                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1766
                              Filed March 25, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DENNIS CLARENCE VRBA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, Annette L.

Boehlje, District Associate Judge.



      A defendant appeals his conviction for indecent exposure. AFFIRMED.



      Michael G. Byrne of Winston & Byrne, P.C., Mason City, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Carlyle D. Dalen, County Attorney, and Andrew D. Olson,

Assistant County Attorney, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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VAITHESWARAN, J.

        Dennis Vrba committed sex acts at an athletic facility. Following a bench

trial, the district court found him guilty of indecent exposure, in violation of Iowa

Code section 709.9 (2013). On appeal, Vrba contends the record lacks sufficient

evidence to support the intent element of the crime and the district court should

have given greater weight to evidence of his good character.

   I.      Sufficiency of the Evidence

        Iowa Code section 709.9 defines indecent exposure as follows:

        A person . . . who commits a sex act in the presence of or view of a
        third person, commits a serious misdemeanor, if:
            1. The person does so to arouse or satisfy the sexual
            desires of either party; and
            2. The person knows or reasonably should know that the act
            is offensive to the viewer.

Vrba argues the State failed to prove he knew or reasonably should have known

the act was offensive to the viewer. This element “requires the State to show the

state of mind of both the actor and the victim-viewer.”        State v. Bauer, 337

N.W.2d 209, 212 (Iowa 1983). “It must be shown that the viewer was offended

by the conduct.     It must also be shown that the actor knew, or under the

circumstances, should know the viewer would be offended.” Id.

        As a preliminary matter, Vrba contends the district court morphed the

State’s burden of proof with our standard of review. We disagree. The State is

obligated to establish each element of a crime by proof beyond a reasonable

doubt. See In re Winship, 397 U.S. 358, 364 (1970). On appeal, we are bound

by the district court’s findings of guilt if they are supported by substantial

evidence. See State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008). The
                                          3


district court repeatedly and explicitly concluded the State proved each element

of the crime by proof beyond a reasonable doubt. There is no indication the

court confused or conflated this burden with our standard of review. Accordingly,

we proceed to the merits.

       The district court made the following pertinent findings. The men’s locker

room of a YMCA houses a sauna with a transparent glass door.                 A janitor

cleaning the locker room saw a naked man inside the sauna. The man was

engaging in a sex act with another man. The janitor noticed a cosmetic bag on

the bench near the sauna that he knew belonged to Vrba.

       Several days later, the janitor was again cleaning the locker room when he

again saw two men performing sex acts in the sauna. He identified one of the

men as Vrba. The janitor testified these acts, like the one he witnessed earlier,

offended him. Vrba was subsequently questioned by police. He admitted his

involvement in both incidents.

       These fact findings are supported by substantial evidence. Indeed, they

are essentially undisputed.1

       This brings us to the disputed issue: Vrba’s knowledge that his conduct

could offend a viewer. The district court determined Vrba knew or reasonably

should have known the act was offensive to a third-party based on: (1) his

request to have officers question him outside the presence of his wife, (2) his

request to keep the incident from the media, and (3) his delay in informing his

wife. In connection with another element, the court also noted Vrba “verbalized

1
  Vrba back-pedaled from some of his pretrial statements to police, but transcripts of
those recorded statements were admitted at trial, and as the district court found, they
unequivocally established key elements of the crime.
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‘precautions’ that he undertook to avoid others seeing his sexual behavior and

acknowledged that being observed by another would upset him, and possibly

disgust the other person.” The court further found Vrba “knew that he could be

seen out of the sauna.”        Substantial evidence supports these fact-findings.

Accordingly, the district court did not err in determining Vrba knew or reasonably

should have known his sexual activity was offensive to a viewer. See Jorgensen,

758 N.W.2d at 837 (noting defendant’s decision to stop fondling himself on

seeing two store employees approaching him suggests he knew the employees

would find the conduct offensive); see also State v. Guthrie, No. 10-1285, 2011

WL 2694713, at *3-4 (Iowa Ct. App. July 13, 2011) (rejecting assertion

defendant’s embarrassment and effort to cover himself reflected his sexual

activity was unintentional).

   II.      Evidence of Vrba’s Character or Reputation

         Vrba called an expert to render a professional opinion about his character

traits. The expert stated he spoke to Vrba on thirteen occasions following the

incidents in question. Over the State’s objection, the district court allowed the

expert to testify on a limited basis about Vrba’s quiet, non-exhibitionist nature.

The expert stated Vrba was “gentle as a lamb.”

         In its findings and conclusions, the court essentially discounted the

expert’s testimony on the ground he never discussed the specifics of the YMCA

incidents with Vrba.     Vrba now contends the district court “failed to properly

consider” this character evidence.
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       The admissibility of opinion evidence falls squarely within the trial court’s

sound discretion. State v. Hulbert, 481 N.W.2d 329, 332 (Iowa 1992).2 We will

reverse only for an abuse of discretion. Id.

       Iowa Rule of Evidence 5.404(a) generally requires the exclusion of

evidence relating to a person’s character or character trait to prove the person

acted in conformity with it on a particular occasion. There is an exception for

“[e]vidence of a pertinent trait of the person’s character offered by an accused.”

Iowa R. Evid. 5.404(a)(1). Despite this exception, “expert psychological evidence

may not be used to merely bolster a witness’s credibility” or “as a direct comment

on the guilt or innocence of the defendant.” Hulbert, 481 N.W.2d at 332. Expert

opinions based on postcrime interviews are especially questionable. See id. at

332-33 (expressing concern with expert’s proposed testimony based on

defendant’s “performance on after-the-fact interviews and standardized test

scores”).

       We discern no abuse of discretion in the district court’s decision to admit

the character opinion but to essentially afford it no weight. The opinion was

based on sessions beginning three months after the second incident, added little

if anything to lay testimony about Vrba’s good character, and came close to

impermissible vouching for the credibility of a witness.

       We affirm Vrba’s judgment and sentence for indecent exposure.

       AFFIRMED.


2
  The State suggests this issue is being raised as an appeal from the court’s denial of
Vrba’s new trial motion and, accordingly, should be reviewed under a weight-of-the-
evidence standard. See State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). In our
view, this issue simply raises a challenge to an evidentiary ruling.
