                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-1058
                                  Filed July 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LACEY LEA HOLTZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Peter B. Newell,

District Associate Judge.



      Lacey Holtz appeals from judgement and sentence imposed upon her

conviction for enticing a minor. REVERSED AND REMANDED.




      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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DANILSON, Chief Judge.

       Lacey Holtz appeals from judgement and sentence imposed upon her

conviction for enticing a minor, in violation of Iowa Code section 710.10(3)

(2013). Holtz contends the court improperly instructed the jury on the elements

of the offense and erred in denying her motion for new trial. She also asserts

there is insufficient evidence to sustain the conviction and that the court erred in

imposing conditions of probation.     Because we conclude there is insufficient

evidence to prove Holtz intended to commit an illegal act upon a minor, we

reverse the conviction. Holtz also pled guilty to possession of marijuana, and we

remand for resentencing on this conviction.

I. Background Facts and Proceedings.

       Viewing the evidence in the light most favorable to the State, the jury

could find the following. Fourteen-year-old B.V. was checking on his turtle traps

in a creek when he heard pinging sounds. B.V. rode his bicycle toward the

nearby residence and encountered Lacey Holtz, age thirty-one, sitting outside

her home shooting an Airsoft gun at a bridge. B.V. approached Holtz, and the

two talked for a while. Holtz asked B.V. if he wanted to go inside the house

because it was cooler. B.V. joined her inside and sat on the couch.

       While they were inside, a person came into the residence to purchase

marijuana and then left. Holtz then left the room, returned with a black bag, and

removed a plastic bag of marijuana and a pipe. She lit the pipe and took a puff.

Holtz offered the pipe to B.V., who first declined. Holtz then showed B.V. “how to

do it” and said, “Here; you try it.” B.V. did and gave the pipe back to her. B.V.

testified that he was scared because Holtz had a knife with a curved blade on a
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nearby table. When B.V. told Holtz he wanted to go home, she told him to wait;

she put eye drops in his eyes and cologne on him so he would not smell like

marijuana.

      The following day, B.V.’s mother asked him if he knew Holtz after a

neighbor said they saw B.V. at Holtz’s residence. B.V. then told his mother about

the previous day. Law enforcement was called, a search warrant issued, and

marijuana and the pipe described by B.V. were found.

      Holtz was subsequently tried on two charges: enticing a minor and

possession of marijuana.     During the trial, Holtz entered a guilty plea to the

possession charge. The jury found Holtz guilty of enticing a minor. She sought

motions for directed verdict, for judgment of acquittal, and for new trial on the

enticing-a-minor charge, which the court overruled. The court entered judgment

and sentence on the two convictions and imposed as a condition of probation

that Holtz was to avoid bars, taverns, or other liquor stores. Holtz appeals.

II. Scope and Standard of Review.

      We review challenges to the sufficiency of the evidence for errors at law.

State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We uphold a jury’s finding of

guilt if substantial evidence supports the verdict. Id. “‘Substantial evidence’ is

evidence upon which a rational finder of fact could find a defendant guilty beyond

a reasonable doubt.” Id.

III. Discussion.

      “Our legislature has wide latitude to declare an offense and define the

appropriate element of criminal intent or culpable conduct.” Id. at 512. “[W]e

construe the statute by considering the language of the act, in connection with its
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manifest purpose and design.” Id. Moreover, “we are guided by familiar rules of

statutory construction.” State v. Williams, 315 N.W.2d 45, 49 (Iowa 1982). Penal

statutes must give fair warning of the conduct prohibited, and we strictly construe

penal statutes “with doubts being resolved in favor of the accused.” Id.

         Since the strict construction rule is based on doubt, it will not be
         applied when it will defeat the obvious intent of the legislature. In
         interpreting the meaning of a criminal statute, courts may properly
         consider the evil sought to be remedied and the purposes or
         objectives of the enactment. Furthermore, the meaning of a statute
         may be “ascertained by reference to prior judicial decisions, similar
         statutes, the dictionary, or common generally accepted usage.”

Id. (citations omitted). With these principles in mind, we turn to the provision at

issue.

         Section 710.10(3) provides: “A person commits a class ‘D’ felony when,

without authority and with the intent to commit an illegal act upon a minor under

the age of sixteen, the person entices a person reasonably believed to be under

the age of sixteen.” (Emphasis added.)

         The jury was instructed:

                 Under Count 1, the State must prove the following elements
         of the crime of Enticing a Minor:
                 1. On or about the 4th day of August, 2014, Lacey Holtz
         enticed [B.V.]
                 2. The Defendant did so with the specific intent to commit an
         illegal act on [B.V.]
                 3. The Defendant committed an overt act evidencing her
         purpose to entice [B.V.]
                 4. At the time [B.V.] was enticed, either:
                 a) [B.V.] was a minor under the age of sixteen; or
                 b) The Defendant reasonably believed [B.V.] was under
         sixteen years of age.

               To “entice” means to wrongfully invite, tempt, solicit, lure,
         coax, seduce, or persuade a person to do a thing. In determining
         whether the Defendant enticed another, you must look not only to
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       the actions and conduct of the Defendant, but also to the impact of
       those actions upon the victim.

       What illegal act Holtz was to have committed upon B.V. was not defined,

but the State argued the illegal act was B.V.’s possession of marijuana.

       In the post-verdict motion, Holtz renewed an earlier argument raised in her

motion for judgment of acquittal made at the close of the evidence, claiming that

“[p]ossession of marijuana cannot be done ‘upon’ someone or ‘on’ someone by

the definition in Iowa Code section 124.401(5).”1 Holtz also argued in the post-

trial motion that “enticing a minor per the historical context, needs a sexual intent

or crime of some kind done upon the minor.”              The district court noted the

statutory language—“to commit an illegal act upon”—was “odd” in the context but

“the charge is within the boundaries of that language.”

       Chapter 710 governs “kidnapping and related offenses.” Section 710.10 is

titled “enticing a minor” and classifies the seriousness of the offense.

              (1) A person commits a class ‘C’ felony when, without
       authority and with the intent to commit sexual abuse or sexual
       exploitation upon a minor under the age of thirteen, the person
       entices or attempts to entice a person reasonably believed to be
       under the age of thirteen.
              (2) A person commits a class “D” felony when, without
       authority and with the intent to commit an illegal sex act upon or
       sexual exploitation of a minor under the age of sixteen, the person
       entices or attempts to entice a person reasonably believed to be
       under the age of sixteen.
              (3) A person commits a class “D” felony when, without
       authority and with the intent to commit an illegal act upon a minor
       under the age of sixteen, the person entices a person reasonably
       believed to be under the age of sixteen.
              (4) A person commits an aggravated misdemeanor when,
       without authority and with the intent to commit an illegal act upon a

1
  Holtz made the argument about the meaning of enticing in the context of the jury-
instruction challenge, but the argument applies equally to the sufficiency-of-the-evidence
challenge.
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       minor under the age of sixteen, the person attempts to entice a
       person reasonably believed to be under the age of sixteen. A
       person convicted under this subsection shall not be subject to the
       registration requirements under chapter 692A unless the finder of
       fact determines that the illegal act was sexually motivated.

Iowa Code § 710.10 (emphasis added).

       The unlawful act asserted here is possession of marijuana.        Reading

section 710.10 in context, and strictly construing the provision as we must, we

conclude possession of marijuana is not the type of conduct the provision is

aimed at—it is not an unlawful act committed “upon” another.

       In State v. Osmundson, the supreme court defined “entice” as “to draw on

by arousing hope or desire” or “to draw into evil ways,” or

       [t]o wrongfully solicit, persuade, procure, allure, attract, draw by
       blandishment, coax or seduce. To lure, induce, tempt, incite, or
       persuade a person to do a thing. Enticement of a child is inviting,
       persuading or attempting to persuade a child to enter any vehicle,
       building, room or secluded place with intent to commit an unlawful
       sexual act upon or with the person of said child.

546 N.W.2d 907, 909 (Iowa 1996) (emphasis added) (citation omitted).

       In State v. Quinn, the defendant asserted there was insufficient evidence

he committed an act of enticement or had the specific intent to commit an illegal

act upon the victim. 691 N.W.2d 403, 407-08 (Iowa 2005) (interpreting then-

section 710.10(3), now codified at section 710.10(4), which states, “[a] person

commits an aggravated misdemeanor when, without authority and with the intent

to commit an illegal act upon a minor under the age of sixteen, the person

attempts to entice away a minor under the age of sixteen, or attempts to entice

away a person reasonably believed to be under the age of sixteen”).           The

supreme court referenced the Osmundson definition of entice in determining
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there was substantial evidence to support a conviction of an attempt to entice a

minor. Id. The supreme court stated it was “significant” that the trial court found:

       The deciding factor in this case is the uncontroverted statement
       given to Officer Kevin Takacs by the defendant describing the
       victim’s smiling face that quickly changed as if she knew what he
       wanted to do to her later. To the Court in this case it can be
       inferred that he had in mind taking her in furtherance of his sexual
       attraction to young girls.

Id. at 407 (emphasis added).         The court concluded “there was substantial

evidence to support the district court’s finding that Quinn was attempting to entice

away Karis for the purpose of performing an illegal act upon her”—the illegal act

being “false imprisonment” or “sexual abuse.” Id. at 408.

       Our conclusion is bolstered by the fact that other statutory provisions

address the provision of substances to minors.          See Iowa Code §§ 124.406

(distribution to person under age eighteen), 709A.1 (contributing to delinquency).

In fact, chapter 709A is titled “Contributing to Juvenile Delinquency,” and section

124.406 defines penalties based upon the type of substance distributed to a

minor.2

       Because substantial evidence does not support the conviction of enticing

a minor, we reverse the conviction, and remand for dismissal of the enticing

charge and resentencing solely on the possession of marijuana charge. We

need not address the remainder of Holtz’s arguments on appeal.

       REVERSED AND REMANDED.




2
  We acknowledge that providing illegal substances to a minor may be a method used to
entice a minor but there must be intent to commit an unlawful act upon the child such as
kidnapping or sexual abuse.
