Amended May 3, 2016 State of Iowa v. Aquiles Gonzalez Alvarado ( 2016 )


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  •                 IN THE SUPREME COURT OF IOWA
    No. 14–0889
    Filed February 26, 2016
    Amended May 3, 2016
    STATE OF IOWA,
    Appellee,
    vs.
    AQUILES GONZALEZ ALVARADO,
    Appellant.
    On review from the Iowa Court of Appeals.
    Appeal from the Iowa District Court for Muscatine County, Mary E.
    Howes, Judge.
    A criminal defendant contends there was insufficient evidence to
    convict him of lascivious acts with a child because the phrase “touch the
    pubes or genitals of a child” in Iowa Code section 709.8 requires skin-to-
    skin contact.     DECISION OF COURT OF APPEALS AND DISTRICT
    COURT JUDGMENT AFFIRMED.
    Benjamin Bergmann and Gina M. Christensen Messamer (until
    withdrawal) of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry, Brown
    & Bergmann, L.L.P., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Tyler Buller, Jean Pettinger,
    and Louis S. Sloven, Assistant Attorneys General, and Alan Ostergren,
    County Attorney, for appellee.
    2
    HECHT, Justice.
    A jury convicted Aquiles Alvarado of two counts of lascivious acts
    with a child because it concluded Alvarado inappropriately touched his
    granddaughter’s genitals over her clothing on more than one occasion.
    See Iowa Code § 709.8(1) (2013). 1 Alvarado contends the evidence does
    not support his convictions because he only touched his granddaughter
    over her clothing and a person does not “touch the pubes or genitals of a
    child” within the meaning of section 709.8(1) if they do not make skin-to-
    skin contact.      The district court and court of appeals both rejected
    Alvarado’s assertion, and on further review, so do we.                Therefore, we
    affirm Alvarado’s convictions.
    I. Background Facts and Proceedings.
    Alvarado co-owned a clothing store in Muscatine with his wife
    Maria Morfin, and he also worked there part time. The store had a sales
    floor, a back room that doubled as an employee break room and storage
    area, and a fitting room.          Morfin, who only speaks Spanish, often
    operated the store with assistance from her bilingual nine-year-old
    granddaughter I.M., who served as an interpreter.               On July 18, 2013,
    Morfin and I.M. were at the store when Alvarado arrived around 11:00
    a.m. after completing a shift at his second job. He took over supervising
    I.M. and the store while Morfin went home for lunch.
    After Morfin left, Alvarado asked I.M. to make him coffee using the
    coffee machine located in the store’s back room. As I.M. was making the
    coffee, Alvarado entered the back room and turned off the lights.                  He
    1The  current provision is Iowa Code section 709.8(1)(a) (2015). The legislature
    renumbered several criminal statutes—including those prohibiting lascivious acts and
    indecent contact—in 2013 but did not make substantive language changes. 2013 Iowa
    Acts ch. 30, §§ 202–203; see also State v. Ceretti, 
    871 N.W.2d 88
    , 90 n.3 (Iowa 2015)
    (noting a few other criminal statutes that were renumbered in 2013).
    3
    hugged I.M., then kissed her upper chest and neck, reached between her
    legs, touched her genitals over her clothes, and told her, “I love playing
    with your beautiful body.” After a brief time, he stopped abruptly and
    returned to the sales floor.
    Although Morfin had intended to go home, she reached her car in
    the parking lot and remembered she needed a money order from the
    bank for a shipment of shoes to be delivered to the store later that day.
    She obtained the money order and returned to the store so that Alvarado
    would have it in case the shipment arrived while she was away. As she
    returned, she noticed the sales floor was empty and saw Alvarado quickly
    leaving the back room. She went into the back room, turned the lights
    on, and saw I.M. with a flushed red neck and upper chest.               I.M.
    explained what had happened, so Morfin called her daughter (I.M.’s
    mother), who in turn contacted the police.
    Based on I.M.’s report to an investigating officer that Alvarado had
    touched her genitals on several other occasions throughout the summer
    of 2013 before the incident at the store, the State charged Alvarado with
    four counts of committing lascivious acts with a child. See 
    id. Alvarado pled
    not guilty and the case proceeded to trial. At trial, I.M. testified she
    had not alerted anyone about Alvarado’s conduct before July 18 because
    she was scared.
    Alvarado moved for a directed verdict of acquittal both after the
    State’s evidence and after presenting his own, contending a conviction
    under section 709.8(1) must be supported by proof of skin-to-skin
    contact but the State proved only that he had touched I.M. over her
    clothing. The court denied both motions. The jury returned a verdict
    convicting Alvarado of two counts of lascivious acts with a child.
    4
    Alvarado appealed his convictions, and we transferred the case to
    the court of appeals. That court affirmed, concluding section 709.8 is
    unambiguous because the verb “touch” means “to perceive or experience
    through the tactile sense” and I.M. testified she experienced a tactile
    sense despite the fact her clothes covered her genitals. Alvarado sought
    further review, and we granted his application.
    II. Scope of Review.
    Alvarado asserts the evidence was insufficient to convict him. “We
    review challenges to the sufficiency of evidence presented at trial for
    correction of errors at law.” State v. Meyers, 
    799 N.W.2d 132
    , 138 (Iowa
    2011). “[W]e review the evidence in the light most favorable to the State
    to determine if, when considered as a whole, a reasonable person could
    find guilt beyond a reasonable doubt.” State v. Pearson, 
    514 N.W.2d 452
    ,
    456 (Iowa 1994).
    The sufficiency of the evidence in this case turns on whether
    section 709.8(1) requires skin-to-skin contact—a question of statutory
    interpretation that we also review for correction of errors at law.        See
    State v. Paye, 
    865 N.W.2d 1
    , 3–4 (Iowa 2015).       If the statute requires
    skin-to-skin contact, the evidence is insufficient to support the verdict
    because all the trial testimony indicated Alvarado touched I.M. over her
    clothes.   However, if the statute does not require skin-to-skin contact,
    I.M.’s testimony provides sufficient evidence to affirm the convictions.
    III. The Parties’ Positions.
    A. Alvarado. Alvarado contends section 709.8(1) requires skin-to-
    skin contact because section 709.12, the statute prohibiting indecent
    contact, specifically addresses touching over clothing, while section
    709.8(1) does not.     See Iowa Code § 709.12(2) (providing a person
    commits indecent contact with a child by “[t]ouch[ing] the clothing
    5
    covering the immediate area of the inner thigh, groin, buttock, anus, or
    breast of the child”).   In Alvarado’s view, this omission from section
    709.8(1) was purposeful because it prevents overlap between the
    separate crimes of lascivious acts and indecent contact.
    B. The State. The State responds with a multifaceted argument
    probing purported deficiencies in Alvarado’s assertion. First, it contends,
    there is no need to consider section 709.12 because there is no
    ambiguity in the plain language and meaning of the word “touch” in
    section 709.8. See People v. Pifer, 
    350 P.3d 936
    , 938 (Colo. App. 2014)
    (concluding touching through clothes and a sheet “falls within the plain
    and ordinary meaning of ‘touching’ ” because the victim experiences a
    tactile sense).
    Second, the State asserts, section 709.8 and section 709.12
    address separate parts of the body and “create disparate offenses based
    on the perceived harmfulness of each.” In other words, the “pubes or
    genitals” described in section 709.8 are different from the inner thigh
    and groin described in section 709.12. See State v. Shearon, 
    660 N.W.2d 52
    , 56 (Iowa 2003) (contrasting lascivious acts with indecent contact by
    noting “the crime of indecent acts criminalizes the touching or fondling of
    non-genital body parts, e.g., inner thigh, groin, buttock, anus or breast”).
    Thus, given the distinction this court drew in Shearon, the State
    contends the two statutes simply address different harms and there is no
    overlap, nor does the omission of “over the clothes” language from
    section 709.8 indicate the legislature intended to permit over-the-clothes
    touching of the pubes or genitals.
    Finally, the State contends interpreting section 709.8(1) to require
    skin-to-skin contact is unsupportable because it would produce absurd
    results. For example, if skin-to-skin contact is required, a person could
    6
    touch a child’s naked genitals and not commit lascivious acts as long as
    they wear a glove—or even a thimble.
    IV. Analysis.
    A “sex act” under section 702.17 includes “[c]ontact between the
    finger or hand of one person and the genitalia . . . of another.” Iowa Code
    § 702.17. “[S]kin-to-skin contact is not required in order to establish a
    ‘sex act’ under section 702.17.” 
    Pearson, 514 N.W.2d at 455
    . However,
    this case does not directly involve section 702.17 because section 709.8
    does not prohibit “sex acts.”   See Iowa Code § 709.8(1).     Instead, the
    subsection under which the State charged Alvarado prohibits certain
    sexual touching. See 
    id. But that
    does not mean Pearson is irrelevant to our analysis
    despite its focus on different language. The gist of Alvarado’s argument
    in this case is that touching under section 709.8 does not constitute
    “sexual contact” when the touching occurs through a layer of clothing.
    Yet “touch” means “to bring a bodily part into contact with.”        Touch,
    Merriam-Webster’s Collegiate Dictionary (10th ed. 2002).         The word
    “touch” literally references the word “contact.”    We conclude Pearson,
    though not directly controlling, remains relevant in this context.
    A. Pearson. In Pearson, the defendant “masturbated by moving
    his covered penis against [the victim]’s clothed buttocks.” 
    Pearson, 514 N.W.2d at 454
    . We rejected his argument that the definition of “sex act”
    and “sexual contact” required skin-to-skin contact because there was “no
    language in the statute which would limit its scope in this way.” 
    Id. at 455.
    We further concluded the question whether an intervening material
    prevents sexual contact “must be determined on a case-by-case basis,
    considering the nature and amount of the intervening material”:
    7
    If the intervening material would, from an objective
    viewpoint, prevent a perception by the participants that the
    body parts (or substitutes) have touched, contact has not
    occurred. Thus, prohibited contact occurs when (1) the
    specified body parts or substitutes touch and (2) any
    intervening material would not prevent the participants,
    viewed objectively, from perceiving that they have touched.
    
    Id. We were
    “confident that the legislature did not intend to immunize a
    defendant from liability for a sex act simply because he wore a condom
    which prohibited skin-to-skin contact.” 
    Id. at 456.
    Pearson relied in part on the court of appeals decision in State v.
    Phipps, 
    442 N.W.2d 611
    (Iowa Ct. App. 1989). In Phipps, the defendant
    “placed his hand inside a fourteen-year-old boy’s jeans, but over the
    boy’s underwear” and “rubbed the boy’s genitalia.”       
    Id. at 611.
      Faced
    with an argument that skin-to-skin contact was required to constitute a
    sex act, the court declined to hold “that our legislators intended that a
    piece of clothing,” especially a flimsy one, “would insulate a defendant
    from the term ‘sex act.’ ”    
    Id. at 613.
       The court also concluded any
    overlap in statutes was irrelevant because “[t]he mere fact defendant’s
    conduct is or could be interpreted as falling within the confines of a
    different section does not preclude” a finding that it violated the one
    actually charged. 
    Id. B. Overlap.
        In Alvarado’s view, interpreting section 709.8 to
    include touching over the clothes creates significant overlap between
    section 709.8 and section 709.12 and likely means any touching will be
    prosecuted as lascivious acts, a class “C” felony, instead of indecent
    contact, an aggravated misdemeanor.         In other words, he contends, if
    section 709.8 does not require skin-to-skin contact, section 709.12 is
    superfluous.
    Alvarado is correct that section 709.12 specifically references
    touching “the clothing covering” certain body parts.        See Iowa Code
    8
    § 709.12(2). However, if the statutes overlap, they would overlap even
    without that language, because section 709.12(1) prohibits fondling or
    touching the same body parts that might be covered by clothing in
    section 709.12(2).       Thus, Alvarado’s contention boils down to an
    assertion that “pubes or genitals” are the same as “inner thigh” or
    “groin.”    While those body parts may be only centimeters apart, we
    conclude the State’s distinction—that the two statutes address slightly
    different conduct—makes more sense: section 709.8 prohibits genital
    contact of any kind, while section 709.12 prohibits contact of any kind
    with specified nongenital parts. See 
    Shearon, 660 N.W.2d at 56
    .
    To the extent it exists, the legislative history of section 709.12 also
    supports this distinction.      In 1980, we held a defendant could not be
    convicted of lascivious acts for attempting to grope a twelve-year-old girl’s
    breast. See State v. Baldwin, 
    291 N.W.2d 337
    , 338–40 (Iowa 1980). The
    defendant in that case could not be convicted for touching or fondling
    because a breast is not within the definition of “pubes or genitals,” and
    in any event, he did not actually touch the girl’s breast.              See 
    id. Furthermore, the
    defendant could not be convicted of soliciting a child to
    engage in a sex act because the definition of sex act proscribes sexual
    contact with a person’s genitalia or anus and the purpose of his contact
    “might very well have been limited to the [touch]ing of the little girl’s
    breast.”     
    Id. at 340;
    see Iowa Code § 702.17 (1979); 
    id. § 709.8(3).
    Suggesting the defendant’s conduct was still objectively wrong, just not a
    crime      under   existing   law,   we   noted   some   states   had   statutes
    criminalizing indecent liberties with children but Iowa was not one of
    them. 
    Baldwin, 291 N.W.2d at 340
    (“Some states proscribe as a criminal
    act taking indecent liberties with children . . . . Baldwin, however, was
    not charged with indecent liberties. Such an offense does not appear to
    9
    be included within Chapter 709.”). Just one year later, the legislature
    passed section 709.12. 1981 Iowa Acts ch. 204, § 7. The timing of the
    enactment strongly suggests it was a response to Baldwin, intended to
    rectify what the legislature perceived as a specific gap in the law
    protecting children—not as part of a comprehensive legislative package
    revising section 709.8.
    Additionally, we have previously rejected a contention that reading
    statutes in their entirety always means an action expressly prohibited
    under one section is permitted in another similar section that does not
    make an express prohibition. See State v. Whetstine, 
    315 N.W.2d 758
    ,
    760 (Iowa 1982). In Whetstine, we reasoned that a person can commit a
    sex act with a finger although section 702.17 did not expressly provide as
    much at the time (and another statute, which also defined sex act, did).
    
    Id. at 760–61.
    The same logic holds true here.
    Finally, even if the statutes did overlap, common ground would not
    be problematic.    Overlap only prevents double convictions or double
    punishments, not a single conviction on one charge based on the
    prosecutor’s charging discretion. As we have explained:
    When a single act violates more than one criminal statute,
    the prosecutor may exercise discretion in selecting which
    charge to file. This is permissible even though the two
    offenses call for different punishments. It is common for the
    same conduct to be subject to different criminal statutes.
    State v. Perry, 
    440 N.W.2d 389
    , 391–92 (Iowa 1989) (citation omitted);
    see also State v. Anspach, 
    627 N.W.2d 227
    , 233 (Iowa 2001) (“When
    there is sufficient evidence to charge a suspect with a particular crime, it
    does not matter that his conduct may also constitute a violation of
    [another] offense with a lighter penalty.”); State v. Johns, 
    140 Iowa 125
    ,
    131, 
    118 N.W. 295
    , 298 (1908) (“It often happens that a defendant, by
    10
    the same criminal act, violates more than one criminal statute. And it is
    not true as a legal proposition that, if his criminal act is covered by one
    statute, it cannot be covered by another.”).
    C.   Other States.      Most courts that have addressed similar
    questions under other states’ statutes have concluded skin-to-skin
    contact is not required to sustain a conviction.
    In State v. Schnaidt, the defendant was charged with “sexual
    contact” under South Dakota law—defined as “any touching . . . of the
    breasts of a female or the genitalia or anus of any person.”       State v.
    Schnaidt, 
    410 N.W.2d 539
    , 540 (S.D. 1987) (quoting S.D. Codified Laws
    § 22-22-7.1 (1985)).    It was “undisputed that Schnaidt grabbed the
    child’s genitals through the clothing,” but he contended he did not violate
    the statute because he did not make skin-to-skin contact. 
    Id. The court
    rejected this argument because it found “nothing in the statute to
    suggest that the prohibited conduct can only be committed by skin-to-
    skin contact” and the language was therefore unambiguous. 
    Id. at 541.
    The court concluded that grabbing a “child’s genitals through his
    trousers is . . . ‘any touching’ of his genitalia.” 
    Id. at 543.
    We relied on
    Schnaidt in 
    Pearson, 514 N.W.2d at 455
    , and we conclude it again has
    persuasive value for us in this case. “Any touching” is not exactly the
    same as “touch,” but the difference is slight.
    North Dakota also considered language criminalizing “any touching
    of the sexual or other intimate parts” of a child and concluded a
    defendant who “patted and poked at [the fifteen-year-old victim’s] ‘private
    area’ ” over her pajamas and underwear committed “touching” within the
    meaning of the statute.    State v. Brown, 
    420 N.W.2d 5
    , 6 (N.D. 1988)
    (quoting N.D. Cent. Code § 12.1-20-02(4) (1985)). The court concluded
    “[i]t would be an absurd result . . . to determine that a person cannot
    11
    perceive by the sense of feeling the ‘sexual or other intimate parts’ of a
    person because clothing was interposed between such a bodily part and
    the offender.” 
    Id. (quoting N.D.
    Cent. Code § 12.1-20-02(4)).
    In State v. Samson, the highest court in Maine considered whether
    a skin-to-skin requirement would frustrate the legislature’s intent and
    concluded it would:
    The legislative intent was to protect children against the
    perpetration of sexual indignities to their person in a manner
    abhorrent to society and to save them from being subjected
    to iniquitous conduct having a tendency to produce serious
    emotional and psychological impact on such minors who,
    because of their tender age, are deemed incapable of
    protecting themselves. The statutory purpose would be
    frustrated to a very substantial degree if the only prohibited
    . . . contact had to be of the flesh-to-flesh variety.
    
    388 A.2d 60
    , 63 (Me. 1978).
    In Miles v. State, a Texas court concluded when the defendant
    grabbed the victim’s penis through his pants, he violated a statute
    criminalizing placing one’s hands “upon or against a sexual part of a
    male or female under the age of fourteen.” 
    247 S.W.2d 898
    , 899 (Tex.
    Crim. App. 1952) (quoting Tex. Penal Code § 535d (1952)).       The court
    rejected the defendant’s contention that the statute required skin-to-skin
    contact, and in reaching its decision, the court reasoned:
    [T]here is nothing in the statute suggesting that the crime
    there denounced could be committed only by the application
    of the bare hand of the accused to the bare or naked sexual
    part of the child. This court, under the guise of statutory
    construction, cannot write into the statute that which
    obviously is not contained therein.
    
    Id. Several years
    later, another Texas court, relying on Miles,
    expounded upon the meaning of touching, and found it
    12
    quite plain that the essence of the act of touching is to
    perceive by the sense of feeling. It is a matter of the
    commonest knowledge that the interposition of a layer of
    fabric between a person’s hand and an object upon which
    the hand is placed will not prevent that person from feeling
    the object thus concealed.
    Resnick v. State, 
    574 S.W.2d 558
    , 560 (Tex. Crim. App. 1978). The court
    also rejected a flesh-to-flesh contact requirement because
    absurd results would follow. Under such an analysis, a
    defendant who thrust his hand beneath a victim’s
    undergarments and fondled his or her genitals in a public
    place could not be prosecuted . . . if he were wearing a glove.
    
    Id. At least
    one court has adopted a different interpretation analogous
    to the one Alvarado suggests here. In State v. Jacobs, the Utah Court of
    Appeals conceded “the words ‘touch’ and ‘touching’ might commonly be
    understood to include contact that was made over clothing.” 
    144 P.3d 226
    , 228 (Utah Ct. App. 2006).     However, several other Utah statutes
    criminalized touching “even if accomplished through clothing,” and the
    court concluded the omission from the statute under which Jacobs was
    charged was purposeful.     See 
    id. at 228–29
    (quoting Utah Code Ann.
    § 76-5-407 (2003)). The court suggested the statute’s focus on skin did
    not necessarily require skin-to-skin contact, just that the victim’s skin
    was bare, even if the defendant wore a glove. See 
    id. at 229.
    D. Application of Legal Principles.          After considering the
    statutes, Pearson, and the authority from other states addressing similar
    questions, we conclude a person can touch another’s pubes or genitals
    within the meaning of Iowa Code section 709.8 (2013) without making
    skin-to-skin contact.   As under section 702.17, there is no express
    requirement of skin-to-skin touching in section 709.8. See 
    Pearson, 514 N.W.2d at 455
    (“There is no language in [section 702.17] which would
    13
    limit its scope in this way.”). Indeed, the interpretation of section 709.8
    advanced by Alvarado requiring skin-to-skin contact would, in effect, add
    words to the statute, contrary to our rules of statutory interpretation.
    See State v. Hesford, 
    242 N.W.2d 256
    , 258 (Iowa 1976) (“No court, under
    the guise of judicial construction, may add words of qualification to the
    statute . . . .”); see also State v. Graves, 
    491 N.W.2d 780
    , 781–82 (Iowa
    1992) (declining to “add modifying words to a statute”).               Our
    interpretation does not create overlap between section 709.8 and section
    709.12 because the two statutes address different (though proximate)
    body parts.   See 
    Shearon, 660 N.W.2d at 56
    .       Additionally, requiring
    proof of skin-to-skin contact for a conviction under section 709.8 would
    plainly insulate from liability a gloved suspect who touches a naked
    victim. We decline to interpret the statute to produce such an absurd
    result. See 
    Paye, 865 N.W.2d at 7
    (applying the absurd results doctrine
    in interpreting a criminal statute).
    V. Conclusion.
    Because we conclude a person can “touch the pubes or genitals of
    a child,” Iowa Code § 709.8(1), without making skin-to-skin contact, the
    evidence was sufficient to support Alvarado’s convictions. We therefore
    affirm both lower courts’ decisions.
    DECISION OF COURT OF APPEALS AND DISTRICT COURT
    JUDGMENT AFFIRMED.