                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1097
                               Filed July 22, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DARRELL A. SHOWENS,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, Mark R. Fowler,

District Associate Judge.



       Darrell Showens appeals his conviction on one count of failure to comply

with sex offender registry requirements. REVERSED AND REMANDED.



       Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, and Austin Muow, Student Legal Intern, for appellant.

       Thomas J. Miller, Attorney General, Heather R. Quick (until withdrawal)

and Kevin Cmelik, Assistant Attorneys General, Michael J. Walton, County

Attorney, and Alan Havercamp and Robert Bradfield, Assistant County Attorneys,

for appellee.



       Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
                                              2


POTTERFIELD, J.

       Darrell Showens appeals his conviction on one count of failure to comply

with sex offender registry requirements by “loitering” in an exclusion zone in

violation of Iowa Code section 692A.111(1) (2011).1

       I. Factual and Procedural Background

       As a result of a prior conviction in 1999, Showens was required to register

as a sex offender pursuant to Iowa Code section 692A.103. He was therefore

prohibited from “[l]oiter[ing] within three hundred feet of the real property

boundary of a public library” pursuant to Iowa Code section 692A.113(1)(g). As

defined by Iowa Code section 692A.101(17):

              “Loiter” means remaining in a place or circulating around a
       place under circumstances that would warrant a reasonable person
       to believe that the purpose or effect of the behavior is to enable a
       sex offender to become familiar with a location where a potential
       victim may be found, or to satisfy an unlawful sexual desire, or to
       locate, lure, or harass a potential victim.

       On May 11, 2012, a Scott County Sheriff detective whose primary job is to

register sex offenders and monitor compliance with registry requirements saw

Showens sitting on a bench across the street from and facing the entrance of the

Davenport Public Library. The detective recognized Showens and moved to a

location to covertly observe him while confirming his sex-offender status. The

detective watched Showens for approximately ten minutes, during which time he

observed Showens eating a bag of chips, drinking a sports drink, and “watch[ing]

people walk on the same side of the street as [Showens] as well as the opposite

side of the street going into the library.”

1
  Section 692A.111(1) provides, “A sex offender who violates any requirements of
section . . . 692A.113 . . . commits an aggravated misdemeanor for a first offense . . . .”
                                          3


       The detective approached Showens and asked why he was sitting on a

bench across from the library. Showens stated he was waiting for a friend. The

detective replied he would wait for the friend with Showens. Showens modified

his initial answer; he had been waiting for a friend, but the friend had already

arrived and recently departed.       The detective explained he had observed

Showens for ten minutes but had not seen the friend. Showens replied the friend

had departed approximately twenty minutes ago. The detective inquired what

Showens had been doing in the twenty minutes since the friend’s departure.

Showens said he had been scratching off lottery tickets. The detective asked to

see the tickets. Showens said they were all losing tickets and he had already

disposed of them. The detective pressed Showens on his reason for continuing

to sit across from the library after throwing away the lottery tickets. Showens

then stated he was waiting for the bus. The detective noted the bench was not

near a bus stop. Showens explained he was going to finish his snack, then walk

two blocks to the nearest bus stop to catch the bus home. However, Showens

lived only five blocks from the bus stop. Showens characterized his act of sitting

on the bench as “just hanging out” and stated he believed he had been sitting on

the bench for a total of around forty-five minutes.

       The detective arrested Showens for violating Iowa Code section

692A.113(1)(g). Showens was charged by trial information on June 13, 2012.

He waived a jury trial. Following a bench trial, where the detective and Showens

were the only two witnesses, the court convicted Showens, ruling that a

reasonable person would believe Showens’s purpose was either to become

familiar with a location where a potential victim could be found or to locate a
                                           4


potential victim. Showens appealed, asserting there was insufficient evidence to

support the conviction and claiming the statutory definition of “loitering” was

unconstitutionally vague.

       On that appeal—Showens’s first—our supreme court interpreted the

statutory definition of “loitering.” State v. Showens, 845 N.W.2d 436, 445 (Iowa

2014). It held, “[W]e interpret the phrase ‘to enable a sex offender to become

familiar with a location where a potential victim may be found’ as requiring a

determination that familiarity was tied to the potential presence of victims.” Id.

Its interpretation ensured the statute was not unconstitutionally vague. Id. It then

found “the district court did not have the benefit of our construction of the statute”

when it convicted Showens.        Id. at 449.    Our supreme court was therefore

“unsure whether [the district court] applied the appropriate legal standard.” Id. It

declined to pass upon the sufficiency of the evidence2 and instead remanded the

case for new findings, conclusions, and judgment on the existing record. Id. at

450. On remand, the district court again convicted Showens by utilizing the

newly-clarified interpretation of the statutory definition of loitering. In its second

ruling, the district court found Showens was at the bench “for the purpose of

finding a new victim or because he spotted a potential victim and was waiting for

his opportunity to approach said potential victim.” Showens now appeals again,

reasserting his claim there is insufficient evidence to support his conviction.




2
 In discussing the state of the record, our supreme court noted, “[S]ubstantial evidence
could support a finding that Showens had violated section 692A.113(1)(g).” Showens,
814 N.W.2d at 449. At the same time, it noted, “Some of the evidence here could
potentially be viewed as supporting Showens’s innocence.” Id. at 450. In remanding the
case, the court concluded, “In any event, we are not the trier of fact.” Id.
                                            5


       II. Standard of Review

       “Sufficiency of evidence claims are reviewed for a correction of errors at

law.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). We will uphold a

conviction if there is substantial evidence in the record to support it. Id.; see

State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006). Evidence is substantial if it

can convince a rational fact-finder of the defendant’s guilt beyond a reasonable

doubt. See State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005). We consider all

the record evidence—including both the inculpatory and exculpatory evidence—

but we consider that evidence “in the light most favorable to the State, including

all reasonable inferences that may be fairly drawn from the evidence.” State v.

Keopasaeuth, 645 N.W.2d 637, 640 (Iowa 2002).

       III. Discussion

       Our supreme court reversed and remanded the district court’s first ruling,

filed in 2012, for two reasons. First, it was not clear on which alternative of the

statutory term “loiter” the ruling relied.3 The district court had found, “[T]here is

substantial evidence in the record that would warrant a reasonable person to

believe that Mr. Showens was seated in front of the Davenport library in order to

become familiar with a location where a potential victim could be found, or to

locate a potential victim.” (Emphasis added.) Second, if the district court relied

upon the first alternative it mentioned, our supreme court was not confident the



3
   The statutory language can be parsed to comprise five discrete alternatives:
circumstances warranting a reasonable person to believe the purpose or effect of the
sex offender’s behavior is to enable him or her to (1) become familiar with a location
where a potential victim may be found; (2) satisfy an unlawful sexual desire; (3) locate a
potential victim; (4) lure a potential victim; or (5) harass a potential victim. See Iowa
Code § 692A.101(17).
                                              6


district court’s findings were sufficient to satisfy the legal standard it announced

in its opinion. See Showens, 845 N.W.2d at 449.

       The district court’s second ruling, filed in 2014, is the one before us now

on appeal. In it, the district court endeavored to eliminate our supreme court’s

misgivings about its 2012 ruling. The district court attempted to issue findings to

match our supreme court’s language. Our supreme court’s interpretation of the

statutory language requires that, “[f]rom the perspective of a reasonable person,

it would have to appear that Showens’s purpose was to scout for potential victims

or to scout the library because it offered potential victims.”4 Id. at 450. The

district court issued a specific finding: “Showens was at that park bench for the

purpose of finding a new victim or because he spotted a potential victim and was

waiting for his opportunity to approach said potential victim.”5

       Showens asserts on appeal section 692A.101(17) is not satisfied because

the State failed to “establish a nexus between Showens sitting on the bench and

the circumstances under which a reasonable person would believe his purpose

was to find a victim.” We agree.

       The only direct evidence of Showen’s purpose for sitting on the bench was

Showen’s various explanations to the officer. The district court’s findings of fact


4
   This standard applies specifically to the first statutory alternative form of “loiter”:
becoming familiar with a location where a potential victim may be found. See Iowa
Code § 692A.101(17).
5
  We note one of the misgivings with the district court’s first ruling addressed by our
supreme court remains in the second ruling: there is again some ambiguity as to which
statutory alternative of “loiter” the district court relies upon. Its conclusion could indicate
Showens was loitering because he was attempting to become familiar with a location
where a potential victim may be found, locate the potential victim he had “spotted,” or
harass that potential victim. Our review of the record indicates none of these three
alternatives is supported by substantial evidence, so the ambiguity need not be resolved
on remand as was the case with the district court’s 2012 ruling.
                                            7


relied heavily on inferences it made based on Showens’s status as a sex

offender rather than direct evidence. The district court particularly relied upon

adverse credibility findings drawn from Showens’s multiple shifting explanations

for his presence on the bench. The district court found Showens’s explanations

to the detective—which aligned with his testimony at trial—“to not be credible and

highly suspect.”6 The explanations were so inconsistent the district court inferred

from them an indication of Showens’s guilt. See State v. Blair, 347 N.W.2d 416,

422 (Iowa 1984) (“We have said that a defendant’s inconsistent statements are

probative circumstantial evidence from which the [fact-finder] may infer guilt.”);

State v. Odem, 322 N.W.2d 43, 47 (Iowa 1982) (“A false story told by a

defendant to explain or deny a material fact against him is by itself an indication

of guilt.”).

        The district court found, “Because of Mr. Showen[s’s] actions, responses

to the [detective’s] questions, his testimony, and false rationales[,] the Court

concludes that Mr. Showens had a sinister purpose for sitting [on the bench].”7

However, our supreme court explained a finding that Showens had a predatory

intent is not sufficient to support a conviction if such a finding is not based on the

objective circumstances surrounding his presence on the bench. Showens, 845

N.W.2d at 449. The district court erred in ruling not on the basis of objective

circumstances, but on the basis of its own inference of Showens’s intent.




6
  Our supreme court also noted, “[Showens’s] explanations for waiting there were
inconsistent and made little sense.” Showens, 845 N.W.2d at 449.
7
  The district court’s finding notably failed to utilize the reasonable-person standard set
forth in the statute. See Iowa Code § 692A.101(17).
                                           8


       We consider all reasonable inferences to be fairly drawn from the record in

favor of the State. Keopasaeuth, 645 N.W.2d at 640. But even if we accept the

district court’s inference that Showens’s purpose for sitting on the bench was

“sinister,” the inference is insufficient to support his conviction.

       Inferences drawn from the evidence must raise a fair inference of
       guilt on each essential element, including the element of intent.
       Inferences that do no more than create speculation, suspicion, or
       conjecture do not create a fair inference of guilt. Under these
       standards, when two reasonable inferences can be drawn from a
       piece of evidence, . . . such evidence only gives rise to a suspicion,
       and, without additional evidence, is insufficient to support guilt. In
       such a situation, a jury would necessarily be required to rely upon
       conjecture to reach a verdict of guilt. Some other evidence of guilt
       is required to support a conviction.

State v. Truesdell, 679 N.W.2d 611, 618–19 (Iowa 2004) (citations and internal

quotation marks removed).

       In this case, more than one reasonable inference can be drawn from

Showens’s explanations of his presence on the bench.              Even accepting the

inference of some sinister purpose, a fact finder could go on to infer a number of

sinister purposes not limited to “scouting” for victims. There is no evidence of the

presence of any potential victims in the vicinity of the library. The only evidence

in the record showing any people other than Showens and the officer were

present is the officer’s observation that Showens was “watch[ing] people walk” on

either side of the street. The State presented no evidence of the age or gender

of the people Showens was allegedly watching, so there is no evidence on which

to base an inference that these people were potential victims.

       As our supreme court noted, “Showens was found outside the public

library around 1:30 p.m. on a school day—not the time when large numbers of
                                          9

school-age children would normally be present.” Showens, 845 N.W.2d at 450.

The district court, however, speculated, “It is possible that there were home

school kids or kids under the school age at the library.” We find nothing in the

record, and mostly notably nothing in the detective’s testimony, to support this

conjecture. The district court’s speculation does not support an inference that

potential victims were present at the time and place of Showens’s arrest.

       In State v. Clawson, No. 10-1581, 2011 WL 3481003, at *1–2 (Iowa Ct.

App. Aug. 10, 2011), this court considered a case in which a sex offender was

found sitting in a parked truck in front of a daycare facility at a time when children

were present. He, like Showens, gave inconsistent statements as to his purpose

for parking in front of the daycare facility. Clawson, 2011 WL 3481003, at *1.

This court found substantial evidence to support his conviction because a fair

inference could be made based on the setting of the defendant’s alleged

loitering. Id. at *2. In that case, we had the benefit of a factual record showing

the defendant, who had been convicted of sexual exploitation of a minor,

positioning himself without credible explanation in a setting where minors were

present. Id. at *1. We have no such record before us now.

       It is possible minors were present at the library while Showens was sitting

on the bench. It is also possible no minors were present. There is no record

evidence from which a fact-finder can make a fair inference on this factual issue,

leaving it “to rely upon conjecture to reach a verdict of guilt.” Truesdell, 679

N.W.2d at 619. The record before us supports an inference that Showens was

buying or selling illegal drugs with equal strength as an inference that he was

scouting the library for victims. Some other evidence is required to raise a fair
                                          10


inference that Showens’s purpose was to scout for victims as opposed to another

“sinister purpose.” See id.

       The criminal charge in this case relies upon an objective reasonable-

person standard.8       See Iowa Code § 692A.101(17).            Our supreme court

explained the import of this standard as applied to this case:

       Showens cannot be found guilty merely because a fact finder
       concludes beyond a reasonable doubt he has the intent to be a
       predator, regardless of what the objective circumstances may
       indicate about his reasons for being outside the library. On the
       other hand, if the objective circumstances indicate to a fact finder
       beyond a reasonable doubt that his purpose is predatory, a claim
       that he did not have such intent will not save him.

Showens, 845 N.W.2d at 449. The district court concluded, “Showens was at the

park bench for the purpose of finding a new victim or because he spotted a

potential victim and was waiting for his opportunity to approach said potential

victim.”   This conclusion is, based on the record before us, the product of

speculation, reached without regard to the objective circumstances of Showens’s

presence on the bench. Even if the district court as the finder of fact concluded

Showens’s purpose was to scout for victims beyond a reasonable doubt, the

conclusion fails to satisfy the objective reasonable-person standard. The district

court’s findings are therefore insufficient to support Showens’s guilt.




8
  We note, as our supreme court noted in Showens’s first appeal, the use of a
reasonable-person standard in criminal offenses is proper under Iowa law. See
Showens, 845 N.W.2d at 446–47. Compare State v. Soboroff, 798 N.W.2d 1, 8–9 (Iowa
2011) (holding a defendant’s online statements are subject to a factual determination as
to whether a reasonable person would view the statements as “true threats”), with Elonis
v. United States, 135 S.Ct. 2001, 2011–12 (2015) (holding in the context of federal
criminal law a defendant’s online statements must be evaluated in light of the
defendant’s mental state, not in the light of a reasonable person’s interpretation of
potentially threatening language).
                                          11


       IV. Conclusion

       Without regard to whether the district court’s suspicion of Showens’s

sinister purpose is fairly inferred from the record, it is insufficient to create a fair

inference of guilt as to the contested essential element of the crime—that “[f]rom

the perspective of a reasonable person, it would have to appear that Showens’s

purpose was to scout for potential victims or to scout the library because it

offered potential victims.” Id. at 450.

       Showens’s improbable explanations and testimony could support multiple

reasonable inferences as to his purpose in sitting on the bench. A conclusion

that he was scouting for victims necessarily relies on conjecture rather than

objective circumstances, and therefore his conviction is not supported by

substantial evidence. We reverse Showens’s conviction and remand for entry of

judgment of acquittal.

       REVERSED AND REMANDED.
