                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0964
                                Filed May 2, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ADAM LUCAS BUSH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Jason A. Burns,

District Associate Judge.



      Defendant appeals his conviction for indecent exposure. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant Attorney

General, for appellee.




      Considered by Doyle, P.J., Bower, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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BOWER, Judge.

       Adam Bush appeals his conviction for indecent exposure. We find his

conviction is supported by substantial evidence and affirm his conviction.

       On January 31, 2016, Christopher Heck and a friend were walking into the

Old Capitol Mall in Iowa City, when Heck saw a man, later identified as Bush, “with

his penis out, with his hand on his penis.” As Heck walked by he made eye contact

with Bush, who covered himself with his jacket. Once Heck was inside the mall,

he looked back and saw Bush had again exposed his penis and had his hand on

it. Heck testified he believed Bush was stroking himself. Heck stated, “I was

offended by it, and I got a bad vibe from it.”

       Heck called the police. When officers arrived, Bush was attempting to leave

on a bicycle. The officers noticed the zipper on Bush’s pants was open. The

officers obtained a video recording of the incident from the mall security system.

       Bush was charged with indecent exposure, in violation of Iowa Code section

709.9 (2016), a serious misdemeanor. The trial information also noted Bush would

be subject to enhanced sentencing under section 901A.2(2) because he had two

previous convictions for indecent exposure. Bush was found guilty by a jury and

he admitted his previous convictions. He was sentenced to a term of imprisonment

not to exceed ten years. Bush now appeals his conviction.

       Bush was convicted under section 709.9, which provides,

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

       Bush claims the State did not present sufficient evidence to show he

exposed himself with the intent “to arouse or satisfy the sexual desires” of anyone.

See Iowa Code § 709.9(1). He points out Heck testified at the trial he was unsure

if Bush’s penis was erect and told officers at the time he believed Bush’s penis was

flaccid. Bush states there is insufficient evidence to show he was stroking his penis

or masturbating.

       The offense of indecent exposure requires the exposure be sexually

motivated. State v. Blair, 798 N.W.2d 322, 326 (Iowa Ct. App. 2011). “The

requisite intent to arouse or gratify the sexual desire of any person can be inferred

from an accused’s conduct, remarks, and all surrounding circumstances.” State v.

Jorgensen, 758 N.W.2d 830, 837 (Iowa 2008). A person’s intent can seldom be

proven by direct evidence and is usually a matter for the jury to determine from

circumstantial evidence. State v. Hennings, 791 N.W.2d 828, 837 (Iowa 2010)

(“Juries are capable of making determinations regarding intent and motivation.”).

       We have previously noted, “[N]either an erection nor masturbation is a

prerequisite for an indecent exposure conviction.” State v. Thede, No. 15-0751,

2016 WL 5930417, at *5 (Iowa Ct. App. Oct. 12, 2016). In Blair, we found there

was sufficient evidence of the defendant’s sexual motivation from evidence he was

observed “with his hand holding his penis above the waistband of his pants,

moving his hand back and forth like he was petting a dog,” while standing in front

of a window. 798 N.W.2d at 326. During the trial, Heck testified, “I believe I saw

him stroking himself.” In addition to Heck’s testimony, the video shows Bush
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moving his hand on his penis as he was standing in front of the glass doors leading

into the Old Capitol Mall. We conclude there is sufficient evidence in the record to

support a finding Bush exposed his genitals “to arouse or satisfy the sexual desires

of either party.” See Iowa Code § 709.9(1).

       We affirm Bush’s conviction for indecent exposure.

       AFFIRMED.
