
                        IN THE SUPREME COURT OF IOWA

                              No. 148 / 03-0823

                           Filed February 10, 2006


STATE OF IOWA,

      Appellee,

vs.

JOHN MICHAEL BOLSINGER,

      Appellant.



      On review from the Iowa Court of Appeals.


      Appeal from the Iowa District Court for Scott County, James E.  Kelley
and David E. Schoenthaler, Judges.

      Defendant appeals from convictions of  three  counts  of  third-degree
sexual abuse under Iowa  Code  section  709.4(1)  (2001),  three  counts  of
sexual exploitation by a counselor under Iowa Code  section  709.15(2),  and
three counts of sexual misconduct  with  juvenile  offenders  under  section
709.16(2).  DECISION OF COURT  OF  APPEALS  VACATED;  JUDGMENT  OF  DISTRICT
COURT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED.

      Murray W. Bell of Murray W. Bell, PC, Davenport, for appellant.

      Thomas  J.  Miller,  Attorney  General,  Sheryl  A.  Soich,  Assistant
Attorney General, William E.  Davis,  County  Attorney,  and  Julie  Walton,
Assistant County Attorney, for appellee.

LARSON, Justice.
      John  Michael  Bolsinger  appealed  his  convictions  of  third-degree
sexual abuse under Iowa Code section 709.4(1)  (2001),  sexual  exploitation
by a counselor under Iowa Code  section  709.15(2),  and  sexual  misconduct
with juvenile offenders under Iowa Code section  709.16(2).   Bolsinger  was
sentenced to a combination of concurrent and consecutive sentences  totaling
a term not exceeding thirty-seven years.  The  court  of  appeals  affirmed,
and we granted further review.  We vacate  the  decision  of  the  court  of
appeals, reverse his conviction for sexual abuse, affirm  the  remainder  of
the convictions, and remand.
      I.  Facts and Prior Proceedings.
      Bolsinger was the program supervisor  of  a  highly  structured  state
facility for delinquent boys, the Wittenmyer Youth Center,  in  August  2001
when the Iowa Department of Human Services (DHS) conducted an  investigation
into allegations of sexual abuse by Bolsinger.  The investigation  revealed,
through interviews with past and present youth at the camp,  that  Bolsinger
would take boys into a private room and touch their genitals, saying he  was
checking for  bruises,  scratches,  hernias,  and  testicular  cancer.   The
testimony of the boys revealed that  Bolsinger  asked  permission  to  touch
them in this way and that he did not  appear  to  them  to  be  gaining  any
sexual gratification from the touching.  The boys testified that  they  were
not aware that they were being touched in a sexual manner,  and  they  would
not have consented if they had known  the  true  reason  for  the  touching.
However, they also testified  that,  given  the  nature  of  the  structured
program, it was almost impossible for them to make choices of their  own  or
to refuse the request of an instructor.
      Following the DHS investigation, Davenport police officers obtained  a
search warrant for Bolsinger’s home and seized a number of items,  including
the defendant’s home computer.  The computer’s hard drive  contained,  among
other things, numerous stories involving unidentified males engaging in  sex
acts with each other.  Prior to trial, Bolsinger filed a motion to  suppress
evidence seized from his home, which was denied by the court.
      II.  Issues.
       Bolsinger’s  appeal   raises   three   issues:    (1)   the   court’s
interpretation of Iowa Code section 709.4(1)  (third-degree  sexual  abuse),
(2) its denial of his motion to suppress, and  (3)  its  refusal  to  direct
verdicts in his favor on all counts on the basis  his  acts  were  not  “sex
acts” under the Code.  Bolsinger  raises  other  issues,  which  we  do  not
expressly discuss because their resolution is subsumed in other holdings  in
this case.

      III.  Interpretation  of  Iowa  Code  Section  709.4(1)  (Third-Degree
Sexual Abuse).

      Under Iowa Code section 709.4,

            [a] person commits sexual abuse in the  third  degree  when  the
      person performs a sex act under any of the following circumstances:

            1.  The act is done by force or against the will  of  the  other
      person, whether or not the other person is the person’s spouse  or  is
      cohabiting with the person.

In applying the “force or against the will” language of section  709.4,  the
court submitted Instruction No. 21:

      Concerning [the third-degree sexual abuse counts] the State must prove
      that the defendant committed a sex act “by force or against the  will”
      of the alleged victim  in  that  Instruction.   In  order  to  do  so,
      however, the State does not have to  prove  that  the  alleged  victim
      physically resisted the defendant’s  acts.   The  force  used  by  the
      defendant does not have to be physical.  An act may be done “by  force
      and  against  the  will”  of  another  if  the  other’s   consent   or
      acquiescence is procured by:

      1.  threats of violence; or

      2.  deception, which may include deception concerning  the  nature  of
      the act or deception concerning  the  defendant’s  right  to  exercise
      authority over the other under the circumstances.

      You may consider all of the circumstances surrounding the  defendant’s
      act in deciding whether the act was done by force or against the  will
      of the alleged victim.

(Emphasis added.)
      The court stated that its authority for giving  this  instruction  was
found in Iowa Code section 709.5, which provides:

            Under the provisions of this chapter it shall not  be  necessary
      to establish physical resistance by a person  in  order  to  establish
      that an act of sexual abuse was committed by force or against the will
      of the person.  However, the circumstances surrounding the  commission
      of the act may be considered in determining whether or not the act was
      done by force or against the will of the other.

(Emphasis  added.)   The  court  also  relied  on  the  case  of  State   v.
Vander Esch, 662 N.W.2d 689  (Iowa  Ct.  App.  2002).   In  Vander Esch  the
defendant, an owner of  a  pizza  restaurant,  employed  teenage  boys.   He
informed two of these employees that he  was  doing  a  scientific  research
project and asked them to provide him semen samples for  this  purpose.   He
promised to pay $50 for  the  samples  should  their  sperm  count  be  high
enough.  Vander Esch was present during the procedure  and  took  possession
of the semen samples.  Vander Esch, 662 N.W.2d at 691.  Vander Esch was  not
authorized by any scientific body to collect semen samples, and the  victims
indicated that they would not have consented to these acts  had  they  known
that no scientific research existed.   Id.   Vander Esch  was  charged  with
four counts of third-degree sexual abuse under Iowa Code  section  709.4(1).
He argued that the definition of sexual abuse,  as  set  out  in  Iowa  Code
section 709.1(1), set forth the only means  recognized  in  Iowa  to  negate
consent and that neither fraud nor deceit did so.  Id. at 691.
      Our examination of  the  issue  must  begin  with  Iowa  Code  section
709.1(1),  which  defines   sexual   abuse   and   provides   that   certain
circumstances will vitiate a victim’s consent:

            Any sex act between persons is sexual abuse  by  either  of  the
      persons when the act is performed with the other person in any of  the
      following circumstances:

            1.  The act is done by force or against the will of  the  other.
      If the consent or acquiescence of the other is procured by threats  of
      violence toward any person or if the act is done while  the  other  is
      under the influence of a drug inducing sleep  or  is  otherwise  in  a
      state of unconsciousness, the act is done  against  the  will  of  the
      other.

In Vander Esch the district court ruled that, in view of the fact that  Iowa
Code  section  709.5  permits   the   consideration   of   all   surrounding
circumstances, section 709.1(1) is not exclusive  and  fraud  and  deception
may  vitiate  consent.   The  court  of  appeals   upheld   that   decision,
classifying the fraud in question as fraud in fact, as opposed to  fraud  in
the inducement (concepts we later discuss), and therefore, the act was  done
“by force or against the will” of the boys.
      Bolsinger argues that the acts  which  occurred  were  hand-to-genital
contact, which was expressly agreed to by the  boys.   He  argues  that  his
unexpressed purpose, apparently sexual gratification, was collateral to  the
act itself and, therefore, constituted fraud only  in  the  inducement.   As
such, the fraud does not vitiate consent, according to him.  Bolsinger  also
argues that Vander Esch, relied on by the court of  appeals  (which  divided
four to four on the question) and the district court in  the  present  case,
was incorrectly decided and should  be  overruled.   Bolsinger  argues  that
Vander Esch erroneously characterized  the  consent  to  semen  sampling  as
being produced by fraud in fact, and therefore, any consent was vitiated.
      If an act is done that is different from the act  the  defendant  said
he would perform, this is fraud  in  fact.   If  the  act  is  done  as  the
defendant stated it would be, but it is  for  some  collateral  or  ulterior
purpose, this is fraud in the inducement.  Fraud in fact  vitiates  consent;
fraud in the inducement does not.  See Rollin M. Perkins & Ronald N.  Boyce,
Criminal Law ch. 9, § 3, at  1079  (3d  ed.  1982)  [hereinafter  Perkins  &
Boyce].  In other words,

      if deception causes a misunderstanding as to the fact itself (fraud in
      the factum)  there  is  no  legally-recognized  consent  because  what
      happened is not that for which  consent  was  given;  whereas  consent
      induced by fraud is as effective as other consent, so  far  as  direct
      and immediate legal  consequences  are  concerned,  if  the  deception
      relates not to the thing done but merely  to  some  collateral  matter
      (fraud in the inducement).

Id.; accord Wayne R. LaFave, Substantive Criminal Law § 6.5(a), at  506  (2d
ed. 2003) (stating that “fraud in the factum involves a  form  of  deception
which results in a misunderstanding by the victim as to  the  very  fact  of
the defendant’s conduct”).
       Cases  illustrating  fraud  in  fact  have  often  involved   victims
undergoing medical examination or treatment.  In  many  cases,  the  victims
consented to an examination, only to find that the  doctor  engaged  in  sex
acts.  See, e.g., People v. Ogunmola, 238 Cal.  Rptr.  300,  304  (Cal.  Ct.
App. 1987) (patient who consented to gynecological examination was  in  fact
subjected to a sex act; consent held to be vitiated); McNair v.  State,  825
P.2d 571, 575 (Nev. 1992) (sex acts under  pretense  of  performing  medical
examination held to be against the  will  of  the  victim).   See  generally
regarding fraud in fact  in  “doctor”  cases,  Jay  M.  Zitter,  Annotation:
“Conviction of Rape or Related  Sexual  Offenses  on  Basis  of  Intercourse
Accomplished Under the Pretext of, or in the Course of, Medical  Treatment,”
65 A.L.R.4th 1064 (1988); 75 C.J.S. Rape § 22, at 334 (2002).  One  treatise
discusses fraud in these cases:

      In some of these cases the doctor has not hesitated to make  it  clear
      that he intended to have sexual  intercourse  with  the  patient,  his
      fraud being in the deceitful suggestion that  this  was  necessary  to
      cure some malady, which was fraud in the inducement, since the patient
      knew exactly what was to be done and was deceived only in regard to  a
      collateral matter—the reason why it was to be done.  And here as usual
      the direct and immediate consequence of consent obtained by  fraud  in
      the inducement is the same as consent given in the absence  of  fraud,
      and since the patient consented to the intercourse it was not rape  so
      long as she was over the statutory age.

Perkins & Boyce, ch. 9, at 1079-80.
      Bolsinger argues that each of  these  young  men  was  told  what  the
touching would consist of and that they  were  then  touched  in  the  exact
manner they  expected.   Thus,  he  argues,  any  fraud  was  fraud  in  the
inducement, not fraud in fact.
      In Bolsinger’s case, if  the  boys  had  consented  to  acts  such  as
massaging their legs and instead Bolsinger had touched their  genital  area,
this would clearly be fraud in fact; they would have consented  to  one  act
but subjected to a different one.   That  is  not  the  case,  however.   We
conclude  that  the  consents  given  here  were  based  on  fraud  in   the
inducement, not on fraud in fact, as the victims  were  touched  in  exactly
the  manner  represented  to  them.   The  consents,  therefore,  were   not
vitiated.
      In reaching this  conclusion,  we  do  so  based  on  the  authorities
discussed above and not on Bolsinger’s alternative argument that Iowa’s  sex
abuse law in effect provides no way  to  vitiate  consent  based  on  fraud.
This argument,  based  on  the  doctrine  of  inclusio  unius  est  exclusio
alterius, is that the Code sets out a limited list  of  circumstances  under
which consent may be vitiated.  These include the victim’s  age  (Iowa  Code
section 709.4(2)(b) and (c)), a  mental  defect  or  incapacity  (Iowa  Code
section 709.4(2)(a) and (4)),  a  physical  incapacity  (Iowa  Code  section
709.4(4)), and the influence of controlled  substances  (Iowa  Code  section
709.4(3)).  Contrary to Bolsinger’s argument, we believe that these are  not
the only circumstances in which consent can be vitiated and  that  fraud  in
fact should be held to vitiate consent in sexual  abuse  cases  just  as  it
does in any other criminal case.  We rejected a similar inclusio  unius  est
exclusio alterius argument in State v. Ramsey, 444 N.W.2d 493  (Iowa  1989),
which involved a statute prohibiting the removal of a person  without  their
consent. We held that deception  by  the  defendant  vitiated  the  victim’s
consent.

      [The defendant] contends that because the word “deception” is not used
      in section 710.1, it cannot form the basis upon which  his  conviction
      rests.  Ramsey is confusing means with ends, however. Ramsey’s intent,
      as expressed by his girlfriend and logically inferred from  subsequent
      events, was to remove an innocent person to a remote  location,  shoot
      him, and steal his car.  Whether the removal was accomplished by force
      or artful deception, the end result remains the same.

Id. at 494.  Ramsey involved fraud in fact; the victim agreed  to  give  the
defendant a ride, not to be shot in the back of the head.  Id. at 493-94.
      Our conclusion that the boys’ consent in this case was based on  fraud
in the inducement and not fraud in fact calls into  question  the  court  of
appeals case of Vander Esch.  In fact, in the four-to-four decision  by  the
court of appeals in Bolsinger’s appeal, four members of that court  urge  us
to overrule  Vander Esch.   We  now  hold  that  Vander Esch  is  no  longer
controlling because the facts on which that  case  was  based  clearly  show
fraud in the inducement, not fraud in fact.
      IV.  Remaining Issues.
      Bolsinger raises several additional issues, which, if resolved in  his
favor, would result in a reversal of all convictions—sexual exploitation  by
a counselor and sexual misconduct with  a  juvenile  offender,  as  well  as
third-degree sexual abuse.  He claims (1) the fruits of the  search  of  his
home should have been suppressed; and (2) in any  event,  his  actions  were
not “sex acts” under the Code.
      A.  The search warrant.  Bolsinger contends the  search  of  his  home
was illegal because the search warrant was invalid, and in  any  event,  the
officers executing it did so improperly.  We review rulings  on  motions  to
suppress based on alleged Fourth Amendment  violations  de novo.   State  v.
Turner, 630 N.W.2d 601, 606 (Iowa 2001).
      Bolsinger contends the  search  warrant  lacked  probable  cause,  was
based on false statements in the application, and was  overbroad.   We  have
considered the record and the defendant’s arguments on the legality  of  the
search warrant and on the execution of  it  and  conclude  the  warrant  was
based on probable cause, was not based on  false  statements,  and  was  not
overbroad.   Further,  we  conclude  the  officers  properly  executed   the
warrant. We reject Bolsinger’s motion-to-suppress issue.
       B.  Were  these  “sex  acts”  under  the  applicable  statutes?   The
defendant contends that the district court erred in denying his  motion  for
directed verdict as to all charges because “sex acts,” under the Code,  were
not proved.  We have  already  determined  that  Bolsinger’s  conviction  of
third-degree sexual abuse  cannot  stand.   The  remaining  charges,  sexual
abuse by a counselor or therapist  and  sexual  misconduct  with  offenders,
both require proof of sex acts.  Bolsinger argues that  none  of  the  young
men testified there was anything sexual going on and that the  evidence  was
insufficient  to  establish  the  existence  of  sex  acts.   The  jury  was
instructed, based on Iowa Code section 702.17, that a “sex act” is

      [a]ny sexual contact between the fingers or hand of one person and the
      genitals or anus of another person.  ‘Genitals’  include  the  scrotum
      and penis.  You may consider the type of contact and the circumstances
      surrounding it in deciding whether the contact was sexual in nature.

We believe there was substantial evidence  to  support  the  jury’s  finding
that sex acts had been committed.  Direct evidence is not required.

            The sexual nature of the contact can be determined from the type
      of contact and the circumstances surrounding it. . . .

            . . . Other relevant circumstances include but are  not  limited
      to the relationship between the  defendant  and  the  victim;  whether
      anyone else was present; the length of the contact; the purposefulness
      of the contact; whether there was a legitimate, nonsexual purpose  for
      the contact; where and when the contact took place; and the conduct of
      the defendant and victim before and after the contact.

State v. Pearson, 514 N.W.2d 452, 455 (Iowa  1994).   T  he  evidence  shows
that Bolsinger was acting outside the scope of his duties, his actions  took
place in private, and he did not document these procedures, contrary to  the
policy  at  Wittenmyer.   Bolsinger  had  no  medical  training  other  than
information he had  received  in  school  on  testicular  cancer  and  self-
examination and was in a position of power over the victims.  Considered  in
light of this evidence  a  rational  finder  of  fact  could  conclude  that
Bolsinger  committed  sex  acts  under  the  guise  of  performing   medical
examinations.  The trial court did not err in  overruling  his  motions  for
judgment of acquittal on the charges of  sexual  abuse  by  a  counselor  or
sexual misconduct with offenders.
      We reverse the convictions for third-degree sexual  abuse  and  affirm
the remaining convictions.  We remand for  resentencing  without  regard  to
the third-degree sexual abuse convictions under Iowa Code section  709.4(1).

      DECISION OF COURT OF  APPEALS  VACATED;  JUDGMENT  OF  DISTRICT  COURT
AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED.

