                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0723
                              Filed March 11, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DALE BENJAMIN BUCK,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,

Judge.



      Defendant appeals his sentence on the ground the court relied on an

impermissible sentencing consideration. AFFIRMED.



      Webb L. Wassmer of Wassmer Law Office, P.L.C., Marion, for appellant.

      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, Jerry Vander Sanden, County Attorney, and Nicholas Scott,

Assistant County Attorney, for appellee.



      Considered by Vogel, P.J., McDonald, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2015).
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MCDONALD, J.

       Dale Buck pleaded guilty to one count of incest, in violation of Iowa Code

sections 726.2 and 903B.2 (2011), and was sentenced to an indeterminate term

of incarceration not to exceed five years.      On appeal, Buck challenges his

sentence, contending the sentencing court considered unreliable information at

the time of sentencing.

                                         I.

       This matter came on for sentencing on April 1, 2014. Prior to the time of

sentencing, the Sixth Judicial District Department of Correctional Services

prepared a presentence investigation report (“PSI”).        The PSI contained a

psychosexual screening statement prepared by a psychologist. The psychologist

opined Buck could benefit from sex offender programming and that a more

complete psychological evaluation was warranted.           The foundation of the

psychologist’s opinion and recommendation was her understanding of the nature

of the offense, the results from six administered assessments, and her interview

with Buck.      A summary of the result from each of the six administered

assessments was contained in the psychosexual screening statement, including

the result from the Sexual Adjustment Inventory (“SAI”). The SAI purports to

identify sexually deviant and paraphilia behaviors in adults.

       At sentencing, Buck’s counsel objected to the SAI because it lacked

scientific rigor:

               [DEFENSE COUNSEL]: . . . I believe that this—at least
       there should be a footnote as part of this sentencing that this [the
       SAI] is something that was just created more or less out of whole
       cloth, the Sexual Adjustment Inventory. I would ask the Court to at
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       least in comparison to some of the other studies or some of the
       other inventories as part of the Presentence Investigation and the
       Psychosexual Evaluation—that there are other measures than this
       Psychosexual Eval that hold greater weight, and it appears that
       they’re in conflict with this SAI finding.

The basis for counsel’s objection was that he could not find any peer-reviewed

studies regarding the reliability of the SAI.      In response, the prosecutor

suggested a hearing be set to allow the State to call a witness from the

Department of Correctional Services to testify about the SAI methodology and

use. The sentencing court concluded no further hearing was required, and the

following exchange occurred:

              THE COURT: . . . while I will note your argument in the
       record that it shouldn’t get as much weight as perhaps some of the
       other indices in the Psychosexual Report, I am going to consider it
       as part of the record in this case.
              [DEFENSE COUNSEL:] As long as the Court at least
       understands the argument that we ask the Court to consider it as
       part of the overall Psychosexual Evaluation in which there is
       evidence in conflict and it’s one of many tests that the Department
       of Correctional Services uses, I’m comfortable with that your Honor.
              THE COURT: I understand that.

       The district court sentenced Buck to incarceration.       In imposing the

sentence, the district court stated it considered the assessments in the

psychosexual evaluation as well as other factors, including the defendant’s age

and criminal history, the nature of the offense, and the harm caused to the

victrim. Buck timely filed this appeal.

                                          II.

       A sentence imposed by the district court is reviewed for errors at law. See

Iowa R. App. P. 6.907. “Sentencing decisions . . . are cloaked with a strong

presumption in their favor.” State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995). “A
                                          4



sentence will not be upset on appellate review unless the defendant

demonstrates an abuse of trial court discretion or a defect in the sentencing

procedure, such as trial court consideration of impermissible factors.” State v.

Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). To prove an abuse of discretion,

the defendant must show the sentencing court exercised its discretion on

grounds or for reasons clearly untenable or to an extent clearly unreasonable.

See State v. Pappas, 337 N.W.2d 490, 493 (Iowa 1983).

       The State contends Buck failed to preserve error on the issue of whether

the SAI should have been relied upon at sentencing.              Under our error

preservation rules, an issue must ordinarily be raised in and decided by the

district court before we will address it on appeal. See Stammeyer v. Div. of

Narcotics Enforcement of Iowa Dep’t of Pub. Safety, 721 N.W.2d 541, 548 (Iowa

2006); State v. Tidwell, No. 13-0180, 2013 WL 6405367, at *2 (Iowa Ct. App.

Dec. 5, 2013). The State contends defense counsel made argument regarding

only the weight to be given to the SAI and not its admissibility.        When the

sentencing hearing is viewed as a whole, we agree with the State that Buck

failed to preserve error on this issue.

       The sentencing transcript reflects that defense counsel wanted to draw

attention to the fact that the results of the SAI were contrary to, or at least more

negative than, the results of the five other assessments used in preparing the

psychosexual screening statement and that the SAI should be given less weight

than the other assessments.       The district court acknowledged the argument.

Defense counsel indicated that he was “comfortable” with the district court’s
                                           5



acknowledgement and resolution of the issue.           Sentencing then proceeded

without further discussion of the issue. Defense counsel’s consent to the district

court’s use of the SAI during sentencing waives error on this issue. See State v.

Garrison, 04-0141, 2006 WL 138280, at *14 (Iowa Ct. App. Jan. 19, 2006) (“A

defendant cannot both object and consent to evidence if he expects to preserve

error for appeal.”).

       Even assuming error was preserved, we conclude the district court did not

abuse its discretion in considering the SAI during sentencing. The sentencing

court is required to consider “all pertinent information” at the time of sentencing.

See Iowa Code § 901.5. In determining what information is pertinent and subject

to consideration, the sentencing court is not bound by the rules of evidence. See

Iowa R. Evid. 5.1101(c)(4). “Sentencing procedures are governed by different

evidentiary rules than the trial itself.       The sentencing judge should be in

possession of the fullest information possible concerning the defendant’s life and

characteristics and should not be denied an opportunity to obtain pertinent

information by rigid adherence to restrictive rules of evidence properly applicable

to trial.” State v. Stanley, 344 N.W.2d 564, 570 (Iowa Ct. App. 1983).

       Here, regardless of the burden of proof, the district court did not err or

abuse its discretion in considering the SAI.          There is no requirement at

sentencing that the State come forward with evidence sufficient to establish the

reliability of the testing instrument as if this were trial. See id. Here, there were

sufficient indicia of reliability.   The psychosexual screening statement itself

contains the psychologist’s explanation of the SAI as a brief screening tool that
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may detect sexually deviant and paraphilia behaviors. The prosecutor stated the

State had reports regarding the SAI and would call a witness to testify regarding

the same. Defense counsel acknowledged the corporate author of the SAI made

publicly available on its website research in support of the SAI. More important,

the district court did not rely on the SAI instrument; it relied on the psychologist’s

opinion as expressed in the psychosexual screening statement, which only

referenced and summarized some information from the SAI as one of six

instruments used by the psychologist in preparing the opinion. The reliability or

lack of reliability of the SAI thus only goes to the weight to be given to the

psychologist’s recommendation, which was acknowledged by the sentencing

court and defense counsel. See Ranes v. Adams Labs., Inc., 778 N.W.2d 677,

693 (Iowa 2010) (“[T]he factual basis of an expert opinion goes to the credibility

of the testimony, not the admissibility.”); Williams v. Hedican, 561 N.W.2d 817,

830 (Iowa 1997) (“The fact that a theory or technique has not been widely peer-

reviewed—meaning subject to the scrutiny of the scientific community—does not

necessarily brand the theory or technique as scientifically invalid.”). We thus

conclude the district court did not abuse its discretion or err in relying on the

psychosexual screening statement and the information regarding the SAI

contained therein.

                                         III.

       We have considered each of the parties’ arguments, whether or not

directly addressed herein, and we affirm the defendant’s sentence.

       AFFIRMED.
