa 1983). This is further reason to conduct constitutes “sexual abuse” as de interpretation an that the crime of 709.1, simply fined in section this section a child not lascivious acts with is a forcible abuse; defines sexual it does not make felony. Yeаger R. sexual abuse a crime. J. and stated, For the reasons hold the dis- we Carlson, (1979). Iowa Practice § ruling trict court erred in its that the crime is in Iowa Sexual abuse criminalized charged of lascivious acts as is a forcible 709.2, .3, .4, Code sections and sexual abuse felony ineligible sentencing op- and for the first, second, degree. in the and third Each provided tions in section 907.3. We reverse heading begins individual to these sections proceedings in and remand for furthеr ac- “[sjexual with the term abuse” and the holding. cordance our with body begins of each section with the recita- AND REVERSED REMANDED. person tion commits sexual ...” abuse “[a] degree specifies required proof. require Each of these sections
proof of in the defini- elements2 not found abuse, 709.1,
tion of sexual section or child,
crime of lascivious acts with a section by stating Each section concludes
709.8.
“[sjexual felony.” abuse ... is a ... heading only to section 709.8 refers Iowa, Appellee, STATE оf “[ljascivious acts with a child” and the body of this section makes no reference to plain crime of lan- sexual abuse. CASADY, Appellant. William guage legisla- of these sections indicates a No. 91-1577. provide
tive intent to for three individual separate crimes of sexual abuse and a Supreme Court of Iowa. a child. An crime of lascivious acts with Oct. 1992. interpretation deducing the crime of lascivi- ous acts a child to be an offense repugnant language. to this
sexual abuse
Third, interpretation of the stat an acts with a child
utes that deems lascivious felony
as a is inconsistent with forcible inju- provides requires proof of a serious 709.4 its own definition of sexual Section 709.2 any ry; requires proof three section 709.3 circumstances; designated and section other *2 Ketch, family,
Clifford
a friend of S.O.’s
attempting
saw
S.O. into
Casady’s
car. Ketch
rammed
rear
re-
car with his own car.
then
*3
leased S.O. and she ran to Ketch’s car.
Casady attempted
escape
to
became
but
stuck after his car struck an embankment
neighbor’s yard.
in a
21, 1991,
trial
On March
the State filed a
charging Casady
kidnap-
information
with
ping
degree
in the third
in violation of Iowa
Gallo,
Appellate
(1991)
Linda Del
Defend- Code section 710.4
and assault with
er,
Quinlan,
Appel-
E.
Asst.
and Elizabeth
to
in
intent
commit sexual abuse
violation
Defender,
appellant.
late
for
Casady
of Iowa Code section 709.11.
right
jury
Following
his
to a
trial.
waived
Gen.,
Campbell, Atty.
Thomas
Bonnie J.
trial,
a bench
the trial court dismissed
Tauber,
Gen.,
Atty.
P.
S.
Asst.
John
Sar-
kidnapрing
Casady
charge of
and found
Foritano,
cone, County Atty., and Steven
guilty of assault with the intent to commit
County Atty.,
appellee.
for
Asst.
Casady
sexual abuse.
filed a motion for
26,1991,
September
trial.
the trial
new
On
judgment
court entered
and sentenced Ca-
SNELL, Justice.
sady
prison
to
for a term not to exceed two
Casady, appeals
years. Casady
appealed.
his
has
Appellant, William
of assault
intent to commit
conviction
Casady contends the trial court erred
I.
Casady
sexual abuse.
contends
trial
permitting testimony
in
about
the facts
permitting testimony
in
court erred
about
surrounding
prior
two
convictions. The
surrounding
prior
Casady
facts
his
crimes.
presented
May
in
evidence that
produced by
also contends the evidence
the Casady attempted
sexually
to
assault a
to
State was insufficient
bench thirty-year-old
in
woman
Nebraska. The
finding
trial
of an intent to commit sexual
testimony
given by
police
оfficer
was
beyond
af-
abuse
a reasonable doubt. We
questioned Casady
who
about the incident.
firm.
car;
Casady asked the
to enter
woman
1991, S.O.,
got
February
Casady
On
a thirteen-
the woman refused.
out of his
year-old girl,
walking near her home in car and struck the
was
woman. She was
street,
Moines,
Casady,
lying
Des
Iowa.
who had knocked to the
on her stom-
lot,
parking
pulled
stopped
Casady
pants
his car in a church
ach.
then
down her
intervened,
freeway.
рasser-by
A
asked S.O. for directions to the
and underwear.
Casady,
Casady
Casady
appre-
S.O. said
not advise
fled. Once
was
that she could
stepfather
custody,
but that her
at home and hended and taken into
he stated to
help.
testifying
could
officer
intended to
Casady pleaded
have sex with the woman.
Casady
in his car as she
followed S.O.
nolo contendere to assault with intent to
approached
walked home. When S.O.
bodily injury
inflict a
and was sentenсed to
home, Casady
for
driveway of her
motioned
years
prison.
paroled
in
ten
He was
in
piece
to the car to show her a
her to come
August
Missouri in
passenger
paper.
approached
S.O.
paper.
presented
testimony
side of the car to see the
When S.O.
State also
car, Casady
Roslyn
reached
DeMoss. DeMoss
leaned next
to
testified that
4, 1979,
grabbed
through
City,
He
on October
Kansas
Mis-
window.
souri,
Casady
her into his car.
struсk the
the arms and tried to
rear of DeMoss’s
any-
She does
if
said
car while he followed her home from a
not remember
parked
thing to her at that time. S.O. screamed
convenience store. DeMoss
her car
pull away.
approached Casady’s
car.
and tried to
on
license
show De-
his intent to commit sexual
Ca-
holding his driver’s
Moss,
kept
sady
inside
so
contends the
crimes
the license
the car
facts of
but
into
need to lean
the car
arе too dissimilar and the incidents too
DeMoss would
in,
Casady’s
Casady grabbed
she leaned
remote
time
on
intent
see it. As
bear
grabbed
pulled her into his
Casa- when he
neither
neck and
car.
S.O. We find
her
argument persuasive;
and repeatedly
to a remote area
dy drove
test of
sexually
relevancy
bearing
assaulted DeMoss
his car. De- meet the
years
Casady’s
old
time.
intent
was seventeen
at the
to commit sexual abuse.
Moss
pleaded
kid-
Casady subsequently
guilty to
relevancy
The basic test of
is wheth
or cause
napping with intent
terrorize
er
offered would make the
years
injury and was sentenced
fifteen
inference
probable
desired
more
than it
*4
prison. Casady
paroled in
in
was
Iowa
v.
would be without the evidence.
State
20,
November
1989.
638,
Engentan,
(Iowa
217
N.W.2d
639
crimes, wrongs,
1974).
prior
other
It follows
the facts of
Evidence of
that
the
entered
must
acts is
under certain circum
crimes
into evidence
suffi
or
аdmissible
be
404(b)
pro
ciently
upon
Iowa
of Evidence
similar
the assault
so
stances.
Rule
S.O.
infer,
Casady’s
it is
from
that
reasonable to
vides:
commit
in
intent to
sexual abuse
the earlier
crimes, wrongs
of
or acts
Evidence
other
crimes,
Casady
that
also had the intent to
prove
is not
the character
admissible
S.O. See
against
commit sexual abuse
person
a
in order to show that
of
203,
Spargo,
v.
(Iowa
State
364 N.W.2d
209
conformity
may,
in
It
acted
therewith.
Fetters,
v.
1985);
84,
State
202
92
N.W.2d
however,
pur-
for
admissible
other
Coen, 382
(Iowa 1972);
State v.
N.W.2d
motive,
poses,
proof
opportu-
such
of
703,
(Iowa App.1985).
705
intent,
plan, knowl-
nity,
preparation,
identity,
of
or
edge,
or absence mistake
Casady pleaded nolo contendere and
-
accident.
prior
There
guilty
many
to the
crimes.
are
prior
(cid:127)factual
similarities between the
evi-
key
challenged
The
is “whether the
present
In
and the
case.
three
crimes
all
le-
is relеvant and material to some
dence
Casady approached his victim in his
cases
general propen-
gitimate issue other than
car,
public place,
in a
accosted his victim
v.
State
wrongful
commit
acts.”
sity to
attempted to force his victim to enter
and
Plaster,
(Iowa 1988);
226,
424
229
N.W.2d
pres-
In the
case and
his car.
DeMoss
the
Barrett, 401
184,
v.
187
State
N.W.2d
case, Casady
paper
displayed
to draw
ent
1987).
relevant,
(Iowa
If the evidence is
car, grabbеd
close
his
his
his victim
court
determine
the
then the
must
whether
through
open passenger-side
victim
the
value of the evidence is substan-
probative
attempted
pull
window of
and
outweighed
danger
tially
by the
of unfair
DeMoss
and
inside. In the
case
his victim
Plaster,
229;
prejudice.
424 N.W.2d at
case,
teenaged
present
victim was
Kern,
134,
(Iowa
v.
State
392 N.W.2d
136
girl.
1986).
this
process
employing
In the
analysis,
court
exer-
two-step
the trial
must
gen
The remoteness
evidence
its deci-
its discretion. We will reverse
cise
weight
rather
ad
erally affects
than
only
find a
when we
clear abuse
sion
v.
missibility of the
evidence.
remote
Plaster,
In other before courts, sufficiency of the evidence to infer from Casady’s One could behavior finding guilt beyond a reason support wrongful harbored a intent of some intent to commit able doubt of assault with However, kind when he assaulted S.O. abuse has examined. We sexual beеn there are facts surrounding no the assault pointed to made comment specific which indicate that had the victim, touching in a defendant to the sexu intent commit sexual The mere way, request al the removal or to remove instinct or hunch that intended during the com clothing, or some other act sexually sup- abuse S.O. is insufficient to of the crime that showed desire mission port finding guilt beyond a reasonable engage activity, in sexual to affirm the doubt. See, e.g., Spargo, conviction. applied We stated the standard (evidence at 210 sufficient where defendant determine whether a defendant had groin chest and of adolescent male rubbed specific intent to commit sexual abuse with evidence of defendant’s coupled *6 476, Radeke, 444 v. N.W.2d 478 State young boys); May v. sex acts with State (Iowa 1989): 382, (Iowa nard, App. 383-84 enough The must reach far overt act 1985) (evidence sufficient where defendant accomplishment, toward the towards the hospital climbing employee of state seen result, to amount the com- desired to severely into bed with retarded fe naked consummation, not mencement of the naked). patient who was also male merely It preparatory. need not be
In determining whether evi proximate to the last act consummation conviction, dence is sufficient to attempted perpetrat- to of the offense “whethеr, inquiry relevant is after ed, approach sufficiently near but it must light viewing the evidence in the most fa as the or some it to stand either first prosecution, any rational tri to the vorable subsequent step in a direct movement er the essential of fact could have found of the offense towards the commission beyond a reasonable elements crime are preparations after the made. 307, 443 U.S. Virginia, v. doubt.” Jackson 1032, Roby, (quoting Id. v. 560, 318-19, 2781, 2789, 61 L.Ed.2d 99 S.Ct. 709, (1922)). In 188 714 Ra- N.W. (1979) (emphasis omitted); 573 deke, appointment made an the defendant (Iowa Robinson, 339 see agent real estate female 1980). on all Judicial must be based review property. property, At remote rural The in the Id. at 340. the evidence record. agent around grabbed defendant inference must at least raise a fair behind, put hand over the waist from one each element of the guilt as to essential mouth, he hurt told her would not her and LaPointe, crime. State he said. hеr if she did as The defendant 1988). (Iowa merely which Evidence her agent then told the unbutton blouse. conjecture speculation, or suspicion, raises pulled The complied, then free. She but Id. is insufficient. apologized and left. Id. at defendant intent, challenged his conviction proof we have The defendant respect to With intent to commit sexual abuse assault with observed: based on insufficient evidence. The suggest defen- which would engage an intent to аctions, specifically, dant’s words and activity, symmetry the clear be request agent that unbutton her prior tween Coen’s crime and the circum blouse, the police defendant’s statement to surrounding stances leading the incident officers engaged would have charge against the new him established consensual sexual intercourse with the operandi modus likely which would have agent, planned deception and his use of ended with sexual assault had the viсtim agent property, lure the to the were suffi- escaped. not operandi Modus is “a distinct cient evidence guilty to find the defendant pattern or procedure thought method of of intent beyond to commit sexual abuse a be characteristic of criminally an individual reasonable at 478. doubt. Id. habitually Plaster, followed him.”
Although
N.W.2d at 231.
there is an
The evidence of the
type
absence of this
evidence,
prior
crime was
significantly probative
when the evidence of
plethora
crimes is
considered a
of indication
defendant’s intent
to commit sexual
presented.
that a sex act
intended
abuse that it
was sufficient alone to find
.
guilt beyond a reasonable doubt
indistinguishable
case is
Coen,
from
In
Coen.
defendant chal-
Casady’s assault on
equally
S.O. is
simi-
lenged
kidnapping,
his conviction of
in lar to the 1979 crime he committed. Casa-
which assault with intent to commit a sexu- dy drew the victims
by holding
to his car
al abusе was an essential element. The up
piece
paper
to the
they
victims so
argued,
here,
defendant
does
would need to lean into the car to see it.
that absent an overt act which tended to Casady grabbed the
pulled
victims and
engage
establish an intent to
in a sex act
them
through
into the car
passenger
victim,
with the
evidence of
operandi
window.
modus
clearly
guilt beyond
alone was insufficient to find
parallel;
the trial court could reasonably
a reasonable doubt.
In punctured the defendant plan have continued with his tire of the victim’s car while shopped she in committed sexual abuse. grocery store. When she returned to the We analysis believe our and decision here defendant, in jogging dressed at- is not in conflict with the decision of the tire, change offered to the tire for the federal Nix, district court in Watson v. *7 Afterward,
victim. requested a ride (S.D.Iowa F.Supp. 1982). There the court frоm the victim which she obliged felt granted a corpus releasing writ habeas a grant. Once in the victim’s the defen- prisoner serving a sentence for assault dant knife, threatened the victim with a rape. with intent to commit The court held forcing her to drive to a remote area of the process rights guaranteed that the due city. arrived, they When the victim es- defendant under the fourteenth amend- caped by running to passer-by. Id. at ment were violated because there was no trial, 704-05. At the defendant’s evidence evidence of a sex crime intent and a rob- was admitted of a crime in which the bery also place took which established a defendant committed sexual assault. The separate intent. In the case at bar there is facts were strikingly punc- similar—the admissible evidence of a sexual intent and tire, appearance tured jogging, an any absence of showing an change tire, offer tо request for a intent defendant to inflict a different ride, forcing the victim to drive at criminal act on S.O. knifepoint to the same secluded area. Id. We find the evidence is sup- sufficient to at 705. port finding by the trial court that appeals The court of found the evidence guilty defendant is of the crime of intent to uphold sufficient the conviction. Al- commit sexual abuse. The conviction is though act, no overt such as a sexual com- affirmed. threat, touching ment or in a sexual man- ner, or the removal of clothing occurred AFFIRMED. McGIVERIN, except
All Justices concur C.J., joined by and is who dissents B.L., Child, In the Interest NEUMAN, JJ. SCHULTZ and Child, B.L., Appellant.
McGIVERIN, (dissenting). Chief Justice majority respectfully I dissent from the No. 91-1469.
opinion. Appeals of Iowa. Court II and the agree I cannot with division The substantive evidence result reached. Aug. the victim is of defendant’s actions toward charge of assault insufficient to the intent to commit sexual defendant’s majority uses evidence of fill the admitted void the
past bad acts to to defendant’s intent
evidence as Thus, defendant’s conviction
present case. past bad be bottomed defendant’s intent in of his
acts not on evidence though case, general rule
present even “ proved by crime cannot be is that ‘one ” Cott, 283 proof of another.’ State v. (Iowa 1979)(quoting State Schlak, 113, 115, 111 N.W.2d (1961)). case,
In at most defendant
merely grabbed arms. Defendant S.O.’s any not make sexual comment
did her in a sexual manner. We have
or touch
previously held that enough must reach far overt act
[an] accomplishment, toward the
towards the result,
desired to amount to com- consummation,
mencement not. merely preparatory_ ap- must [I]t
proach sufficiently near it to stand either step subsequent the first or some the commission
direct movement towards preparations are
of the offense after
made. *8 1032, 1043, Roby, (1922). acts
N.W. Defendant’s enough go did not case far plan engage activity
indicate
with S.O. supports a evidentiary clearly record assault,
charge of one of which but not the
defendant convicted. JJ., NEUMAN, join this
SCHULTZ and
dissent.