                 IN THE SUPREME COURT OF IOWA
                             No. 12–2168

                          Filed April 11, 2014


STATE OF IOWA,

      Appellee,

vs.

DARRELL ALLEN SHOWENS,

      Appellant.



      Appeal from the Iowa District Court for Scott County, Mark R.

Fowler, Judge.



      A sex offender who was convicted of loitering within 300 feet of a

public library appeals his conviction. REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, Martha J. Lucey,

Assistant Appellate Defender, and Kyle Mendenhall, Student Legal

Intern, for appellant.



      Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant

Attorney General, Michael J. Walton, County Attorney, and Alan R.

Havercamp and Robert C. Bradfield, Assistant County Attorneys, for

appellee.
                                       2

MANSFIELD, Justice.

      A registered sex offender was arrested after sitting on a bench

facing a public library. It was the middle of the day and he had been

there approximately forty-five minutes.           We must decide whether

sufficient evidence exists to support the defendant’s conviction by the

district court for loitering within 300 feet of a public library in violation of

Iowa Code section 692A.113(1)(g) (2011). Additionally, we are asked to

decide whether the defendant’s counsel was ineffective for failing to

challenge the constitutionality of this criminal statute on vagueness

grounds.

      For the reasons discussed herein, after construing the statute to

avoid constitutional difficulties, we are uncertain whether the district

court applied the correct legal standard in finding the defendant guilty.

Accordingly,   we    reverse   the   conviction   and   remand     for   further

proceedings.

      I. Facts and Procedural History.

      Darrell Showens has a 1999 conviction for third-degree sexual

abuse involving a minor. Because of that conviction, he is required to

register as a sex offender. See Iowa Code § 692A.103(1). In addition,

Showens is subject to certain “exclusion zones.”         See id. § 692A.113.

Among other things, he may not “[b]e present upon the real property of a

public   library    without    the   written   permission    of   the    library

administrator.”     Id. § 692A.113(1)(f).   And, he may not “[l]oiter within

three hundred feet of the real property boundary of a public library.” Id.

§ 692A.113(1)(g).

      On Friday, May 11, 2012, at around 1:30 p.m., Showens was

seated on a park bench located across the street from the main entrance
                                    3

to the downtown Davenport Public Library. He was facing the library,

and the bench was seventy-two feet from the front door of the library.

        Deputy Bawden of the Scott County Sheriff’s Office, whose primary

job is to register sex offenders and ensure compliance with the sex

offender registry, was leaving the library on a separate investigation. He

spotted Showens. Deputy Bawden could identify Showens based on his

previous familiarity with him. The deputy proceeded to his vehicle which

was parked outside the library.     From the vehicle, he confirmed that

Showens was still a registered sex offender required to comply with Iowa

Code section 692A.113.      For the next ten minutes, Deputy Bawden

observed Showens sitting on the bench, eating chips and drinking what

appeared to be a sports beverage.

        At this point, Deputy Bawden approached Showens and asked him

what he was doing. Showens first said he was waiting for a friend, but

when Deputy Bawden offered to wait with him, Showens said his friend

had left twenty minutes ago.     When Deputy Bawden asked Showens

what he had been doing since his friend left, Showens stated he had

been scratching lottery tickets. Because Deputy Bawden did not observe

any residue from scratch tickets around, he asked Showens to show him

the lottery tickets. Showens responded that he had already thrown them

away.

        Deputy Bawden then asked Showens why he was sitting across

from the library. Showens indicated he was waiting for a bus. Deputy

Bawden pointed out that the bench was not a bus stop, and Showens

responded that he was planning to catch a bus to his home at a stop that

was two blocks away. As Deputy Bawden later noted, Showens’s home

was only seven blocks away, or five blocks beyond the bus stop.
                                     4

      Several times during the conversation, Showens indicated he was

“just hanging out” on the bench. He told Deputy Bawden he was not

loitering and that he did not think he was within 300 feet of the library.

However, when Deputy Bawden asked him if he believed he was a

football field away from the library, Showens admitted he was not. At the

end of the conversation, Deputy Bawden arrested Showens and

transported him to the Scott County Jail.

      By the time Deputy Bawden arrested Showens, twenty minutes

had passed since he had first seen Showens sitting on the bench.

Showens later admitted he had been sitting across from the library for

forty-five minutes. Showens also admitted that he had been informed of

the prohibition on entering a public library without permission from the

administrator, as well as the prohibition on loitering within 300 feet of a

public library.

      Showens was charged with failure to comply with the sex offender

exclusion zone requirements based on loitering within 300 feet of a

public library. See id. §§ 692A.111(1), .113(1)(g). He went to trial before

the court on September 13, 2012. Both Deputy Bawden and Showens

testified, and the parties also agreed to enter into evidence the minutes of

testimony that included Deputy Bawden’s report.

      Showens did not contest that he was a registered sex offender, that

he was subject to the restriction in section 692A.113(1)(g), that he had

received notice of the restriction before, and that he was within 300 feet

of the library on the day in question. He only claimed his actions did not

constitute “loitering.” At the conclusion of the trial, his attorney stated,

“We are not quarreling with the fact we were there and within 300 feet of

the library, and the question is whether it was loitering under the

definition.”
                                    5

      In a written ruling on September 18, the district court denied the

defense’s motion for directed verdict and found Showens guilty of failure

to comply with the sex offender exclusion zone requirements, in violation

of sections 692A.111(1) and 692A.113(1)(g). As the court explained,

             The Court finds there is substantial evidence in the
      record that would warrant a reasonable person to believe
      that Mr. Showens was seated in front of the Davenport
      library in order to become familiar with a location where a
      potential victim could be found, or to locate a potential
      victim. This is sufficient to satisfy the element that Showens
      was engaged in “loitering” within three hundred feet of the
      Davenport Public Library.

      Showens was sentenced to 240 days in jail with all but three days

suspended. Additionally, Showens was ordered to pay a fine of $625 and

serve 213 hours of community service.

      Showens appealed, arguing that there was insufficient evidence he

was “loitering” in violation of section 692A.113(1)(g).     Showens also

maintained that his trial counsel had been ineffective for failing to argue

that the statutory definition of “loitering” was unconstitutionally vague

and violated the Due Process Clauses of the United States and Iowa

Constitutions. We retained the appeal.

      II. Standard of Review.
      We review sufficiency-of-the-evidence claims for correction of errors

at law. State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013).

      In reviewing challenges to the sufficiency of evidence
      supporting a guilty verdict, courts consider all of the record
      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. Romer, 832 N.W.2d 169, 174 (Iowa 2013) (citation and internal

quotation marks omitted).
                                     6

      “We review claims of ineffective assistance of counsel de novo.”

State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).

      III. Analysis.

      A. The Statutory Background.         Showens argues that the State

failed to present sufficient evidence to sustain his conviction. Iowa Code

section 692A.111 provides that a violation of section 692A.113 is “an

aggravated misdemeanor for a first offense.” Iowa Code § 692A.111(1).

“For purposes of this subsection, a violation occurs when a sex offender

knows or reasonably should know of the duty to fulfill a requirement

specified in this chapter as referenced in the offense charged.” Id. The

district court found Showens violated section 692A.113(1)(g) which

prohibited him from loitering “within three hundred feet of the real

property boundary of a public library.” Id. § 692A.113(1)(g).

      Under chapter 692A, loitering is defined as

      remaining in a place or circulating around a place under
      circumstances that would warrant a reasonable person to
      believe that the purpose or effect of the behavior is to enable
      a sex offender to become familiar with a location where a
      potential victim may be found, or to satisfy an unlawful
      sexual desire, or to locate, lure, or harass a potential victim.

Id. § 692A.101(17).

      These statutes are contained within Iowa Code chapter 692A,

entitled “Sex Offender Registry.” While persons convicted of many types

of sex offenses are required to register under this chapter, see id.

§ 692.103, the restrictions of section 692A.113 only apply to persons

“convicted of a sex offense against a minor or a person required to

register as a sex offender in another jurisdiction for an offense involving a

minor,” id. § 692A.113. The section 692A.113(1) exclusion zones include

elementary and secondary schools and their vehicles, libraries, child care

facilities, and premises “intended primarily for the use of minors” such
                                      7

as   playgrounds,    recreational   areas,    and    swimming    pools.      Id.

§ 692A.113(1).     Offenders are generally not allowed on the property

without permission and are prohibited from loitering within 300 feet of

the real property boundaries of each of these locations.             Id.   These

exclusionary     provisions   represent   a   significant   change    from   the

legislature’s previous restrictions on registered sex offenders.

      In 2009, the earlier provisions of chapter 692A were repealed and

replaced with the current provisions.         See Iowa Code §§ 692A.1–.16

(2009) (repealed by 2009 Iowa Acts ch. 119, § 31); 2009 Iowa Acts ch.

119, §§ 1–30 (codified at Iowa Code §§ 692A.101–.130 (Supp. 2009)). The

pre-2009 version of chapter 692A had more severe residency restrictions

but no restrictions on an offender’s mere presence at a location.            See

Iowa Code § 692A.2A (2009) (prohibiting those convicted of some

criminal offenses against a minor, including many sexual offenses, from

living within 2000 feet of elementary schools, secondary schools, or child

care facilities); see also Doe v. Miller, 405 F.3d 700, 706 (8th Cir. 2005)

(noting the district court determined that, under 692A.2A, “restricted

areas in many cities encompass[ed] the majority of the available housing

in the city, thus leaving only limited areas within city limits available for

sex offenders to establish a residence” and some smaller towns offered no

available locations for a sex offender to reside).

      Since 2009, residency restrictions only apply to sex offenders

convicted of an aggravated offense against a minor.            See Iowa Code

§ 692A.114(1)(c) (2011).      However, while residency restrictions were

relaxed, the legislature added the exclusionary zone provisions.             Id.

§ 692A.113(1).

      Based on the statutory definition of loitering in the 2009

legislation, the State had to prove that Showens:
                                        8
            (1) was “remaining in a place or circulating around a
      place” within 300 feet of a public library;

            (2) “under circumstances that would warrant a
      reasonable person to believe that the purpose or effect of the
      behavior”;

             (3) was to enable Showens “to become familiar with a
      location where a potential victim may be found, or to satisfy
      an unlawful sexual desire, or to locate, lure, or harass a
      potential victim.”

See id. § 692A.101(17).

      As noted above, the district court convicted Showens after

determining that the facts “warrant a reasonable person to believe that

Mr. Showens was seated in front of the Davenport library in order to

become familiar with a location where a potential victim could be found,

or to locate a potential victim.” In short, according to the court’s ruling,

a reasonable person would believe that Showens’s purpose was either to

become familiar with a location where a potential victim could be found

or to locate a potential victim.

      B. Construing       the      Statute   to   Avoid   Void-for-Vagueness

Concerns.    Before we assess whether there was sufficient evidence to

sustain the district court’s finding of guilt, we need to consider what the

statute requires. In doing so, we are guided by “our mandate to construe

statutes in a fashion to avoid a constitutional infirmity where possible.”

State v. Walker, 804 N.W.2d 284, 293–94 (Iowa 2011) (citation and
internal quotation marks omitted); see also Simmons v. State Pub.

Defender, 791 N.W.2d 69, 74 (Iowa 2010) (“If fairly possible, a statute will

be construed to avoid doubt as to constitutionality.”).

      We previously went through the process of construing one of our

sex offender laws to sidestep a potential vagueness defect. In Formaro v.

Polk County, a sex offender brought a constitutional challenge, including

a void-for-vagueness challenge, to the residency restrictions in the former
                                         9

version of chapter 692A.        773 N.W.2d 834, 837 (Iowa 2009).             As we

explained there, “In assessing whether a statute is void-for-vagueness

this court employs a presumption of constitutionality and will give the

statute any reasonable construction to uphold it.”                  Id. at 840–41

(citations and internal quotation marks omitted).            We then interpreted

the statutory residency restrictions as applying to locations where the

offender “habitual[ly] sleep[s].”      Id. at 841.     And having done so, we

rejected the constitutional void-for-vagueness challenge. Id.

       We have said that

       The Due Process Clause of the Fourteenth Amendment to
       the United States Constitution prohibits vague statutes.

             A statute can be impermissibly vague for either of two
       independent reasons. First, if it fails to provide people of
       ordinary intelligence a reasonable opportunity to understand
       what conduct it prohibits. Second, if it authorizes or even
       encourages arbitrary and discriminatory enforcement.

State v. Musser, 721 N.W.2d 734, 745 (Iowa 2006) (citations and internal

quotation marks omitted). We have also said that a “similar prohibition
has been recognized under the Iowa due process clause found in article I,

section 9 of the Iowa Constitution.” Formaro, 773 N.W.2d at 840. 1
       Accordingly,    we    will   review   the   constitutional    due    process

requirement in the context of loitering laws. We will then apply what has

been called “avoidance theory” to see if we need to clarify the meaning of

sections 692A.101(17) and 692A.113(1)(g) in light of those constitutional

mandates.       See State v. Nail, 743 N.W.2d 535, 539–40 (Iowa 2007)

(explaining the term “avoidance theory”).


       1There   is a third underpinning to the void-for-vagueness doctrine. A statute
cannot “sweep so broadly as to prohibit substantial amounts of constitutionally
protected speech.” Lewis v. Jaeger, 818 N.W.2d 165, 183 (Iowa 2012). But free speech
is not at issue here. See id.
                                         10

       In 1999, the United States Supreme Court addressed the

constitutionality of a loitering ordinance in a significant case. See City of

Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67

(1999). 2    Morales involved a Chicago ordinance that prohibited gang

members from loitering with any person in any public place. Id. at 45–

46, 119 S. Ct. at 1853, 144 L. Ed. 2d at 74. Loitering was defined by the

ordinance as “remain[ing] in any one place with no apparent purpose.”

Id. at 47, 119 S. Ct. at 1853, 144 L. Ed. 2d at 74 (internal quotation

marks omitted). If a police officer reasonably believed that one or more

persons gathered in a public place were gang members and had no

purpose for remaining in the location, the ordinance required the officer

to order all persons that were gathered to disperse. Id. Any person who

disobeyed the order, whether a gang member or not, was guilty of

violating the ordinance and subject to a fine of up to $500, imprisonment

of up to six months, and up to 120 hours of community service. Id.

       In a 6–3 decision, the Supreme Court found the ordinance

unconstitutionally vague in violation of the Fourteenth Amendment’s

Due Process Clause. Id. at 51, 119 S. Ct. at 1856, 144 L. Ed. 2d at 77.

Writing for the Court on this point, Justice Stevens faulted the

ordinance’s broad definition of “loitering” as meaning “to remain in any

one place with no apparent purpose.” Id. at 61, 119 S. Ct. at 1861, 144

L. Ed. 2d at 83 (internal quotation marks omitted). He noted that this

definition confers “vast discretion” on the police, “is inherently subjective

because its application depends on whether some purpose is ‘apparent’

to the officer on the scene,” and “extends its scope to encompass



       2We   quoted from Morales in Musser. See Musser, 721 N.W.2d at 746.
                                    11

harmless conduct.” Id. at 61–63, 119 S. Ct. at 1861–62, 144 L. Ed. 2d at

83–84.

      Again writing for the Court, Justice Stevens also noted that the

Illinois Supreme Court had declined to narrow what “no apparent

purpose” meant. Id. at 61, 119 S. Ct. at 1861, 144 L. Ed. 2d at 83. As

he put it, “[P]ersons who stand or sit in the company of a gang member

may be ordered to disperse unless their purpose is apparent.” Id. at 60,

119 S. Ct. at 1861, 144 L. Ed. 2d at 82.         He added, “We have no

authority to construe the language of a state statute more narrowly than

the construction given by that State’s highest court.” Id. at 61, 119 S.

Ct. at 1861, 144 L. Ed. 2d at 83. Yet he seemingly concluded that the

ordinance would be constitutional if it “only applied to loitering that had

an apparently harmful purpose or effect.” Id. at 62, 119 S. Ct. at 1862,

144 L. Ed. 2d at 84.

      Concurring in part and concurring in the judgment, Justice

O’Connor, joined by Justice Breyer, highlighted her concerns:

             As it has been construed by the Illinois court,
      Chicago’s gang loitering ordinance is unconstitutionally
      vague because it lacks sufficient minimal standards to guide
      law enforcement officers. In particular, it fails to provide
      police with any standard by which they can judge whether
      an individual has an “apparent purpose.” Indeed, because
      any person standing on the street has a general “purpose”—
      even if it is simply to stand—the ordinance permits police
      officers to choose which purposes are permissible.

Id. at 65–66, 119 S. Ct. at 1863–64, 144 L. Ed. 2d at 86 (O’Connor, J.,

concurring in part and concurring in the judgment). Justice O’Connor

further observed,

            In my view, the gang loitering ordinance could have
      been construed more narrowly. The term “loiter” might
      possibly be construed in a more limited fashion to mean “to
      remain in any one place with no apparent purpose other
      than to establish control over identifiable areas, to intimidate
                                           12
       others from entering those areas, or to conceal illegal
       activities.” Such a definition would be consistent with the
       Chicago City Council’s findings and would avoid the
       vagueness problems of the ordinance as construed by the
       Illinois Supreme Court.

Id. at 68, 119 S. Ct. at 1864–65, 144 L. Ed. 2d at 87. 3
       In a dissent joined by Chief Justice Rehnquist and Justice Scalia,

Justice Thomas emphasized that the ordinance “does not criminalize

loitering per se.     Rather, it penalizes loiterers’ failure to obey a police

officer’s order to move along.” Id. at 106, 119 S. Ct. at 1883, 144 L. Ed.

2d at 111 (Thomas, J., dissenting). As he put it, “There is nothing ‘vague’

about an order to disperse.” Id. at 112, 119 S. Ct. at 1886, 144 L. Ed. 2d

at 114. Yet Justice Thomas also disputed the notion that the definition

of loitering itself failed to provide adequate notice: “Members of a group

standing on the corner staring blankly into space, for example, are likely

well aware that passersby would conclude that they have ‘no apparent

purpose.’ ” Id. at 114, 119 S. Ct. at 1887, 144 L. Ed. 2d at 116.

       In his own separate dissent, Justice Scalia mentioned several of

these same points. See id. at 90, 119 S. Ct. 1875, 144 L. Ed. 2d at 101

(Scalia, J., dissenting) (noting the ordinance criminalizes “the refusal to


       3In his separate opinion concurring in part and concurring in the judgment,
Justice Kennedy voiced the following concern:
       A citizen, while engaging in a wide array of innocent conduct, is not likely
       to know when he may be subject to a dispersal order based on the
       officer’s own knowledge of the identity or affiliations of other persons
       with whom the citizen is congregating; nor may the citizen be able to
       assess what an officer might conceive to be the citizen’s lack of an
       apparent purpose.
Morales, 527 U.S. at 69–70, 119 S. Ct. at 1865, 144 L. Ed. 2d at 88 (Kennedy, J.,
concurring in part and concurring in the judgment). Similarly, in his separate opinion
concurring in part and concurring in the judgment, Justice Breyer worried that the
phrase “with no apparent purpose” results in “open-ended discretion” because “one
always has some apparent purpose.” Id. at 70, 119 S. Ct. at 1866, 144 L. Ed. 2d at 89
(Breyer, J., concurring in part and concurring in the judgment).
                                          13

obey a dispersal order, as to which there is no doubt of adequate notice

of the prohibited conduct”); id. at 93, 119 S. Ct. at 1877, 144 L. Ed. 2d at

103 (observing that it is “not difficult to perceive” when persons “remain

[in any one place] without any apparent reason for remaining there”).

       As we read this portfolio of opinions, it seems clear that one

constitutional flaw in the Chicago ordinance was its effort to criminalize

staying in one place “with no apparent purpose”—assuming other

elements of the crime were also met. Too vague; too much discretion. At

the same time, the Court indicated a definition of loitering would be

constitutional if it was limited to hanging out that had an apparently

improper purpose. See id. at 62, 119 S. Ct. at 1862, 144 L. Ed. 2d at 84

(majority opinion); id. at 68, 119 S. Ct. at 1864–65, 144 L. Ed. 2d at 87

(O’Connor, J., concurring in part and concurring in the judgment). 4

       This distinction, we believe, is captured by a recent decision of the

South Dakota Supreme Court, State v. Stark, 802 N.W.2d 165 (S.D.

2011). That case involved a sex offender who, after getting off work in

the early evening, circled a park where numerous children were playing

for approximately twenty minutes in his van. Id. at 167–68. The court

there had to determine the constitutionality of a South Dakota statute
that prohibited convicted sex offenders from loitering in a “community

safety zone.”     Id. at 167.     Under the statute, loitering was defined as

“remain[ing] for a period of time and under circumstances that a

reasonable person would determine is for the primary purpose of



       4To the extent Justice Stevens was speaking for the Court, we follow his majority
opinion.    Otherwise, under the narrowest grounds doctrine, we follow Justice
O’Connor’s opinion concurring in part and concurring in the judgment. See, e.g., State
v. Iowa Dist. Ct., 801 N.W.2d 513, 522 (Iowa 2011) (discussing the narrowest grounds
doctrine).
                                          14

observing or contacting minors[.]”             Id. at 168 (citation and internal

quotation marks omitted).

       The court pointed out the statute in question was different from

the ordinance invalidated in Morales:

       First, SDCL 22–24B–24 only applies to persons required to
       register as sex offenders in South Dakota, a meticulously
       defined class of individuals. Second, by defining the term
       “community safety zone,” SDCL 22–24B–22 describes the
       precise area to which SDCL 22–24B–24 applies. The statute
       does not use amorphous terms like “neighborhood” or
       “locality,” which are “elastic and dependent upon the
       circumstances.”    Finally, and perhaps most importantly,
       SDCL 22–24B–24 distinguishes between innocent and
       harmful conduct. By requiring that the loitering be “for the
       primary purpose of observing or contacting minors,” the South
       Dakota Legislature limited the statute’s application to loitering
       that has an “apparently harmful purpose or effect.”

Id. at 171 (citations omitted) (emphasis added). The court concluded the

statute was sufficient to provide the defendant with notice that his

conduct was prohibited, and it upheld the defendant’s conviction as

supported by sufficient evidence. Id. at 171, 172–73.

       Iowa’s sex offender loitering statute, which we have already quoted,
is somewhat different from South Dakota’s. It prohibits remaining in an

area when a reasonable person would believe “the purpose or effect of the

behavior is to enable a sex offender to become familiar with a location

where a potential victim may be found, or to satisfy an unlawful sexual

desire, or to locate, lure, or harass a potential victim.” See Iowa Code

§ 692A.101(17). 5

       5Notably,  the Iowa statute uses some of the same terms as the revised ordinance
adopted by the City of Chicago in the wake of Morales. That ordinance is triggered
when a police officer observes a member of a criminal street gang engaged in gang
loitering, which is defined as follows:
       Gang loitering means remaining in any one place under circumstances
       that would warrant a reasonable person to believe that the purpose or
       effect of that behavior is to enable a criminal street gang to establish
                                          15

       To avoid the constitutional problems noted in Morales, the Iowa

statute needs to be interpreted as limited to loitering with some

apparently improper purpose, as opposed to generalized loitering or

loitering with no apparent purpose. Generally speaking, the words of the

statute already take us there. Thus, staying in one place is criminally

prohibited only if a reasonable person would believe the purpose or effect

of the behavior is (a) “to become familiar with a location where a potential

victim may be found,” (b) “to satisfy an unlawful sexual desire,” or (c) “to

locate, lure, or harass a potential victim.” See id.

       Alternatives (b) and (c) are improper purposes.                Alternative (a)

requires some additional discussion. Arguably, it is ambiguous. It could

be read as rendering unlawful the act of remaining in a place when a

reasonable person would believe the defendant’s purpose is to become

familiar with a location because that location has or will have one or

more potential victims. Or it could be read as prohibiting remaining in a

place when a reasonable person would believe the defendant’s purpose is

to become familiar with a location that coincidentally happens to have one

or more potential victims.       In other words, would a reasonable person

believe the defendant was casing the joint or, instead, does the behavior

appear to be benign or at worst innocuous?

       This strikes us as a critical distinction. Practically anybody who

passes time within 300 feet of a property is going to become more

______________________________________
       control over identifiable areas, to intimidate others from entering those
       areas, or to conceal illegal activities.
Chi., Ill., Mun. Code § 8-4-015(d)(1) (2013); see also Kim Strosnider, Anti-Gang
Ordinances After City of Chicago v. Morales: The Intersection of Race, Vagueness
Doctrine, and Equal Protection in the Criminal Law, 39 Am. Crim. L. Rev. 101, 135–36
(2002) (quoting this language and stating, “This language is taken verbatim from dicta
in Justice O’Connor’s Morales concurrence.”).
                                         16

familiar with that property. 6 This is analogous to allowing a crime to be

triggered when a person remains in a place with “no apparent purpose”—

the formulation that the Supreme Court overturned in Morales for being

too vague. The same dangers of lack of notice and unbridled government

discretion would arise if we construed sections 692A.101(17) and

692A.113(1) as criminalizing mere “familiarity,” without some improper

purpose to go along with it. In sum, to meet the constitutional concerns

discussed in Morales, we interpret the phrase “to enable a sex offender to

become familiar with a location where a potential victim may be found”

as requiring a determination that familiarity was tied to the potential

presence of victims. 7

       We express no view on whether the legislature could enact a

statute that prohibits convicted sex offenders from loitering in an

exclusionary zone, where loitering is defined as remaining in the zone for

any reason. In such event, there would be less uncertainty as to what

the statute prohibits. See United States v. Zobel, 696 F.3d 558, 575 (6th

Cir. 2012) (upholding against a vagueness challenge lifetime supervision

conditions that include a prohibition on “loitering where minors

congregate, such as playgrounds, arcades, amusement parks, recreation
parks, sporting events, shopping malls, swimming pools, etc.” (internal

quotation marks omitted)); In re Rusty Nail Acquisition, Inc., 980 A.2d

758, 766–67 (Vt. 2009) (rejecting a vagueness attack on an ordinance

that prohibits licensed establishments from allowing intoxicated persons

       6As  Showens’s counsel puts it, “[A]lmost any conduct or behavior within a
certain area for any amount of time will consequently make a person more familiar with
their surroundings . . . .”
       7Indeed,  at oral argument the State conceded that chapter 692A was not
intended to reach the situation where the defendant would have a legitimate reason for
observing the library, such as a need to survey the grounds in order to bid a job.
                                     17

to “loiter” on the premises, and noting loiter in this context means simply

to “remain”); see also Formaro, 773 N.W.2d at 837 (rejecting various

constitutional challenges including a vagueness challenge to the

residency restrictions in the previous version of chapter 692A).

      True, Justice Stevens’s plurality opinion also asserts that “the

freedom to loiter for innocent purposes is part of the ‘liberty’ protected by

the Due Process Clause of the Fourteenth Amendment.” Morales, 527

U.S. at 53, 119 S. Ct. at 1857, 144 L. Ed. 2d at 78 (plurality opinion).

But on this point, he was speaking for only three members of the court,

not a majority. See id. at 67, 119 S. Ct. at 1864, 144 L. Ed. 2d at 87

(O’Connor, J., concurring in part and concurring in the judgment)

(“[T]here is no need to consider the other issues briefed by the parties

and addressed by the plurality. I express no opinion about them.”); see

also Doe v. City of Lafayette, 377 F.3d 757, 772–73 (7th Cir. 2004)

(noting that Justice Stevens was speaking for only three justices in

Morales and finding that a convicted sex offender does not have a

fundamental right to loiter innocently in a public park).

      Thus, we have simply decided today that if section 692A.113(1)(g)

were interpreted as criminalizing the mere act of remaining in a place “to

become familiar with a location”—with only the added proviso that the

location might be visited by minors—the resulting prohibition would be

so vague as to raise the unbridled discretion concerns that drove the

Morales due process decision.

      Showens goes somewhat farther and argues that a loitering statute

suffers from constitutional defects whenever the definition of loitering

turns on how a “reasonable person” would view the defendant’s purpose.

In short, Showens concedes it would be constitutional to prohibit sex

offenders from remaining in an area for a particular improper purpose,
                                          18

but argues it is unconstitutional to prohibit them from remaining in an

area “under circumstances that would warrant a reasonable person to

believe” they were engaged in that same improper purpose.

       We are not persuaded. For one thing, both Justice Stevens and

Justice O’Connor indicated in Morales that an ordinance prohibiting

loitering with an improper “apparent” purpose would be constitutional.

527 U.S. at 62, 119 S. Ct. at 1862, 144 L. Ed. 2d at 84 (majority

opinion); id. at 68, 119 S. Ct. at 1864, 144 L. Ed. 2d at 87 (O’Connor, J.,

concurring in part and concurring in the judgment). They did not believe

a standard based on how a hypothetical outsider viewed the defendant’s

conduct would invalidate the ordinance; rather, it would preserve it. And

the South Dakota statute at issue in Stark also employed a reasonable

person test. See Stark, 802 N.W.2d at 168. 8

       Moreover, our criminal law has other examples of statutes where

the commission of a crime depends, in part, on what a hypothetical

“reasonable person” would conclude. An element of stalking is met when

a person purposefully engages in a course of conduct directed at a

person “that would cause a reasonable person to fear bodily injury.”

Iowa Code § 708.11(2)(a). 9         Whether a person can successfully assert

       8Showens   points out that when it came time for the South Dakota Supreme
Court to decide whether there was sufficient evidence to sustain Stark’s conviction, it
seemingly focused on Stark’s subjective intent, rather than how a reasonable person
would view his intent. See 802 N.W.2d at 172–73 (“[W]e conclude that the State
presented sufficient evidence that Stark’s primary purpose for remaining in the
community safety zones was to observe or contact minors.”). But the South Dakota
court never said it was modifying or even interpreting the actual statutory language.
Most likely, the court simply did not see a meaningful difference between the two
standards. We suspect that a fact finder asked to decide whether (1) the defendant had
a particular purpose or (2) the defendant engaged in conduct under circumstances that
would warrant a reasonable person to believe the defendant had a particular purpose
would go through a similar thought process in both instances.
       9SeeState v. Porelle, 822 A.2d 562, 564, 566–67 (N.H. 2003) (rejecting a void-for-
vagueness challenge to New Hampshire’s stalking statute which defined stalking as “[t]o
                                         19

self-defense to a criminal charge depends on what “a reasonable person,

in like circumstances, would judge to be necessary to prevent an injury

or loss.” Id. § 704.1. An element of the crime of indecent exposure is

whether the person “knows or reasonably should know that the act is

offensive to the viewer.” Id. § 709.9(2). A person commits the serious

misdemeanor of malicious prosecution when he or she causes or

attempts to cause another to be indicted or prosecuted for a public

offense, “having no reasonable grounds for believing that the person

committed the offense.” Id. § 720.6.

       We also allow the determination of whether a defendant has a

“dangerous weapon,” which often has a tremendous impact on the

available criminal penalties, to depend in certain instances on the

apparent purpose as opposed to the actual purpose with which an

instrument is used.         See Iowa Code § 702.7 (defining “dangerous

weapon” to include any weapon capable of inflicting death “which is

actually used in such a manner as to indicate that the defendant intends

to inflict death or serious injury”); State v. Ortiz, 789 N.W.2d 761, 767

(Iowa 2010) (holding that a box cutter was a dangerous weapon in a

particular case and stating that under the foregoing definition, the

“inquiry is objective” and the definition is met when “the defendant

engages in a personal confrontation with another while possessing an

instrument capable of causing bodily harm”).

       In Lewis v. Jaeger, we upheld the constitutionality of an ordinance

that had been relied upon to lock a tenant out of her apartment who was


______________________________________
appear on more than one occasion for no legitimate purpose in proximity to the
residence, place of employment, or other place where another person is found under
circumstances that would cause a reasonable person to fear for his personal safety”).
                                     20

leaving her water and gas stove on unattended for extended periods of

time. 818 N.W.2d 165, 170–71, 185 (Iowa 2012). The ordinance read:

      Whenever, in the judgment of the city manager, an
      emergency exists which requires immediate action to protect
      the public health, safety or welfare, an order may be issued,
      without a hearing or appeal, directing the owner, occupant,
      operator or agent to take such action as is appropriate to
      correct or abate the emergency.

Id. at 174 (citation and internal quotation marks omitted). To address

the concern that an “emergency” could be whatever city officials deem to

be an emergency in their exclusive “judgment,” we found that the

ordinance “may be narrowed through an implied term of objective

reasonableness.”    Id. at 185.    Similarly, in this case, we believe the

objective reasonableness test already set forth in section 692A.101(17)

suffices to give fair warning and constrain governmental discretion.

      In State v. Milner, we dealt with a constitutional challenge to Iowa’s

criminal threat statute, which makes it a felony when a person

“ ‘threatens to place . . . any incendiary or explosive device or material, or

any destructive substance or device in any place where it will endanger

persons or property.’ ”     State v. Milner, 571 N.W.2d 7 (Iowa 1997)

(quoting Iowa Code § 712.8). To avoid the concern that the statute might

cover jokes, idle talk, or political hyperbole, we held the “prohibited

statements must be understandable as a threat by a reasonable person

of ordinary intelligence.” Id. at 10. Having so construed the statute, we

found it neither overbroad nor unconstitutionally vague. Id. at 12–15;

see also State v. Soboroff, 798 N.W.2d 1, 8–10 (Iowa 2011) (finding

sufficient evidence that a reasonable person could believe the defendant’s

website posting that referred to putting a psychotropic drug in the city

water supply was an actual threat, but remanding for a new trial

because the jury had not been instructed on this standard).
                                           21

       Otherwise stated, a statute that criminalizes remaining in a place

or circulating around a place, by a sex offender convicted of a sex offense

against a minor, “under circumstances that would warrant a reasonable

person to believe” the sex offender’s purpose is to look for potential

victims or to check out a location because it contains potential victims, is

not void for vagueness under the Fourteenth Amendment’s Due Process

Clause. 10

       Showens also maintains that even if the foregoing standard is

sufficiently clear to meet federal due process requirements, it does not

satisfy Iowa’s due process clause—article I, section 9 of the Iowa

Constitution. To overcome any Iowa due process objections, according to

Showens, it must be an element of the crime that he actually intended to

scout for potential victims or scout out a location because it had




       10The   statutes also make it a crime for a sex offender to remain within 300 feet
of a library “under circumstances that would warrant a reasonable person to believe
that the . . . effect of the behavior is to enable a sex offender to become familiar with a
location where a potential victim may be found, or to satisfy an unlawful sexual desire,
or to locate, lure, or harass a potential victim.” Iowa Code §§ 692A.101(17) (emphasis
added), .113(1)(g). As noted above, Showens was not convicted under the “effect” prong
of the law. We express no opinion on its constitutionality.
        Typically, we do not consider facial due process challenges to a statute unless a
fundamental right is involved. State v. Philpott, 702 N.W.2d 500, 503 (Iowa 2005). We
question whether a fundamental right is at issue here. Section 692A.113(1) does not
affect Showens’s ability to travel throughout the city or even to “hang out” in most of it.
It only curtails his ability to remain in or circulate around certain predefined locations.
Cf. Formaro, 773 N.W.2d at 840, 842 (noting that the residency restrictions on sex
offenders “do[] not implicate the traditional protections of the freedom of travel” and
stating “there is no fundamental right to live where you want”). Furthermore, we are
dealing with a separate part of the statute. See State v. McKee, 392 N.W.2d 493, 494
(Iowa 1986) (holding that when a statute criminalized conduct that was injurious to
either “the physical, mental or moral welfare” of a resident of a health care facility, the
court did not need to address the portion of the statute referring to “mental or moral
welfare” where only an injury to physical welfare was at issue (citation and internal
quotation marks omitted)). Thus, we will not consider at this time whether the “effect”
prong passes due process muster.
                                      22

potential victims.     It is not enough that a reasonable person would

believe this was his purpose based on objective circumstances.

         While we reserve the right to interpret article I, section 9 in a

manner different from the Fourteenth Amendment’s Due Process Clause,

we   are     not   persuaded   the   Iowa    Constitution   renders   sections

692A.101(17) and 692A.113(1), as we have already clarified them, void

for vagueness.     As noted above, we have actually approved the use of

reasonable person standards in other criminal law contexts.           Thus, a

person may be found guilty of making a threat under section 712.8,

without having intended to carry out the threat or even to put people in

fear, so long as his or her words convey a threat and a person objectively

would view it as a “true threat.” See Soboroff, 798 N.W.2d at 8–10.

         There is a trade-off here.         Under the versions of sections

692A.101(17) and 692A.113(1)(g) enacted by the legislature, Showens

cannot be found guilty merely because a fact finder concludes beyond a

reasonable doubt he has the intent to be a predator, regardless of what

the objective circumstances may indicate about his reasons for being

outside the library. On the other hand, if the objective circumstances

indicate to a fact finder beyond a reasonable doubt that his purpose is

predatory, a claim that he did not have such intent will not save him.

We cannot find that a constitutional threshold is being crossed simply

because the legislature defined the offense one way rather than the

other.    We believe the legislature’s objective standard, when combined

with the requirements that the defendant—a sex offender previously

convicted of a sex offense against a minor—has knowingly remained

within 300 feet of a public library, affords sufficient specificity to be

constitutional.     Notably, Showens’s experienced and able appellate
                                     23

counsel cites no case law from any jurisdiction to support her theory that

actual predatory intent is constitutionally required.

      C. Was the Evidence Sufficient? We now review the record for

sufficiency of the evidence with these considerations in mind.      By his

own admission, Showens sat on the park bench for around forty-five

minutes with a clear unobstructed view of the public library. The bench

was less than seventy-five feet from the library property. Furthermore,

Showens admitted to Deputy Bawden that he knew he was within a

football field (i.e., 300 feet) of the property.   For the entire time that

Deputy Bawden observed Showens, he was “facing” the library.           His

explanations for waiting there were inconsistent and made little sense.

First, he was waiting for a friend, who had already left. Then, he was

scratching lottery tickets, but no tickets could be found. Finally, he was

waiting for a bus to take him home, although the bus stop was two

blocks away and his home was only seven blocks away.

      Undoubtedly, Showens was “remaining in a place” within 300 feet

of the library property.   We also agree that substantial evidence could

support a finding that Showens had violated section 692A.113(1)(g).

Given the prolonged time he was on the bench looking at the public

library, his seeming lack of a legitimate reason to be there, and his

apparently false explanations for what he was doing, a fact finder could

conclude that a reasonable person would believe the purpose of the

behavior was to locate a potential victim or to become familiar with a

location because a potential victim could be found there.

      The problem is that the district court did not have the benefit of

our construction of the statute, so we are unsure whether it applied the

appropriate legal standard.      Again, an apparent purpose merely to

become familiar with the library would not be enough.            From the
                                         24

perspective of a reasonable person, it would have to appear that

Showens’s purpose was to scout for potential victims or to scout the

library because it offered potential victims.

       Some of the evidence here could potentially be viewed as

supporting Showens’s innocence.           He was eating a bag of chips while

sitting on the bench. The record does not indicate how large a bag it

was. Showens was found outside the public library around 1:30 p.m. on

a school day—not the time when large numbers of school-age children

would normally be present. Showens’s refusal to get up and leave when

Deputy Bawden arrived could possibly be viewed as a sign of orneriness,

rather than deviance. Perhaps, as the defendant claimed at times, he

was “just hanging out.” In any event, we are not the trier of fact. 11

       IV. Conclusion.

       For the foregoing reasons, we reverse the judgment of conviction

below and remand for new findings, conclusions, and judgment on the

existing record consistent with this opinion.

       REVERSED AND REMANDED.




       11Some   language in the district court’s generally thorough and well-written
ruling suggests the court may have believed Showens could be found guilty merely
because a reasonable person would believe he had no good reason to be outside the
library, as opposed to a sinister one. For example: “There were several places outside
the exclusionary zone where he could have sat, met his friend, finished his chips, or
waited for a bus.” We are talking about a fine line, because the lack of a valid motive
can often be used in the criminal law as a basis for inferring a bad motive. But the
point remains that an inference has to be drawn; lacking an objectively good reason for
being outside the library is not in itself a crime.
