                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0555
                               Filed March 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MATTHEW L. WILSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Washington County, Myron L.

Gookin, Judge.



      Matthew Wilson appeals from the judgment and sentence following a jury

verdict finding him guilty of sexual abuse in the second degree. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., Vaitheswaran, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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GOODHUE, Senior Judge.

      Matthew Levi Wilson appeals from the judgment and sentence following a

jury verdict finding him guilty of sexual abuse in the second degree.

   I. Background Facts and Circumstances

      Wilson’s daughter, M.W., reported that when she was eight years old and

traveling in Wilson’s van, he asked her, “Do you want to stop somewhere and

have it.” Thereafter, Wilson stopped the van on a side road and told her to get in

the back bench of the van. Wilson followed her, unzipped his shorts, exposed

his penis, had her put her hand on it, and told her to shake it like a bottle. M.W.

observed “white stuff” come from Wilson’s penis. When a black truck drove by

the van, Wilson told M.W. they should leave. Wilson retrieved a sock from the

van, cleaned himself up with it, and threw it out the window. Wilson asked her

not to tell anyone. However, when she was questioned on September 15, 2015,

by Amanda Seymour, a Department of Human Services worker, M.W. gave a

rendition of the above events. Seymour contacted Washington County Deputy

Chad Ellis, and an investigation began.

      On October 8, Seymour and Ellis conducted an interview of Wilson at his

father’s home, where Wilson was living. It is the nature of that interview with

Wilson, conducted by Ellis, that is an issue in this appeal. Wilson’s father was

asked to leave the room prior to conducting the interview.         Ellis, who was

dressed in street clothes, had a badge on his belt and a firearm on his right side.

Wilson had had prior contact with Ellis as a law enforcement officer.

      Ellis and Wilson first discussed Wilson’s family concerns and the extra

burdens that had been placed on him because of his wife’s illness. Ellis falsely
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represented to Wilson a witness who had driven by could identify Wilson. Ellis

questioned Wilson by conveying an attitude of empathy and concern, saying

such things as, “We’re just trying to understand,” and that he and Seymour

wanted “to get help” and “understand why it happened.”         Ellis continued by

saying they understood that “[t]hings happen, man. We get it,” and he asked

[Wilson] to “[t]ell us why. Why you stopped.” Wilson insisted there was nothing

to say.   Ellis continued expressing empathy and stating the family needed

closure, that he and Seymour were trying to get help for those that needed it, and

that it was for the family’s good. Ellis suggested that counseling and therapy

were available. Ellis stated that he knew Wilson was sad that it happened, that

they could remove the weight off of Wilson’s shoulders, and that what had

happened had to be bugging Wilson. After continuing to go through a narration

of what Ellis thought had happened, Ellis would express empathy by saying, “You

are sad and wished this hadn’t happened.” Ellis then asked Wilson if he left the

driver seat when he parked the van, and after a period of silence, Wilson said

they sat in the third seat of the van. Finally, Wilson said M.W. touched him on

the penis. Ellis asked Wilson if she had been shaking it like a pop bottle, and

Wilson apparently responded affirmatively. Ellis followed by asking, “So you had

an erection?” and asking whether he ejaculated.         Wilson again responded

affirmatively. At that point, Ellis believed he had probable cause to make an

arrest and read Wilson his rights.

      Wilson filed a motion to suppress the confession made at the interview,

alleging that Ellis induced his confession with promises of leniency. The motion

was overruled, and the denial of the motion is the focus of Wilson’s appeal.
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   II. Error Preservation

       Adverse rulings on motions to suppress preserve error for appellate

review. State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998).

   III. Standard of Review

       Challenges to the admissibility of confessions are reviewed for errors of

law, and when a claim of a promise of leniency is made in challenging a

confession, the common law evidentiary test is applicable when “there is no

dispute as to the words used” or their meaning under the circumstances. State v.

Polk, 812 N.W.2d 670, 674 (Iowa 2012) (citation omitted).

   IV. Merits

       Wilson maintains Ellis’s interview contained implied promises of leniency

in order to obtain a confession. An accused’s confession is not admissible if

procured by an improper promise of leniency. Id. Wilson maintains the interview

Ellis conducted is precisely like the interview found to have been inadmissible

because of a promise of leniency in State v. Howard, 825 N.W.2d 32, 40-41

(Iowa 2012) (holding Howard’s confession was inadmissible because the

detective created a false impression that if Howard admitted to the sexual abuse,

he would be sent to a treatment facility in lieu of further punishment).

       Iowa follows the evidentiary test to determine the status of a confession as

opposed to the totality-of-the-circumstances test. State v. Madsen, 813 N.W.2d

714, 726 (Iowa 2012).      Under the evidentiary test, a confession cannot be

received into evidence if the suspect has been influenced by any threat or

promise.   Id. at 724.    It follows that an admission into evidence of such a

confession is a matter of law to be decided by the court. See State v. Wilson,
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247 N.W.2d 736, 740 (Iowa 1976) (holding that where a defendant objects to the

admissibility of an alleged confession, the trial court must conduct an evidentiary

hearing outside the presence of the jury and make the requisite findings and

determination as to its admissibility). Our supreme court’s retention of the per se

exclusionary rule eliminates the need of determining if, in fact, the defendant

relied on a promise of leniency in confessing. Madsen, 813 N.W.2d at 726. Our

supreme court has stated that the purpose of the evidentiary rule is to provide

clarity. Id. at 725. The confession must be excluded if “any degree of influence

by force or other inducement” has been exerted on the suspect. Id. at 726. The

evidentiary rule focuses on an examination of the language used to determine

whether the investigator’s questions gave even an implicit promise of any reward

as a result of a confession. Howard, 825 N.W.2d at 40. We can conclude from

the sources cited that it is an objective test, dependent on any inference that

could reasonably be drawn from the language of the interviewer used and their

meaning, explicit or implicit, under the circumstances. Madsen, 813 N.W.2d at

726 (“The use of a per se exclusionary rule eliminates the need for the court to

attempt to read the mind of defendant to determine if his confession, in fact, was

induced by or made in reliance upon the promise of leniency.”).

      The case under consideration can be easily distinguished from Howard.

In Howard, the investigator asked, “How do we get the help, get you the help you

need?” 825 N.W.2d at 36. Then later the investigator asked, “Do you need

help?” and “Do you think we should help you? There’s people out there that can

help you.” Id. The interviewer stated there are treatment centers with doctors

and nurses that treat sex addiction. Id. at 36-37. He asked, “What kind of help
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do you need?” and later asked, “The first thing is that we get you help, right?” Id.

at 37. Finally, the interviewer stated, “You know that no matter what you tell me

today, I’ll give you a ride home, drop you off, wherever you want to go.” Id. at 38.

Ellis never told Wilson that there was treatment and counseling specifically

available for him. He used the term generally and in relation to the victim and to

the family. He never stated that he would drive Wilson home and drop him off

wherever he wanted to go.

      Although Howard is distinguishable, it does not necessarily mean the

language here failed to include a promise of leniency. Ellis expressed sympathy

and mentioned treatment of one kind or another repeatedly. However, to hold

that a promise of leniency was extended under the facts of this case would be

tantamount to restraining an interviewer from expressing empathy and using the

words “therapy,” “counseling,” or “closure” when questioning a suspect, even

though the victim is a family member. Certainly Ellis never specifically offered

Wilson therapy, counselling, or another benefit as an alternative to a criminal

charge or incarceration. We conclude these words do not necessarily imply a

promise of leniency and they did not under the facts of this case. Ellis never

expressly said that counseling would even be available to Wilson, except as he

may have been included as a part of the family, and there was no suggestion that

he would be given a ride home or any other explicit or implicit promise of

leniency. We conclude the court correctly denied the motion to suppress and

admitted the confession.

      AFFIRMED.
