                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1438
                            Filed September 14, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHARLES FREDERICK FEURING,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Madison County, Gary G. Kimes,

Judge.




      Charles Feuring appeals his third-degree-sexual-abuse       conviction.

AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

General, for appellee.




      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

       Charles Feuring appeals his conviction for third-degree sexual abuse. He

challenges the jury instruction defining the “by force or against the will of”

element    of   third-degree     sexual    abuse,    arguing    the    instruction   was

unconstitutionally overbroad and vague. He further claims there is insufficient

evidence to support his conviction. Because the trial court properly instructed the

jury and sufficient evidence supports Feuring’s conviction, we affirm.

       I. Background Facts and Proceedings.

       Feuring, who is seventy-four years old, had been acquainted with YY1

since she was a young child. When YY was approximately fourteen years old,

Feuring began making comments that made her uncomfortable. YY testified, “He

would tell me how I appealed to him, tell me how beautiful I was. He would ask

me if I had a boyfriend. He would tell me that he would always take care of me,

that—You know, stuff like that.” When YY was fourteen or fifteen years old,

Feuring began asking her if she was sexually active.               YY felt increasingly

uncomfortable with Feuring’s behavior as she reached the age of sixteen,

explaining:

       He would make comments. He one time made a comment about
       how nice my butt looked. He would always try to be near me, close
       to me, hold me. I mean, he would make comments, you know, oh,
       you’d be so nice to kiss. You know, about the boyfriend, asked if I
       had a relationship.
1
  Iowa Rule of Civil Procedure 1.422(2) allows a party to omit or redact information
concerning crime victims and the names of minor children from documents filed with the
court unless the information is material to the proceedings. In the trial information and
other documents filed with the district court, the parties replaced the name of the
complaining witness, a minor child, with the pseudonym “YY.” Iowa Rule of Court 21.25
requires this court to refer to parties “by first name, initials, or pseudonym” in certain
instances. Although not required here, we will continue to refer to the complaining
witness as YY throughout this opinion.
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Feuring also asked YY if she would ever have sex with him. When YY said no,

Feuring told her that if she “ever changed [her] mind, that he would take care of

[her], that it would be [their] secret.”

       In April 2014, Feuring kissed YY, who was then sixteen years old. Feuring

provided beer for YY to drink. YY explained at trial how Feuring’s temper and

her fear of upsetting him influenced how she reacted to the kiss: “I wanted to

push away but I couldn’t. I just let him do it. I wanted to push away but I wasn’t

sure if that was the correct move.” Afterward, YY asked to go home, but Feuring

continued talking to her about sex, described the sex acts he wanted to perform

with her, and tried to remove her clothes.       When YY expressed discomfort,

Feuring said, “[W]e won’t go all the way tonight.” YY told Feuring, “I don’t see

[you] that way. I don’t look at [you] as a sexual figure.” Feuring told YY, “[T]hat’s

understandable that you don’t see me that way but I just want you to know that I

see you that way and that I would love you and take care of you.” He also

suggested renting a motel room so they could have sex in a more comfortable

environment, but YY told him “no,” and Feuring responded that they would talk

about it “the next time.”

       One week later, Feuring gave YY alcoholic beverages and kissed her

again. Fearing that Feuring would be upset and would force himself on her if he

was rejected, YY did not attempt to stop him. YY testified “[she] told him that

[she] didn’t want to do anything, that [she] just wanted to go home and that [she]

was tired,” and Feuring took her home.
                                         4


       Later that night, Feuring invited YY to go hunting with him. YY initially

feigned sickness and declined, but she eventually relented and agreed to a short

hunt that night.   Before beginning to hunt, Feuring again gave YY alcoholic

beverages and tried to kiss her. After the hunt, Feuring asked YY to have sex

with him, and she told him “no.”       Feuring then gave YY another alcoholic

beverage, which YY accepted because “[she] figured that if [she] drank enough

that [she would]n’t remember any of it.” When Feuring reminded YY they could

have sex and keep it a secret, she told him, “I don’t look at [you] that way” and “I

want[] to go back home.”

       Rather than returning home, Feuring kissed YY again, removed her pants,

and put his penis in her vagina. Feuring did not wear a condom because, as he

told YY, he had undergone a vasectomy.           YY testified that she considered

fighting Feuring off but she was too impaired at that point to drive the truck,

unsure of her whereabouts, and fearful that Feuring would come after her.

However, YY believed she had made it clear that she did not want to have sex

with Feuring, testifying: “I told him no, I didn’t see him that way, I didn’t want to

have sex.” YY testified that during the act, she lay there, unmoving and looking

up at the “ceiling” of Feuring’s truck. Although Feuring used his tongue while

kissing, YY did not use her tongue back. She tried to turn her head away from

Feuring, but he would turn it back and kiss her again. YY cried during the act,

but Feuring commented, “You like it. You’re smiling.”

       Fearful of the possible repercussions, YY did not tell anyone what

happened for two days. After reporting what occurred, YY was taken to the

hospital for a medical examination, which revealed she had an abrasion where
                                           5


the top layer of skin had rubbed off at the opening of her vagina at the “six

o’clock position.”   The nurse that examined YY testified the abrasion was

indicative of “some kind of forced penetration into her vagina because it causes a

rubbing,” explaining that “we have a natural lubrication when we get sexually

excited that helps lubricate the area” and “[y]ou don’t normally get an abrasion

like that unless the area is dry and there is a friction that causes that.” She

further testified that the abrasion at the six o’clock position indicated a forced

sexual encounter because women who are sexually assaulted “are usually on

their back and [the penis] is being forced down into [the vagina].”

       DNA testing was performed on the clothes YY wore on the night in

question.    A stain in YY’s underwear tested positive for semen without

spermatozoa present, which was consistent with the contributor of the semen

having had a vasectomy. Multiple stains on YY’s jeans contained semen without

spermatozoa but also contained epithelial cells from someone other than YY.

Testing of the epithelial cells from one of the weaker stains was consistent with a

DNA sample obtained from Feuring, with the probability of finding that DNA

profile in a population of unrelated individuals chosen at random being one out of

eighty-five thousand. Testing of the epithelial cells found in two other stains

matched the DNA sample obtained from Feuring, with the probability of finding

that DNA profile in a population of unrelated individuals chosen at random being

less than one out of one-hundred billion. The State’s expert testified the stains

were consistent with sexual intercourse.

       The State charged Feuring with first-degree kidnapping for “kidnapping

and intentionally subjecting YY to sexual abuse” and third-degree sexual abuse
                                         6


for “sexually abus[ing] YY by performing a sex act against YY’s will or by force.”

Following a June 2015 jury trial, Feuring was found not guilty of kidnapping but

guilty of sexual abuse. Feuring appeals.

       II. Jury Instruction.

       Feuring first contends the court erred in instructing the jury on one of the

elements the State was required to prove to obtain a conviction. Our review is

for correction of errors at law. See State v. Hoyman, 863 N.W.2d 1, 7 (Iowa

2015). “However, when a defendant is alleging error involving a constitutional

right, we make an independent evaluation of the totality of the relevant

circumstances to determine if such an error was made.” State v. Bennett, 503

N.W.2d 42, 45 (Iowa Ct. App. 1993).

       To find Feuring guilty of third-degree sexual abuse, the jury was instructed

the State had to prove that Feuring performed a sex act “by force or against the

will of” YY when they were not living together as husband and wife. Instruction

No. 23 explained the State was required to prove Feuring committed a sex act

“by force or against the will of” YY:

              [T]he State must prove that [Feuring] committed a sex act
       “by force or against the will” of [YY]. In order to do so, however, the
       State does not have to prove that [YY] physically resisted
       [Feuring]’s acts. The force used by [Feuring] does not have to be
       physical. It may consist of threats of violence against the victim or
       another person which overcame [YY]’s will by fear.
              You may consider all of the circumstances surrounding
       [Feuring]’s act in deciding whether the act was done by force or
       against the will of [YY].

       Feuring claims Instruction No. 23 does not accurately state the law. He

argues the court should have instead given his proposed instruction on the

element, which adds one sentence to the language of Instruction No.
                                          7


23: “[Feuring] knew or should have known it was against her will.” However,

Iowa law does not require proof the defendant knew or should have known the

sex act was done by force or against the will of another; it requires only that the

sex act “is done by force or against the will of the other.”        See Iowa Code

§ 709.1(1) (defining sexual abuse), .4(1) (setting forth the elements of third-

degree sexual abuse) (2013). The plain language of the statute does not require

more. Because the instruction Feuring proposed did not accurately state the law,

the district court properly declined to instruct the jury as Feuring requested. See

State v. Hanes, 790 N.W.2d 545, 548 (Iowa 2010) (“Our review is to determine

whether the challenged instruction accurately states the law . . . .”).

       Feuring alleges that without requiring proof a defendant knew or should

have known the other person did not consent, the “against the will of” language is

unconstitutionally vague and overbroad.            We disagree.           A statute is

unconstitutionally overbroad if it infringes upon protected freedoms, and the

overbreadth analysis is limited to alleged denials of First Amendment rights. See

State v. Armstrong, 787 N.W.2d 472, 477 (Iowa Ct. App. 2010). Feuring does

not make any claim regarding a violation of his First Amendment rights, and

therefore, his claim is waived. See id. at 477-78. A statute is unconstitutionally

vague if it fails to “define the criminal offense with ‘sufficient definiteness that

ordinary people can understand what conduct is prohibited and in a manner that

does not encourage arbitrary and discriminatory enforcement.’”              Id. at 478

(quoting State v. Millsap, 704 N.W.2d 426, 436 (Iowa 2005)).              The statutory

language is clear and unambiguous in that it applies to a defendant that commits
                                            8


a sex act against another person’s will.          The conduct being criminalized is

specific and defined in a way that citizens of this state can understand.

         Feuring attacks the constitutionality of our sexual-abuse statute as vague

as applied, arguing that by allowing a conviction without proof that a defendant

knew or should have known the act was done against the will of the other person,

the statute requires the defendant to “imagine what is in the mind of the person

he is having sex with in order to determine if he or she ‘really wants to.’” Our

supreme court rejected a similar argument in State v. Sullivan, when it held the

provision of section 709.4 that protects “those who are so mentally incompetent

or incapacitated as to be unable to understand the nature and consequences of

the sex act” was not unconstitutionally vague. 298 N.W.2d 267, 272-73 (Iowa

1980).

                We are unimpressed by defendant’s arguments that the
         statute is rendered vague by its requirement that the alleged
         violator determine another’s mental capacity.           The potential
         offender must simply determine if his or her partner understands
         the nature and consequences of engaging in the sex act. Under
         normal circumstances a mental incapacity to consent would be
         apparent in ordinary social intercourse. The potential offender who
         would engage in sex acts with a stranger may be required to ask
         questions to be “safe,” just as he or she would be required to do in
         order to ascertain the other’s chronological age to avoid
         prosecution under subsection 709.4[(1)(b)(1)].[2]
                The fact an erroneous judgment by an offender may still
         subject him or her to criminal sanction if the partner in fact does not
         possess the requisite mental capacity does not make the statute
         unconstitutional.   This crime does not require knowledge or
2
  Feuring’s argument involves the concern—real or imagined—that a defendant can be
convicted of sexual abuse by engaging in a sex act that, by outward appearances,
seems to be consensual with a partner who secretly withholds consent. The solution
offered by our supreme court in Sullivan more than thirty-five years ago to those
concerned with being prosecuted for sexual abuse by engaging in a sex act with a
person “suffering from a mental defect or incapacity” is just as relevant and applicable to
those concerned with being prosecuted for engaging in a sex act “against the will of”
another today: the concern may be alleviated simply by asking a question.
                                          9


      intent. . . . We hold the standard imposed by subsection
      709.4[(1)(b)(1)] is clear: To avoid the proscribed conduct one must
      refrain from performing a sex act with a person who is mentally
      incapable of understanding the nature and possible consequences
      of sexual activity.

Id. We likewise reject Feuring’s vagueness challenge.

      III. Sufficiency of the Evidence.

      Feuring also argues there is insufficient evidence to support the verdict.

He claims the State failed to prove he acted against YY’s will. We review this

claim for correction of legal error and will uphold the jury’s verdict if it is

supported by substantial evidence. See State v. Heard, 636 N.W.2d 227, 229

(Iowa 2001). Evidence is substantial if it would convince a rational finder of fact

that the defendant is guilty beyond a reasonable doubt. See id. In making this

determination, we view the evidence in the light most favorable to the State and

draw all fair legitimate inferences and presumptions in the State’s favor. See id.

      The uncontroverted evidence shows YY never stated her consent to have

sex with Feuring.    Rather, YY testified that whenever Feuring asked if she

wanted to have sex with him, she answered “no.” Feuring ignored her direct

statements and viewed the surrounding circumstances as consent. He assumed

her actions—or more accurately, her inaction in failing to tell him “no” again or

fight him off when he persisted in his attempts to have sex with her—amounted

to consent. After viewing the evidence, the jury reached the opposite conclusion.

      Substantial evidence supports a finding Feuring had sex with YY against

her will. YY testified she did not consent to sex with Feuring. Although Feuring’s

counsel attempted to discredit this claim, it was for the jury to determine whether

YY’s testimony was credible. See State v. Morgan, 877 N.W.2d 133, 138-39
                                         10


(Iowa Ct. App. 2016) (noting it is the “very function of the jury” to determine

witness credibility and the jury is free to believe or disbelieve any testimony as it

chooses); see also State v. Voelpel, 226 N.W. 770, 771 (Iowa 1929) (stating that

when a defendant attempts to impeach a witness’s testimony, “it is for the jury to

determine, from all the facts and circumstances, the credibility that shall be given

to the witness”). YY’s description of the circumstances surrounding the sex act

supported her claim the act was against her will. For instance, YY testified that

she did not actively participate in the act, instead lying still and looking up at the

roof of the truck while crying. She also testified that rather than reciprocating

when Feuring kissed her using his tongue, she did not kiss him back with her

tongue and tried to turn her head away. Finally, physical evidence corroborates

YY’s testimony and indicates Feuring acted against YY’s will; the medical

examination revealed an abrasion at the opening of YY’s vagina, which was

consistent with forced penetration.

       Having determined the trial court properly instructed the jury as to the

definition of the “by force or against the will of” element of third-degree sexual

abuse and substantial evidence supports the finding Feuring acted against the

will of YY, we affirm.

       AFFIRMED.
