                 IN THE SUPREME COURT OF IOWA
                                  No. 16–1684

                          Filed March 30, 2018


STATE OF IOWA,

      Appellee,

vs.

BRADLEY ELROY WICKES,

      Appellant.



      Appeal from the Iowa District Court for Clinton County, Stuart

Werling, Judge.



      Defendant challenges his conviction for sexual exploitation by a

school employee. AFFIRMED.



      Eric S. Mail and Eric D. Puryear of Puryear Law P.C., Davenport,

for appellant.



      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.
                                          2

ZAGER, Justice.

         This case requires us to determine whether hugs between a school

employee and a student can constitute prohibited “sexual conduct”

under Iowa Code section 709.15(3)(a) (2015).                 Wickes appeals his

conviction on one count of sexual exploitation by a school employee

under Iowa Code sections 709.15(3)(a)(1) and 709.15(5)(a).                   Wickes

challenges the district court findings that his hugs with a student

constituted “sexual conduct” under Iowa Code section 709.15(3)(a)(2) and

that the State provided sufficient evidence to show he engaged in a

pattern, practice, or scheme of conduct to engage in sexual conduct with

a student. Wickes also forwards other claims on appeal. For the reasons

set forth below, we affirm the judgment and sentence of the district

court.

         I. Background Facts and Proceedings.

         In August 2015, Bradley Elroy Wickes was a licensed teacher in

the State of Iowa at Camanche High School. Wickes taught high school

social studies courses and was actively involved with the students

outside of the classroom as the faculty sponsor of the school’s student

government and as the DJ at school dances. Around August 21, A.S., a

17-year-old student in Wickes’s social studies class reached out to

Wickes in person to proofread an English paper she had written. From

the contents of her paper, Wickes would learn of personal issues A.S.

was facing.     Following this initial interaction, Wickes initiated contact

with A.S. on Facebook Messenger 1 to discuss his thoughts on her paper.

        1“Facebook Messenger is a mobile tool that allows users to instantly send chat

messages to friends on Facebook.”         Techopedia, https://www.techopedia.com/
definition/28490/facebook-messenger [https://perma.cc/9T5H-72DZ]. Facebook users
can receive these messages via their computer or any other mobile or electronic device
when they are logged onto their Facebook accounts. Id. Essentially, Facebook
Messenger operates the same way mobile texting does, as only the persons sending and
                                           3

Thereafter, Wickes and A.S. continued to frequently message one

another, and their relationship transformed from one of teacher and

student to one of a more personal and intimate nature.

       Between August 21 and October 5, Wickes and A.S. exchanged

approximately 638 pages of messages on Facebook with one another,

with many of these pages containing multiple exchanges between them

per page. 2    These daily messages took place at all hours of the day,

sometimes beginning early in the morning and often ending early the

next morning. As their relationship progressed, Wickes and A.S. began

to openly share intimate details of their lives.                 Wickes frequently

discussed his marital issues with A.S., including his sexual frustrations

with his wife. They also discussed his ultimate decision to leave his wife

and children.

       Throughout these discussions, Wickes made clear that part of his

marital problems stemmed from his desire for more cuddling and

physical contact with his wife.          For example, Wickes stated, “[H]ugs,

cuddling and laying together are so important to me.” Wickes also told

A.S. that he had previously complained to his wife about the lack of

affection and sexual intimacy in their marriage.              He made statements

such as “I’m a guy that loves to cuddle and show affection”; “I don’t need

to be seduced after this long of a ‘dry period’ ”; and “I NEED AFFECTION,

I’m not saying the booty kind . . . well that too . . . but I freaking am

crazy to just feel like [my wife] would like to hold my hand or sit beside


______________________________________
receiving the messages can view them and partake in the conversation. See generally
https://www.messenger.com [https://perma.cc/6YV4-ARKS].
       2There were more than 638 pages of Facebook messages.         However, the trial
court only considered up to the first two entries on page 638 of the transcript because
the messages sent beyond that point were sent by the father and stepfather of A.S. after
discovering the relationship between A.S. and Wickes.
                                      4

me.” A.S. responded to this statement about his need for affection by

saying, “[Y]ou’re not crazy for wanting those things.      It’s part of a

relationship.    It’s a big part.”   Wickes replied, “Could you turn 30

tomorrow lol.”

      Further, Wickes used these discussions to flirt with and encourage

A.S. into a more intimate relationship with him. Initially, he encouraged

A.S. to rely on him emotionally.      After Wickes reviewed A.S.’s paper

describing her move from the home of one parent to the other, Wickes

made statements such as “I didn’t know much about why you left.

Sounds like it was pretty rough.          You should share more with me

sometimes if you ever want to”; “Hugs and high fives Monday”; and

“Don’t hold it all in. That just leads to more depression and anxiety. I’m

always available.” Wickes subsequently continued to encourage A.S. to

rely on him for support in the form of conversations and hugging. For

example, when A.S. said, “I know personally I tend to shut down after I

open up to someone,” Wickes responded, “So can I expect you to shut

down and pull away now? Better not.”

      A.S. and Wickes would both message each other asking about

when they would get their hugs from one another. The pair engaged in

hugs on an almost daily basis. In addition to their conversations and

testimony about the hugs, the evidence of these interactions includes two

photographs of Wickes and A.S. embracing—one at the Camanche High

School prehomecoming bonfire and one at the homecoming dance. From

September 16 until his last Facebook conversation with A.S. on October

5, Wickes made a plethora of statements to A.S. about how sexually

attractive he found her and his desire to be in a romantic relationship

with her.   For example, on September 20, Wickes messaged A.S., “I’m

going to cross over to the creeper side a moment and tell you. You are
                                     5

hot.   And pretty[;] kind of a rare combo.”     This comment came after

Wickes had recently seen A.S. at Walmart, they had hugged, and he

followed up on their in-person exchange by telling A.S., “I’m glad I just

got to touch you[.] OMG[;] touch hug you lmfao.”

       When A.S. was having issues with a prior boyfriend, Wickes told

her, “If I was his age and had you tell me that. I[’d] be breaking down

walls to get to you.” As their conversation that day continued, Wickes

told A.S.,

       I’m infatuated with your character and heart. The only
       reason I feel good these days is I see in you what I want in a
       woman. I found out there’s a girl that gets me and I have
       hope someday I [will] find another age appropriate girl.

Later, he told A.S., “I just want to hold you. Hug choke the shit out of

you,” and “I’d sneak over a hug but think that’s criminal charges.” The

next day, Wickes messaged A.S. at school, saying, “Come give me that

hug.” Later, Wickes messaged A.S., “[Your] hugs and saying just think

booty made me keep it together today.”

       The following day, Wickes told A.S. how “gorgeous, funny, kind,
[and] smart” he found her. He continued,

       Permission to be a pervy old man? . . . . Your eyes are
       amazing, freaking soulful and draws me in. Every face [you]
       make is freaking adorable. I told you a long time ago you
       look just like an actress from tv. Still do. And then the
       pervy stuff . . . you know you’ve got a great booty! Below
       that is some smoking legs [that] are beautiful and not the
       scrawny chicken legs like so many others. You’ve got a pin
       up girl build. An hour glass of curves. Read this then delete
       and I’ll go turn myself in.

He followed that comment by telling A.S. he would hug her the next day

when she took a restroom break from another class.

       A few days later, Wickes and A.S. were discussing the school

bonfire photograph that was taken and Wickes told A.S., “I’m keeping my
                                     6

self-portrait for my personal spank bank. I’m hot.” They then discussed

the school’s “Gender Bender Day,” where students and teachers could

dress like members of the opposite gender. After A.S. offered a dress for

Wickes to borrow, Wickes stated, “I’m just glad you’re just willing to give

me your booty at a moment’s notice . . . Yeah delete that.” The pair then

began discussing what gets their hearts racing and Wickes told A.S.,

“Honestly for me it’s you and chatting. I look forward to it all day. And I

know I probably shouldn’t. But just enjoy it. Relaxing funny. Heart to

heart.”   He continued, “I don’t exactly know how to say it without

violating my moral compass . . . in a different world . . . if time could be

changed and I younger or you older. You’d be completely perfect for me.”

      The following day, Wickes told A.S. that her “chest fits [her]

perfectly” in response to a message from A.S. about her weight. When

she complained about problems with her living arrangements, Wickes

told A.S., “I’d buy you an apartment and be your sugar daddy lol if I

could afford it. You deserve to feel comfortable[.] Hugs to you.” Further,

when A.S. told him she was getting offline to go to sleep, Wickes said,

“I’m leaving you unsatisfied or wanting more . . . . That was dirty sorry.”

A.S. responded by telling Wickes she would be alone after she got offline,

to which Wickes replied, “No you’re never alone and you’re going to go to

sleep with me.”

      On October 2, Wickes told A.S., “Ahhh you always look good. So

glad I have you. Had [a] blast as always,” and “Can’t wait for my hug.”

The next day, Wickes asked A.S. if he could vent for a moment.           He

proceeded to tell her,

      Why ohhh why would I meet someone like you! I’ll be
      honest[,] you match me to [a] tee except I’m a pedophile for
      thinking so. And I’m not thinking sexual[,] just emotional
      and personal . . . that’s not fair for me to put on you.
                                     7

As their conversations that day continued, Wickes told A.S., “I hate that

you feel I might leave ya. I’ll be honest[,] I worry about how close we are

because I know it would get me in trouble, but I would [be] in a worse

place without you.” A.S. replied, “[I]f you leave[,] I’d honestly be lost.”

When Wickes told her he feared a therapist might tell him he could not

use social media or texting for a month, A.S. responded, “I hope they’d

never suggest that. I just idk. I’d just cry.” Wickes then assured A.S., “I

wouldn’t do it. I want to hug you.” Later in the night, Wickes and A.S.

were talking about the Camanche homecoming dance that Wickes was

DJing and A.S. would be attending.         When A.S. made a comment

stressing out about her outfit, Wickes responded with, “You’re amazing

in anything.”

      After the homecoming dance, where one of the photographs of

Wickes and A.S are shown embracing, Wickes told A.S., “You’re

gorgeous” and “You’re smoking.”      Their messaging continued into the

early hours of the morning. Wickes told A.S. that she found him at the

dance to take a picture with him “during the perfect song.” That song

was entitled “Hold Each Other,” which Wickes said he played because it

made him think of A.S. and their hugs. After A.S. told Wickes that she

“would have done anything for a dance tonight,” Wickes replied, “I think I

would get completely lost if that happened, like everything would shut

down around me and I would disappear into those eyes. If I was that

someone.” He proceeded to tell A.S., “You’re hot obviously. But you’re

soulful. I don’t know how to explain it[;] you’re just captivating” and “you

make me feel great.”

      On October 4, Wickes separated from his wife and moved away

from the marital residence.    Later that night, Wickes and A.S. met at

Walmart to give each other a hug. Following their physical encounter,
                                      8

they continued to converse with one another that evening on Facebook.

Wickes mentioned to A.S. that she left him with a “wonderful perfume

smell.” Wickes told A.S. that he was jealous of her boyfriend because

“He’s got a shot with my perfect person.” He further told A.S., “I’ve been

walking alone for so long helping who I could along the way, to realize I

was never going to meet someone that saw me. And then bam it’s you.”

The two conversed about their romantic feelings for one another, and

Wickes posed A.S. a “hypothetical” question. He asked her if she would

like to take their relationship further despite their age gap after she

graduated and turned eighteen if his marriage did not work out. He also

asked her whether she could “really be happy with a guy that’s 36[,]

divorced, and has 3 kids.” A.S. replied, “Honestly yes. There’s such a

connection. And I love kids.” Soon after, Wickes told A.S., “I’ll just say

it. I love you. I never meant for this [to] happen[.] [I]t just did.” After

A.S. acknowledged she felt the same way, Wickes told her, “I’ve only

hugged you and chatted with you and I feel completely tied to you. When

my phone light blinks green[,] I know it’s a message from you and I get so

excited.”

      This conversation continued early into the next morning, and it

became increasingly sexual. Wickes told A.S., “My fantasy was laying in

your lap listening to [music.]” After A.S. told Wickes about how she liked

to cuddle, Wickes responded, “Booty touches me and it be [M]arvin

[G]aye . . . for all of 5 seconds at this point.” He also explained to A.S.

that his wife had previously told him “she wasn’t enjoying [sex] because

. . . she didn’t get what she needed.”        He declared that the “lack of

closeness sure does kill the [sex] drive.” Subsequently, Wickes described

how he liked to give sensual back rubs by “lightly caressing with finger

tips and . . . spelling out words.”       He told A.S. that he had “magical
                                      9

fingers,” and that he would “trac[e] along the back side of the leg and

circles around the knee.” Following this exchange, Wickes asked A.S.,

“Do you delete these messages? I think I’d be killed if your dad found

them.”

      At school later that day, Wickes messaged A.S., “So I totally

freaked out today . . . saw one of the cops in the building then you called

to the office . . . thought ut ohhh think I’m dead lol.” Wickes and A.S.

subsequently talked about their temptations to meet up with one another

that evening before ultimately deciding it would cross the line. However,

he continued to tell A.S. how “exhilarating” he found their relationship.

Soon after this conversation, A.S.’s family discovered her relationship

with Wickes, and her father and stepfather took the cell phone to the

Camanche Police Department to report what was going on between

Wickes and A.S.

      On October 6, the principal and school superintendent met with

Wickes, who told them his conversations with A.S. had become flirty and

turned into “conversations like boyfriend and girlfriend would have.”

Wickes told them about his hugs with A.S., as well as his out-of-school

encounters with her.     However, the principal and superintendent were

unable to view the Facebook messages because Wickes told them he had

deleted them and his smart phone had been destroyed.           The school

district placed Wickes on administrative leave. Wickes resigned from his

teaching position on November 13.

      On November 19, Wickes was charged with one count of sexual

exploitation by a school employee in violation of Iowa Code sections

709.15(3)(a)(1) and 709.15(5)(a) (2015), a class “D” felony. Wickes waived

his right to a jury trial, and he was convicted following a bench trial. In

its findings, the district court asserted,
                                    10
      [B]y September 20 and thereafter, the clear expression of
      Wickes’ emotional needs and intent was that the hugs
      become a tool for his sexual gratification. As in Romer,
      Wickes’ sexual gratification was from the emotional intimacy
      exchanged between him and the Student during the hugs
      and in the intense emotional exchange in the messages he
      shared with the student. As in Romer, there was no sex act
      between the teacher and student as such is defined by the
      Code. However, in this instance, unlike Romer, there was
      physical contact between the teacher and student. The
      Court therefore FINDS that hugging can satisfy the statutory
      requirements of sexual gratification as defined in Romer and
      in 709.15(3)(a)(1) and 709.15(5)(a) of the Code of Iowa (2015).
      If a hug is given or received for the sexual gratification of
      Wickes or A.S., then such conduct is “sexual conduct” under
      the Code. The Court FINDS Wickes’ hugging of A.S. was for
      his sexual gratification and it was therefore sexual conduct.

The district court subsequently ordered the preparation of a presentence

investigation report and set the matter for sentencing.

      On August 24, 2016, Wickes filed a motion for new trial on the

grounds that the verdict was both contrary to the law and evidence

presented. Wickes also filed a motion in arrest of judgment. The district

court denied each motion finding that substantial evidence supported the

decision and verdict, which “when weighed, weigh[ed] in favor of the

verdict.” On October 6, the district court sentenced Wickes to a five-year

term of incarceration and a ten-year special sentence. The district court

also ordered Wickes to register and be placed on the sex offender

registry; to submit a DNA sample; to pay a $750 fine, a thirty-five percent

surcharge, and a $250 civil penalty. It also entered a no-contact order

preventing Wickes from contacting A.S.

      During sentencing, the district court noted,

      Hugs, pats on the back, the sort of encouragement that an
      adult can appropriately give to a young person to encourage
      them in their growth and in their studies would not result in
      criminal conduct or criminal behavior here. This went well
      beyond that sort of conduct.
                                        11

The district court further described the hugging, stating, “It was prurient.

It was for Mr. Wickes’ sexual satisfaction, a substitute for the lack of

sexual fulfillment that he was receiving in his personal life, and that’s

what makes it a crime.”       Finally, in declining Wickes’s request for a

suspended or deferred sentence, the district court asserted that it would

decline to impose such a sentence, even if those options were available,

“based on the seriousness of the offense and the depth of the betrayal of

this position of trust and mentorship that society has given to him.”

Wickes timely filed an appeal, which we retained.

      II. Standard of Review.

      “Sufficiency of evidence claims are reviewed for correction of errors

at law, and we will uphold a verdict if substantial evidence supports it.”

State v. Ramirez, 895 N.W.2d 884, 890 (Iowa 2017).             Evidence is

substantial if, “when viewed in the light most favorable to the State, it

can convince a rational jury that the defendant is guilty beyond a

reasonable doubt.”     Id. (quoting State v. Reed, 875 N.W.2d 693, 705

(Iowa 2016)).      To determine whether the legislature intended to

criminalize the acts of which Wickes is accused, we review for correction

of errors at law. State v. Iowa Dist. Ct., 889 N.W.2d 467, 470 (Iowa 2017)

(noting our standard of review for questions of statutory interpretation is

for the correction of errors at law).

      “We generally review rulings on motions for new trial asserting a

verdict is contrary to the weight of the evidence for an abuse of

discretion.” State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016). However, we

review rulings on a motion for a new trial for errors at law when there is

a claim that the district court failed to apply the proper standard in

ruling on that motion. Id. Our standard of review of a sentence of the

district court is for an abuse of discretion. State v. Hill, 878 N.W.2d 269,
                                    12

272 (Iowa 2016). “A district court abuses its discretion when it exercises

its discretion on grounds clearly untenable or to an extent clearly

unreasonable[,]” which occurs when the district court decision “is not

supported by substantial evidence or when it is based on an erroneous

application of the law.” Id. Further, our standard of review for alleged

violations of a constitutional right is de novo. State v. Kurth, 813 N.W.2d

270, 272 (Iowa 2012).

        III. Analysis.

        Wickes presents a number of issues on appeal. First, he argues he

did not violate Iowa Code section 709.15(3)(a)(2) because his hugs with

the student do not constitute sexual conduct under the statute. Second,

Wickes contends the State’s evidence was insufficient to show that he

engaged in a pattern, practice, or scheme of conduct to engage in sexual

conduct with the student.      Third, Wickes maintains the district court

applied the incorrect standard in ruling on his motion for a new trial.

Fourth, he alleges the district court abused its sentencing discretion by

sentencing him to prison instead of suspending his sentence. Finally, he

asserts that his five-year prison sentence constitutes cruel and unusual

punishment under the State and Federal Constitutions as applied to his

case.     He claims it is grossly disproportionate to the offense he

committed. We will discuss each claim of error in order.

        A. Sexual Conduct Under Iowa Code Section 709.15(3)(a)(2).

Wickes claims there was insufficient evidence to support the district

court finding that he engaged in sexual conduct with a student under the

sexual exploitation statute.   He claims the evidence presented by the

State of his sexual conduct with A.S. is insufficient as it was simply hugs

he exchanged with her which he contends were merely given to comfort
                                   13

A.S. rather than for his own sexual gratification.       Under Iowa Code

section 709.15(3)(a),
      Sexual exploitation by a school employee occurs when any of
      the following are found:
           (1) A pattern or practice or scheme of conduct to
      engage in any of the conduct described in subparagraph (2).

            (2) Any sexual conduct with a student for the purpose
      of arousing or satisfying the sexual desires of the school
      employee or the student. Sexual conduct includes but is not
      limited to the following:

            a. Kissing.

            b. Touching of the clothed or unclothed inner thigh,
      breast, groin, buttock, anus, pubes, or genitals.

            c. A sex act as defined in section 702.17.

Iowa Code § 709.15(3)(a)(1–2).   Iowa Code section 702.17 defines “sex

act” as

      [A]ny sexual contact between two or more persons by any of
      the following:

            1. Penetration of the penis into the vagina or anus.

            2. Contact between the mouth and genitalia or by
      contact between the genitalia of one person and the genitalia
      or anus of another person.

            3. Contact between the finger or hand of one person
      and the genitalia or anus of another person, except in the
      course of examination or treatment by a person licensed
      pursuant to chapter 148, 148C, 151, or 152.

            4. Ejaculation onto the person of another.

            5. By use of artificial sexual organs or substitutes
      therefor in contact with the genitalia or anus.

Id. § 702.17. Nothing in the evidence establishes that Wickes engaged in

a “sex act” as defined in 702.17, or that any physical contact other than

hugging occurred between Wickes and A.S.         The parties agree that

Wickes was a “school employee” and A.S. a “student” as they are defined
                                    14

under the statute. See id. § 709.15(1)(f)–(g). Thus, Wickes’s conviction

and subsequent appeal hinges on whether the State presented sufficient

evidence for the district court to find the hugs between Wickes and A.S.

constituted sexual conduct under Iowa Code section 709.15(3)(a)(2).

      In State v. Romer, we examined the definitional parameters of

sexual exploitation by a school employee under Iowa Code section

709.15(3) and concluded that “the statute defining ‘sexual conduct’ does

not require physical contact between the school employee and the

student to support a conviction for sexual exploitation by a school

employee.” 832 N.W.2d 169, 181 (Iowa 2013).        There, we held that a

school employee’s conduct in orchestrating and photographing sexual

conduct between minors for his own sexual gratification constituted

sexual conduct under Iowa Code section 709.15(3). Id. at 179–80. We

reached our conclusion in Romer in part by reference to Iowa’s parallel

statute restricting a caretaker from engaging in sexual conduct with a

dependent adult under Iowa Code section 235B.2(a)(3). Id. at 180. This

section, which has not changed since Romer, states that sexual conduct

      includes but is not limited to kissing; touching of the clothed
      or unclothed inner thigh, breast, groin, buttock, anus,
      pubes, or genitals; or a sex act, as defined in section 702.17
      . . . . Sexual exploitation does not include . . . the exchange
      of a brief touch or hug between the dependent adult and a
      caretaker for the purpose of reassurance, comfort, or casual
      friendship.

Iowa Code § 235B.2(5)(a)(3)(b). In Smith v. Iowa Department of Human

Services, we asserted “there is no language in [section 235B.2(5)(a)(3)(b)]

that confines the phrase to require the caretaker to affirmatively touch

the dependent adult in a sexual manner” and stressed that

      “[s]exual conduct” has a much broader meaning under the
      statute and requires the actions of the caretaker to be
      examined in light of all of the circumstances to determine if
                                    15
      the conduct at issue was sexual and done for the purpose of
      arousing or satisfying the sexual desires of the caretaker or
      the dependent adult.

755 N.W.2d 135, 138 (Iowa 2008).

      We adopted this same broad approach to the meaning of “sexual

conduct” under Iowa Code section 709.15(3)(a) in Romer.        Romer, 832

N.W.2d at 180. In doing so, we found the legislature’s language choice in

defining “sexual conduct” under the statute compelling. Specifically, the

legislature’s statement that “sexual conduct” was “not limited” to the list

it provided in section 709.15(3)(a)(2).   Id.   Additionally, we noted the

legislature’s decision not to explicitly define what acts constitute “sexual

conduct” under the statute spoke to its intention “to protect students

from exploitation by school employees,” as well as its acknowledgment

that it cannot fully predict and identify all of the manners in which a

school employee could sexually exploit students. Id. at 181. Therefore,

we must examine the actions of the teacher “in light of all of the

circumstances to determine if the conduct at issue was sexual and done

for the purposes of arousing or satisfying the sexual desires of the

[teacher] or the [student]” in violation of 709.15(3)(a)(1).    Id. at 180

(quoting Smith, 755 N.W.2d at 138) (“Smith confirms that we have

previously construed the identical statutory language more broadly than

[to require physical contact].”).

      Similar to our holding in Romer, Wickes asks us to interpret the
definition of “sexual conduct” found in section 709.15(3)(a)(2) to align

with our parallel statute governing sexual exploitation by a caretaker of a

dependent adult. See Iowa Code § 235B.2(5)(a)(3)(b). Wickes points to

the portion of that statute which provides “the exchange of a brief touch

or hug between the dependent adult and a caretaker for the purpose of

reassurance, comfort, or casual friendship” is not sexual exploitation. Id.
                                   16

He maintains his hugs with A.S. were given “for the purpose of

reassurance, comfort, or casual friendship” and should likewise not be

considered sexual conduct under section 709.15(3)(a)(2). However, our

examination of the evidence in its totality, and as viewed in the light

most favorable to the State, shows that Wickes’s hugs and relationship

with A.S. went far beyond a teacher trying to comfort and reassure a

struggling student. See Ramirez, 895 N.W.2d at 890 (noting substantial

evidence exists to uphold a verdict challenged for sufficiency of the

evidence if “when viewed in the light most favorable to the State, it can

convince a rational jury that the defendant is guilty beyond a reasonable

doubt”).

      Of critical importance in our analysis is the context and

circumstances that surrounded the physical contact—the hugs—that are

at issue here. This context begins with Wickes initiating the Facebook

messaging with A.S.    It continues with the scenario of a 36-year-old

teacher incessantly messaging a 17-year-old female student to describe

intimate details of his marriage and his sexual frustrations. This context

informs our analysis of what resulted in daily or more often hugs

between Wickes and A.S.     It is important to note that nothing should

prohibit teachers from hugging students for reassurance, comfort, or in

congratulation without putting themselves at risk of being charged with

the crime of sexual exploitation. But on this record, it is clear from the

voluminous messages and their content discussing the hugs and his

attraction to A.S., Wickes’s intention with these hugs went beyond mere

reassurance and support for A.S. Rather, the abundance of messages to

A.S. about how attractive he found her, his desire to be in a more

intimate relationship with her, and how he was in love with her, linked

his sexual desire toward A.S. with the hugs they exchanged.
                                    17

      Likewise, the photos of A.S. and Wickes hugging at the school

bonfire and homecoming dance show that these hugs went beyond

simple, brief hugs for reassurance or comfort. These photos show the

pair in a close embrace, not a mere hug.       For example, in one of the

homecoming photos, A.S. and Wickes are engaged in a full-frontal hug in

which the pair are making chest-to-chest contact, A.S. has her arms

wrapped around Wickes’ neck, and Wickes has his arms fully wrapped

around A.S.’s waist as they pose for the photo.      Consequently, in the

context of the multiple messages with A.S. as a whole, and in

combination with the hugging, there is sufficient evidence that the hugs

constituted sexual conduct with A.S. as opposed to an ordinary hug

between a teacher and student intended to comfort and reassure the

student.

      Moreover, the messages from Wickes to A.S. frequently discussed

his desire for physical affection, including hugs.    As he described it,

“hugs, cuddling and laying together are so important.”      Following the

homecoming dance, Wickes told A.S. that he played the song “Hold Each

Other” just for her because it made him think of his hugs with her. This

conversation quickly parlayed into a more intimate nature.        Wickes

followed up their discussion regarding his use of certain songs to relay

messages to A.S. about their relationship by telling her how he would

“disappear into [her] eyes” if he could have danced with her and how

“hot,” “soulful,” and “captivating” he found her.

      As their relationship progressed, A.S. began accepting Wickes’s

messages expressing his desire for a hug as a reason to meet up with

him between classes and take bathroom breaks from her other classes to

exchange hugs with Wickes. The district court correctly noted that these

hugs served to encourage A.S. to become more emotionally dependent
                                    18

upon Wickes as part of “a gradual escalation of the intimacy and a

process of grooming in which Wickes prepare[d] A.S. to accept ever more

intimacy.” This grooming worked, as A.S. often told Wickes how much

she valued their hugs as their relationship grew.

      Other messages show that something about touching A.S. brought

Wickes sexual gratification. He tended to dwell on his hugs with A.S.,

messaging A.S. after a number of their hugs to tell her how much he

enjoyed them.    For example, after their encounter at Walmart, Wickes

messaged A.S.,“I’m glad I just got to touch you[.] OMG[;] touch hug you

lmfao.” After he and A.S. hugged at school, he told A.S., “[Your] hugs

and saying just think booty made me keep it together today.” Similarly,

after the two met up after dark to hug in a Walmart parking lot on

October 4, Wickes again messaged A.S. to express his enjoyment from

their hug, telling her, “I just got an amazing hug, listened to great music,

and have this wonderful perfume smell on me . . . my terrible night is

bright now.”    It was after this hug, and his remarks about the way it

transformed his night, that Wickes proceeded to ask A.S. if she would be

happy entering into a relationship with him after she got older and

graduated high school.

      Wickes’s awareness that the sentiments he was expressing to A.S.

in his messages were wrong is apparent from several comments he made,

e.g., “I’m going to cross over to the creeper side a moment and tell you.

You are hot”; “You’re seventeen and I’m a pedophile”; “Permission to be a

pervy old man? . . . Read this then delete and I’ll go turn myself in”; “Do

you delete these messages? I think I’d be killed if your dad found them”;

“I’d sneak over a hug but think that’s criminal charges”; and “saw one of

the cops in the building then you called to the office . . . thought ut ohhh

think I’m dead lol.”     Nevertheless, these hugs with A.S. became so
                                          19

important to Wickes that he proclaimed to A.S. that it would be worth

getting shot for his relationship with her if he could “get the hug off in

time.”

         Our holding in this case that hugs can constitute sexual conduct

under      Iowa    Code     section   709.15(3)(a)(2)    aligns    with    our    broad

interpretation of “sexual conduct” under the statute in Romer.                      See

Romer, 832 N.W.2d at 180–81. 3            The legislature’s decision not to limit

sexual conduct to a specific list of acts underscores its concern for the

welfare of children whose parents entrust them into the care of school

employees.        See id.    The ever-changing technology that gives school

employees the opportunity to easily communicate with students through

mediums that allow for more discreet communications—like the use of

Facebook Messenger in this case—presents school employees with a

legion of evolving methods by which they can potentially sexually exploit

students. The legislature rightly acknowledged as much by declining to

limit its definition of “sexual conduct” to specific conduct and, instead,

sought to include those ways in which a school employee sexually


         3Ourholding is also supported by caselaw from other states, which have found a
hug is sexually abusive or exploitative under similar circumstances. See, e.g., Walker v.
State, 69 A.3d 1066, 1088 (Md. 2013) (upholding a school employee’s conviction for
sexual abuse of a minor for an act involving sexual exploitation where the employee
frequently hugged and gave the student gifts and wrote her notes discussing the
enjoyment he derived from the hugs and how badly he wanted to have a relationship
with her while admitting it was wrong); State v. Rodriguez, 217 P.3d 659, 664, 666 (Or.
2009) (en banc) (upholding the sexual abuse conviction of a Boys & Girls Club employee
who worked with at-risk youths where the employee was “standing behind [the minor
boy], caressing his face and pulling his head back” to press it against her breasts based
on the totality of the evidence, which showed the employee and the boy often hugged
each other, exchanged messages in which she called the boy “babyface” and told him
how much she loved him, and spent time together alone outside of the club); State v.
Squiers, 896 A.2d 80, 82–85 (Vt. 2006) (upholding the defendant’s conviction for
committing a lewd act with a child under the age of sixteen where the state’s evidence
showed the defendant hugged the minor tightly while making comments about her
breasts, touched her legs while making sexual comments, and made other comments of
a sexual nature to the minor).
                                       20

exploits a student by causing them physical or nonphysical harm. See

id. at 181.   As a result, we decline to narrow the scope of Iowa Code

section 709.15(3)(a)(2) by finding that hugs alone cannot amount to

sexual conduct under the statute. This is especially true in light of the

substantial evidence in this case and our prior precedent interpreting the

statute.

      In summary, the State presented substantial evidence in support

of the sexual conduct by Wickes with A.S. This evidence includes all of

the communications, the photographs, and the acknowledged physical

contact (hugs) constituting sexual conduct between Wickes and A.S. All

of this supports the district court decision in this case. The messages

Wickes sent to A.S. bordered on obsession, as he sent them daily at all

hours of the day. They contain his expressions of jealousy for a former

boyfriend of A.S. and sexual overtones that encouraged A.S. to enter into

an intimate relationship with him. They also demonstrate Wickes’s lust

for A.S. through the many comments he made to A.S. about how

attractive he found her. It is evident from the content of the more than

one-thousand messages between Wickes and A.S. over this forty-five-day

period that A.S. had become the object of Wickes’s fantasies and sexual

desires, and the hugs that coincided with these messages were for his

sexual gratification. While the physical contact between the teacher and

student in this case may have been brief, given the nature of the contact

in conjunction with the other evidence introduced at trial, the State

presented     substantial   evidence   that   could   “convince   a   rational

[factfinder] that the defendant is guilty beyond a reasonable doubt,”

especially when this evidence is “viewed in the light most favorable to the

State.” Ramirez, 895 N.W.2d at 890 (quoting Reed, 875 N.W.2 at 704).

Therefore, we find the district court did not err in its ruling on the issue
                                     21

of whether there was sexual conduct as defined in Iowa Code section

709.15(3)(a)(2).

      B. Evidence of a Pattern, Practice, or Scheme to Engage in

Sexual Conduct with a Student. Our disposition of this first issue does

not end our analysis.     Wickes was charged under Iowa Code section

709.15(3)(a)(1). Pursuant to Iowa Code section 709.15(5), the crime of

sexual exploitation by a school employee is enhanced from an aggravated

misdemeanor to a class “D” felony when the school employee engages in

a “pattern or practice or scheme of conduct to engage in any of the

conduct” described in Iowa Code section 709.15(3)(a)(2), which prohibits

sexual conduct with a student for the school employee’s or student’s

sexual gratification.   Iowa Code § 709.15(5)(a)–(b); id. § 709.15(3)(a)(1).

Wickes argues that the statute is illogical because it makes engaging in a

pattern, practice, or scheme to exploit a student a felony, while actually

having sexual contact with a student is an aggravated misdemeanor.

Wickes also maintains there was insufficient evidence to show that he

participated in a pattern, practice, or scheme to engage in sexual

conduct in violation of Iowa Code section 709.15(3)(a)(1). He argues he

was only charged with one count of sexual exploitation by a school

employee and his conduct involved only one victim in contrast to Romer

where the school employee’s conduct involved multiple students over a

course of time.

      We need to determine whether the legislature intended to

criminalize the act for which Wickes is accused.           Namely, sexual

exploitation by a school employee when the school employee engages in a

pattern, practice, or scheme of conduct to engage in sexual conduct

described in Iowa Code section 709.15(3)(a)(2), based on the hugs and

messages Wickes exchanged with a student. We review for correction of
                                     22

errors at law. Iowa Dist. Ct., 889 N.W.2d at 470. “We apply our time-

honored principles of statutory construction in order to determine

whether the district court made errors of law.” Romer, 832 N.W.2d 169.

Additionally, when the terms and meaning of a statute are plain and

clear, we enforce the statute as written.     State v. Iowa Dist. Ct, 730

N.W.2d 677, 679 (Iowa 2007).

         In this case, the terms and meaning of the statute are plain and

clear.    The statute specifically states that “[s]exual exploitation by a

school employee occurs” when the school employee engages in “[a]

pattern or practice or scheme of conduct to engage in any of the conduct

described in paragraph (2),” which prohibits “[a]ny sexual conduct with a

student for the purpose of arousing or satisfying the sexual desires of the

school employee or the student.”          Iowa Code § 709.15(3)(a)(1)–(2)

(emphasis added). Thus, the language is clear that scheming to engage

in “any sexual conduct with a student,” even if it is only one student over

a forty-five-day period like Wickes did in this case, constitutes a “pattern

or practice or scheme of conduct” criminalized in Iowa Code section

709.15(3)(a)(1).    Id.   This interpretation is further supported by the

Black’s Law Dictionary definition of “scheme,” which is “[a] systemic plan;

a connected or orderly arrangement, esp[ecially] of related concepts”, or

“[a]n artful plot or plan, usu[ally] to deceive others.”   Scheme, Black’s

Law Dictionary (10th ed. 2014).        Nothing in this definition, or the

language of Iowa Code section 709.15(3)(a), requires the scheme to

involve multiple students or take place over a certain period of time.

Consequently, we must enforce the statute as written instead of reading

a definition into the law that is not evident from the statute’s language.

Iowa Dist. Ct., 730 N.W.2d at 679. We conclude that the text of Iowa

Code section 709.15(3)(a)(1) clearly indicates its application does not
                                     23

depend on whether Wickes’s scheme of conduct involved multiple

students or took place over a certain period of time.

         Thus, statute creates charges for two different types of sexual

exploitation. Iowa Code section 709.15(3)(a)(1) is a provision punishing a

school employee’s ongoing pattern, practice, or scheme of conduct to

sexually exploit a student or students, whereas Iowa Code section

709.15(3)(a)(2) punishes an individual act of sexual conduct and can

result in individual counts. See Iowa Code § 709.15(3)(a)(1)–(2). Under

the unique facts of this case, it is not illogical for Wickes to have been

convicted under section 709.15(3)(a)(1).

         In conclusion, we hold that Iowa Code section 709.15(3)(a)(1) does

not require the State to show that a school employee engaged in a

pattern, practice, or scheme to engage in sexual conduct with multiple

students or over a certain period of time. Given this interpretation, and

based on the conduct outlined above, we also find the State presented

substantial evidence that would “convince a rational [factfinder] that the

defendant is guilty beyond a reasonable doubt.” Ramirez, 895 N.W.2d at

890.     This evidence includes dozens of hugs, thousands of messages

Wickes exchanged with A.S., the contents of the messages, and the

photographs.      All of this constitutes substantial evidence that Wickes

was engaged in a pattern, practice, and scheme to engage in sexual

conduct with A.S. Therefore, we find no error at law in the district court

ruling on this issue. Accordingly, there is substantial evidence in this

record to support the conviction for sexual exploitation by a school

employee under Iowa Code section 709.15(3)(a)(1).

         C. The District Court Ruling on Wickes’s Motion for a New

Trial.      Wickes claims the district court erroneously applied the

sufficiency-of-the-evidence    standard    rather   than   the   weight-of-the
                                    24

evidence standard in denying his motion for new trial. Under Iowa Rule

of Criminal Procedure 2.24(2)(b)(6), a district court may grant a motion

for new trial “[w]hen the verdict is contrary to law or evidence.” Iowa R.

Crim. P. 2.24(2)(b)6). “A verdict is contrary to the weight of the evidence

only when ‘a greater amount of credible evidence supports one side of an

issue or cause than the other.’ ” Ary, 877 N.W.2d 686, 706 (Iowa 2016)

(quoting State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006)).          The

district court reaches this determination by applying the weight-of-the-

evidence standard, which requires the district court to decide “whether ‘a

greater amount of credible evidence’ suggests the verdict rendered was a

miscarriage of justice.”      Id.   This standard is broader than the

sufficiency-of-the-evidence standard because it allows the district court

to examine the witnesses’ credibility, yet more demanding since it only

provides the district court the opportunity to grant a motion for new trial

where there is more evidence to support the alternative verdict than the

rendered verdict.   Id.    Given this exacting standard, a district court

should only grant a motion for new trial “in the extraordinary case in

which the evidence preponderates heavily against the verdict rendered.”

Id.

      When the district court issued its ruling denying Wickes’s motion

for a new trial, brought on the grounds that the district court’s verdict

was contrary to law and the evidence presented at trial, it stated,

      Having reviewed the motions, the motion in arrest and
      motion for new trial, the Court finds that based on the whole
      record there is substantial evidence to support the decision
      and verdict of the Court, that the evidence, when weighed,
      weighs in favor of the verdict, and accordingly will deny both
      motions.

(Emphasis added.) While the district court’s use of the term “substantial

evidence” does create some ambiguity surrounding the standard of
                                      25

review it applied, the district court proceeded to explain that it did weigh

the evidence and found such evidence weighed in favor of the verdict.

      Contrary to Wickes’s notion that the district court improperly

referred back to its reasoning denying the motion for judgment of

acquittal in ruling on his motion for new trial, the trial transcript does

not support that. Wickes relies on the following district court statement

for this claim: “that based on the whole record there is substantial

evidence to support the decision and verdict of the Court, that the

evidence, when weighed, weighs in favor of the verdict, and accordingly

[the Court] will deny both motions.”         Nonetheless, unlike the cases

Wickes cites as support for his argument, the district court did not

expressly refer back to a previous ruling.

      Wickes    argues   that   the   district   court   erred   in   failing   to

independently evaluate the credibility of the witnesses.          We disagree.

Wickes opted for a bench trial in this case, so the district court in

reaching its verdict assessed the credibility of the witnesses. Nor did the

district court improperly view the evidence in the light most favorable to

the verdict. See State v. Scalise, 660 N.W.2d 58, 65–66 (Iowa 2003) (“The

court is not to approach the evidence from the standpoint ‘most favorable

to the verdict.’ ”). Thus, we find that the district court did not commit an

error at law in issuing its denial of Wickes’s motion for a new trial.

      D. The Sentencing Court Discretion to Impose Sentences

Other than Prison.        Wickes argues the district court abused its

discretion by sentencing him to prison instead of allowing him to receive

a deferred judgment or a suspended sentence. Pursuant to Iowa Code

section 907.3, a district court may exercise a variety of sentencing

options contained in the statute, including a deferred judgment, deferred

sentence, or suspended sentence, all of which would allow the district
                                    26

court to place the defendant on probation.       See Iowa Code § 907.3.

However, this sentencing discretion “does not apply to a forcible felony or

to a violation of chapter 709 committed by a person who is a mandatory

reporter of child abuse under section 232.69 in which the victim is a

person who is under the age of eighteen.” Id.

      Wickes concedes that he was convicted under chapter 709 while he

was a mandatory reporter of child abuse and that his victim was under

the age of eighteen at the time.   Nevertheless, Wickes alleges that the

statute is ambiguous and, therefore, must be construed in his favor so

that the district court could have sentenced him to a deferred judgment

or suspended sentence. See State v. Nall, 894 N.W.2d 514, 519 (Iowa

2017) (“[U]nder the rule of lenity, we take a narrow approach to

construing ambiguous criminal laws.”). Since the statutory definition of

“forcible felony” states that “[s]exual exploitation by a counselor,

therapist, or school employee in violation of section 709.15” is not a

forcible felony, Wickes argues section 907.3 is internally inconsistent.

Iowa Code § 702.11(2)(d). Consequently, Wickes maintains, reasonable

minds could interpret 907.3 differently because it does not make sense

that the “legislature [would] specifically exempt sexual exploitation by a

school employee from the definition of forcible felony but at the same

time seemingly include conduct for violations of Chapter 709.”

      To interpret a statute, we look first to the plain language and apply

the statute as written if it is unambiguous.    Nall, 894 N.W.2d at 518.

Additionally, “[s]tatutory text may express legislative intent by omission

as well as inclusion,” so we may not expand or alter the language of a

statute in a way that is not evident from the legislature’s word choice

within the statute. Iowa Dist. Ct., 730 N.W.2d at 679. We conclude that

the statute is not ambiguous. Nothing in the plain language suggests the
                                     27

legislature intended for section 907.3 to apply to the crime of sexual

exploitation by a school employee. While sexual exploitation by a school

employee is not considered a forcible felony under section 702.11, the

legislature still made clear that section 907.3 does not apply “to a

violation of chapter 709 committed by a person who is a mandatory

reporter of child abuse under section 232.69 in which the victim is a

person who is under the age of eighteen.” Iowa Code § 907.3. Hence, the

plain language of the statute is clear that the legislature sought to

include sexual exploitation by a school employee—a violation of chapter

709—as an offense for which the sentences authorized in section 907.3

were not available.

       “When a sentence imposed by a district court falls within the

statutory parameters, we presume it is valid and only overturn for an

abuse of discretion or reliance on inappropriate factors.”           State v.

Hopkins, 860 N.W.2d 550, 554 (Iowa 2015).               A defendant must

affirmatively show that the sentencing court relied on improper evidence

to overcome this presumption of validity.       Id.   The question we must

answer is not whether the challenged sentence is one we would have

imposed, but rather, “whether the sentence imposed was unreasonable.”

Id. In this case, the sentence the district court imposed on Wickes fell

within the statutory parameters of Iowa Code section 907.3. As a result,

we find that the district court did not abuse its discretion in sentencing

Wickes to prison because its decision was not based “on grounds clearly

untenable or to an extent clearly unreasonable.”        Hill, 878 N.W.2d at

272.

       E. The Constitutionality of Wickes’s Sentence. Wickes asks us

to find that if the district court did not abuse its discretion in sentencing,

his five-year prison sentence with no mandatory minimum before parole
                                    28

eligibility violates the Cruel and Unusual Punishment Clause of both the

State and Federal Constitutions. Wickes argues that as applied to him,

the sentence is grossly disproportionate to his offense. Both the Federal

and State Constitutions prohibit the imposition of cruel and unusual

punishment. See U.S. Const. amend. VIII; Iowa Const. art. 1, § 17. The

prohibition against cruel and unusual punishment “embraces a bedrock

rule of law that punishment should fit the crime.” State v. Bruegger, 773

N.W.2d 862, 872 (Iowa 2009).

      We use a three-part test to determine whether a sentence is

“grossly disproportionate” under the Cruel and Unusual Punishment

Clauses of the State and Federal Constitutions. Id. at 873. The first part

is a threshold inquiry examining “whether the sentence being reviewed is

‘grossly disproportionate’ to the underlying crime,” which “involves a

balancing of the gravity of the crime against the severity of the sentence.”

Id. (quoting Solem v. Helm, 463 U.S. 277, 290–91, 130 S. Ct. 3001, 3010

(1983)). No further analysis is required if the sentence being reviewed

does not raise an inference of gross disproportionality. State v. Oliver,

812 N.W.2d 636, 650 (Iowa 2012).         If the threshold test is met, we

partake in the second step, which requires us to engage in an

intrajurisdictional analysis to compare the challenged sentence to

sentences of other crimes within our jurisdiction. Bruegger, 773 N.W.2d

at 873. Under the third step, we engage in an interjurisdictional review

and examine the sentences for similar crimes in other jurisdictions. Id.

      There are certain general principles we consider in determining

whether a defendant’s sentence is “grossly disproportionate” that come

into play in our review of Wickes’s sentence. See Oliver, 812 N.W.2d at

650–51.    First, “we owe substantial deference to the penalties the

legislature has established for various crimes.” Id. at 650. Second, while
                                    29

we engage in a more stringent review of a defendant’s sentence for “gross

disproportionality” under the Iowa Constitution than available under the

Federal Constitution, “it is rare that a sentence will be so grossly

disproportionate to the crime as to satisfy the threshold inquiry and

warrant further review.” Id. Finally, we examine the unique features of

each case as part of our threshold determination because these features

“can    ‘converge   to   generate   a    high   risk   of   potential    gross

disproportionality.’ ” Id. at 651 (quoting Bruegger, 773 N.W.2d at 884).

        In Bruegger, we held that the defendant could present an as-

applied constitutional challenge to his twenty-five-year prison sentence

for statutory rape because the facts of his case amounted to “a relatively

rare case where an individualized assessment of the punishment

imposed should be permitted.” 773 N.W.2d at 884. There, the unique

circumstances of the case “converge[d] to generate a high risk of potential

gross    disproportionality—namely,      a   broadly-framed     crime,    the

permissible use of preteen juvenile adjudications as prior convictions to

enhance the crime, and a dramatic sentence enhancement for repeat

offenders.” Id. As a result, we vacated his sentence and remanded the

case for a new sentencing hearing to allow the parties to present evidence

regarding the constitutionality of the sentencing statute as applied to the

defendant.   Id. at 886.   In contrast, in Oliver, we found a defendant’s

sentence of life in prison without the possibility of parole for his second

conviction of third-degree sexual abuse, which resulted in a class “A”

felony under the enhanced sentencing provisions of Iowa Code section

902.14(1), did not amount to cruel and unusual punishment as applied

to him. 812 N.W.2d at 651–52. In doing so, we noted the defendant’s

sexual exploitation of a thirteen-year-old victim while the defendant was

thirty-three years old was exactly the type of exploitation that his charge
                                   30

of sexual abuse in the third degree “was designed to prevent, not conduct

that was inadvertently caught by a broadly written statute.” Id. at 651.

      Upon examination of the threshold question with these principles

in mind, we conclude that this is not the rare case where the challenged

sentence is “so grossly disproportionate to the crime as to satisfy the

threshold inquiry and warrant further review.”     Id. at 650.   Wickes’s

claim that it is cruel and unusual punishment to sentence him to prison

for hugs since he did not engage in any other physical or sexual contact

with the student overlooks the gravity of his offense.    Wickes’s prison

sentence is not simply punishing him for giving hugs to a student.

Instead, his punishment reflects the fact that Wickes abused his position

of trust as a teacher to sexually exploit a student for his own

gratification.

      The State’s evidence shows that A.S. was an easily influenced

student. As the aforementioned messages Wickes exchanged with A.S.

clearly demonstrate, Wickes sought to make A.S. emotionally dependent

on him.     When A.S. progressively placed more trust in Wickes, his

conversations with her turned more sexual and inappropriate. By the

time Wickes’s behavior came to the attention of the police and the

Camanche School District, Wickes had already “hypothetically” asked

A.S. about being in a romantic relationship with him once she graduated

and got older. He had also made numerous comments to A.S. about his

romantic intentions with her and his sexual attraction to her. The fact

that Wickes’s crime involved hugs instead of an actual sex act does not

take away from the emotional and psychological toll his actions had on

the student he exploited.   The victim’s mother testified at sentencing

regarding the gravity of Wickes’s offense and its impact on A.S.,

describing the “embarrassment and fear” A.S. faced due to “the bullying
                                    31

and harassment from social media and at school.          She feared for her

physical safety as threats were made against her.” The victim’s mother

continued,

      To this day, she continues to feel scared because of the
      grooming behavior of this teacher she trusted. She has
      moved away from her home and friends in Clinton because
      of the attitudes of the community against her. We don’t
      know when she’ll recover from this ordeal fully, if at all.

As the evidence shows, the gravity of Wickes’s offense extends beyond

the hugs between Wickes and A.S., and Wickes’s claim that he was sent

to prison simply for hugging a student is a gross mischaracterization.

      Contrary to the notion that his behavior was inadvertently caught

in a broad statute, Wickes’s behavior is exactly the type of exploitation

Iowa Code section 709.15(3)(a) was designed to prevent. While Wickes’s

offense was part of a broad statute, the statute did not inadvertently

capture his offense. This statute does not limit its definition of “sexual

conduct” to specific conduct. The behavior Wickes exhibited is the kind

the legislature intended to capture with this statute.

      Further, the legislature’s decision to designate sexual exploitation

by a school employee as a felony offense reflects the seriousness of the
offense in this case. As we noted in Bruegger, “legislative judgments are

generally regarded as the most reliable objective indicators of community

standards for purposes of determining whether punishment is cruel and

unusual.”    773 N.W.2d at 873.       Wickes mandatory five-year prison

sentence reflects a larger community standard that seeks to punish

adults for taking advantage of children. Our legislature has consistently

provided special protections for children against sex crimes and harsher

punishments for the offenders who commit these crimes. This is “in light

of the risk of disease, pregnancy, and serious psychological harm that
                                    32

can result from even apparently consensual sexual activity involving

adults and adolescents.”   Id. at 886; see, e.g., Iowa Code § 709.8(2)(a)

(enhancing lascivious acts with a child to an aggravated offense where

the offense involves “[f]ondl[ing] or touch[ing] the genitals of a child,

“[c]aus[ing] a child to fondle or touch the person’s genitals or pubes,” or

“[c]aus[ing] the touching of the person’s genitals to any part of the body

of a child”); id. § 709.12 (indecent contact with a child is an aggravated

misdemeanor); id. § 902.14 (provides enhanced penalties for sexual

abuse or lascivious acts with a child).        Thus, it was within the

legislature’s prerogative to designate sexual exploitation by a school

employee a felony offense. It was the decision of the legislature to impose

the five-year prison sentence on Wickes in this case based on his

criminal conduct.    The balance the legislature created between the

gravity of the crime and the severity of the sentence does not render

Wickes’s sentence “grossly disproportionate” to his underlying crime.

      Finally, this is not the exceptional case where the unique

circumstances “converge to generate a high risk of potential gross

disproportionality.” Bruegger, 773 N.W.2d at 884. Unlike the defendant

in Bruegger, Wickes’s offense was included as part of a broad statute

because the legislature specifically intended to capture the sexual

exploitation of a student by a school employee through physical and

nonphysical means.     See Romer, 832 N.W.2d at 180–81.          Likewise,

Wickes’s case does not involve “the permissible use of preteen juvenile

adjudications as prior convictions to enhance the crime[] and a dramatic

sentence enhancement for repeat offenders” as was the case in Bruegger.

Bruegger, 773 N.W.2d at 884. Neither of these factors was in play here.

      In conclusion, Wickes provides us with no facts unique to his case

to overcome the deference we provide the decision of the legislature to
                                        33

establish an appropriate penalty for sexual exploitation by a school

employee.        Wickes’s sentence does not lead to an inference of gross

disproportionality.      Therefore, we need not proceed further in our

analysis    to    examine   the   intrajurisdictional   and   interjurisdictional

comparisons.        Wickes’s sentence of five years in prison, with no

mandatory minimum before parole eligibility, is not cruel and unusual

punishment.

      IV. Conclusion.

      For the aforementioned reasons, we affirm the judgement and

sentence of the district court.

      AFFIRMED.

      All justices concur except Appel, Wiggins and Hecht, JJ., who

concur specially.
                                    34

                                                #16–1684, State v. Wickes

APPEL, Justice (concurring specially).

      I concur in most of the majority opinion. I write only to clarify the

relationship between the State and Federal Constitutions in this case.

      While both the State and Federal Constitutions have similarly

worded provisions related to cruel and unusual punishment, see U.S.

Const. amend. VIII; Iowa Const. art. I, § 17, there is no reason why we

must imitate the federal approach in our interpretation of the open-

textured state constitutional provision.      There are many potential

approaches to the open-ended language in the cruel and unusual

punishment provisions of State and Federal Constitutions. The mere fact

that the United States Supreme Court has developed an approach does

not bind us to follow it if we think there is a better, sounder approach

under the Iowa Constitution.       And, whenever we consider federal

precedents involving individual rights, we must consider Justice Harlan’s

admonition that the protections afforded by individual liberties tend to be

diluted by the lowest-common-denominator pressures of federalism,

considerations wholly absent when we consider questions under the Iowa

Constitution. Baldwin v. New York, 399 U.S. 117, 136, 90 S. Ct. 1914,

1925 (1970) (Harlan, J., dissenting); see State v. Short, 851 N.W.2d 474,

485 (Iowa 2014).

      Yet, in many contexts, litigants simply have not asked us to depart

from federal precedents in the interpretation of the Iowa Constitution.

Often times, litigants only provide us with a naked citation to the Iowa

Constitution and then briefly urge us to apply federal standards in a

fashion that vindicates their position. See State v. Ochoa, 792 N.W.2d

260, 265 (Iowa 2010) (noting that in some cases an independent analysis

of the state constitutional claim did not occur “perhaps because the
                                    35

parties did not make an independent argument under the state

constitution”). That is what happened in State v. Bruegger, 773 N.W.2d

862 (Iowa 2009). In Bruegger, we emphasized that although some states

courts had adopted a variety of different substantive approaches to cruel

and unusual punishment under state constitutions, Bruegger did not

ask us to depart from federal substantive standards.       Id. at 879–83.

Similarly, in State v. Oliver and in this case, the appellant did not argue

for a substantive standard under the Iowa Constitution different from

federal precedent. See 812 N.W.2d 636, 640 (Iowa 2012) (describing how

appellant argued that his sentence was disproportionate under the

Bruegger test).

      When a party brings claims under parallel provisions of the Iowa

and United States Constitutions, but does not advance a different

substantive   standard   under    the    Iowa   Constitution   but   simply

incorporates prevailing federal standards, we apply the prevailing federal

substantive standard but reserve the right to apply federal standards in a

fashion more stringent than federal cases. State v. Graham, 897 N.W.2d

476, 481 (Iowa 2017); State v. Lindsey, 881 N.W.2d 411, 427 (Iowa

2016); State v. Gaskins, 866 N.W.2d 1, 27 (Iowa 2015); State v. Breuer,

808 N.W.2d 195, 200 (Iowa 2012); State v. Pals, 805 N.W.2d 767, 771–72

(Iowa 2011); Bruegger, 773 N.W.2d at 883.

      As a result, Bruegger and Oliver do not amount to an adoption of

the federal standard under the Iowa Constitution for as-applied

challenges to adult criminal sentences.      Rather, they only reflect the

limited advocacy of the parties.        The parties by agreement cannot

establish the substance of state constitutional law. Certainly Bruegger

and Oliver do not stand as stare decisis for a question not presented to

the court, namely, whether we should depart from prevailing federal
                                      36

standards in the interpretation of article I, section 17 of the Iowa

Constitution.   See Haskenhoff v. Homeland Energy Sols., LLC, 897

N.W.2d 553, 614 (Iowa 2017) (Appel, J., concurring in part and

dissenting in part) (“When a legal principle is embraced by the parties by

agreement and is not contested on appeal, the court’s subsequent

recitation of the legal principle is not a holding in the case that was a

product of an adversary proceeding.”); see also United States v.

Hemingway, 734 F.3d 323, 335 (4th Cir. 2013); Goldberger v. Integrated

Res., Inc., 209 F.3d 43, 49 (2d Cir. 2000); Berger v. Gen. United Grp., Inc.,

268 N.W.2d 630, 635 (Iowa 1978); Fulton Found. v. Wis. Dep’t of Taxation,

108 N.W.2d 312, 316–17 (Wis. 1961); Silver Lake Sanitary Dist. v. Wis.

Dep’t of Nat. Res., 607 N.W.2d 50, 54 (Wis. Ct. App. 1999).              That

determination will await a case where advocates actually urge that we

depart from federal standards and ask us to adopt a different substantive

approach to cruel and unusual punishment.             In other words, any

substantive adoption of a federal standard occurs only when the parties

urge us to materially depart from the federal standards and we explicitly

reject the departure as a necessary holding in the case.

      To summarize, in cases where both parties assume the prevailing

federal   standard   provides   the   proper   approach    under   the   Iowa

Constitution, we do not “adopt” the federal standard, but simply, for the

purposes of the case, accept the parties’ framework and narrowly decide

the issue as presented by the parties. Even in these cases, because the

federal standards are often quite amorphous and open to diverse

application, we reserve the right to apply the standards in a fashion

different from federal precedents.     Here, Wickes has not advanced a

separate standard under the Iowa Constitution.        We therefore are not

“adopting” the federal standard here, but are deciding the case using
                                       37

federal standards as presented by the parties for the purposes of this

case only. See, e.g., More v. State, 880 N.W.2d 487, 499 n.3 (Iowa 2016);

State v. Lyon, 862 N.W.2d 391, 398 (Iowa 2015); City of Sioux City v.

Jacobsma, 862 N.W.2d 335, 340 (Iowa 2015); State v. Brooks, 760

N.W.2d 197, 204 n.1 (Iowa 2009).

        Whether we should adopt a standard different than federal

precedents under the Iowa Constitution was not raised and not

considered in Bruegger, Oliver, and this case. While we have no occasion

to develop a different standard here, I have significant doubts about any

constitutional framework that produces results like that in Ewing v.

California, where a sentence of twenty-five years to life for a theft of golf

clubs    under   a   three   strikes   law   was   held   not   to   be   grossly

disproportionate. 538 U.S. 11, 19, 30–31, 123 S. Ct. 1179, 1184, 1190

(2003) (plurality opinion).     And, in some of our cruel and unusual

punishment cases, we have rightly placed far less significance on certain

elements of the federal test—for example, interjurisdictional review,

which is a more appropriate consideration for the United States Supreme

Court than a state court because the United States Supreme Court

establishes nationwide constitutional rules, while a state court’s rulings

have a more limited effect. See State v. Lyle, 854 N.W.2d 378, 386–87

(Iowa 2014) (holding lack of a nationwide consensus against a sentencing

practice is not dispositive under the Iowa Constitution).            And while

deference to legislative judgment is an important consideration, this

court is the ultimate interpreter of Iowa’s cruel and unusual punishment

clause and, as a result, we have in some contexts placed more emphasis

on independent judgment than most federal precedents. See id. at 387–

88.
                                     38

      The majority rightly cites our decision in Bruegger, 773 N.W.2d

862, as an exemplar of when a sentence is so grossly disproportionate as

to   amount   to   cruel   and   unusual   punishment    under   the   Iowa

Constitution. In Bruegger, we noted that the unique features of the case

raised a question of whether the defendant’s sentence amounted to cruel

and unusual punishment under the Iowa Constitution. Id. at 884. The

unique features of the case, however, were not intended to be and cannot

be converted into a narrow, mandatory set of criteria through which a

case must pass through, like a camel through the eye of a needle, to give

rise to an as-applied challenge based on cruel and unusual punishment.

Instead, Bruegger presents an illustrative example only of a punishment

so excessive as to give rise to serious constitutional doubts.

      Yet, I agree with the ultimate conclusion of the majority. Wickes

plainly crossed a clear line and he knew it.      A relatively short prison

sentence where a thirty-six-year-old trusted teacher took advantage of a

seventeen-year-old student for sexual purposes does not present, in my

judgment, a Bruegger-type situation that requires us to intervene under

article I, section 17. I therefore concur in the judgment.

      Wiggins and Hecht, JJ., join this special concurrence.
