               IN THE SUPREME COURT OF IOWA
                            No. 42 / 06–2030

                         Filed September 5, 2008


STATE OF IOWA,

      Appellee,

vs.

RONNIE JAMES ISAAC,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, William A.

Price, District Associate Judge.



      Defendant claims there was insufficient evidence to support his

conviction of indecent exposure. DECISION OF COURT OF APPEALS

VACATED. DISTRICT COURT JUDGMENT REVERSED.


      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant

Attorney General, John P. Sarcone, County Attorney, and Susan C. Cox,

Assistant County Attorney, for appellee.
                                    2

TERNUS, Chief Justice.

      The district court convicted the appellant, Ronnie Isaac, of

indecent exposure after a police officer caught him masturbating outside

a woman’s bedroom window.         On appeal, Isaac claims there was

insufficient evidence to support his conviction because he exposed his

genitals only to the officer and that exposure was inadvertent. The court

of appeals rejected this argument, and we granted Isaac’s application for
further review. Upon our consideration of the governing statute, we hold

the State must prove that, at the time Isaac exposed himself to the

officer, he did so for the purpose of arousing or satisfying the sexual

desires of himself or the officer. Because there is insufficient evidence

that Isaac’s exposure of his genitals to the officer was for this purpose,

the State has failed to prove Isaac committed the crime of indecent

exposure. We therefore vacate the court of appeals’ decision, reverse the

district court’s judgment of conviction, and remand this case for

dismissal of the indecent exposure charge.

      I. Facts and Prior Proceedings.

      On June 29, 2006, Micaela went to bed at 1 a.m. at her

condominium in Ankeny.      About twenty minutes later, Micaela heard
knocking on her bedroom window.         She heard a man moaning in a

sexual manner and repeating sexually explicit exclamations. She did not

open the window or look through the blinds.        Micaela woke up her

roommate who heard a male voice say “oh baby.” The women called the

police.

      Ankeny police officers Robert Kovacs and Brian Huggins responded

to the women’s call. After the officers failed to find anyone outside the

residence, they went inside to speak with the women.
                                    3

      Meanwhile, Jennifer, who lived in another condominium nearby,

had just gotten into bed.       She heard heavy breathing outside her

bedroom window and what sounded like something rubbing against the

window screen. She did not attempt to look outside her window.

      Officer Kovacs left Officer Huggins with Micaela and went back

outside to further search the area.     As he walked around one of the

buildings in the complex, Officer Kovacs saw a man standing in front of
Jennifer’s window. The man was looking into the window with his left

hand on the wall and his right hand on his crotch.           Officer Kovacs

testified it appeared the man was masturbating or fondling himself.

      Officer Kovacs shined a flashlight on the man, identified himself as

a police officer, and asked the man what he was doing. The man, Ronnie

Isaac, turned toward the officer.   Officer Kovacs noticed the zipper of

Isaac’s blue jeans was down and his penis was outside his pants by his

hand. Officer Kovacs could not tell whether Isaac’s penis was erect.

      Isaac took off running.    Officer Kovacs chased after him while

repeatedly yelling “stop, police.” Officer Kovacs caught up with Isaac and

tackled him as Officer Huggins came outside to assist. Officer Kovacs

placed Isaac in handcuffs and noticed Isaac’s hands were oily. A bottle
of baby oil was found in Isaac’s back pocket. The officers turned Isaac

over and saw his flaccid penis outside his pants.     Officer Kovacs put

Isaac’s penis back into his jeans and zipped up his pants.

      The State charged Isaac with indecent exposure, interference with

official acts, and two counts of harassment in the third degree. Isaac

waived his right to a jury.   After a trial, the district court found him

guilty on all counts. Isaac appealed, challenging the sufficiency of the

evidence with respect to the indecent exposure conviction. He did not
                                      4

appeal the convictions on the other counts.        The court of appeals

affirmed. We granted further review.

      II. Scope of Review.

      Challenges to the sufficiency of the evidence are reviewed for

correction of errors at law. State v. Quinn, 691 N.W.2d 403, 406 (Iowa

2005). The district court’s findings of the required elements of an offense

are binding on appeal if supported by substantial evidence.       State v.
Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Evidence is substantial if it

would convince a rational trier of fact the defendant is guilty beyond a

reasonable doubt. State v. Sutton, 636 N.W.2d 107, 110 (Iowa 2001).

      III. Merits.

      The issue before us is whether there was sufficient evidence to

convict Isaac of indecent exposure.       Iowa Code section 709.9 (2005)

defines this crime. It states in relevant part:

            A person who exposes the person’s genitals or pubes
      to another not the person’s spouse . . . commits a serious
      misdemeanor, if:
            1. The person does so to arouse or satisfy the sexual
      desires of either party; and
            2. The person knows or reasonably should know that
      the act is offensive to the viewer.

Iowa Code § 709.9.

      Because indecent exposure is “ ‘essentially a visual assault

crime,’ ” State v. Bauer, 337 N.W.2d 209, 211 (Iowa 1983) (quoting

Kermit L. Dunahoo, The New Iowa Criminal Code: Part II, 29 Drake L.

Rev. 491, 541 (1979–80)), the State needed to produce a victim who saw

Isaac’s exposed genitals.      See Iowa Code § 709.9 (prohibiting the

exposure of a person’s genitals “to another” when the person knows or

reasonably should know the act is offensive “to the viewer”).      Neither

Micaela nor Jennifer saw Isaac or his penis. Thus, the State relies on
                                           5

Isaac’s exposure of his genitals to Officer Kovacs to support Isaac’s

conviction of indecent exposure.            On appeal, Isaac claims there was

insufficient evidence to prove he exposed himself to Officer Kovacs for the

purpose of arousing his sexual desires or the sexual desires of the officer.

We agree.

       Previously, we have broken down the crime of indecent exposure

into four elements:

             1. The exposure of genitals or pubes to someone other
       than a spouse . . .;
              2. That the act is done to arouse the sexual desires of
       either party;
              3. The viewer was offended by the conduct; and
             4. The actor knew, or under the circumstances should
       have known, the victim would be offended.

State v. Adams, 436 N.W.2d 49, 50 (Iowa 1989) (citing Bauer, 337

N.W.2d at 212).1 “ ‘It is only exposure with a sexual motivation, inflicted
upon an unwilling viewer, which will constitute the offense.’ ”                  Bauer,

337 N.W.2d at 211 (quoting 4 John J. Yeager & Ronald L. Carlson, Iowa

Practice:   Criminal Law and Procedure § 217, at 63 (1979)) (emphasis

omitted). Thus, even deliberate exposure done without a sexual motive,
such as streaking, nude protesting or urinating in public, is outside the

proscription of section 709.9. Id. at 211–12.

       In the present case, the State satisfied the first element of the

offense by proving Isaac exposed his penis to Officer Kovacs.                       The

problematic element is the second one:              Was this exposure to Officer

Kovacs done for the purpose of arousing Isaac’s or the officer’s sexual



        1The necessity that the victim actually be offended has been questioned. See

State v. Newell, No. 06-0528, 2007 WL 1062943, at *2 (Iowa Ct. App. Apr. 11, 2007)
(Vogel, J., specially concurring). Isaac does not challenge this element on appeal, so we
do not reconsider whether proof that the viewer was offended is required.
                                           6

desires?2 It is not sufficient that prior to this exposure Isaac sought to
satisfy his sexual desires. Our statute requires such a purpose at the

time of exposure to the viewer. See Iowa Code § 709.9 (requiring that

“[t]he person [expose his genitals or pubes to someone other than a

spouse] to arouse or satisfy the sexual desires of either party”); see also

State v. Plenty Horse, 741 N.W.2d 763, 765 (S.D. 2007) (holding “the

prosecution must link the exhibition of one’s genitals to the intent to

seek sexual gratification”).         Whether a defendant’s exposure of his

genitals to another person was done for the purpose of arousing the

sexual desires of himself or the viewer can be inferred from the

defendant’s conduct, his remarks, and the surrounding circumstances.

       After examining the record in the present case, we find no conduct,

remarks, or circumstances from which an inference can be drawn that

the required purpose existed at the time Isaac exposed his genitals to

Officer Kovacs. Officer Kovacs testified that Isaac had his back to the

officer when the officer first spotted Isaac outside Jennifer’s window. The

officer stated he could not see Isaac’s penis at that point, but he believed

Isaac’s right hand was in the area of Isaac’s crotch. The officer testified

that he then shone a flashlight on Isaac and yelled “police” at which

point Isaac “turned his body towards [Officer Kovacs], looked at [Officer

Kovacs], and then immediately took off running around the side of the

building.” The officer further testified that, when Isaac “turned and faced

[Officer Kovacs], he still had his hand down, and when he saw [Officer

Kovacs], his hand came off.” The officer could not tell whether Isaac’s

penis was erect.

       2The State argues the issue in this case is whether the statute requires exposure

to a specific person or simply to another person. We disagree. The determinative issue
here is whether the exposure to another person must be for the purpose of satisfying
the sexual desires of that person or the defendant.
                                      7

        These facts do not support an inference that Isaac exposed himself

to Officer Kovacs to satisfy his or the officer’s sexual desires. First of all,

there are no facts indicating Isaac’s exposure of his penis to the officer

was anything other than inadvertent, occurring as a result of Isaac

turning in response to the officer’s call.     Secondly, Isaac immediately

removed his hand from his crotch and fled. These actions suggest his

sexual desires evaporated, rather than continued, when he was
discovered by the officer.     Finally, there was no evidence that Isaac

became sexually aroused when he turned to face the officer or that he

masturbated while exposing himself to the officer, circumstances and

conduct that could support an inference that his exposure to the officer

was sexually motivated.

        The State would have us combine Isaac’s intent when he was

masturbating out of sight with his subsequent exposure to Officer

Kovacs. To interpret section 709.9 as the State suggests would ignore

the statutory requirement that the exposure be to another for the

purpose of sexual gratification. This point is illustrated by a comparison

of the Iowa statute with the indecent exposure statute drafted by the

American Law Institute. The model provision states:

              A person commits a misdemeanor if, for the purpose of
        arousing or gratifying sexual desire of himself or of any
        person other than his spouse, he exposes his genitals under
        circumstances in which he knows his conduct is likely to
        cause affront or alarm.

See Model Penal Code § 213.5, at 405 (1980).             Notably, the model

provision does not require exposure “to another” as the Iowa statute

does.    See Iowa Code § 709.9 (“A person who exposes the person’s

genitals or pubes to another not the person’s spouse . . . commits a

serious misdemeanor . . . .”      (Emphasis added.)).      Thus, under the
                                     8

narrower Iowa statute, mere public exposure is not sufficient.        See 4

John J. Yeager & Ronald L. Carlson, Iowa Practice: Criminal Law and

Procedure § 217, at 63 (1979) (“Exposure per se is not prohibited by

§ 709.9.” (quoted in Bauer, 337 N.W.2d at 212)). Our statute requires

exposure to another person; it also requires that this exposure be for the

purpose of sexual gratification.         The required concurrence of the

exposure to Officer Kovacs and the defendant’s sexual purpose is missing
in the record before us.

      IV. Conclusion.

      We find insufficient evidence to support Isaac’s conviction for

indecent exposure. Because there are no facts to support a finding that

Isaac exposed his penis to Officer Kovacs for the purpose of arousing or

satisfying the sexual desires of himself or the officer, Isaac’s conviction

must be reversed. We therefore vacate the contrary decision of the court

of appeals and reverse the district court’s judgment of conviction.

      DECISION OF COURT OF APPEALS VACATED.                     DISTRICT

COURT JUDGMENT REVERSED.

      All justices concur except Cady and Streit, JJ., who dissent, and

Baker, J., who takes no part.
                                      9

                                             #42/06-2030, State v. Isaac

STREIT, Justice. (dissenting)

            I respectfully dissent. Isaac’s conduct is the type of behavior

the legislature intended to outlaw with section 709.9.           His actions

indicate he wanted to be observed sexually gratifying himself.

      The facts of this case are straightforward.            A man was

masturbating outside various bedroom windows of a condominium
complex.   He was making sexual noises and saying sexually explicit

things while rubbing or tapping the windows with one hand and

masturbating with the other. The woman inside heard Isaac repeatedly

say “show me your tits” and “oh, f___, I’m going to come.” Clearly, he

was attempting to awaken the occupants so they might come to the

window to see him. Instead, Isaac was seen by a police officer, grasping

his penis with his oily hands. From these simple facts, it is fair to infer

he did it for sexual purposes, even though the majority cannot imagine

such a happening and rules as a matter of law Isaac would not want to

show himself to the police officer.

      The majority analyzes the facts through the lens of a reasonable

person unaffected by the prurient thoughts and desires of a sexually
deviant person. In doing so, it forecloses any possibility that someone

who would engage in such behavior could also derive sexual gratification

from exposing himself to a police officer and running from a pursuing

officer with his penis protruding from his pants.      Yet, the actions by

Isaac in this case were not those of a reasonable person, but a person

with a sexually perverted mind.       The majority simply fails to consider

that nonsexual activity in the eyes of a normal person may be sexual

activity to a sexually perverted person.      The approach taken by the

majority places an unfair burden on the State in prosecuting the crime of
                                       10

indecent exposure and means the most bizarre cases of indecent

exposure will likely escape prosecution, as in this case.

      Isaac cannot avoid conviction by claiming the particular person

who saw his penis while he was masturbating was not the intended

victim.3 Cf. United States v. Boston, 494 F.3d 660, 665 (8th Cir. 2007)
(finding probable cause to arrest defendant for violating Iowa Code

section 709.9 where an off-duty police officer came upon defendant

masturbating while walking along a trail in a park); State v. Bauer, 337

N.W.2d 209, 212 (Iowa 1983) (holding Iowa Code section 709.9 is not

unconstitutionally vague on its face where a woman observed defendant

kneeling on the floor in a library facing book shelves while masturbating).

As it was obvious Isaac was attempting to get the attention of the people

inside, he knew or should have known his actions would cause someone

to investigate by either opening the window covers or going outside.

Isaac should be held responsible for the natural and foreseeable

consequences of his actions.

      Moreover, it is irrelevant Isaac stopped masturbating after turning

toward the officer.    There is evidence to suggest Isaac could view the

moment the police officer saw him as an opportunity to achieve sexual

gratification. Isaac was not forced to turn around and expose himself to

the officer. Nothing prevented Isaac from using the same hand he was

using to masturbate to place his penis back into his pants before turning

around to face the officer.        The trial court was completely free to

conclude his failure to do so was circumstantial evidence of a perverted

sexual desire to expose himself at that moment to anyone in sight. See

State v. Talbert, 622 N.W.2d 297, 301 (Iowa 2001) (recognizing the

      3There is no evidence to suggest Isaac knew who lived in the apartments. The
women both testified they had never seen him before.
                                      11

evidence is viewed in the light most favorable to the judgment, the

findings of the trial court are construed liberally to uphold the result

reached, and the district court’s findings of fact are binding on appeal

unless not supported by substantial evidence). Similarly, it is equally

understandable that a reasonable mind would conclude that a person

would not engage a police officer in a pursuit to arouse or satisfy his

sexual desires.
      It is a fundamental tenet of law enforcement investigation that it is

sometimes necessary to think like a criminal to catch a criminal. The

majority not only overlooks this commonsense adage, but fails to give

deference to the role of the district court as fact finder in this case. I

would affirm the decision of the court of appeals and the judgment of the

district court.

      Cady, J., joins this dissent.
