                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0578
                               Filed June 17, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STEPHEN EMBREE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Boone County, Steven J. Oeth,

Judge.



      Stephen Embree appeals his conviction of sexual abuse in the second

degree. AFFIRMED.




      Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.




      Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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MULLINS, Judge.

      Stephen Embree appeals his conviction of sexual abuse in the second

degree.1 He argues there was no sexual purpose to his contact with the child. The

State argues sufficient evidence was presented to the jury regarding Embree’s

sexual purpose.

      Embree purchased a duplex in 2013. Embree immediately had an outdoor

swingset removed from the yard. He resided in the duplex while repairing the units.

The southern unit faced a home owned by a family with two young children. In the

fall of 2016, the older child approached Embree in Embree’s yard. Eventually, the

younger child began to take part in the outdoor interactions. The family and

Embree became acquainted, and the older child was allowed into Embree’s home

to play on his Xbox. The family would only allow the younger child to enter

Embree’s home if accompanied by the older sibling. However, the younger child

did sometimes visit Embree’s home unaccompanied, against the parents’ wishes.

At times, other neighborhood children would also visit Embree’s home. Due to the

renovations in Embree’s duplex, the children used the Xbox in both Embree’s

bedroom and living room.      The children also entered Embree’s bedroom for

horseplay when the Xbox was in the living room.

      In February 2017, the younger child, then five years old, told the father

about physical contact with Embree. The child said Embree used his hand to touch

the child’s genitals with his hand over the child’s clothing. The father contacted

the police. Embree was interviewed and admitted to physical contact with the


1Although Embree changed his name during the course of proceedings, we will
continue to refer to him by that name.
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child. A jury convicted Embree of sexual abuse in the second degree in January

2019. Embree appeals, challenging the sufficiency of the evidence supporting his

conviction.

         “We review challenges to the sufficiency of evidence presented at trial for

correction of errors at law.” State v. Alvarado, 875 N.W.2d 713, 715 (Iowa 2016)

(quoting State v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011)). “[W]e review the

evidence in the light most favorable to the State to determine if, when considered

as a whole, a reasonable person could find guilt beyond a reasonable doubt.”

State v. Pearson, 514 N.W.2d 452, 456 (Iowa 1994). The verdict will stand if

supported by substantial evidence. State v. Sanford, 814 N.W.2d 611, 615 (Iowa

2012). “Evidence is considered 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. “The State has the burden to prove every fact

necessary to constitute the crime with which the defendant is charged, and the

evidence presented must raise a fair inference of guilt and do more than create

speculation, suspicion, or conjecture.” State v. Fintel, 689 N.W.2d 95, 100 (Iowa

2004).

         In order to convict Embree of sex abuse in the second degree, the State

had to prove (1) Embree committed an act of sexual abuse and (2) “the other

person [was] under the age of twelve.” Iowa Code § 709.3(1)(b) (2017). Sexual

abuse occurs when a sex act is performed upon a child, among other instances.

Id. § 709.1(3). A sex act may be performed by “contact between the finger or hand

of one person and the genitalia . . . of another person.” Id. § 702.17(3). No skin-

to-skin contact is required. Pearson, 514 N.W.2d at 455. “The contact must be
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between the specified body parts (or substitutes) and must be sexual in nature.”

Id.   The specific circumstances surrounding contact must be examined to

determine whether it has a sexual nature. See id. Courts may also consider a

number of factors, including, but not limited to:

          the relationship between the defendant and the victim; whether
          anyone else was present; the length of the contact; the
          purposefulness of the contact; whether there was a legitimate,
          nonsexual purpose for the contact; where and when the contact took
          place; and the conduct of the defendant and victim before and after
          the contact.

Id. Embree argues there is no evidence that any contact he had with the child’s

genitals had a sexual purpose.

          The child’s father testified at trial. The father testified he and the child were

at home discussing appropriate conduct in a public setting when the child told the

father Embree touched the child’s “groin.” After further discussion, the father

learned the contact had been occurring for about six months, and he contacted

police.

          The child at issue also testified at trial. The child testified Embree touched

the child’s privates over clothing on more than one occasion in the living room and

other areas of Embree’s home. The child both asked Embree to stop and moved

his hands away, but Embree sometimes continued to touch the child. The child

also said some of the touching occurred in the living room while the older sibling

was present but playing video games. Testimony from multiple witnesses revealed

the child at issue would sometimes go into Embree’s bedroom and lock the door.

Testimony varied on whether Embree was with the child in the bedroom on those

occasions. The older sibling testified the child at issue and Embree would wrestle
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in the bedroom, both with the door open and closed. The older sibling testified to

knocking or pounding on the bedroom door when locked, “knocking over and over

again,” and said it was “quite a while” before anyone would unlock and open the

door. Embree testified the door would be unlocked in ten to fifteen seconds after

anyone knocked. The older sibling never witnessed any inappropriate contact

between Embree and the child at issue.

       The detective who investigated and interviewed Embree testified. Several

photographs and videos of children with Embree or at the Embree residence were

found on electronic devices. The photos and videos were captured by the children

and by Embree. Several photos and videos featured the child at issue alone, with

other children, and with Embree. Embree testified he shared those photos and

videos with parents of the children. The detective testified that when asked about

contact with the child’s genitals, Embree was

       sure that at some point in time that he had touched [the child] in [the
       child’s] private area because of their wrestling. He stated it was not
       sexual.
               But he’s sure that he did touch [the child] at different times
       between [the child’s] legs and [the child’s] private area. He said it
       was over the clothes. He denied touching [the child] under [the
       child’s] clothes except for when he would tickle [the child], and other
       than that, basically it was because of the—that they were wrestling
       and stuff like that.

On cross-examination, the detective testified that Embree clarified the tickling was

on the child’s belly area. The detective testified that Embree also admitted in his

interview that the child would climb on him and sit on his knee. The detective

commented it seemed strange that Embree, in his thirties, reported he could not

keep the child, then five years old, from locking the bedroom door. But, testimony

shows the child frequently locked doors in playing with the older sibling.
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       Embree also testified at trial. His testimony revealed that initially when the

children came into his home, there was no door leading into the bedroom. After

the door was installed, there were gaps in the frame that allow a person to see into

the bedroom. Furthermore, he testified any contact he had with the child’s genital

area came from a horse game in which children would climb on his back and race

into the bedroom. Embree insisted none of his contact with the child was sexual

in nature.

       Based on the record before this court, there is no question whether Embree

had contact with the child’s genitalia or that the child was under the age of twelve.

The record reveals the child spent time alone with Embree in his bedroom and

sometimes the bedroom door was closed and locked. The record also reveals the

child’s older sibling tried to enter the bedroom when Embree and the child were

engaged in horseplay in the bedroom. Whether it took seconds or minutes for the

door to be unlocked is irrelevant. Even though Embree insisted his contact with

the child’s genitals was innocuous, the child’s testimony reveals repeated,

purposeful contact between Embree’s hand and the child’s genitals.              The

circumstances of this case “do more than create speculation, suspicion, or

conjecture.” Fintel, 689 N.W.2d at 100. The child’s testimony, if believed by the

jury, together with undisputed evidence, was sufficient evidence upon which the

jury could conclude Embree was guilty beyond a reasonable doubt. Accordingly,

we affirm Embree’s conviction of sexual abuse in the second degree.

       AFFIRMED.
