               IN THE SUPREME COURT OF IOWA
                             No. 75 / 05-1197

                            Filed July 21, 2006

STATE OF IOWA,

      Appellant,

vs.

GASPAR FIDEL GONZALEZ, JR.,

      Appellee.


      Appeal from the Iowa District Court for Johnson County, Stephen C.

Gerard II, Judge.



      The State appeals from the district court’s granting of the defendant’s

motion to dismiss the trial information.          REVERSED AND CASE

REMANDED.



      Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant

Attorney General, J. Patrick White, County Attorney, and Anne M. Lahey,

Assistant County Attorney, for appellant.


      David E. Brown of Hayek, Hayek, Brown, Moreland & Hayek, L.L.P.,

Iowa City, for appellee.
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WIGGINS, Justice.

       In this appeal, we must determine whether the district court correctly

granted the defendant’s motion to dismiss the trial information charging the

defendant with sexual exploitation by a counselor or therapist. In its ruling,

the district court found the defendant’s conduct while working as a

psychiatric nursing assistant did not fall within the scope of Iowa Code

section 709.15 (Supp. 2003). Because we find the facts alleged by the State

in the trial information and attached minutes charge that the defendant
was a counselor or therapist for purposes of section 709.15 and the

defendant’s constitutional claims fail, we reverse the district court’s

granting of the motion to dismiss and remand the case for further

proceedings.

       I. Background Facts and Proceedings.

       The State charged Gaspar Fidel Gonzalez, Jr. with sexual exploitation

by a counselor or therapist in violation of Iowa Code sections 709.15(1)(a),

(b), (f)(3) and 709.15(4).1 The charge was filed in connection with Gonzalez’s

alleged touching of a female patient’s genital area in his role as a nursing

assistant in the psychiatric unit of the University of Iowa Hospitals and
Clinics. Gonzalez entered a plea of not guilty.

       According to the minutes of testimony, a psychiatric nursing

assistant, “[w]ith supervision from a Registered Nurse, performs specific

nursing tasks to assist members of the nursing team in providing care and

monitoring of psychiatric patients.”              The characteristic duties and

responsibilities of a psychiatric nursing assistant include establishing

therapeutic relationships, participating in planning patient care appropriate

       1 These citations are set forth in the trial information and appear to refer to the
2003 Code of Iowa. However, Iowa Code section 709.15 was amended in 2003. See 2003
Iowa Acts ch. 180, § 65. The corresponding section is found in the Code supplement as
section 709.15(1)(a), (b), (2)(c), (4)(c).
                                      3

for the patient’s condition and age, documenting patient behavior and

identifying material to report to the registered nurse, providing supervision

of patients during activities, providing for a therapeutic environment, and

participating in educational offerings. The minutes further state Gonzalez

had regular contact with the female patient while she was in the unit.

Gonzalez characterized their relationship as “a working relationship.”

      Gonzalez filed a motion to dismiss the trial information asserting his

conduct did not fall within the intended scope of Iowa Code section 709.15

and the statute is unconstitutionally vague and overbroad as applied to

him. The district court held an evidentiary hearing on the motion. The

court sustained the motion and dismissed the trial information, finding

Gonzalez was not within the purview of the statute because he did not

directly provide treatment, assessment, or counseling to patients.
      The State appeals.

      II. Issues.

      The issues presented in this case are: (1) whether the district court

erred in finding Gonzalez’s conduct while working as a psychiatric nursing

assistant did not fall within the scope of Iowa Code section 709.15; and (2)
whether Iowa Code section 709.15 is unconstitutionally vague and

overbroad as applied to Gonzalez.

      III. Scope of Review.

      Our review of a district court’s granting of a motion to dismiss a

charge in a trial information is for the correction of errors at law. State v.

Johnson, 528 N.W.2d 638, 640 (Iowa 1995).           In addition, we review

questions of statutory interpretation for the correction of errors at law. Id.

We accept the facts alleged by the State in the trial information and

attached minutes as true. Id. “We will reverse the trial court’s dismissal of
                                       4

the charge at issue if the facts the State has alleged charge a crime as a

matter of law.” Id.

      Our review of a constitutional challenge to Iowa Code section 709.15

is de novo. State v. Seering, 701 N.W.2d 655, 660-61 (Iowa 2005). In

conducting our review, “ ‘we must remember that statutes are cloaked with

a presumption of constitutionality. The challenger bears a heavy burden,

because it must prove the unconstitutionality beyond a reasonable doubt.’ ”

Id. at 661 (citations omitted).    The challenger is required to refute all

reasonable bases upon which the statute could be declared constitutional.

Id. If the statute may be construed in more than one way, one of which is

constitutional, we will adopt such a construction. Id.
      IV. Analysis.

      A. Did the district court err in finding Gonzalez’s conduct while
      working as a psychiatric nursing assistant did not fall within the
      scope of Iowa Code section 709.15?

      The State claims the district court erred in finding Gonzalez’s duties

as a psychiatric nursing assistant did not bring him within the scope of

Iowa Code section 709.15. A counselor or therapist who commits sexual

exploitation in violation of Iowa Code section 709.15(2)(c) commits a serious
misdemeanor. Iowa Code § 709.15(4)(c). Section 709.15(2)(c) provides such
a violation occurs when there is “[a]ny sexual conduct with a patient or

client . . . for the purpose of arousing or satisfying the sexual desires of the

counselor or therapist or the patient or client.” The Code defines “patient or

client” as “a person who receives mental health services from the counselor

or therapist.” Id. § 709.15(1)(e). A “counselor or therapist” is defined by the

Code as

      a physician, psychologist, nurse, professional counselor, social
      worker, marriage or family therapist, alcohol or drug counselor,
      member of the clergy, or any other person, whether or not
                                      5
      licensed or registered by the state, who provides or purports to
      provide mental health services.

Id. § 709.15(1)(a) (emphasis added). “ ‘Mental health service’ means the

treatment, assessment, or counseling of another person for a cognitive,

behavioral, emotional, mental, or social dysfunction, including an

intrapersonal or interpersonal dysfunction.” Id. § 709.15(1)(d). The crime

does not include touching as part of a necessary examination or treatment

provided in the scope of the counselor’s or therapist’s practice or

employment. Id. § 709.15(2).

      Gonzalez claims “the duties of a psychiatric nursing assistant do not

fall within the meaning of ‘mental health service’ provided by a ‘counselor or

therapist’ ” as those terms are defined under Iowa Code section 709.15(1).

To resolve Gonzalez’s claim, we must interpret this section.             When

confronted with the task of statutory interpretation, this court has stated:

      The goal of statutory construction is to determine legislative
      intent. We determine legislative intent from the words chosen
      by the legislature, not what it should or might have said.
      Absent a statutory definition or an established meaning in the
      law, words in the statute are given their ordinary and common
      meaning by considering the context within which they are
      used. Under the guise of construction, an interpreting body
      may not extend, enlarge or otherwise change the meaning of a
      statute.

Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004) (citations

omitted).

      The interpretation of a statute requires an assessment of the statute
       T




in its entirety, not just isolated words or phrases. State v. Young, 686

N.W.2d 182, 184-85 (Iowa 2004). Indeed, “we avoid interpreting a statute in
such a way that portions of it become redundant or irrelevant.” T & K

Roofing Co. v. Iowa Dep’t of Educ., 593 N.W.2d 159, 162 (Iowa 1999). We

look for a reasonable interpretation that best achieves the statute’s purpose
                                      6

and avoids absurd results. Harden v. State, 434 N.W.2d 881, 884 (Iowa

1989). We strictly construe criminal statutes with doubts resolved in the
accused’s favor. State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999).

      Iowa Code section 709.15 clearly states any person providing or

purporting to provide mental health services is considered a “counselor or

therapist.” Iowa Code § 709.15(1)(a). It is thus necessary to determine if

the trial information and attached minutes allege facts demonstrating
Gonzalez was providing mental health services as a psychiatric nursing

assistant. “ ‘Mental health service’ ” consists of treatment, assessment, or

counseling for certain dysfunctions. Id. § 709.15(1)(d). We have already

determined the term “does not encompass strictly personal relationships

involving the informal exchange of advice.” State v. Allen, 565 N.W.2d 333,

337 (Iowa 1997).

      We may consult a dictionary in order to determine the ordinary

meanings of words used by the legislature. State v. Evans, 671 N.W.2d 720,

724 (Iowa 2003).    The dictionary defines “treatment” as “the action or

manner of treating a patient medically or surgically”; “treat” means “to care

for (as a patient or part of the body) medically or surgically,” “deal with by
medical or surgical means,” and “give a medical treatment to.” Webster’s

Third New Int’l Dictionary 2434-35 (unabr. ed. 2002).              The term

“assessment” means “an appraisal or evaluation (as of merit).” Id. at 131.

The term “counseling” means

      a practice or professional service designed to guide an
      individual to a better understanding of his problems and
      potentialities by utilizing modern psychological principles and
      methods esp. in collecting case history data, using various
      techniques of the personal interview, and testing interests and
      aptitudes.

Id. at 518.
                                     7

      Accepting the facts alleged by the State in the trial information and

attached minutes as true, Gonzalez’s role as a psychiatric nursing assistant

is embraced by the legislature’s use of these terms. Gonzalez provided

“treatment” to the patients because he performed nursing tasks to assist in

providing care of psychiatric patients, such as establishing therapeutic

relationships, providing for a therapeutic environment, and participating in

planning patient care. He provided “assessment” of the patients because he

performed nursing tasks to assist in monitoring psychiatric patients, such

as documenting patient behavior and identifying material to report to the

registered nurse. The treatment and assessment took place in the course of

Gonzalez’s working relationship with the female patient while she was in the

psychiatric unit.   Gonzalez’s provision of such mental health services
qualifies him as a “counselor or therapist” for purposes of Iowa Code section

709.15. Thus, the facts the State has alleged in the trial information and

attached minutes charge Gonzalez with the crime of sexual exploitation by a

counselor or therapist as a matter of law. Accordingly, the State is entitled

to proceed with its case to prove these allegations beyond a reasonable
doubt.   A failure of such proof will require the finder of fact to acquit
Gonzalez.

      We have previously acknowledged the problems that arise in filing a

motion to dismiss in a civil case:

      “We recognize the temptation is strong for a defendant to strike
      a vulnerable petition at the earliest opportunity. Experience
      has however taught us that vast judicial resources could be
      saved with the exercise of more professional patience. Under
      the foregoing rules dismissals of many of the weakest cases
      must be reversed on appeal. Two appeals often result where
      one would have sufficed had the defense moved by way of
      summary judgment, or even by way of defense at trial. From a
      defendant’s standpoint, moreover, it is far from unknown for
      the flimsiest of cases to gain strength when its dismissal is
      reversed on appeal.”
                                      8

Rees v. City of Shenandoah, 682 N.W.2d 77, 79 (Iowa 2004) (citation

omitted). Although there are no summary judgment proceedings in criminal

cases, we find these principles to be equally persuasive in such cases.

       Additionally, we note it is improper for the district court to hold an

evidentiary hearing on a motion to dismiss based on a claim that the facts

alleged in the trial information and attached minutes do not constitute the

offense charged in the trial information. In this circumstance, the only

relevant inquiry by the court is whether the facts the State has alleged in

the trial information and attached minutes charge a crime as a matter of

law.   To conduct an evidentiary hearing only wastes valuable judicial

resources that the court can use for other matters requiring such a hearing.
       Consequently, the district court erred in granting Gonzalez’s motion

to dismiss the trial information by finding his alleged conduct while working

as a psychiatric nursing assistant was outside the scope of Iowa Code

section 709.15.

       B. Is Iowa Code section 709.15 unconstitutionally vague and
       overbroad as applied to Gonzalez?

       Gonzalez argues Iowa Code section 709.15 is constitutionally infirm
because it is void for vagueness. Vague statutes are proscribed by the Due

Process Clause of the Fourteenth Amendment to the United States

Constitution. State v. Wiederien, 709 N.W.2d 538, 542 (Iowa 2006). “In

order to avoid a vagueness problem, a penal statute must ‘define the

criminal offense with sufficient definiteness that ordinary people can

understand what conduct is prohibited and in a manner that does not

encourage arbitrary and discriminatory enforcement.’ ” Allen, 565 N.W.2d

at 337 (citations omitted). If a statute lacks clearly defined prohibitions,
                                       9

then it is void for vagueness. Wiederien, 709 N.W.2d at 542. The void-for-

vagueness doctrine protects the following values:

      “First, because we assume that man is free to steer between
      lawful and unlawful conduct, we insist that laws give the
      person of ordinary intelligence a reasonable opportunity to
      know what is prohibited, so that he may act accordingly. . . .
      Second, if arbitrary and discriminatory enforcement is to be
      prevented, laws must provide explicit standards for those who
      apply them. . . . Third, but related, where a vague statute
      ‘abut[s] upon sensitive areas of basic First Amendment
      freedoms,’ it ‘operates to inhibit the exercise of [those]
      freedoms.’ ”

Id. (alterations in original) (citation omitted).   Due process requires “a

standard of conduct be reasonably ascertainable ‘by reference to prior

judicial decisions, similar statutes, the dictionary, or common generally

accepted usage.’ ” State v. Baker, 688 N.W.2d 250, 255 (Iowa 2004) (citation

omitted).

      In Allen, we rejected a constitutional challenge to Iowa Code section

709.15 on vagueness and overbreadth grounds because we concluded the

language of section 709.15(1)(f) (now section 709.15(2)) clearly applied to

the conduct ascribed to the defendant and that section did not reach a
substantial amount of First Amendment conduct. 565 N.W.2d at 336-38 &

n.1. Although the section at issue dealt with what conduct constitutes

sexual exploitation by a counselor or therapist, we relied on the definitions

of “counselor or therapist” as well as “ ‘[m]ental health service’ ” in arriving

at our rejection of the constitutional claim. Id. at 337-38.

      Here, we must determine what people the statute prohibits from

engaging in such conduct. The “any other person, whether or not licensed

or registered by the state, who provides or purports to provide mental

health services” designation listed in the “counselor or therapist” definition

clearly identifies the individuals who come within the statute’s prohibitions.
                                      10

Iowa Code § 709.15(1)(a). Any person who renders “treatment, assessment,

or counseling of another person for a cognitive, behavioral, emotional,
mental, or social dysfunction, including an intrapersonal or interpersonal

dysfunction” provides “ ‘[m]ental health service.’ ” Id. § 709.15(1)(d). There

is no doubt the language of section 709.15 applies to the services Gonzalez

is alleged to have provided to the female patient under the facts in the trial

information and attached minutes.          Therefore, we conclude Gonzalez’s
vagueness claim is without merit.

      In his motion to dismiss, Gonzalez also asserted Iowa Code section

709.15 is unconstitutionally overbroad. A statute is overbroad in violation

of the Fourteenth Amendment to the United States Constitution if it seeks

to control or prevent activities subject to regulation in a manner that is

unnecessarily broad, thereby invading protected freedoms. State v. Reed,

618 N.W.2d 327, 331 (Iowa 2000). Gonzalez did not identify a protected

freedom in his motion to dismiss or in his argument on appeal. Gonzalez’s

failure to do so causes us to find his overbreadth argument is waived. See

id. at 331-32.
      Accordingly, Gonzalez’s constitutional challenges to Iowa Code section
709.15 fail.

      V. Disposition.

      Because we find the facts the State has alleged charge that Gonzalez

was a counselor or therapist for purposes of Iowa Code section 709.15 and

his constitutional claims fail, we reverse the district court’s granting of the

motion to dismiss the trial information and remand the case for further

proceedings.

      REVERSED AND CASE REMANDED.
