                    IN THE COURT OF APPEALS OF IOWA

                             No. 3-1204 / 13-0087
                             Filed August 27, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JUSTIN DAVID SIMPSON,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Linn County, Robert E. Sosalla,

Judge.



      Justin D. Simpson appeals the sentences imposed after the jury’s verdicts

of guilty to sexual abuse in the third degree and lascivious acts with a child.

REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Rachel Regenold, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney

General, Jerry Vander Sanden, County Attorney, and Nicholas Scott, Assistant

County Attorney, for appellee.



      Considered by Doyle, P.J., and Tabor and Bower, JJ.
                                           2



BOWER, J.

       Justin D. Simpson appeals the sentences imposed after the jury’s verdicts

of guilty for sexual abuse in the third degree and lascivious acts with a child. He

claims the district court violated his double jeopardy rights under the United

States Constitution when the court sentenced him for both the sexual abuse

conviction and the lascivious acts conviction. He also claims the court should

have merged the sentences pursuant to Iowa Code section 701.9 (2011). We

reverse and remand.

I.     Background Facts and Proceedings

       Simpson is a self-employed owner of a karaoke business and was friends

with thirteen-year-old M.M.’s parents. Simpson hired M.M. as a babysitter for his

two children, and M.M. would often spend the entire weekend at Simpson’s

residence due to his late work hours. Sometime between April 1, 2011, and May

31, 2011, M.M. was babysitting for Simpson’s children and was staying at

Simpson’s apartment while he was working.1 During the course of the evening,

Simpson sent M.M. a sexually explicit text message, and M.M. testified the text

message frightened her.

       Upon arriving home, Simpson, who appeared to have been drinking, sat

on a couch next to M.M. Simpson initially tried to put his hand down M.M.’s

pants, which M.M. thwarted without any contact between Simpson and her pubes

or genitals. After trying to convince her to consent, Simpson removed M.M.’s

pants and underwear, had sex with her by putting his penis in her vagina, and left


1
 Because M.M. did not report the incident until approximately one month later, the exact
date of the incident is unknown.
                                        3



her crying on the couch.    The next morning he told M.M. he would lose his

children if anyone found out. M.M. continued to babysit for Simpson without

incident.

       About a month later, M.M. discovered text messages on her mother’s

phone in which Simpson accused her of having a crush on him and acting

inappropriately.   After M.M. talked with her stepfather, she was taken to the

police station and later to St. Luke’s Regional Child Protection Center where she

was interviewed and underwent a physical examination.

       Subsequently, the State charged Simpson with one count of sexual abuse

in the third degree and one count of lascivious acts with a child. Simpson was

convicted by a jury on both counts and sentenced to two consecutive terms of

imprisonment, each term not to exceed ten years. He now appeals.

II.    Standard of Review

       To the extent that Simpson is making a constitutional double jeopardy

claim, our review is de novo. See State v. Constable, 505 N.W.2d 473, 477

(Iowa 1993). We review Simpson’s challenge that the sentences imposed violate

Iowa Code section 701.9 for correction of errors at law.     State v. Reed, 618

N.W.2d 327, 335 (Iowa 2000).

III.   Merits

       In this single prosecution, the court imposed consecutive sentences on

Simpson’s convictions for one count of third-degree sexual abuse and one count

of lascivious acts with a child. It is undisputed that both offenses “arose out of

the same sex act.” On appeal, Simpson claims the district court imposed illegal
                                           4



sentences in violation of his double jeopardy rights under the Fifth Amendment to

the United States Constitution.       Related to this issue, Simpson argues the

elements of third-degree sexual abuse are “subsumed” by the elements of

lascivious acts with a child.2

       “Our legislature has both the power and responsibility to describe crimes

and fix punishments.” State v. Wells, 629 N.W.2d 346, 353 (Iowa 2001). “The

Double Jeopardy Clause of the federal Constitution3 protects defendants against

. . . multiple punishments for the same offense.” Constable, 505 N.W.2d at 477

(emphasis added). The clause is binding on the states through the Fourteenth

Amendment.      Benton v. Maryland, 395 U.S. 784, 794 (1969).              The Double

Jeopardy Clause “is limited in its application” to cases in which, as here, “multiple

punishments are imposed pursuant to a single prosecution.” Reed, 618 N.W.2d

at 336.

       Multiple punishments may be imposed without a “double jeopardy

problem” where the sentences are based on “distinct acts.” State v. Jacobs, 607

N.W.2d 679, 688 (Iowa 2000) (“Each time the defendant improperly took funds

from his client he committed a theft.”). Further, by “enacting separate statutes

the legislature may address ‘separate evils’ even when the offenses grow out of

the same incident.” Id. at 688 n.5 (quoting State v. Butler, 415 N.W.2d 634, 637

(Iowa 1987) (ruling the “legislature addressed separate evils” by enacting

separate statutes for burglary and for the possession of burglar’s tools)). Thus, it



2
  Based on our resolution of this case, we need not address this claim.
3
  The clause states that no person shall “be subject for the same offence to be twice put
in jeopardy of life or limb.” U.S. Const. amend. V.
                                          5



“is well established in Iowa law that a single course of conduct can give rise to

multiple charges and convictions.” State v. Velez, 829 N.W.2d 572, 584 (Iowa

2013).

         “In considering a double jeopardy claim within the multiple punishments

context, we are guided by the general principle that the question of what

punishments are constitutionally permissible is no different from the question of

what punishments the legislature intended to be imposed.” State v. McKettrick,

480 N.W.2d 52, 57 (Iowa 1992); see Reed, 618 N.W.2d at 336 (stating the

multiple-punishment prohibition prevents the sentencing court from proscribing

greater punishment than the legislature intended). “The courts, however, must

presume that ‘in the absence of a clear indication of contrary legislative intent,’

the legislature ordinarily does not intend cumulative punishment.” Reed, 618

N.W.2d at 336 (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)); see Wells,

629 N.W.2d at 353 (“Any doubt as to the legislative intent of the appropriate units

of prosecution must be resolved in favor of the accused.”).

         In 1993, our supreme court discussed a defendant’s double jeopardy

concerns in Constable, 505 N.W.2d at 477-78.           In 2014, our supreme court

explained its Constable ruling:

                We determined any single physical contact was a separate
         act sufficient to meet the definition of “sex act.” Therefore, when
         the defendant engaged in five distinct acts of physical contact, each
         act alone was sufficient to charge the defendant with a count of
         sexual abuse, and the State did not violate the defendant’s double
         jeopardy protection.
                ....
                                         6



              [In Constable] we found the legislature intended the unit of
       prosecution for sexual abuse . . . to be each act of physical
       conduct.[4] Thus, multiple acts can constitute separate and distinct
       criminal offenses . . . . [T]he legislative intent was to criminalize
       each act of physical conduct.

State v. Copenhaver, 844 N.W.2d 442, 448-49 (Iowa 2014) (citations omitted)

(ruling the State was required to prove the defendant intended to commit two

separate and distinct thefts to support two convictions of robbery).

       In the instant case, Simpson committed only one “physical contact” or sex

act—Simpson penetrated the child’s vagina with his penis. Thus, the issue is

whether Simpson can be sentenced for two offenses charged under separate

statutory provisions when both offenses are based on a single sex act/single

physical contact. Do the two offenses constitute the same offense for double

jeopardy purposes?

       A. Analysis Process. “[O]ur analysis begins with a search for legislative

intent.” See Reed, 618 N.W.2d at 336. If our legislative-intent analysis does not

resolve the issue, “we then resort to the ‘same elements’ test—a rule of statutory

construction—articulated in Blockburger v. United States, 284 U.S. 299, 304

(1932).” Id. We need not resort to the same-elements test here because, for the




4
  The statutory definition of “sex act” or “sexual activity” at that time included:
        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 . . . ; ejaculation onto the person
        of another; or by use of artificial sexual organs or substitutes therefor in
        contact with the genitalia or anus.
Iowa Code § 702.17. The section was rewritten in 2014 to make each sex act a
separately-numbered subsection. See 2014 Iowa Acts ch. 1092, § 144.
                                           7



reasons that follow, we think the legislature intended to prohibit cumulative

punishment for a single act under the statutes at issue.

       B. Legislative Intent. “[I]ntent may generally be gleaned from the face of

the statute. ‘If the statutory language is plain and the meaning is clear, we do not

search for the legislative intent beyond the express terms of the statute.’” State

v. Perez, 563 N.W.2d 625, 628 (Iowa 1997).

       “Chapter 709 is a comprehensive set of laws generally defining the scope

of sex acts that are deemed offensive.” State v. Meyers, 799 N.W.2d 132, 142

(Iowa 2011). The State charged Simpson under two alternatives of third-degree

sexual abuse—by “force and against the will” and by the child’s age. See Iowa

Code § 709.4(1), (2)(b). Due to the general verdict forms, it is unclear whether

the jury found Simpson committed the sexual abuse by having sex by force or

against the will of M.M, or by having sex when M.M. was underage.

Consequently, we set out both statutory provisions below.         The third-degree

sexual abuse statute provides, in pertinent part:

              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.
              2. The act is between persons who are not at the time
       cohabiting as husband and wife and . . . . (b) The other person is
       twelve or thirteen years of age.

Id. Either violation is a class “C” felony. Id.
                                           8



       Our supreme court recently discussed the statutory structure of third-

degree-sexual-abuse crimes in the context of a victim’s alleged psychological

inability to consent:

       While the categories describe fact-specific circumstances, each
       category continues to involve the absence of consent. Thus,
       consent remains the lynchpin of the crime, and the legislature has
       sought over the years to identify more specific circumstances of
       nonconsent while leaving the broader “against the will” standard in
       place to capture all circumstances of actual nonconsent. The
       structure of the statute does not foreclose psychological
       circumstances that could work to establish nonconsent [from being]
       included in the “against the will” language of Iowa Code section
       709.4(1).

Meyers, 799 N.W.2d at 142. The Meyers court believed it important that “the

statute as a whole expresses no limit on the conduct or circumstance that can be

used to establish nonconsent under section 709.4(1).” Id. at 143. The court

stressed that “sexual abuse today remains a crime predicated on sex acts done

by imposition” and that the sex-by-imposition concept “remains at the heart of the

statute.” Id. at 143, 146 (concluding “psychological force or inability to consent

based on the relationship and circumstance of the participants may give rise to a

conviction under the ‘against the will’ element of section 709.4(1)”).5 Here, the

facts show Simpson’s crimes were “predicated on [one] sex act [ ] done by

imposition.”

       We turn to the State’s second charge against Simpson. The lascivious

acts with a child statute provides, in pertinent part:



5
  In addition to finding substantial evidence to show Meyers performed sex acts against
the victim’s will, the court agreed substantial evidence showed Meyers coerced the
victim to disrobe to satisfy his sexual desires under lascivious conduct with a minor.
Meyers, 799 N.W.2d at 147 (citing Iowa Code section 709.14).
                                           9



               It is unlawful for any person sixteen years of age or older to
       perform any of the following acts with a child [under the age of
       fourteen] with or without the child’s consent unless married to each
       other, for the purpose of arousing or satisfying the sexual desires of
       either of them:
               1. Fondle or touch the pubes or genitals of a child.

Iowa Code § 709.8(1). A violation of this section is a Class “C” felony. Id. Thus,

both sections manifest the intent of the legislature to punish the offenses at issue

as a Class “C” felony.

       We first note that neither Iowa Code section 709.4 nor Iowa Code section

709.8 contains specific language precluding cumulative punishment for the two

crimes.6    Nevertheless, we find clear legislative intent to prohibit multiple

punishments for the same sex act under these two provisions.

       Second, we turn again to the Constable case, where the court supported

its ruling by examining the Newman case and its “related question of whether the

same sex acts which constituted a sexual abuse charge could also apply toward

a defendant’s kidnapping charge in which sexual abuse was a necessary

element.” Constable, 505 N.W.2d at 478 (citing State v. Newman, 326 N.W.2d

788, 793 (Iowa 1982)).       Even though Newman had performed at least two

separate and distinct acts of sexual abuse and even though the State argued on

appeal that only one of those acts formed the basis for the kidnapping charge,

the court reversed Newman’s conviction for sexual abuse “because the State had



6
  Examples of such express statutory language include McKettrick, 480 N.W.2d at 58
(explaining the statute’s plain language prevents conviction for assault with intent and
assault without intent to commit serious injury in single assault) and Iowa Code §
708.2(3) (expressly limiting penalty for assault with dangerous weapon in a prosecution
for section 708.6 (intimidation with a dangerous weapon) or section 708.8 (going armed
with intent)).
                                          10



tried and submitted to the jury the sexual abuse as one continuing event.” Id.

(citing Newman, 326 N.W.2d at 793 (“The prosecution from start to finish was

treated by all concerned as a single episode. The State cannot depart from that

course now.”)). The Newman court explained:

               We do not foreclose the State’s right to convict a defendant
       of both kidnapping in the first degree and sexual abuse if the case
       is presented to the jury in that way and the jury makes findings
       accordingly. A defendant should not be allowed to repeatedly
       assault his victim and fall back on the argument his conduct
       constitutes but one crime. Other jurisdictions have met this
       problem in considering whether there can be separate charges
       based on multiple sexual assaults. A number of courts have held a
       defendant may be convicted separately for each attack.[7]

Newman, 326 N.W.2d at 793.          Again, here we have “one attack.”        Simpson

claims the State likewise presented its case to the jury as one sex act in opening

statements, where the prosecutor stated:

       [M.M.] went downstairs and sat on the couch. Her mom was going
       to pick her up in the morning. [Simpson] sat down next to her and
       began trying to put his hand down her pants. [M.M.] said, “No.” At


7
 The Newman court cited:
      E.g. People v. Saars, 584 P.2d 622, 629 (Colo. 1978) (separate and
      distinct acts of sexual abuse on same victim may be prosecuted and
      punished separately even though all occurred within period of two hours);
      Vaughan v. State, 614 S.W.2d 718, 722 (Mo. Ct. App. 1981) (two rapes
      committed on same victim at same place within fifty-five minutes may
      constitute separate crimes if each was intended by defendant as separate
      gratification of his sexual desires); State v. Bussiere, 392 A.2d 151, 153
      (N.H. 1978) (defendant may be separately tried and convicted for acts of
      sexual abuse committed by different means and in different ways); State
      v. Ware, 372 N.E.2d 1367, 1368 (Ohio Ct. App. 1977) (convictions for
      invasions of different bodily orifices upheld as separate and distinct
      offenses although arising out of same incident); State v. Eisch, 291
      N.W.2d 800, 801 (Wis. 1980) (four sex acts, each of different kind and
      character, constitute four separate crimes, even when occurring at same
      location within two-and-one-half-hours); Hamill v. State, 602 P.2d 1212,
      1216 (Wyo. 1979) (sexual acts, even if closely related in time and place,
      may constitute separate offenses where occurring in different ways).
326 N.W.2d at 793.
                                        11



      that point [Simpson] pulled her pants off, got on top of her and
      sexually abused her. When he was finished, he drunkenly
      stumbled to the stairs leaving [M.M.] on the couch in tears and in
      complete shock about what just happened to her.

Simpson also claims the State presented the case to the jury as one sex act in

closing statements. After our review of the record, we agree that throughout the

trial the State presented its case on the basis of Simpson committing one

physical sex act.

      Under Constable, we construe the statutes at issue to determine the

nature of the offense: whether the offense is accomplished by a single act,

therefore allowing for multiple charges upon repetition of the proscribed act. See

State v. Schmitz, 610 N.W.2d 514, 517 (Iowa 2000). The third-degree sexual

abuse offense proscribes the defendant from performing a sex act.             The

lascivious acts offense proscribes the defendant from performing one specific

type of sex act—“fondle or touch the pubes or genitals.” Under Constable, each

separate physical sex act can be a separate sexual abuse offense and each

separate physical sex act can be a separate lascivious acts offense. In such

circumstances, where the statutory offense at issue in both statutes proscribes

the evil of and criminalizes a single physical sex act, under both statutes the

State can charge multiple offenses for multiple physical sex acts.

      But Simpson committed only one physical sex act. The sex act of placing

his penis in the victim’s vagina is the same sex act the State used for his act of

“fondled or touched the pubes or genitals.” It is undisputed that the State herein

tried the case and submitted it to the jury as only one physical sex act imposed
                                         12



by Simpson on M.M.8 When we consider (1) the evil sought to be prevented by

both statutes, (2) the Reed presumption that “the legislature ordinarily does not

intend cumulative punishment,” and (3) the teachings of Constable, Newman,

and Meyer, we conclude the legislature intended to prevent the evil of the

imposition of the proscribed sex act—here, the same physical sex act.               It

therefore follows, in the specific circumstances of this case, that Simpson, who

has committed a single physical sex act, may not be convicted of and receive

multiple punishments for both third-degree sexual abuse and lascivious acts.

Under our statutory scheme, the legislature did not intend Simpson to be

cumulatively punished. We therefore reverse and remand to the district court for

resentencing and the entry of orders consistent with this opinion.

       REVERSED AND REMANDED.




8
 We note we would have a completely different case and analysis if Simpson had been
successful in his initial attempt to put his hand down M.M.’s pants, depending on what
part of M.M.’s body his hand was able to “touch or fondle.”
