                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1124
                               Filed June 24, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STEVEN J. REES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, Thomas J. Bice

and Kurt L. Wilke, Judges.



      A defendant appeals following his convictions of sexual exploitation of a

minor and invasion of privacy.        CONVICTIONS AFFIRMED, SENTENCE

VACATED, AND REMANDED FOR RESENTENCING.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kelli Huser and Andrew Prosser,

Assistant Attorneys General, Jennifer Benson, County Attorney, and Cori Kuhn

Coleman, Former County Attorney, for appellee.



      Considered by Vogel, P.J., Potterfield, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, S.J.

      Steven J. Rees has appealed from the jury’s verdict of guilty for sexual

exploitation of a minor and invasion of privacy, and from the sentences imposed

thereupon. We affirm the jury’s verdict but remand the matter for resentencing.

   I. Facts and Course of Proceedings

      Steven J. Rees was a church youth group leader and the victim, J.K., was

a sixteen year-old member of the group. Rees frequently provided J.K. a ride to

school and to church. Rees operated a business called DAC Security Systems.

J.K. asked if Rees knew of anything that she could do to earn extra money.

Rees told her that she could possibly do poses for a modeling company by the

name of Rose Industries, operated by Brenda Miller. Rees arranged a photo

shoot at his shop. J.K. came to the shop with a girlfriend, and Rees provided

clothes for the girls and took the pictures. He subsequently paid J.K. $300 and

told her that she had been approved as a model but her friend had not.

      Rees then arranged a second photo shoot and had her pull down a

swimsuit so low that she felt uncomfortable, took off the top of the suit, and

covered her breasts with her arms or hands. A third photo shoot was arranged

that was initially to be at Rose Industries at Eagle Grove, but Rees advised that

Miller had sold her business and the photos would be taken on a nearby beach.

A girlfriend of J.K.’s accompanied them to where the photos were taken by Rees.

They then went back to the shop where more photos were taken. J.K. wore

string bikinis for the photos at the beach and was told to pull down her swimsuit

to the point that she believed her vagina almost showed and her buttocks were

clearly displayed. Photos were taken with a covering so light over her breasts
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that J.K. believed the nipples of her breasts could be seen through the clothing

that Rees had given her to wear. During the second and third photo shoots Rees

made comments to J.K. that indicated he was sexually aroused and asked her to

assume positions that would enhance his arousal.

      After these incidents were reported to the police, a search warrant was

obtained and a video camera was found in the bathroom at Rees’s shop where

the girls had been directed to change.       The video recording showed J.K.

changing outfits in the bathroom and showed her naked at times. The victim did

not know that a video had been taken of her changing in the bathroom.

Women’s clothes, including swimsuits and multiple pictures of J.K. that Rees had

taken, were discovered at his shop.      The existence of Rose Industries and

Brenda Miller could not be established and appear to be a fabrication.

      Rees filed a motion to suppress all items found at the shop as a result of

the search warrant, but it was overruled. At trial the court closed the courtroom

for a little less than twenty minutes while the court viewed Rees’s video of J.K.

undressing in the bathroom.     Rees objected to the temporary closure of the

courtroom, but his objection was overruled. Rees made a motion for judgment of

acquittal as to both charges, but his motion was overruled. Rees contends that

each of the three above rulings was made in error.

      Rees was found guilty of both charges and was sentenced to ten years

and one year, respectively, on the two counts with the sentences to run

concurrently. Rees had no prior record but was denied probation.
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         Rees contends the court illegally took into consideration his election to

stand trial rather than plead guilty and otherwise abused its discretion in

pronouncing sentence.

   II. Preservation of Error

         Error preservation is generally considered present when the issue to be

reviewed has been raised and ruled on by the district court. Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002). Each of the first three matters relate to issues

raised and ruled on by the trial court. Error has been preserved. A claim of a

sentencing error is not subject to the ordinary rules of error preservation and may

be raised for the first time on appeal. State v. Shearon, 660 N.W.2d 52, 57 (Iowa

2003).

   III. Discussion and Standard of Review as to Each Issue Raised

   A. Motion to Suppress

         A search raises constitutional issues and is therefore reviewable de novo.

State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011).          Probable cause must be

presented to the magistrate to support issuance of a search warrant. State v.

Davis, 679 N.W.2d 651, 656 (Iowa 2004). The reviewing court is limited to the

written information before the magistrate at the time of the issuance, but it is to

draw all reasonable inferences to support the magistrate’s finding of probable

cause.     Id.   The test is the determination of whether the magistrate had a

substantial basis for issuing the warrant and not a redetermination of probable

cause. Id. Nevertheless, a reviewing court’s duty is to make certain that the

magistrate performed his or her function in a neutral and detached manner.

State v. Swaim, 412 N.W.2d 568, 571 (Iowa 1987).
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       The application on which the search warrant was issued stated that J.K.

had related Rees had taken pictures exposing her buttocks and the nipples of her

breasts. Such exposure constitutes nudity. See State v. Hunter, 550 N.W.2d

460, 465 (Iowa 1996) (noting the common meaning of the word “nudity” includes

exposure of the breasts, buttocks, or genitalia), overruled on other grounds by

State v. Robinson, 618 N.W.2d 306 (Iowa 2000). It is unlawful to cause a minor

to engage in a prohibited sexual act.          Iowa Code § 728.12(1) (2013).          A

prohibited sexual act is defined as nudity of a minor for the purpose of arousing

or satisfying the sexual desires of a person.        Id. § 728.1(6)(g). The warrant

application recited that Rees had told her to look sexy and seductive, and show

her body in a manner to excite men. The warrant application also established

that the existence of Brenda Miller and Rose Industries appeared to be a

fabrication.   A substantial basis existed for a reasonable person to believe

prohibited photos would be found at Rees’s shop. See Davis, 679 N.W.2d at 656

(“The existence of probable cause to search a particular area depends on

whether a person of reasonable prudence would believe that evidence of a crime

might be located on the premises to be searched.”). The search warrant was

legally issued.

   B. Closure of the Proceedings to the Public

       A public trial is a constitutional right; therefore, the court’s review is de

novo. State v. Schultzen, 522 N.W.2d 833, 835-36 (Iowa 1994). In order for a

trial, or part thereof, not to be open to the public, four criteria must be met: (1) the

party seeking to close the hearing must advance an overriding interest that is

likely to be prejudiced; (2) the closure must be no broader than necessary to
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protect that interest; (3) the trial court must consider reasonable alternatives to

closing the proceedings; and (4) the trial court must make findings adequate to

support the closure. Id. at 836.

       The State’s overriding interest was to protect J.K.’s right to privacy as

opposed to showing her changing clothes and in a naked condition to anyone

who chose to be present in the courtroom. The closure was limited to the twenty

minutes when J.K. was shown changing her clothes.            At trial Rees, through

counsel, agreed the video should not be publicly viewed but suggested using a

video or TV screen close to the jury.          The trial court considered Rees’s

alternative but was concerned that it would be difficult to keep the public from

viewing the screen given the courtroom layout. Furthermore, such a restriction

and limitation, if effective in its attempt to avoid public viewing, would have been

equal to closing the courtroom while the video was shown. The court’s ruling and

finding regarding the first three criteria constitute the fourth requirement. The

State’s interest and J.K.’s interest in her privacy outweighed Rees’s right to have

his twenty-minute, surreptitiously-obtained video of the victim’s nakedness shown

to the public.

   C. Failure to Grant Rees’s Motion for a Judgment of Acquittal

       A trial court’s denial of a defendant’s motion for judgment of acquittal is

reviewed for corrections of errors of law. State v. Serrato, 787 N.W.2d 462, 465

(Iowa 2010). A guilty verdict must be supported by substantial evidence. Id.

Substantial evidence exists if it is such that a rational trier of fact could find the

accused guilty beyond a reasonable doubt. Id. In reviewing a ruling on a motion
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for judgment of acquittal, the evidence is viewed in the light most favorable to the

State. Id.

      Rees contends there was insufficient evidence that his activities were

intended to satisfy, arouse, or gratify sexual desires, an element of both charges

of which he was found guilty.       See Iowa Code §§ 709.21(1), 728.1(7)(g),

728.12(1). Intent is frequently not susceptible to direct proof and often can only

be established by circumstantial evidence and the inferences that can be drawn

from it. State v. Olson, 373 N.W.2d 135, 136 (Iowa 1985).

      There was adequate evidence for the jury to infer that Rees’s objective

was to satisfy his sexual desires. Rees made comments to J.K. that indicated he

was sexually aroused and requested a change in her position that would

enhance his arousal. No other explanation for having a video camera in the

bathroom where J.K. was dressing was given. Rees’s payment of money to J.K.

and, apparently, the whole story about Rose Industries and Brenda Miller were

designed to put the victim in a location where Rees could video her in a naked

condition.

   D. Abuse of Discretion in Sentencing

      In a broader sense, sentencing is ultimately reviewed for corrections of

law. State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006). However, where the

sentence imposed is within the statutory framework available to the sentencing

court, an abuse of discretion can constitute an error of law. Id. It is in that

context that Rees’s sentence will be reviewed.

      A sentence within the statutory framework is clothed with a strong

presumption in its favor. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).
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An abuse of discretion will be found only when the court’s discretion was

exercised on grounds or reasons clearly untenable. Id.

       Rees contends that factors favorable to justifying probation were not

considered by the trial court. Rees had no prior criminal history, was the owner

of a business, and was married. A psychosexual evaluation showed him to have

a low to moderate risk of recidivism. The presentence investigation (PSI) report

recommends supervised probation and indicates Rees is amenable to treatment

in a community-based correctional facility.

       The court stated it had read the PSI and considered Rees’s counsel’s

statement, and noted that the psychosexual assessment indicated a low risk of

recidivism.   The sentencing court is not required to restate each claim of

mitigation. State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995).

       Rees, in effect, contends that the court placed too much importance on

the nature of the offense. The sentencing court has the right to place greater

importance on one sentencing consideration than another. State v. Wright, 340

N.W.2d 590, 593 (Iowa 1983).             The sentencing court gave adequate

consideration to the mitigating factors that support probation and did not

overemphasize the crime committed. No abuse of discretion occurred.

       However, that determination does not dispose of Rees’s claim that the

sentencing court considered an improper factor—his decision not to plead guilty.

In sentencing Rees, the trial court stated,

       What I find particularly bothersome is something Mr. Prosser
       brought up about the fact that the defendant was, in fact, offered
       quite a lenient situation with probation, if I’m not mistaken, but
       rejected contending from day one that he was not guilty of this
       offense.
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               This court was taken aback during the course of trial seeing
       that it couldn’t understand any real defense at all in this case. I
       mean it just—it just baffled me that—a plea had not been entered
       before the trial because there was just nothing there to lend itself to
       the defendant’s defense.

       When a sentence is imposed for reasons that violate a defendant’s right to

assert the constitutional right to stand trial, the sentence will not be permitted to

stand. State v. Drake, 224 N.W.2d 476, 479 (Iowa 1974). In Drake the matter

was sent back for resentencing when the court stated,

       I am inclined to agree with you, Mr. Rosenberg, that this is a case
       where this lady would probably have been given probation had she
       entered a plea of guilty, but . . . my feeling is that the first step in
       rehabilitation is a willingness to admit you’re wrong and to come in
       and offer to straighten the matter out entirely. She chose not to do
       that . . . .

Id.

       In State v. Nichols, 247 N.W.2d 249, 250 (Iowa 1976), the court—after

noting a rather far-fetched defense that the defendant had offered—stated,

       And the rather glib way that you told that on the witness stand, I
       might be willing to go along with these recommendations. In other
       words I think I’m saying to you, had you said “Okay, I’ve done this
       and I’m willing now to face the consequences of my acts” you might
       then be able to persuade the court that sufficient turn-around had
       occurred, that you should be afforded another chance. However,
       under the circumstances under the record here I just don’t believe I
       can do that.

Although the supreme court determined the record disclosed circumstances

warranting the sentence imposed, it remanded the matter for resentencing

because an impermissible consideration—the defendant’s exercise of the

fundamental and constitutional right of requiring the State to prove guilt at trial

and the right to raise defenses thereto—may have been employed in imposing

the sentence. Nichols, 247 N.W.2d at 255-56.
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       Here, the State contends that the sentencing court was only commenting

on Rees’s lack of remorse. Anytime a defendant exercises his right against self-

incrimination, pleads not guilty, and insists upon trial, it can be inferred that the

defendant is not repentant. Id. at 253. Our criminal justice system has resolved

the inherent conflict by preserving the right against self-incrimination and the right

to trial as absolute rights, and holding the time for repentance is after trial. Id.

       We cannot make a rational distinction between the sentencing court’s

comments in either Drake or Nichols and the court’s comments in the instant

case. Admittedly there is a sharp contrast between what the State does in plea

bargaining and what the court is permitted to consider in sentencing, but it is a

sharp and clear line that is intended to preserve the integrity of the court.

This matter is affirmed but remanded for resentencing.

       CONVICTIONS AFFIRMED, SENTENCE VACATED, AND REMANDED

FOR RESENTENCING.
