State of Iowa v. Brent Michael Romer , 832 N.W.2d 169 ( 2013 )

IN THE SUPREME COURT OF IOWA
No. 11–0270
Filed June 7, 2013
STATE OF IOWA,
Appellee,
vs.
BRENT MICHAEL ROMER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Adams County, David L.
Christensen, Judge.
Defendant seeks further review of court of appeals decision which
affirmed his convictions for sexual exploitation of a minor and sexual
exploitation by a school employee. DECISION OF COURT OF APPEALS
AND JUDGMENT OF DISTRICT COURT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Benjamin M. Parrott and
Denise A. Timmins, Assistant Attorneys General, and Jeffrey B.
Millhollin, County Attorney, for appellee.
2
ZAGER, Justice.
This case requires us to interpret the statutory language
prohibiting sexual exploitation by a school employee under Iowa Code
sections 709.15(3)(a) and (b). Romer appeals his conviction on five
counts of sexual exploitation of a minor and three counts of sexual
exploitation by a school employee. Romer argues he did not violate Iowa
Code section 709.15(3) because, though he was a teacher and the minors
were students, no direct teacher–student relationship existed. He further
argues he could not have violated Iowa Code section 709.15(3), as
delineated in counts VII and VIII, because the State did not produce
evidence that he physically touched the students identified in those two
counts. Finally, he argues the district court abused its discretion in not
severing the eight counts of the trial information into five different trials.
The court of appeals rejected these arguments and affirmed his
convictions. We granted further review. Upon our review, we affirm the
decision of the court of appeals and the judgment of the district court.
I. Factual Background and Procedural History.
Viewing the trial evidence in the light most favorable to the jury’s
guilty verdicts, the jury could have found the following facts. Brent
Michael Romer was a licensed teacher in the state of Iowa. He taught
elementary school for Cumberland and Massena Community Schools,
beginning as a substitute teacher in October 2000. He was subsequently
hired as a full-time teacher, which employment continued from June
2004 through July 2008. He also taught as a substitute teacher in the
Corning Community School District prior to his full-time position with
Cumberland and Massena. Romer lived in nearby Corning. Romer was
charged with five counts of sexual exploitation of a minor in violation of
Iowa Code section 728.12(1) and three counts of sexual exploitation by a
3
school employee in violation of Iowa Code sections 709.15(3)(a) and (b),
and 709.15(5)(a). These charges stem from three separate and distinct
events. All of the charges involved students who attended school in the
Corning Community School District. None of the students involved with
Romer were in an existing teacher–student relationship at the time that
any of the events charged in the trial information occurred.
The first event involved an admitted sexual relationship with R.A.
R.A. initially met Romer when Romer was a substitute teacher for her
elementary school class. Romer reinitiated contact with R.A. in 2005
when she was fifteen years old. This contact was initiated through the
social networking website MySpace. Shortly after R.A. turned sixteen, a
sexual relationship commenced. This sexual relationship lasted until
R.A. was eighteen, at which time she broke off the relationship. R.A. and
Romer engaged in sexual contact and sexual intercourse multiple times
during this relationship.
The second event occurred in November 2007. Fifteen-year-old
L.A. was babysitting at Romer’s house, and fourteen-year-old K.G. visited
L.A. while she was babysitting. As in the case of R.A., K.G. first met
Romer when he was her substitute teacher in her elementary school
class. During this visit, L.A. exchanged text messages with Romer. In
these text messages, Romer stated there was a camera available and
suggested the two girls take nude photographs of each other. While the
girls took some photographs of themselves, there is no evidence that
these photographs were inappropriate. However, when Romer returned
home, he began taking photographs of both of the girls in various sexual
poses he suggested. These photographs depict L.A. nude from the waist
up and K.G. touching L.A.’s breasts with her hands and mouth.
4
The third event occurred on July 4, 2008. N.S., a fifteen-year-old
female, and L.A. attended a party at Romer’s house where alcohol was
being consumed. Z.G., a seventeen-year-old male, also attended. The
three minors became intoxicated at the party, and Romer took pictures of
them in various sexually explicit poses. The pictures depict the female
minors kissing, taking off their clothing, and embracing. Most of the
pictures show L.A. and N.S. naked from the waist up and wearing only
their underwear. One of the pictures shows Z.G. touching L.A.’s genital
area. Another adult male is also visible in some of the pictures and in
one photograph is seen touching N.S.’s breast.
After R.A.’s mother discovered the sexual relationship between R.A.
and Romer, she reported the sexual relationship to Romer’s school
officials. Romer resigned his teaching position with the Cumberland and
Massena Community Schools on June 17, 2008, which resignation was
accepted by the school board on July 21, 2008. In November 2009, R.A.
reported her relationship with Romer to the police, and an investigation
commenced. In March 2010, the State charged Romer with five counts of
sexual exploitation of a minor and three counts of sexual exploitation by
a school employee.
On April 14, 2010, Romer filed a motion to bifurcate the multiple
offenses into separate trials. After a hearing, the district court overruled
the motion on the basis that the alleged acts, if proven, were part of a
common scheme or plan and should therefore be tried together. Romer
renewed his objection to a joint trial of the multiple offenses shortly
before trial in his third motion in limine. The district court denied this
motion in limine.
On November 4, 2010, Romer also filed a motion to adjudicate law
points, arguing that the charges of sexual exploitation by a school
5
employee mischaracterized the intent of Iowa Code section 709.15
because Romer did not have a direct teacher–student relationship with
the students he was charged with exploiting. The district court denied
the motion, finding a direct teacher–student relationship was not
required. Romer renewed his objection shortly before trial by filing a
motion in limine. The district court denied this motion as well.
Jury trial commenced on December 14, 2010. At the close of all of
the evidence, Romer moved for a directed verdict on counts VII and VIII
of the amended trial information involving K.G. and L.A. Specifically,
Romer argued the State had not met its burden with respect to proving
that Romer had “engaged in any sort of sexual conduct or any prohibited
sexual conduct” with either K.G. or L.A. to support the offense of sexual
exploitation by a school employee. The district court denied this motion.
The jury returned its verdicts of guilty to all eight counts of the amended
trial information on December 17, 2010. Romer appealed, arguing the
district court committed reversible error in three ways: (1) in its rulings
on the applicability of sexual exploitation by a school employee, (2) in its
ruling that Romer’s actions in directing students to pose in sexually
explicit positions constituted sexual exploitation, and (3) in its refusal to
sever the various counts of the trial information.
We transferred the case to the court of appeals which affirmed the
rulings of the district court and the convictions. We granted Romer’s
application for further review.
II. Standard of Review.
To the extent Romer’s appeal involves questions of statutory
interpretation, we review for correction of errors of law. In re Det. of
Johnson, 805 N.W.2d 750, 753 (Iowa 2011). Romer also claims the State
6
did not produce sufficient evidence to convict him of several of the counts
for which he was convicted.
Sufficiency of evidence claims are reviewed for a correction of
errors at law. In reviewing challenges to the sufficiency of
evidence supporting a guilty verdict, courts consider all of
the record evidence viewed in the light most favorable to the
State, including all reasonable inferences that may be fairly
drawn from the evidence. We will uphold a verdict if
substantial record evidence supports it.
State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (citations and internal
quotation marks omitted).
Finally, we review a district court’s “refusal to sever multiple
charges against a single defendant for abuse of discretion.” State v.
Elston, 735 N.W.2d 196, 198 (Iowa 2007).
III. Discussion and Analysis.
Romer appeals on three issues. First, he argues he cannot be
convicted of a violation of Iowa Code section 709.15(3), prohibiting sexual
exploitation by a school employee, because there was not an existing
teacher–student relationship between him and any of the minors whom
he was convicted of exploiting. Second, he argues he cannot be
convicted of sexual exploitation because the behavior he engaged in did
not constitute sexual conduct with two of the minors, as defined in
sections 709.15(3)(b) or 702.17.1 Finally, Romer argues his charges
1This section provides:
The term “sex act” or “sexual activity” means any sexual contact
between two or more persons by: penetration of the penis into the vagina
or anus; contact between the mouth and genitalia or by contact between
the genitalia of one person and the genitalia or anus of another person;
contact between the finger or hand of one person and the genitalia or
anus of another person, except in the course of examination or treatment
by a person licensed pursuant to chapter 148, 148C, 151, or 152; or by
use of artificial sexual organs or substitutes therefor in contact with the
genitalia or anus.
Iowa Code § 702.17 (2009).
7
should have been severed into multiple trials, and the district court’s
refusal to do so resulted in unfair prejudice. We address each of these
issues in turn.
A. Teacher–Student Relationship. Romer argues he cannot be
convicted of a violation of Iowa Code section 709.15(3), prohibiting sexual
exploitation by a school employee, because there was not a
contemporaneous teacher–student relationship between him and any of
the minors whom he was convicted of exploiting. Section 709.15(3)
provides:
3. Sexual exploitation by a school employee occurs
when any of the following are found:
a. A pattern or practice or scheme of conduct to
engage in any of the conduct described in paragraph “b”.
b. Any sexual conduct with a student for the purpose
of arousing or satisfying the sexual desires of the school
employee or the student. Sexual conduct includes but is not
limited to the following: kissing; touching of the clothed or
unclothed inner thigh, breast, groin, buttock, anus, pubes,
or genitals; or a sex act as defined in section 702.17.
Sexual exploitation by a school employee does not
include touching that is necessary in the performance of the
school employee’s duties while acting within the scope of
employment.
Iowa Code § 709.15(3) (2009).2
The district court found that
there is no requirement in Iowa Code section 709.15(3)(b)
that the minor be a student of the teacher during the time
frame they were allegedly being exploited. By omitting
specific language to require a direct teacher–student
relationship, the legislature clearly did not intend to limit
exploitation of minor students to occur only when the
2The charged acts occurred between January 2005 and July 2008. Unless
otherwise indicated, all references are to the 2009 Code, which included legislation
enacted on or before July 1, 2008.
8
teacher is in the student’s school or was in fact the student’s
teacher.3
A jury convicted Romer of violating Iowa Code section 709.15(3)(a),
finding that Romer had engaged in sexual exploitation by a school
employee because he had engaged in “[a] pattern or practice or scheme of
conduct to engage in any of the conduct found in paragraph ‘b’.” Id.
§ 709.15(3). The State does not dispute that at the time of the events
giving rise to these convictions, no current teacher–student relationship
existed between Romer and any of the involved students.4
We apply our time-honored principles of statutory construction in
order to determine whether the district court made errors of law.
The purpose of statutory interpretation is to determine the
legislature’s intent. We give words their ordinary and
common meaning by considering the context within which
they are used, absent a statutory definition or an established
meaning in the law. We also consider the legislative history
of a statute, including prior enactments, when ascertaining
legislative intent. When we interpret a statute, we assess the
statute in its entirety, not just isolated words or phrases.
We may not extend, enlarge, or otherwise change the
meaning of a statute under the guise of construction.
In re Estate of Buckwoldt, 814 N.W.2d 215, 223 (Iowa 2012) (citations
and internal quotation marks omitted). However, “we strictly construe
criminal statutes and resolve doubts in favor of the accused.” State v.
Adams, 810 N.W.2d 365, 369 (Iowa 2012) (citation and internal
quotation marks omitted).
3Iowa Code section 709.15(2) governs sexual exploitation of a counselor or
therapist and prohibits “[a]ny sexual conduct with a patient or client or former patient
or client within one year of the termination of the provision of mental health services by
the counselor or therapist . . . .” The legislature did not include corresponding limiting
language in Iowa Code section 709.15(3). Compare Iowa Code § 709.15(2)(c), with id.
§ 709.15(3)(b).
4Romer had been a substitute teacher for two of the students when they had
been in elementary school, but the events giving rise to his convictions did not occur
when they were his students.
9
The legislature defined “student” as
a person who is currently enrolled in or attending a public or
nonpublic elementary or secondary school, or who was a
student enrolled in or who attended a public or nonpublic
elementary or secondary school within thirty days of any
violation of subsection 3.
Iowa Code § 709.15(1)(g). It defined “school employee” as “a practitioner
as defined in section 272.17.” Id. § 709.15(1)(f). This section defines
“practitioner” as “an administrator, teacher, or other licensed
professional, including an individual who holds a statement of
professional recognition, who provides educational assistance to
students.” Id. § 272.1(7).
We have not yet analyzed whether the legislature intended for a
teacher–student relationship to concurrently exist before a teacher could
be found guilty under Iowa Code section 709.15(3). Romer concedes
that, under the plain language of the statute, he was a school employee
and the minors involved were students. His contention is that he did not
have a “fiduciary relationship” with the students, as he was not their
teacher at the time of the incidents and, thus, “did not create a coercive
and unequal balance of power over the students that forced them to
engage in sexual conduct with him.” He argues that the legislature did
not intend for the conduct in which he engaged to be subject to Iowa
Code section 709.15(3).
Romer argues that Stotts v. Eveleth, 688 N.W.2d 803 (Iowa 2004),
should control this question. In Stotts, an eighteen-year-old student
engaged in a consensual sexual relationship with a teacher. Id. at 806.
We evaluated whether a teacher–student relationship was required to
determine if Stotts was entitled to monetary damages for the teacher’s
conduct in initiating the sexual relationship. Id. at 807. We defined a
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“fiduciary relationship” as “one in which a person is under a duty to act
for the benefit of another as to matters within the scope of the
relationship.” Id. at 811 (citing Mendenhall v. Judy, 671 N.W.2d 452,
455 (Iowa 2003)). We determined that no fiduciary relationship existed
between the “two consenting adults.” Id.
Stotts, however, does not control. It deals with a different issue
than the one presented here. Stotts involved civil litigation and is not
analogous to Romer’s criminal conduct. In Stotts, the plaintiff was
attempting to find a cause of action for which she could recover damages
in a situation where no existing law provided a specific cause of action.
Id. at 812. Finally, the events giving rise to Stotts’s lawsuit predate Iowa
Code section 709.15(3), and consequently, our court did not construe
that Code section. Thus, it is not persuasive in determining the intent of
the legislature in enacting Iowa Code section 709.15(3).
1. Legislative intent to criminalize relationships broader than just
teacher–student relationships. “School employee” includes professionals
who are not teachers. In drafting the statute, the legislature defined
“school employee” much more broadly than Romer acknowledges. The
legislature did not intend to criminalize actions only by teachers, but by
the much broader category of “school employee,” which it defines as “an
administrator, teacher, or other licensed professional, including an
individual who holds a statement of professional recognition, who
provides educational assistance to students.” Iowa Code § 272.1(7).
Thus, the legislature included professionals, such as administrators and
teachers, as well as individuals who are certified, such as para-
educators. See id. § 272.1(6) (defining “para-educator” as “a person who
is certified to assist a teacher in the performance of instructional tasks
. . . .”). These individuals may never have a direct teacher–student
11
relationship. Thus, it would be an illogical interpretation to conclude the
legislature intended to require an existing teacher–student relationship
in order for a school employee to violate this Code section. See Andover
Volunteer Fire Dep’t v. Grinnell Mut. Reins. Co., 787 N.W.2d 75, 86 (Iowa
2010) (stating that when interpreting statutes, we “avoid creating
impractical or absurd results.”).
2. Legislative intent to criminalize power relationships. “When we
interpret a statute, we assess the statute in its entirety, not just isolated
words or phrases.” Buckwoldt, 814 N.W.2d at 223. Iowa Code section
709.15(2) criminalizes sexual exploitation by a counselor or therapist.
In interpreting this Code section, we have emphasized that it is
exploitation of the power relationship that must be avoided. State v.
Allen, 565 N.W.2d 333, 337 n.2 (Iowa 1997) (“Our cases have emphasized
that persons acting in professional roles have a disproportionate
influence on those they serve, and thus have a responsibility to
scrupulously observe the bounds of propriety.” (Citations and internal
quotation marks omitted.)).
Iowa Code section 709.15(2)(b) criminalizes sexual conduct with an
“emotionally dependent” patient or client, emphasizing the legislature’s
intent to protect those who might potentially be exploited through that
power relationship. Iowa Code section 709.15(2)(c) also limits the time a
counselor or therapist can be charged with exploiting a former patient or
client to one year, again emphasizing that it is the power relationship
and not the mere status of a counselor or therapist that the legislature
intended to regulate. Iowa Code section 709.15(3) has no analogous
limitations requiring emotional dependency or a time limitation.5 Iowa
5Though there is no specifically analogous time limitation governing the
relationship between the school employee and the student, we note that the legislature
12
Code § 709.15(3). When the legislature added subsection (3), it copied
much of the language it used in subsection (2). Compare Iowa Code
§ 709.15(2), with id. § 709.15(3).6 If the legislature had intended for a
student to be emotionally dependent, or to be in a direct and current
teacher–student relationship in order for the teacher to be convicted of
violating section 709.15(3), the legislature could have made it a part of
the statute. Based on our directive to interpret a statute in context, we
find the lack of inclusion of a requirement that a teacher–student
relationship exists to be instructive. The legislature did not explicitly
require emotional dependency, or a direct or current teacher–student
relationship to exist prior to making the school employee subject to the
statutory prohibition. It is the fact that Romer was a teacher and the
victims were students, as defined under the Code, which makes the
conduct a crime.
__________________________________
did include time limitations in another part of the statute. The word “student” is
defined as
a person who is currently enrolled in or attending a public or nonpublic
elementary or secondary school, or who was a student enrolled in or who
attended a public or nonpublic elementary or secondary school within
thirty days of any violation of subsection 3.
Iowa Code § 709.15(1)(g). This provides further evidence the legislature considered the
issue of timing and declined to otherwise limit the relationship parameters. This leads
us to conclude the legislature was not attempting to limit the relationship covered by
the statute.
6The legislature, in fact, omitted the language requiring an emotionally
dependent relationship. Iowa Code § 709.15(2)(b) says,
Any sexual conduct, with an emotionally dependent patient or client or
emotionally dependent former patient or client for the purpose of
arousing or satisfying the sexual desires of the counselor or therapist or
the emotionally dependent patient or client or emotionally dependent
former patient or client . . . .
Id. § 709.15(2)(b). In contrast, Iowa Code section 709.15(3)(b) says, “Any sexual
conduct with a student for the purpose of arousing or satisfying the sexual desires of
the school employee or the student.” Id. § 709.15(3)(b).
 13
We further find the legislature did not intend to restrict this
prohibition to those in a specific past or present teacher–student
relationship. We believe the legislature intended to protect students from
being exploited by the teacher in the next classroom, the former middle
school principal the student respected and admired, or the substitute
teacher the student had in elementary school, for example.
We find no error of law by the district court in concluding that a
contemporaneous teacher–student relationship was not required for
Romer to be convicted of violating Iowa Code section 709.15(3).
B. Requirement of Physical Contact to Constitute Sexual
Conduct. Whether physical contact is required in order to find the
defendant engaged in “sexual conduct” under Iowa Code section
709.15(3) also presents an issue of first impression. Romer contends the
State presented no evidence of sexual conduct with K.G. or L.A. This
contention relates to his convictions on counts VII and VIII, in which he
was charged with “engag[ing] in a pattern or practice or scheme of
conduct involving sexual conduct with” K.G. in count VII and L.A. in
count VIII.
In determining whether sufficient evidence existed to support a
conviction for conduct involving K.G. and L.A., we review for correction of
errors at law. See Sanford, 814 N.W.2d at 615 (“Sufficiency of evidence
claims are reviewed for a correction of errors at law.”). We consider all of
the record evidence in the light most favorable to the State. Id.
Similarly, in determining whether the legislature intended to criminalize
the acts of which Romer is accused—directing students to assume
sexualized poses and taking pictures of them for his own sexual
gratification—we review for correction of errors at law. See In re Det. of
14
Johnson, 805 N.W.2d at 753 (“We review questions of statutory
interpretation for correction of errors at law.”).
Substantial evidence supports the conclusion that Romer took
photographs of sexual conduct during the babysitting incident that
occurred in November 2007 and involved K.G. and L.A. On appeal,
Romer does not dispute that the State introduced sufficient evidence to
find he photographed sexual conduct. The State also introduced
sufficient evidence that Romer orchestrated the explicit photography
session. Though Romer disputes that he directed this session, we have
said, “Inherent in our standard of review of jury verdicts in criminal
cases is the recognition that the jury was free to reject certain evidence,
and credit other evidence.” State v. Nitcher, 720 N.W.2d 547, 556 (Iowa
2006) (citation and internal quotation marks omitted). “Evidence is
considered substantial if, 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. We conclude the jury could have reasonably
found not only that Romer both photographed the sexual conduct and
orchestrated the poses, but that the photographs were clearly sexual in
nature. We must then determine if Romer’s conduct violated Iowa Code
section 709.15(3).
The language of the statute prohibits “any sexual conduct with a
student for the purpose of arousing or satisfying the sexual desires of the
school employee or the student.” Iowa Code § 709.15(3)(b). The statute
then enumerates what the legislature defines as “sexual conduct.”
Specifically, it states “ ‘sexual conduct’ includes, but is not limited to . . .
kissing; touching of the clothed or unclothed inner thigh, breast, groin,
buttock, anus, pubes, or genitals; or a sex act.” Id. Both the November
babysitting incident and the Fourth of July incident involved actions
15
between the minors that meet the statutory definition of sexual conduct.
In order to convict Romer of violating Iowa Code section 709.15(3), the
State must prove Romer engaged in sexual conduct with K.G. and L.A.
See id. § 709.15(3).
Romer argues that sexual conduct requires some physical contact
in order to meet the definition of the statute. The State urges us to find
that the phrase “engaged in” sexual conduct does not require actual
physical contact. See id. § 709.15(3)(a). We apply our principles of
statutory construction in making a determination as to whether the State
proved that Romer engaged in conduct in contravention of the statute.
See In re Estate of Bockwoldt, 814 N.W.2d at 223 (“Because reasonable
persons could disagree, the plain language of the statute is ambiguous,
and we must turn to the principles of statutory construction.”). “If the
legislature has not defined words of a statute, we may refer to prior
decisions of this court and others, similar statutes, dictionary definitions,
and common usage.” Jack v. P & A Farms, Ltd., 822 N.W.2d 511, 516
(Iowa 2012) (citation and internal quotation marks omitted). The
dictionary has multiple definitions for the word “engage.” The one most
applicable defines “engage” as “to employ or involve oneself.” Webster’s
Third New International Dictionary 751 (unabr. ed. 2002). We conclude
that Romer’s conduct in orchestrating and photographing sexual conduct
between minors, including K.G. and L.A., constituted sexual conduct as
defined by Iowa Code section 709.15(3).
We note the plain words of the statute do not restrict sexual
conduct to the actions listed in the statute. The statute prohibits “[a]ny
sexual conduct with a student for the purpose of arousing or satisfying
the sexual desires of the school employee or the student. Sexual conduct
16
includes but is not limited to the following . . . .” Iowa Code § 709.15(3)
(emphasis added).
While we have not previously examined the definitional parameters
of what constitutes sexual exploitation by a school employee, reference to
our statute on sexual exploitation of a minor is instructive. Iowa Code
section 728.12(1) (2009) provides:
It shall be unlawful to employ, use, persuade, induce,
entice, coerce, solicit, knowingly permit, or otherwise cause
or attempt to cause a minor to engage in a prohibited sexual
act or in the simulation of a prohibited sexual act. A person
must know, or have reason to know, or intend that the act or
simulated act may be photographed, filmed, or otherwise
preserved in a negative, slide, book, magazine, computer,
computer disk, or other print or visual medium, or be
preserved in an electronic, magnetic, or optical storage
system, or in any other type of storage system.
In 1978, the legislature enacted this statute prohibiting the sexual
exploitation of a minor by causing the minor to engage in a prohibited
sexual act intending that the act be photographed or filmed. 1978 Iowa
Acts ch. 1188, § 1 (codified at Iowa Code § 728.12(1) (1979)).7 The crime
of sexual exploitation of a minor is aimed at the creation, dissemination,
and possession of child pornography, rather than merely possessing
obscene materials. State v. Robinson, 618 N.W.2d 306, 316 (Iowa 2000).
We see no reason why the legislature would intend the definition of
sexual exploitation under Iowa Code section 709.15(3)(a) or (b) be more
restrictive than the general statute, or that it require an act of physical
contact.
Indeed, we have interpreted the parallel restriction on a caretaker
from engaging in sexual conduct with a dependent adult in a similar
7The crime of sexual exploitation of a minor has been expanded by the
legislature on three separate occasions since then. However, none of the changes are
applicable to this case.
17
manner. See Smith v. Iowa Dep’t of Human Servs., 755 N.W.2d 135, 138
(Iowa 2008). In Smith, we declared, “[T]here is no language in the statute
[defining sexual conduct] that confines the phrase to require the
caretaker to affirmatively touch the dependent adult in a sexual
manner.” Id. Though the situation here is not quite analogous—actual
prohibited physical contact did occur between the caretaker and the
dependent adult, with the dependent adult initiating it—Smith confirms
that we have previously construed the identical statutory language more
broadly than Romer now urges.
“[S]exual conduct” has a much broader meaning under the
statute and requires the actions of the caretaker to be
examined in light of all of the circumstances to determine if
the conduct at issue was sexual and done for the purpose of
arousing or satisfying the sexual desires of the caretaker or
the dependent adult.
Id.
Further, we find the language the legislature chose to be
compelling. The legislature specifically stated that “sexual conduct” was
“not limited” to the list that it gave. Iowa Code § 709.15(3)(b). Romer
argues that because all of the items in the list following that language
included physical contact, the legislature only intended to include
physical contact. See id. We do not find this reasoning persuasive. We
conclude the legislature’s clear intent was to protect students from
exploitation by school employees. Further, we recognize the legislature
was acknowledging the limits of its own ability to identify ways in which
school employees could potentially exploit students. Here, there can be
little doubt that Romer persuaded and induced K.G. and L.A. to engage
in prohibited sexual conduct, and he photographed the conduct. Romer
engaged in interactive conduct with the students, and the students
engaged in sexual conduct based on his instructions.
18
The district court was correct in concluding that the statute
defining “sexual conduct” does not require physical contact between the
school employee and the student to support a conviction for sexual
exploitation by a school employee. Thus, we find no error at law by the
district court in its ruling on this issue.
C. Severance of the Counts. Romer argues the district court
abused its discretion in refusing to sever the eight counts against him
into five separate trials. We review a district court’s “refusal to sever
multiple charges against a single defendant for abuse of discretion.”
Elston, 735 N.W.2d at 198. “To prove the district court abused its
discretion in refusing to sever charges, [the defendant] bears the burden
of showing prejudice resulting from joinder outweighed the State’s
interest in judicial economy.” Id. at 199.
Elston provides the framework by which we interpret whether the
district court was required to sever counts. Just as in Elston, we begin
our analysis with Iowa Rule of Criminal Procedure 2.6(1), which provides:
“Two or more indictable public offenses which arise from the
same transaction or occurrence or from two or more
transactions or occurrences constituting parts of a common
scheme or plan, when alleged and prosecuted
contemporaneously, shall be alleged and prosecuted as
separate counts in a single complaint, information or
indictment, unless, for good cause shown, the trial court in
its discretion determines otherwise.”
Id. at 198 (quoting Iowa R. Crim. P. 2.6(1)).
Further, we explained in Elston:
We have held that transactions or occurrences are part of a
common scheme or plan under Iowa Rule of Criminal
Procedure 2.6(1) when they are the products of a single or
continuing motive. In ascertaining whether a common
scheme or plan exists, we have found it helpful to consider
factors such as intent, modus operandi, and the temporal
and geographic proximity of the crimes.
19
Id. at 198–99 (citations and internal quotation marks omitted).
1. Common scheme or plan. We interpreted the phrase “common
scheme or plan,” as used in the Iowa Rule of Criminal Procedure 2.6(1),
in State v. Lam, 391 N.W.2d 245, 249 (Iowa 1986). “A ‘common scheme
or plan’ by its very definition presupposes that it involves a series of
separate transactions or acts.” Id. In Lam, we adopted the Missouri test
in finding “the essential test in determining whether a common scheme
or plan exists is the requirement that all offenses charged must be
products of a single or continuing motive.” Id. at 250. We cited Missouri
cases, including State v. Burroughs, 673 S.W.2d 474 (Mo. Ct. App. 1984).
Id. In Burroughs, the Missouri court convicted the defendant of rape,
sodomy, incest, and promoting prostitution. 673 S.W.2d at 475. The
Missouri Court of Appeals concluded that “[t]he defendant was involved
in a common scheme and plan to pervert his children’s morals, and to
use them for his own enjoyment and profit.” Id. at 476.
Thus, in Lam, we found that the two offenses with which Lam was
charged—two otherwise unrelated burglaries—“were parts of a common
scheme or plan to burglarize apartments during normal working hours.
It is readily inferable that both offenses were products of a single and
continuing motive for obtaining small portable objects from apartments
for money.” Id. Evidence of one burglary was not needed to prove any of
the elements of the other burglary, yet we found that trying them
together was appropriate. Id.
Similarly, in Elston, we found that joinder of the charges was
proper. 735 N.W.2d at 200. “All of the crimes alleged in this case
against Elston could be found to have been motivated by his desire to
satisfy sexual desires through the victimization of children.” Id. We also
found that the transactions “occurred in close geographic proximity.” Id.
20
Though we found that there was no temporal proximity and the modus
operandi was dissimilar, we nonetheless found a “common scheme or
plan” existed. Id.
Here, the jury convicted Romer on all eight counts with which he
was charged. The verdict form provided the jury with three options
regarding counts VI, VII, and VIII. Specifically, on these three counts,
the jury could find Romer “not guilty,” “guilty of sexual exploitation by a
school employee by pattern, practice, or scheme of conduct,” or “guilty of
sexual exploitation by a school employee.” Significantly, on all three of
these counts, the jury found Romer “guilty of sexual exploitation by a
school employee by pattern, practice, or scheme of conduct.” The jury,
which heard all of the evidence, found that these three counts, which
involved all three of the events that generated the criminal activity for
which Romer was convicted, were each part of a “pattern, practice, or
scheme of conduct.” We show great respect for a jury’s fact-finding
function. See, e.g., State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006)
(finding that it is the jury’s role to be the primary trier of facts).
Romer bases much of his argument on the contention that not all
of the evidence was required in order to convict Romer on each individual
count. This fact, even if true, is not material. In Lam, we noted that the
amended rule authorizing joinder of offenses in a single information
where the offenses charged are based either on “the same transaction or
occurrence” or “a common scheme or plan” was specifically intended to
achieve judicial economy through “liberaliz[ing] and broaden[ing]
charging practices so as to allow prosecutors more leeway in seeking to
join multiple offenses for a single prosecution.” Lam, 391 N.W.2d at 249.
Even if some of the evidence needed to prove count I was irrelevant to
whether Romer committed the acts he was charged with in count IV, for
21
example, the State had the right to charge multiple counts in the same
offense to achieve judicial economy.
The jury concluded that each count Romer was convicted of
constituted part of a “common scheme or plan,” and that Romer’s intent
in that common scheme was to victimize children to fulfill his sexual
desires. Two of the three events (and seven of the offenses charged)
occurred at Romer’s home. The other event—the long-term sexual
relationship with R.A.—occurred occasionally at her home, at the rock
quarry, or at numerous other locations in Iowa. This also establishes
geographic proximity. Finally, Romer displayed a similar modus
operandi with all of the minors involved. Romer maintained contact with
victims in each of the three events through cell phone communication
and texting. Romer requested the victims take nude or seminude
photographs of themselves or allow him to take seminude photographs of
them. Romer would choreograph or pose the minors in sexually explicit
poses, and would encourage others to participate as well. Romer offered
or provided alcohol to each of them, often resulting in intoxication. All of
these factors support Romer having engaged in a common scheme or
plan and that joinder of the counts was appropriate.
2. Prejudice outweighing judicial economy. “Although the existence
of a “common scheme or plan’ indicates the charges should be joined, the
district court nonetheless had discretion to sever the charges for ‘good
cause.’ ” Elston, 735 N.W.2d at 199. Romer thus has the burden of
showing prejudice in order to demonstrate the district court abused its
discretion. See Elston, 735 N.W.2d at 199. (“To prove the district court
abused its discretion in refusing to sever the charges, [the defendant]
bears the burden of showing prejudice resulting from joinder outweighed
the State’s interest in judicial economy.”). Romer argues that because
22
these charges were tried together, “the jury could not help but convict
based upon propensity.” The propensity to which Romer refers is based
on our evidentiary rules. However, we have previously found that an
attempt to equate our evidentiary rule’s principles with rule 2.6(1)’s
principles is inapposite.
This evidentiary rule deals with what evidence is properly
admissible to prove the crime charged. The joinder of
offenses rule deals with the more basic question of what
crimes can be charged and tried in a single proceeding. . . .
The two rules deal with different questions, making the
wholesale importation of the evidentiary rule into the law
dealing with joinder of offenses inappropriate.
Lam, 391 N.W.2d at 249 (citations and internal quotations omitted).
Romer bears the burden of demonstrating that prejudice exists
because of the joinder of offenses, and that this prejudice outweighs the
State’s interest in judicial economy. See Elston, 735 N.W.2d at 199. His
only arguments in this area pertain to our evidentiary rule on propensity,
which we have unequivocally established as distinct from an analysis
under our law dealing with joinder of offenses. See Lam, 391 N.W.2d at
249. Here, in order to show a pattern, practice or scheme of conduct
necessary to prove certain counts, it was necessary and relevant to show
Romer’s sexual motivation and criminal intent on other counts. The
evidence is clearly relevant and legally intertwined. The district court
also had a cautionary instruction which instructed the jury to look at
each of the eight counts separately and reach a verdict on each count
separately. Romer has not shown unfair prejudice by joining the
interrelated eight counts into one trial.
Lastly, the State’s interest in judicial economy outweighs the
prejudice to Romer in allowing a single trial as stated earlier. Much of
the same evidence was relevant and admissible on each of the various
23
counts. A single trial was in the interest of judicial economy as it was
then unnecessary to require numerous witnesses to testify at multiple
trials to the same operative facts. The district court did not abuse its
discretion in balancing the prejudice to Romer and the judicial economy
of a single trial.
IV. Disposition.
We affirm the rulings of the district court on each of the three
issues Romer raises. We conclude Romer was a school employee under
the statute and the minors involved were students within the meaning of
Iowa Code section 709.15(3). We further conclude that no
contemporaneous teacher–student relationship was necessary to violate
Iowa Code section 709.15(3). We find Romer’s actions in orchestrating
and photographing sexual conduct between minors was sufficient to
satisfy the statutory definition for engaging in sexual conduct. Finally,
we conclude that the events at issue here all fall within a common
scheme or pattern, and thus, it was appropriate for the charges to be
joined. The district court did not abuse its discretion in denying Romer’s
motion to sever as any prejudice to Romer was outweighed by the State’s
interest in judicial economy. Romer’s convictions are affirmed.
DECISION OF COURT OF APPEALS AND JUDGMENT OF
DISTRICT COURT AFFIRMED.
All justices concur except Hecht and Appel, JJ., who concur in
part and dissent in part.
24
#11–0270, State v. Romer
HECHT, Justice (concurring in part and dissenting in part).
My colleagues conclude in the majority opinion that a school
employee may be convicted under Iowa Code section 709.15(3) for
conduct directed at a student enrolled in a school with which the
defendant has no current employment relationship. As I do not believe
the statute can properly be read so broadly, I respectfully dissent in part.
Suppose a twenty-three-year-old person employed as a school
teacher in the State of California visited Iowa during the first week of
June. During his week’s vacation in Iowa, the teacher was observed
kissing an eighteen-year-old girl who had graduated from an Iowa high
school less than thirty days before the embrace. Assume this conduct
offended the girl’s parents, and the teacher is charged with sexual
exploitation of a student. Under the majority’s interpretation of the
statute, the teacher could be convicted of the crime. The conviction
would be affirmed under the majority’s view because kissing is among
the types of conduct prohibited by the statute. See Iowa Code
§ 709.15(3)(b) (2009) (defining sexual conduct to include kissing). The
defendant in this hypothetical scenario would fall within the definition of
“school employee” under section 709.15(1)(f) (including a teacher “who
provides educational assistance to students,” albeit in California, not
Iowa). The recently-graduated girl would fall within the definition of
“student” under section 709.15(1)(g) (including a student who attended a
secondary school within thirty days of any violation). Indeed, under the
majority’s interpretation of the statute, a conviction of the teacher would
apparently be sustained even if the girl did not know the defendant was
employed as a teacher in California and the defendant did not know the
girl was a recent high school graduate because the offense is based
25
entirely on the status of the teacher and the girl. Simply put, my
colleagues in the majority view the crime of sexual exploitation under
section 709.15(3) broadly, requiring no proof a school employee–student
education-based relationship existed at the time of the exploitation.8 For
several reasons, I believe the legislature did not intend the statute to cut
such a wide swath.
A statute is ambiguous if reasonable people could disagree as to its
meaning. IBP, Inc. v. Harker, 633 N.W.2d 322, 325 (Iowa 2001). “Even
. . . a statute appear[ing] unambiguous on its . . . face can be rendered
ambiguous by its interaction with and its relation to other statutes.” 2A
Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory
Construction § 46.4, at 185 (7th ed. 2007). “Ambiguity may arise from
specific language in a statute or when the provision at issue is
considered in the context of the entire statute or related statutes.”
Midwest Auto. III, LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 425
(Iowa 2002); accord State v. McCullah, 787 N.W.2d 90, 94 (Iowa 2010)
(“Ambiguity arises in two ways—either from the meaning of specific
words or ‘from the general scope and meaning of the statute when all of
its provisions are examined.’ ” (quoting Carolan v. Hill, 553 N.W.2d 882,
887 (Iowa 1996)).
I believe reasonable people reading section 709.15(3) in context
with the other parts of the statute and related statutes could disagree
whether the general assembly intended a conviction of the crime of
sexual exploitation by a school employee must be supported by proof
that the defendant exploited an actual or perceived relationship of power,
authority, or influence over a student enrolled in the school employing
8A school employee–student relationship extends under the statute for thirty
days after a student was enrolled in or attended the school. Iowa Code § 709.15(1)(g).
26
the defendant. It is significant in my view that when the statute was
enacted, see 2003 Iowa Acts ch. 180, § 65, the general assembly joined it
in section 709.15 with a previously enacted prohibition of sexual
exploitation by a mental health therapist or counselor, see 1991 Iowa
Acts ch. 130, § 2 (codified as amended at Iowa Code § 709.15).
As the majority has correctly noted, the offense of sexual
exploitation by a mental health provider enacted by the general assembly
in 1991 requires proof of the exploitation of a relationship between an
emotionally dependent patient or client (or former such patient or client)
and a provider. Iowa Code § 709.15(2)(b)–(c). The evil targeted by those
provisions of the statute is exploitation of relationships between
professional providers of mental health services and their patients and
former patients. The primary purpose of the statute is protection of
patients who, because of their mental health and other circumstances,
are especially vulnerable to sexual abuse perpetrated by mental health
providers in whom they place immense trust and implicit confidence.
The trust and confidence conferred by emotionally vulnerable patients to
providers contributes substantially to an immense imbalance of power
and control in the provider–patient relationship. It is the nature of the
relationship between a provider and a patient that is essential to a
positive therapeutic outcome and also to the commission of a criminal
violation of section 709.15(2)(b) and (c). If the State fails to prove a
professional relationship between the defendant–provider and his patient
or client, or former patient or client, no criminal violation can result from
the varieties of sexual conduct enumerated in section 709.15.
I of course concede the general assembly did not expressly
prescribe that conviction of a school employee under section 709.15(3)
requires proof of an education-based relationship between the defendant
27
and the student with whom the sexual conduct has occurred. Yet, a
reasonable person could conclude from the context of the statute, as I
do, that the general assembly intended the 2003 amendment of section
709.15 as a supplement to the list of relationships requiring protection
from sexual exploitation. Students in elementary and secondary schools
are especially vulnerable to sexual exploitation because of the actual or
perceived power, influence, and control of school employees with whom
they are regularly in contact. But for the education-based relationship—
whether direct or indirect—between a school employee and a student
within a school, the power imbalance favoring the school employee and
enabling the exploitation does not exist. Put another way, any
vulnerability of a student in one school to sexual conduct of an employee
of another school does not arise from a relationship attended or
enhanced by a power imbalance based on the school employee’s status
as a provider of “education assistance” to the student. See Iowa Code
§ 272.1(7) (supplying definition of “school employee” as a “practitioner”
who “provides educational assistance to students”). In the absence of a
school employee–student education-based relationship, any sexual
misconduct perpetrated by a school employee is properly prosecuted
under other criminal statutes,9 but it is not in my view covered by
section 709.15(3)(b).
My conclusion that the statute is ambiguous as to whether the
general assembly intended in section 709.15(3) to criminalize only sexual
conduct exploiting an education-based relationship is not based solely on
the general assembly’s placement of the criminal statute in a section
targeting sexual exploitation of persons whose vulnerability is enhanced
9For example, Romer was convicted in this case of five counts of sexual
exploitation of a minor under Iowa Code section 728.12(1).
28
by their relationships with other types of professionals. When the
general assembly enacted section 709.15(3) it established a limitation
period of ten years for the filing of an indictment or information for the
offense. Iowa Code § 802.2A(2) (stating information or indictment for
sexual exploitation by school employee must be found within ten years of
date victim was enrolled in or attended “the school” (emphasis added)).
The legislation also recognized a civil claim in favor of the sexually
exploited student against the exploiting school employee, prescribing that
it must be brought “within five years of the date the victim was last
enrolled in or attended the school.” Id. § 614.1(12) (emphasis added). A
reasonable person could view the general assembly’s choice of “the”
school instead of “a” school in these statutes of limitation as a further
indication that the general assembly conceived the crime and the related
tort of sexual exploitation by a school employee would be based on an
employee’s exploitation of a student enrolled in the school employing the
defendant.
Having concluded section 709.15(3) is ambiguous when read in
context and together with other related statutes, I would here apply the
principle that provisions establishing the scope of criminal liability are to
be strictly construed with doubts resolved therein in favor of the
accused. State v. Muhlenbruch, 728 N.W.2d 212, 216 (Iowa 2007). I
acknowledge that we decline invitations to narrow a broad legislative
formulation by implying or constructing limitations not present in a
statute when such narrowing would undercut the statute’s obvious
public purpose. See State v. Hearn, 797 N.W.2d 577, 583 (Iowa 2011);
State v. Hagedorn, 679 N.W.2d 666, 669–70 (Iowa 2004); State v. Nelson,
178 N.W.2d 434, 437 (Iowa 1970) (stating criminal statutes “ ‘are not to
be construed so strictly as to defeat the obvious intention of the
29
legislature.’ ” (quoting United States v. Wiltberger, 18 U.S. (5 Wheat.) 76,
95, 5 L. Ed. 37, 42 (1820))); 3 Norman J. Singer & J.D. Shambie Singer,
Statutes and Statutory Construction § 59:3, at 171 n.1 (7th ed. 2008)
(“Although a penal statute must be strictly construed, that does not
justify a court in supplying restrictive language that is not there.”). I
conclude, however, that these prudential maxims do not demand the
interpretation of section 709.15(3) favored by the majority in this case
because it is not obvious the general assembly’s purpose was to enact a
status crime in section 709.15(3) punishing a school employee for
conduct directed at a person with whom the employee has no exploitable
education-based relationship. It is instead obvious—at least to me—that
the legislature intended to criminalize in section 709.15 the exploitation
of only the enumerated special relationships in which the victims are
especially vulnerable to abuse by professionals providing them with
mental health services or education services. Sexual conduct not based
on, and not exploitive of, those special relationships is criminal only if it
is proscribed by other criminal statutes.
As I find the State offered no evidence that Romer had an
education-based relationship with the persons he was charged with
exploiting, I would resolve in Romer’s favor my doubts about the
applicability of section 709.15(3). Accordingly, I would reverse Romer’s
convictions under section 709.15(3). I concur, however, in the
affirmance of Romer’s convictions on the other charges.
Appel, J., joins this concurrence in part and dissent in part.