                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1209
                             Filed February 10, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KENNETH WAYNE TURNER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Davis County, Joel D. Yates,

Judge.



      Defendant appeals his convictions for assault with intent to commit sexual

abuse and simple assault. AFFIRMED.



      Curtis Dial of Law Office of Curtis Dial, Keokuk, for appellant.

      Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., Bower, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                         2


BLANE, Senior Judge.

       Defendant Kenneth Turner appeals his convictions for assault with intent

to commit sexual abuse and simple assault.        Turner contends there is not

substantial evidence in the record to support the intent element of the charge of

assault with intent to commit sexual abuse. He also contends the convictions

violate his constitutional right against double jeopardy. Because we find there is

substantial evidence and the two convictions arise from two different factual

situations, we affirm Turner’s convictions.

       I.     Background Facts & Proceedings

       A.T. was a seventeen-year-old boy whose life was in turmoil in September

2013. His mother had been sent to prison, the house he was living in burned

down, and he moved in with his grandmother, who had problems with alcohol.

A.T. met Turner at the Milton Fall Festival, and Turner offered him some work.

Turner was an acquaintance of A.T.’s grandmother.

       A few days later, Turner picked up A.T. at his grandmother’s house and

drove him to a nearby cemetery, where A.T. worked on cleaning out Turner’s car.

A.T.’s great-uncle showed up and got into an argument with A.T. When Turner

and A.T. returned to the grandmother’s house she told A.T. he should go live with

Turner. A.T. went with Turner because he had nowhere else to go.

       When they arrived at Turner’s house that evening, Turner told A.T. to strip

naked and lay on the couch because he needed to do a complete physical
                                           3


examination.1 Turner put on blue, latex-free gloves and touched A.T.’s genitals,

stating he was looking for sexually transmitted diseases. He had A.T. bend over

and cough, allegedly to check for hernias. Turner then gave A.T. a shot behind

his right ear, which made A.T. dizzy and light-headed.

          Turner told A.T., who was still naked, to go into the bathroom, fill the

bathtub, and wait for him. Turner had A.T. stand in the bathtub while Turner sat

on a stool and washed A.T.’s entire body, including his genitals and buttocks.

Turner told A.T. he needed to teach him the proper way to wash his penis. A.T.

testified, “He grabbed my penis.       He took the washcloth and rubbed it in a

circular motion.” A.T. told him to stop, and Turner said, “[I]t’s my house, my

rules.”

          Turner then left the room and got a leather hog strap. He told A.T. he had

not done anything wrong, but he wanted A.T. to know what would happen if he

did anything wrong at his house. Turner made sure A.T.’s body was wet before

hitting him repeatedly with the metal end of the hog strap. A.T.’s thigh was

bruised and bleeding as a result of the beating.

          After this, Turner had A.T. wash himself all over while Turner sat on the

stool and watched. Turner took A.T. to a bedroom, where he told A.T. he needed

to sleep naked or he would be hit with the hog strap again. Turner gave A.T. a

back rub, telling him this would happen every night, whether his behavior was

good or bad.       A.T. woke up multiple times during the night and saw Turner

watching him.

1
   Turner testified he had been a registered nurse. At the time of the incidents Turner
was not employed in the medical field and his nursing license had lapsed several years
previously.
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          According to A.T., Turner engaged in hand to genital contact six times in

total. Turner would watch him while he showered, urinated, and slept. Also,

Turner made him mow a rural property clothed only in his underwear. Turner

commented to A.T. he was not a homosexual and A.T. should not think that of

him. A.T. planned to leave Turner once he received a bus ticket from his step-

father.

          Turner restricted A.T.’s use of his cell phone, but he was sometimes able

to use his phone. He texted his girlfriend, Alicia, that he had been kicked out of

his grandmother’s house and that he had been beaten by Turner, sending her

pictures of his injuries.2 A.T. told Alicia that Turner watched him urinate and

shower. Eventually he texted her he felt like killing himself.

          On September 27, 2013, Alicia drove with a friend to Bloomfield, where

Turner lived, to look for A.T. She saw Turner’s vehicle, followed it, and watched

it pull into his garage and the garage door close. She believed she saw A.T. get

out of Turner’s vehicle.       Alicia knocked on Turner’s front door but got no

response. Turner had A.T. go down to the basement, where he locked A.T. in a

bathroom.      Alicia went to the Bloomfield Police Department and asked for a

welfare check on A.T. Alicia texted A.T. that the police were on the way. A.T.

then broke out of the bathroom and came out of the house. He immediately told

an officer, “Dude, get me out of here.” He was placed at a youth shelter.

          Turner was interviewed by officers the next day. Turner acknowledged he

had done a “head to toe” physical examination of A.T. the first night he was at

Turner’s house, including an inspection of A.T.’s penis. He also acknowledged

2
    These pictures were admitted into evidence as State’s exhibits 13 and 14.
                                           5


he had shown A.T. how to wash his penis.             He claimed A.T. gave him the

washcloth and asked him to do it for him. Turner admitted hitting A.T. with the

hog strap.

       Turner was charged with six counts of sexual abuse in the third degree

and kidnapping in the third degree. During the criminal trial, Turner testified he

told A.T. to strip naked the first night he was at Turner’s house. Turner stated he

did a physical examination of A.T. but did not touch his penis. He also testified

he showed A.T. how to wash his penis but again denied touching A.T.’s penis.

Turner further testified he hit A.T. with the hog strap while A.T. was naked, but

that A.T. consented.

       The jury found Turner guilty on Count II of the lesser-included offense of

assault with intent to commit sexual abuse and on Count III guilty of the lesser-

included offense of assault.3 The jury returned not guilty verdicts on the other

charges.     The court denied Turner’s motion for a new trial.             Turner was

sentenced to two years in prison on Count II and six months in jail on Count III.

The sentences were suspended, and Turner was placed on probation. The court

also imposed sex-offender-registration requirements. Turner now appeals.

       II.    Sufficiency of the Evidence

       Turner claims there is not substantial evidence in the record to support the

intent element of the charge of assault with intent to commit sexual abuse. He

asserts A.T.’s testimony about what occurred was inconsistent while his own


3
   Assault with intent to commit sexual abuse and assault are lesser included offenses of
third-degree sexual abuse. State v. Vargason, 462 N.W.2d 718, 719 (Iowa Ct. App.
1990) (citing State v. Turecek, 456 N.W.2d 219, 222 (Iowa 1990) and State v. McNitt,
451 N.W.2d 824, 825 (Iowa 1990)).
                                         6


testimony was consistent.     Turner states there was no evidence showing he

intended to commit a sex act. He claims, “Although there may be evidence of an

assault, there is no evidence that this was for the reason of committing a sex

act.”

        We review claims challenging the sufficiency of the evidence in a criminal

case for the correction of errors at law. State v. Dalton, 674 N.W.2d 111, 116

(Iowa 2004). We will uphold the jury’s verdict when it is supported by substantial

evidence. State v. Hagedorn, 679 N.W.2d 666, 668 (Iowa 2004). “Evidence is

substantial if it would convince a rational fact finder that the defendant is guilty

beyond a reasonable doubt.” State v. Hennings, 791 N.W.2d 828, 832 (Iowa

2010); State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). We consider all of the

evidence in the record, not just the evidence supporting the defendant’s guilt.

State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012); State v. Torres, 495 N.W.2d

678, 681 (Iowa 1993). We view the evidence in the light most favorable to the

State, “including legitimate inferences and presumptions that may fairly be

deduced from the record evidence.” State v. Carter, 696 N.W.2d 31, 36 (Iowa

2005) (quoting Quinn, 691 N.W.2d at 407).

        Under Iowa Code section 709.11 (2013), assault with intent to commit

sexual abuse occurs when a person (1) commits simple assault under section

708.1, (2) with the intent to commit sexual abuse, (3) by force or against the will

of the victim. State v. Beets, 528 N.W.2d 521, 523 (Iowa 1995). A defendant’s

intent to commit sexual abuse may be “inferred from the facts and circumstances

surrounding his actions.” State v. Radeke, 444 N.W.2d 476, 478 (Iowa 1989);

State v. Most, 578 N.W.2d 250, 254 (Iowa Ct. App. 1998). “Because it is difficult
                                          7


to prove intent by direct evidence, proof of intent usually consists of

circumstantial evidence and inferences that can be drawn from that evidence.”

State, 791 N.W.2d at 837 (citing State v. Adams, 554 N.W.2d 686, 692 (Iowa

1996)). “Evidence sufficient to prove necessary specific intent includes sexual

comment, touching in a sexual manner, attempt to remove clothing, or an act in

any other way which would indicate a plan to engage in sexual activity.” Most,

578 N.W.2d at 254.

       For this charge, the assault occurred when Turner touched A.T.’s genitals,

which was physical contact that was insulting or offensive to him. See Iowa

Code § 708.1(1). We will focus on the incident that occurred in the bathroom on

the first night A.T. was at Turner’s house. Turner had previously told A.T. to take

off all of his clothes. A.T. was told to stand in the bathtub while Turner sat on a

stool and washed A.T.’s entire body, including his genitals and buttocks. Both

A.T. and Turner testified Turner told A.T. that Turner needed to teach A.T. how to

wash his penis. A.T. stated Turner then grabbed A.T.’s penis and rubbed it with

a washcloth in a circular motion. A.T. testified he told Turner to stop, but Turner

said, “[I]t’s my house, my rules.” Thus, the evidence supports a finding there was

an assault and it was by force or against the will of A.T.

       We turn to the issue of intent. The jury could well have found Turner’s

statement that he needed to teach A.T. how to wash his penis not credible. A.T.

was then seventeen years old. There was no evidence in the record to show he

was not able to take care of his own personal hygiene. Furthermore, the jury

could have found A.T.’s testimony that Turner grabbed his penis and rubbed it

with a washcloth more credible than Turner’s statement to officers that A.T. gave
                                           8


Turner the washcloth and asked him to wash his penis for him or his testimony

during the trial that he instructed A.T. on how to clean his penis but did not touch

it. The credibility of the witnesses was for the jury to decide. See State v. Laffey,

600 N.W.2d 57, 60 (Iowa 1999). The jury may resolve inconsistencies in the

record as it sees fit. State v. Mitchell, 568 N.W.2d 493, 504 (Iowa 1997).

       In considering the sufficiency of the evidence to show Turner’s intent, we

also look at the fact that on the same evening Turner had already touched A.T.’s

penis and testicles.4 Additionally, Turner’s acts of watching A.T. shower, urinate,

and sleep, as well as the back rubs, give insight into his intent. We further note

Turner himself recognized there was a sexual connotation to his actions, based

on his statement to A.T. that he was not a homosexual and A.T. should not think

that of him.

       We conclude there is sufficient evidence in the record to support the jury’s

finding that Turner was guilty of assault with intent to commit sexual abuse. The

circumstantial evidence and inferences that can be drawn from the evidence

support a finding Turner had the intent to commit sexual abuse. See Hennings,

791 N.W.2d at 837.

       III.    Double Jeopardy

       Turner contends his convictions for assault with intent to commit sexual

abuse and assault violate his double jeopardy rights. He argues there is not a

factual basis in the record to find him guilty of both charges. He states he cannot

4
    The jury could have found Turner’s statement that he needed to conduct a medical
examination of A.T was not credible. While Turner testified he had been a registered
nurse, he was not employed in the medical field at the time of the incident. The jury may
not have believed Turner’s assertion he needed to check A.T.’s genitals for sexually-
transmitted diseases, or that such diseases could be diagnosed from a visual inspection.
                                              9


be convicted of assault with intent to commit sexual abuse and assault based on

the same act. He asserts he cannot be sentenced for both charges.5

       Our review of double jeopardy challenges is de novo. State v. Kramer,

760 N.W.2d 190, 193-94 (Iowa 2009). The Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution protects against multiple

punishments for the same offense. State v. Schmitz, 610 N.W.2d 514, 515 (Iowa

2000). When a defendant has been charged with multiple violations of the same

statute, we consider “whether the individual acts are prohibited, or the course of

action which they constitute.          If the former, then each act is punishable

separately . . . . If the latter, there can be but one penalty.” State v. Velez, 829

N.W.2d 572, 581 (Iowa 2013) (quoting Schmitz, 610 N.W.2d at 576).

       If a defendant engages in distinct acts of physical contact that meet the

definition of a sex act, then each contact is sufficient for a charge of sexual

abuse. State v. Constable, 505 N.W.2d 473, 477-78 (Iowa 1993). Also, there is

no double jeopardy violation if a defendant is charged with multiple counts of

assault arising from distinct factual circumstances. State v. Delap, 466 N.W.2d

264, 266 (Iowa Ct. App. 1990). The Iowa Supreme Court has stated, “Even

though the charges allege the same kind of conduct, so long as they are not

based on the same conduct, no double jeopardy problem is presented.” Schmitz,

610 N.W.2d at 517.




5
    The State claims Turner did not raise this issue before the district court, and therefore,
it has not been preserved for our review. See State v. Mulvany, 600 N.W.2d 291, 293
(Iowa 1999). To the extent Turner is claiming his sentence is illegal, however, that issue
may be raised at any time. Iowa R. Crim. P. 2.24(5); State v. Allen, 601 N.W.2d 689,
690 (Iowa 1999).
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       The factual circumstances supporting Turner’s conviction for assault are

distinct from the factual circumstances supporting his conviction for assault with

intent to commit sexual abuse.     The assault conviction is supported by the

evidence Turner struck A.T. repeatedly with the metal end of a hog strap.

“[M]ultiple acts can constitute separate and distinct criminal offenses.” State v.

Copenhaver, 844 N.W.2d 442, 449 (Iowa 2014). The assault that is the basis for

the assault conviction is separate and distinct from the assault portion of the

conviction for assault with intent to commit sexual abuse, which was Turner’s act

of grabbing A.T.’s penis.

       We conclude Turner is not being punished twice for the same offense.

“Where the sentences imposed are based on distinct acts, there is no double

jeopardy problem.” State v. Jacobs, 607 N.W.2d 679, 688 (Iowa 2000); see also

State v. Smith, 573 N.W.2d 14, 19 (Iowa 1997) (“Because the sentences

imposed on Smith were based on two distinct acts, there is no double jeopardy

problem.”).   We determine Turner’s right against double jeopardy was not

violated.

       We affirm Turner’s convictions.

       AFFIRMED.
