                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1517
                            Filed December 21, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMIE LEE COLE,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Buchanan County, George L.

Stigler, Judge.



       Jamie Cole appeals his judgment and sentence for indecent exposure

enhanced as a second sexually predatory offense. AFFIRMED.



       John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant.

       Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant

Attorney General, for appellee.



       Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.

       Jamie Cole appeals his judgment and sentence for indecent exposure

enhanced as a second sexually predatory offense. He contends (1) he was

denied his right to represent himself and (2) the evidence was insufficient to

support the jury’s finding of guilt.

I.     Right of Self-Representation

       Cole argues, “The district court violated [his] constitutional right to self-

representation under the Sixth Amendment when it denied his request to proceed

without an attorney.” See State v. Johnson, 756 N.W.2d 682, 687 (Iowa 2008)

(“The Sixth Amendment guarantees the right to self-representation as well as the

right to counsel.”). The State counters that Cole waived this claim.

       “A waiver [of the right to self-representation] may be found if it reasonably

appears to the court that defendant has abandoned his initial request to

represent himself.” State v. Spencer, 519 N.W.2d 357, 359 (Iowa 1994) (citation

omitted). The record supports a finding of a waiver.

       After the State filed a trial information and the district court appointed Cole

an attorney, Cole asked his attorney to withdraw and filed a motion to represent

himself. At a hearing on these motions, the district court asked Cole if he wished

to “continue to request that [his attorney] be withdrawn as [his] attorney.” Cole

responded, “Yes, ma’am.”        The court then asked, “Let me make sure that I

understand: are you wanting a new attorney appointed to represent you, or are

you intending to represent yourself?” Cole responded, “I would have no problem

with James Peters out of Independence being appointed.” In an effort to clarify,

the court stated, “Well, when we do court-appointed counsel, you do not
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necessarily get to pick your attorney. My question is, are you requesting the

appointment of new counsel?” Cole initially responded, “No, ma’am,” but when

asked if he “would agree to the appointment of Peters” if the court “were to

appoint [him],” Cole responded, “Correct.”     The court expressed reservations

about appointing “a specific attorney to represent someone” but ultimately

decided “to appoint Mr. Peters” to represent Cole. The court reset all pending

motions to give new counsel an opportunity to consider and discuss them with

Cole.

        In time, Cole filed a motion to fire Peters and a motion to represent

himself. At a hearing on these motions, the district court engaged in the following

exchange with Cole:

               COURT: This matter comes before the Court for hearing on
        several matters this date, most of which are pro se applications of
        Mr. Cole. There is a July 16, 2015 application to fire Attorney
        James Peters. What is that about, Mr. Cole? You filed that pro se.
               ATTORNEY PETERS: I’ve asked—Mr. Cole filed this on the
        17th, I believe, to have me removed, and I’d let him address the
        Court on what he wants to do.
               COURT: Mr. Cole.
               DEFENDANT: I’d withdraw that, Your Honor. Me and James
        have talked since then.
               COURT: Okay. That resolves that. There is a motion to
        represent yourself. I presume that is withdrawn as well; is that
        correct or not?
               DEFENDANT: Well, it must have been one of them that we
        had a hearing on a couple weeks ago.
               COURT: No, this was filed on July 21. You filed a great
        many things, and so today is the 28th, and so there was no hearing
        on that. But in any regard, I assume you’re withdrawing that.
               DEFENDANT: Yeah, that’s the one that—I want to withdraw
        that.

We conclude Cole abandoned his request to represent himself. See id. at 360

(noting the defendant’s “request for self-representation came out of frustration
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rather than a distinct and unequivocal request for that constitutional right” and

stating “even if [the defendant] wished to proceed pro se at the time of the

withdrawal hearing, he waived and abandoned that right by acquiescing to

attorney McCoy’s full representation of his case for the following year leading up

to and during the jury trial”); State v. Slater, No. 10-1593, 2011 WL 3925727, at

*5 (Iowa Ct. App. Sept. 8, 2011) (stating the defendant “clearly and

unambiguously abandoned the request and informed the court he wanted

counsel to represent him before proceeding to trial”).

II.    Sufficiency of the Evidence

       Cole challenges the sufficiency of the evidence supporting the jury’s

finding of guilt. Our review is for substantial evidence. State v. Robinson, 859

N.W.2d 464, 467 (Iowa 2015).

       The jury was instructed the State would have to prove the following

elements of indecent exposure:

               1. On or about the 21st day of May, 2015, the defendant
       exposed his genitals or pubes to [a correctional officer] who was
       not then the defendant’s spouse.
               2. The defendant did so with the specific intent to arouse or
       satisfy the sexual desire of the defendant or [the correctional
       officer].
               3. [The correctional officer] was offended by the defendant’s
       conduct.
               4. The defendant knew or reasonably should have known
       that the act was offensive to [the correctional officer].

       Cole only contests the third and fourth elements. The jury reasonably

could have found both elements satisfied based on the testimony of a

correctional officer and jail administrator.
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       Cole was jailed at the Buchanan County jail facility.     The correctional

officer testified Cole sat on his bed naked during the night cell check and

masturbated in full view of her.      She characterized his conduct as “very

offensive.” The jail administrator acknowledged, “It’s not unusual for inmates to

masturbate” but testified they were usually “discrete about it” and, in any event,

they were always required “to have their pants on.” He explained that even Cole

generally stopped masturbating if he saw correctional staff. This time he did not.

According to the administrator, Cole acted “different[ly]” by lying “naked . . . on

his bunk knowing that [the correctional officer] was coming up the stairs.” He

saw her, “look[ed] right at her,” and continued to masturbate. This testimony

amounts to substantial evidence in support of the third and fourth elements.

      We affirm Cole’s judgment and sentence for indecent exposure enhanced

as a second sexually predatory offense.

      AFFIRMED.
