               IN THE SUPREME COURT OF IOWA
                              No. 07–1051

                        Filed September 18, 2009


STATE OF IOWA,

      Appellee,

vs.

JORGE CANAL, JR.,

      Appellant.


      On review from the Iowa Court of Appeals.




      Appeal from the Iowa District Court for Dallas County, Virginia

Cobb, District Associate Judge.



      The defendant appeals his conviction for knowingly disseminating

obscene material to a minor. DECISION OF COURT OF APPEALS AND

JUDGMENT OF DISTRICT COURT AFFIRMED.


      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,

Assistant Attorney General, Wayne M. Reisetter, Dallas County Attorney,

and Sarah C. Pettinger, Assistant County Attorney, for appellee.
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WIGGINS, Justice.

      This case involves sexting among teenagers.           “Sexting” is the

practice of sending nude photographs via text message. In this appeal,

we   must    determine    whether   sufficient   evidence    supported    the

defendant’s conviction for knowingly disseminating obscene material to a

minor in violation of Iowa Code section 728.2 (2005) and whether his

trial counsel provided him ineffective assistance of counsel. Because the

evidence was sufficient to support his conviction and his trial counsel

was not ineffective, we affirm the decision of the court of appeals and the

judgment of the district court.

      I. Background Facts and Proceedings.

      On May 15, 2005, C.E., a fourteen-year-old female attending high

school, received two photographs via e-mail from Jorge Canal.          Canal

was eighteen years of age and attended the same school when this

incident occurred. One of the photographs was of Canal’s erect penis;

the other was a photograph of his face. A text message attached to the

photograph of his face said, “I love you.”

      C.E. and Canal were friends and had known each other for roughly

a year before Canal sent the photograph of his erect penis. They both

associated with the same group of friends. C.E. generally hung out with

teenagers older than herself. Both Canal and C.E. acknowledged they

were only friends. Canal sent the photograph of his erect penis only after

C.E. asked him to send a photograph of his penis three or four times in

the same phone call.       C.E. received the photograph on her e-mail

account, viewed it, and thought she had deleted it.         C.E. testified the

photograph was sent only as a joke because some of her friends were

doing it. She further testified that she did not ask for the photograph as
                                     3

a means to excite any feelings. Finally, C.E. testified that she asked for a

photograph of Canal’s penis, but not his erect penis.

      C.E.’s mother, who checked her daughter’s e-mail and internet

use, found the photographs and forwarded them to her husband. C.E.’s

father then showed the photographs to a police officer.        The parents

knew the officer because C.E.’s father used to be a reserve officer for the

police department.    The State charged Canal with violating Iowa Code

section 728.2, for knowingly disseminating obscene material to a minor.

      The case was tried to a jury.       The jury found Canal guilty of

knowingly disseminating obscene material to a minor.              The court

imposed a deferred judgment, a civil penalty of $250, and probation with

the department of corrections for one year.       The court also instructed

Canal that he must register as a sex offender and ordered that an

evaluation take place to determine if treatment was necessary as a

condition of his probation. Canal received notification of the requirement

to register as a sex offender on April 6, 2006.

      The defendant appealed his conviction, but we denied the appeal

because Canal appealed from a deferred judgment.              See State v.

Stessman, 460 N.W.2d 461, 462 (Iowa 1990) (holding there is no right of

a direct appeal from a deferred judgment because a final judgment in the

district court does not exist). Canal subsequently violated the terms of

his probation, and the court revoked Canal’s deferred judgment.         The

court sentenced him to nineteen days in jail. Canal also had to pay a

fine of $250 and continue to register as a sex offender.

      Canal appealed his conviction.      We transferred the case to the

court of appeals. The court of appeals affirmed the conviction.

      Canal filed for further review, which we granted.
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      II. Issues.

      On appeal, Canal raises two issues. First, he claims the evidence

was insufficient to establish the e-mails he sent C.E. were obscene.

Second, he claims his trial counsel was ineffective for failing to request a

jury instruction informing the jury that mere nudity is not sufficient to

establish obscenity.

      III. Scope of Review.

      We review a challenge to the sufficiency of the evidence for

correction of errors at law. State v. Millsap, 704 N.W.2d 426, 430 (Iowa

2005). The goal of the court is to determine whether the evidence could

convince a rational trier of fact that the defendant is guilty of the crime

charged beyond a reasonable doubt. State v. Anspach, 627 N.W.2d 227,

231 (Iowa 2001). The court views the evidence in the light most favorable

to the State in making this determination. Millsap, 704 N.W.2d at 429.

As to Canal’s ineffective-assistance-of-counsel claim, we review it de novo

because it has its basis in the Sixth Amendment to the United States

Constitution. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).

      IV. Sufficiency-of-the-Evidence Claim.

      Canal did not object to the instructions given to the jury at trial.

Therefore, the jury instructions become the law of the case for purposes

of our review of the record for sufficiency of the evidence. See State v.

Ondayog, 722 N.W.2d 778, 783–84 (Iowa 2006) (citing State v. Taggart,

430 N.W.2d 423, 425 (Iowa 1988)) (stating except in a claim for

ineffective assistance of counsel asserting the instructions were deficient,

jury instructions, which were not objected to, become the law of the

case). Instruction number thirteen was the marshalling instruction. It

stated the elements of knowingly disseminating obscene material to a

minor as follows:
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       1.      On or about the 15th day of May, 2005, the defendant
               knowingly disseminated or exhibited obscene material
               to C.E.

       2.      C.E. was then under the age of eighteen.

       3.      The defendant was not the parent or guardian of C.E.

       Jury instruction number eighteen defined “obscene material” as

       any material depicting or describing the genitals, sex acts,
       masturbation, excretory functions or sadomasochistic abuse
       which the average person, taking the material as a whole
       and applying contemporary community standards with
       respect to what is suitable material for minors, would find
       appeals to the prurient interest and is patently offensive; and
       the material, taken as a whole, lacks serious literary,
       scientific, political, or artistic value. 1

The same instruction defined “prurient interest” as “a shameful or

morbid interest in nudity, sex, or excretion.”                Finally, regarding

“community standards,” instruction eighteen stated:

       In determining the community standards, you are entitled to
       draw on your own knowledge of the views of the average
       person in the community or the vicinity from which you
       come to make your determination, within the parameters of
       the definitions you have been given.

       Canal’s sole contention regarding the sufficiency of the evidence is

that the material he sent to C.E. was not obscene. The jury instruction

defining obscenity incorporates the Supreme Court’s definition of

obscenity, but adds the phrase “with respect to what is suitable material
for minors.” See Miller v. California, 413 U.S. 15, 24–25, 93 S. Ct. 2607,

2614–15, 37 L. Ed. 2d 419, 430–31 (1973).             In other words, the jury

instruction recognizes that the obscenity test as to minors is different

from the test as to adults. This recognition extends back to Ginsberg v.


       1Jury  instruction eighteen defined “obscene material” using the language
contained in Iowa Code section 728.1(5) (2005), which defines “obscene material” for
purposes of Iowa Code chapter 728.
                                          6

New York, 390 U.S. 629, 636–37, 88 S. Ct. 1274, 1279, 20 L. Ed. 2d 195,

202 (1968). See Erznoznik v. City of Jacksonville, 422 U.S. 205, 212, 95

S. Ct. 2268, 2274, 45 L. Ed. 2d 125, 133 (1975) (“It is well settled that a

State    or   municipality      can    adopt     more     stringent    controls     on

communicative materials available to youths than on those available to

adults.”).

        However, minors are still “entitled to a significant measure of First

Amendment protection and only in relatively narrow and well-defined

circumstances may government bar public dissemination of protected

materials to them.” Id. at 212–13, 95 S. Ct. at 2274, 45 L. Ed. 2d at 133

(citation omitted). In Erzonoznik, the Court found that “all nudity cannot

be deemed obscene even as to minors.” Id. at 213, 95 S. Ct. at 2275, 45

L. Ed. 2d at 133. There, the ordinance outlawed anyone from exhibiting

movies where a human male or female bare buttocks, female bare

breasts, or human bare pubic area was shown, if visible from a public

street. Id. at 206–07, 95 S. Ct. at 2271, 45 L. Ed. 2d at 129. Despite

holding this ordinance invalid, the Court still stated it would not

“deprecate the legitimate interests asserted by the city.” 2 Id. at 217, 95

S. Ct. at 2277, 45 L. Ed. 2d at 136.
        Finally, the instructions, as given, allow the jury to determine the

contemporary community standards with respect to what is suitable

material for minors.       This instruction is consistent with the Supreme

Court’s pronouncement in Miller.          Miller, 413 U.S. at 24, 93 S. Ct. at

2615, 37 L. Ed. 2d at 431; accord State v. Groetken, 479 N.W.2d 298,

301–02 (Iowa 1991).        Under the community standards test, jurors in

different regions of the country or a state may come to different


       2Canal makes no claim as to the constitutionality of Iowa Code sections 728.1(5)

or 728.2 under the federal or state constitutions.
                                       7

conclusions on whether the same material is obscene. Miller, 413 U.S. at

27 n.9, 93 S. Ct. at 2616 n.9, 37 L. Ed. 2d at 432 n.9. This is because

jurors are allowed to draw on their own knowledge of the views of the

average person in the community or vicinage from which they come when

determining community standards.           Id. at 30, 93 S. Ct. at 2618, 37

L. Ed. 2d at 434.

        Applying the jury instructions as given and reviewing the evidence

in the light most favorable to the State, the question we must resolve is

whether, under this record, a rational juror could find Canal guilty

beyond a reasonable doubt of knowingly disseminating obscene material

to a minor. Canal took one photograph of his face and one photograph of

his erect penis.    He e-mailed the photographs to C.E. separately.          He

attached a text message to the photograph of his face that said, “I love

you.”

        Although Canal argued to the jury the material he sent C.E. only

appealed to a natural interest in sex, under the instructions given the

jury could find, by applying its own contemporary community standards

with respect to what is suitable material for minors, that the material

appealed to the prurient interest, was patently offensive, and lacked

serious literary, scientific, political, or artistic value. On a sufficiency-of-

the-evidence review, our task is not to refind the facts. Moreover, on this

record we cannot conclude, as a matter of law, the materials Canal sent

to C.E. were not obscene.       Therefore, even though another jury in a

different community may have found this material not to be obscene, the

evidence in this record was sufficient for this jury to determine, under its

own community standards, that the material Canal sent to C.E. was

obscene.
                                      8

      V. Ineffective-Assistance-of-Counsel Claim.

      Canal also claims his trial counsel was ineffective for failing to

request a clarifying instruction that mere nudity does not constitute

obscenity. Canal claims he is entitled to a new trial because the court

did not properly instruct the jury on the applicable law and rendered its

guilty verdict on constitutionally insufficient evidence.

      Normally, we deal with ineffective-assistance-of-counsel claims

after postconviction-relief proceedings.    Maxwell, 743 N.W.2d at 195.

However, as in this case, if the record is sufficient to permit a ruling, we

will consider such a claim. Id. To demonstrate ineffective assistance of

counsel, Canal must prove: (1) his counsel failed to perform an essential

duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).         To prove

counsel failed to perform an essential duty, Canal “must show that

counsel’s performance was deficient” meaning that trial counsel “made

errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id. We measure

counsel’s performance by determining “whether counsel’s assistance was

reasonable considering all the circumstances.” Id. at 688, 104 S. Ct. at

2065, 80 L. Ed. 2d at 694.      To prove prejudice, Canal must prove “a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”        Id. at 694, 104

S. Ct. at 2068, 80 L. Ed. 2d at 698. To show a reasonable probability

that the result would have been different, Canal “ ‘need only show that

the probability of a different result is “sufficient to undermine confidence

in the outcome.” ’ ” Bowman v. State, 710 N.W.2d 200, 206 (Iowa 2006)

(quoting State v. Graves, 668 N.W.2d 860, 882–83 (Iowa 2003)).
                                         9

         We conclude as a matter of law that Canal’s counsel did not fail to

perform an essential duty. “It is well settled that a trial court need not

instruct in a particular way so long as the subject of the applicable law is

correctly covered when all the instructions are read together.” State v.

Uthe, 542 N.W.2d 810, 815 (Iowa 1996).           Based on the definitions of

obscenity, prurient interest, and community standards given by the

court, the court correctly instructed the jury on the issue.

         The court told the jury that a depiction of a person’s genitals was

not in and of itself obscene.      In order for the depiction of a person’s

genitals to be obscene, an average person applying contemporary

community standards with respect to what is suitable material for

minors must find the material is patently offensive, appeals to the

prurient interest, and lacks serious literary, scientific, political, or artistic

value.      When viewing the instructions in their entirety, the court

effectively instructed the jury that mere nudity does not constitute

obscenity. Although the court could have phrased the instruction to say,

“mere nudity does not constitute obscenity,” Canal’s trial counsel did not

provide ineffective assistance because of his failure to object to the

generally accurate instructions.      State v. Reyes, 744 N.W.2d 95, 103

(Iowa 2008).

         VI. Disposition.

         We affirm the decision of the court of appeals and the judgment of

the district court because the evidence was sufficient to support Canal’s

conviction for knowingly disseminating obscene material to a minor and

his trial counsel was not ineffective.

         DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

         All justices concur except Streit and Baker, JJ., who take no part.
