                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1459
                            Filed November 12, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BYRON JOEL WILES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Michael G.

Dieterich, District Associate Judge.



      A defendant appeals his conviction for failure to comply with sex offender

registration requirements. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.



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

        Byron Wiles appeals his judgment and sentence for failure to comply with

sex offender registration procedures, in violation of Iowa Code sections 692A.104

and .111 (2013).       He contends the evidence was insufficient to support the

district court’s finding of guilt.

   I.      Background Facts and Proceedings

        The history leading up to Wiles’s present judgment is as follows. Wiles

pled guilty to third-degree sexual abuse and received a deferred judgment, which

was later revoked.        In the revocation order, the district court imposed and

suspended a ten-year prison term, placed Wiles on probation, stated Wiles would

have to “register with the sheriff of the county of [his] residence . . . within five (5)

days of release from custody or placement on probation, parole, or work

release,” and required him to “complete all necessary sex offender registry forms

as directed.”

        Wiles’s probation was later revoked.       After serving time and receiving

parole, he registered as a sex offender. Wiles included a cell phone number on

the registration form. Wiles subsequently violated his parole and was placed on

work release at the Burlington Residential Correctional Facility, where he

completed two additional sex offender registration forms. Neither form listed a

cell phone number.

        Residential facility employees found Wiles with a cell phone, in

contravention of facility rules. The phone had the same number as the number

listed on the original sex offender registration form.
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         The State charged Wiles with failure to “report relevant information on his

sex offender registration as defined in Iowa Code [section] 692A.101(23); to-wit,

a cell phone.” The case was tried to the court, which found him guilty. This

appeal followed.

   II.      Analysis

         Wiles makes a two-pronged argument: (A) he “had no statutory duty to

update his registration since he was ‘incarcerated’ at the time and therefore

exempt” and (B) “[e]ven if he had such a duty, he was only required to report any

changes in his information.”          Accordingly, in his view, the evidence was

insufficient to support the district court’s finding of guilt.

         While styled a challenge to the sufficiency of the evidence, Wiles’s

argument is really a challenge to the district court’s interpretation of the relevant

statutory provisions in light of essentially undisputed facts. See State v. Romer,

832 N.W.2d 169, 179 (Iowa 2013) (focusing on whether language of statute

prohibited certain undisputed conduct); see also State v. West, No. 06-1316,

2007 WL 2963990, at *4 (Iowa Ct. App. Oct. 12, 2007) (noting West’s claim on

his motion for judgment of acquittal turned on a statutory interpretation issue);

State v. Wiley, No. 01-1458, 2002 WL 31309923, at *2 (Iowa Ct. App. Oct. 16,

2002) (“Although the issue before us is cast as whether there was sufficient

evidence to sustain a conviction . . . we believe the issue can at least as readily

be viewed as a challenge to the trial court’s interpretation and application of [the

pertinent statute].”). We review this statutory interpretation issue for errors of

law. Romer, 832 N.W.2d at 179.
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         A. Duty to Register

         The first part of Wiles’s argument is premised on section 692A.103(2),

which states “[a] sex offender is not required to register while incarcerated.”

Wiles asserts he was “incarcerated” during his stay at the residential facility,

obviating the need to register and foreclosing prosecution and conviction for

failure to include the cell phone number on his second and third registration

forms.     The State counters with a citation to section 692A.103(1)(b), which

requires registration “[f]rom the date of release on parole or work release.”

         Wiles has the statutory definition of “incarcerated” on his side. Chapter

692A defines “incarcerated” as “to be imprisoned by placing a person in a jail,

prison, penitentiary, juvenile facility, or other correctional institution or facility or a

place or condition of confinement or forcible restraint regardless of the nature of

the institution in which the person serves a sentence for a conviction.”1 Iowa

Code § 692A.101(14) (emphasis added). It is true that the Burlington Residential

Correctional Facility is “not under the management of the department of

corrections.”    See State v. Halverson, 857 N.W.2d 632, 638 (Iowa 2015).2

However, the residential correctional facility easily fits within the last broad

category of confinement listed in the definition of “incarcerated.” Accordingly, we

conclude Wiles was “incarcerated” within the meaning of Iowa Code section

692A.101(14).




1
  Former versions of Iowa Code chapter 692A that imposed the duty to register
distinguished “work release” from “residential treatment” and “any other release from
custody.” See Iowa Code § 692A.2(1) (2007).
2
  According to Wiles’s probation-parole officer, Wiles remained in the custody of the
Iowa Department of Corrections while housed at the facility.
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       Wiles asks us to end our analysis here. But to hold that a work released

sex offender housed at a residential correctional facility is not required to register

simply because he meets the definition of “incarcerated” would render section

692A.103(1)(b) superfluous. See State v. Nicoletto, 845 N.W.2d. 421, 427 (Iowa

2014) (“[W]e interpret statutes in a manner to avoid absurd results and to avoid

rendering any part of an enactment superfluous.”) superseded by statute, 2014

Iowa Acts ch. 1114, § 1 (codified at Iowa Code § 709.15(f) (2015)). As the

district court stated,

        The legislature clearly enacted Section 692A.103(1)(b) to ensure
        that those individuals who are given the benefit of early release to
        a residential facility must register with the sex offender registry as
        would any other individual with a similar conviction who has not
        been incarcerated would. To interpret the statute as [Wiles]
        suggests would clearly negate Section 692A.103(1)(b).

       If section 692A.103(1)(b) were not sufficiently clear, the legislature also

stated, “Probation, Parole, work release, or any other form of release after

conviction shall not be granted unless the offender has registered as required

under this chapter.”     See Iowa Code § 692A.109(2)(a) (emphasis added).

Together, these provisions unambiguously required Wiles to register as a sex

offender.

       Wiles falls back on the rule of lenity, which requires strict construction of

criminal statutes in favor of the defendant. See State v. Hearn, 797 N.W.2d 577,

585 (Iowa 2011). Like the district court, we decline to read the definition of

“incarcerated” as injecting ambiguity into this analysis and as requiring strict

construction under the rule of lenity. Id. at 587 (“At a minimum, . . . our cases

stand for the proposition that the rule of lenity does not apply if there is no
                                          6


ambiguity regarding the application of a statute to a given set of facts after

examination of the text, the context of the statute, and the evident statutory

purpose as reflected in the express statutory language.”).                   Sections

692A.103(1)(b) and 692A.109(2)(a) clearly require registration.

       B. Duty to Update Information

       In the alternative, Wiles argues section 692A.104, which Wiles was

charged with violating, only imposes an obligation to update changed

information, and his cell phone number did not change.3 At first glance, the

statutory language would appear to support this argument. Section 692A.104(3)

requires an offender to “notify the sheriff of the county where the principal

residence of the offender is maintained about the change to the relevant

information.” “Change” is defined as “to add, begin, or terminate.” Iowa Code

§ 692A.101(5). But Wiles’s argument ignores section 692A.104(8), which states

“the sex offender shall register by appearing in person . . . to verify the offender’s

arrival and relevant information.” Wiles concedes his cell phone number was

“relevant information.” Accordingly, section 692A.104(8) required verification of

the number. It is undisputed Wiles failed to do so.

       Wiles may have believed his initial registration of the number was

sufficient. However, this court has refused to excuse non-compliance based on

an offender’s subjective misunderstanding of the requirements. See State v.

Dawson, No. 13-0792, 2015 WL 1546353, at *7-8 (Iowa Ct. App. Apr. 8, 2015).



3
 The State did not charge Wiles with a violation of section 692A.108, which requires an
offender “to verify the accuracy” of certain “relevant information.” See Iowa Code §§
692A.108, .101(23)(a)(17).
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Additionally, if this was his belief, it is undercut by the fact he re-registered other

unchanged information.

       We conclude the district court did not err in interpreting the cited statutory

provisions on sex offender registration.      To the extent Wiles challenges the

sufficiency of the evidence supporting the court’s fact findings, we find substantial

evidence to support those fact findings. Accordingly, we affirm Wiles’s judgment

and sentence for failure to comply with the sex offender registration

requirements.

       AFFIRMED.
