               IN THE SUPREME COURT OF IOWA
                               No. 11–0270

                            Filed June 7, 2013


STATE OF IOWA,

      Appellee,

vs.

BRENT MICHAEL ROMER,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Adams County, David L.

Christensen, Judge.



      Defendant seeks further review of court of appeals decision which

affirmed his convictions for sexual exploitation of a minor and sexual

exploitation by a school employee. DECISION OF COURT OF APPEALS

AND JUDGMENT OF DISTRICT COURT AFFIRMED.



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

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Benjamin M. Parrott and

Denise A. Timmins, Assistant Attorneys General, and Jeffrey B.

Millhollin, County Attorney, for appellee.
                                      2

ZAGER, Justice.

      This case requires us to interpret the statutory language

prohibiting sexual exploitation by a school employee under Iowa Code

sections 709.15(3)(a) and (b).     Romer appeals his conviction on five

counts of sexual exploitation of a minor and three counts of sexual

exploitation by a school employee. Romer argues he did not violate Iowa

Code section 709.15(3) because, though he was a teacher and the minors

were students, no direct teacher–student relationship existed. He further

argues he could not have violated Iowa Code section 709.15(3), as
delineated in counts VII and VIII, because the State did not produce

evidence that he physically touched the students identified in those two

counts. Finally, he argues the district court abused its discretion in not

severing the eight counts of the trial information into five different trials.

The court of appeals rejected these arguments and affirmed his

convictions. We granted further review. Upon our review, we affirm the

decision of the court of appeals and the judgment of the district court.

      I. Factual Background and Procedural History.

      Viewing the trial evidence in the light most favorable to the jury’s

guilty verdicts, the jury could have found the following facts.         Brent

Michael Romer was a licensed teacher in the state of Iowa. He taught

elementary school for Cumberland and Massena Community Schools,

beginning as a substitute teacher in October 2000. He was subsequently

hired as a full-time teacher, which employment continued from June

2004 through July 2008. He also taught as a substitute teacher in the

Corning Community School District prior to his full-time position with

Cumberland and Massena. Romer lived in nearby Corning. Romer was

charged with five counts of sexual exploitation of a minor in violation of

Iowa Code section 728.12(1) and three counts of sexual exploitation by a
                                    3

school employee in violation of Iowa Code sections 709.15(3)(a) and (b),

and 709.15(5)(a). These charges stem from three separate and distinct

events. All of the charges involved students who attended school in the

Corning Community School District. None of the students involved with

Romer were in an existing teacher–student relationship at the time that

any of the events charged in the trial information occurred.

      The first event involved an admitted sexual relationship with R.A.

R.A. initially met Romer when Romer was a substitute teacher for her

elementary school class.    Romer reinitiated contact with R.A. in 2005
when she was fifteen years old. This contact was initiated through the

social networking website MySpace. Shortly after R.A. turned sixteen, a

sexual relationship commenced.      This sexual relationship lasted until

R.A. was eighteen, at which time she broke off the relationship. R.A. and

Romer engaged in sexual contact and sexual intercourse multiple times

during this relationship.

      The second event occurred in November 2007.         Fifteen-year-old

L.A. was babysitting at Romer’s house, and fourteen-year-old K.G. visited

L.A. while she was babysitting.   As in the case of R.A., K.G. first met

Romer when he was her substitute teacher in her elementary school

class. During this visit, L.A. exchanged text messages with Romer. In

these text messages, Romer stated there was a camera available and

suggested the two girls take nude photographs of each other. While the

girls took some photographs of themselves, there is no evidence that

these photographs were inappropriate. However, when Romer returned

home, he began taking photographs of both of the girls in various sexual

poses he suggested. These photographs depict L.A. nude from the waist

up and K.G. touching L.A.’s breasts with her hands and mouth.
                                     4

      The third event occurred on July 4, 2008. N.S., a fifteen-year-old

female, and L.A. attended a party at Romer’s house where alcohol was

being consumed. Z.G., a seventeen-year-old male, also attended. The

three minors became intoxicated at the party, and Romer took pictures of

them in various sexually explicit poses. The pictures depict the female

minors kissing, taking off their clothing, and embracing.      Most of the

pictures show L.A. and N.S. naked from the waist up and wearing only

their underwear. One of the pictures shows Z.G. touching L.A.’s genital

area. Another adult male is also visible in some of the pictures and in
one photograph is seen touching N.S.’s breast.

      After R.A.’s mother discovered the sexual relationship between R.A.

and Romer, she reported the sexual relationship to Romer’s school

officials. Romer resigned his teaching position with the Cumberland and

Massena Community Schools on June 17, 2008, which resignation was

accepted by the school board on July 21, 2008. In November 2009, R.A.

reported her relationship with Romer to the police, and an investigation

commenced. In March 2010, the State charged Romer with five counts of

sexual exploitation of a minor and three counts of sexual exploitation by

a school employee.

      On April 14, 2010, Romer filed a motion to bifurcate the multiple

offenses into separate trials. After a hearing, the district court overruled

the motion on the basis that the alleged acts, if proven, were part of a

common scheme or plan and should therefore be tried together. Romer

renewed his objection to a joint trial of the multiple offenses shortly

before trial in his third motion in limine. The district court denied this

motion in limine.

      On November 4, 2010, Romer also filed a motion to adjudicate law

points, arguing that the charges of sexual exploitation by a school
                                     5

employee mischaracterized the intent of Iowa Code section 709.15

because Romer did not have a direct teacher–student relationship with

the students he was charged with exploiting. The district court denied

the motion, finding a direct teacher–student relationship was not

required.   Romer renewed his objection shortly before trial by filing a

motion in limine. The district court denied this motion as well.

      Jury trial commenced on December 14, 2010. At the close of all of

the evidence, Romer moved for a directed verdict on counts VII and VIII

of the amended trial information involving K.G. and L.A.        Specifically,
Romer argued the State had not met its burden with respect to proving

that Romer had “engaged in any sort of sexual conduct or any prohibited

sexual conduct” with either K.G. or L.A. to support the offense of sexual

exploitation by a school employee. The district court denied this motion.

The jury returned its verdicts of guilty to all eight counts of the amended

trial information on December 17, 2010. Romer appealed, arguing the

district court committed reversible error in three ways: (1) in its rulings

on the applicability of sexual exploitation by a school employee, (2) in its

ruling that Romer’s actions in directing students to pose in sexually

explicit positions constituted sexual exploitation, and (3) in its refusal to

sever the various counts of the trial information.

      We transferred the case to the court of appeals which affirmed the

rulings of the district court and the convictions.     We granted Romer’s

application for further review.

      II. Standard of Review.

      To the extent Romer’s appeal involves questions of statutory

interpretation, we review for correction of errors of law.     In re Det. of

Johnson, 805 N.W.2d 750, 753 (Iowa 2011). Romer also claims the State
                                           6

did not produce sufficient evidence to convict him of several of the counts

for which he was convicted.

       Sufficiency of evidence claims are reviewed for a correction of
       errors at law. In reviewing challenges to the sufficiency of
       evidence supporting a guilty verdict, courts consider all of
       the record evidence viewed in the light most favorable to the
       State, including all reasonable inferences that may be fairly
       drawn from the evidence.       We will uphold a verdict if
       substantial record evidence supports it.

State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (citations and internal

quotation marks omitted).

       Finally, we review a district court’s “refusal to sever multiple

charges against a single defendant for abuse of discretion.”                   State v.

Elston, 735 N.W.2d 196, 198 (Iowa 2007).

       III. Discussion and Analysis.

       Romer appeals on three issues.             First, he argues he cannot be

convicted of a violation of Iowa Code section 709.15(3), prohibiting sexual

exploitation by a school employee, because there was not an existing

teacher–student relationship between him and any of the minors whom

he was convicted of exploiting.             Second, he argues he cannot be

convicted of sexual exploitation because the behavior he engaged in did
not constitute sexual conduct with two of the minors, as defined in

sections 709.15(3)(b) or 702.17.1           Finally, Romer argues his charges

       1This   section provides:
               The term “sex act” or “sexual activity” means any sexual contact
       between two or more persons by: penetration of the penis into the vagina
       or anus; contact between the mouth and genitalia or by contact between
       the genitalia of one person and the genitalia or anus of another person;
       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; or by
       use of artificial sexual organs or substitutes therefor in contact with the
       genitalia or anus.
Iowa Code § 702.17 (2009).
                                         7

should have been severed into multiple trials, and the district court’s

refusal to do so resulted in unfair prejudice. We address each of these

issues in turn.

       A. Teacher–Student Relationship. Romer argues he cannot be

convicted of a violation of Iowa Code section 709.15(3), prohibiting sexual

exploitation   by    a   school    employee,    because     there    was    not   a

contemporaneous teacher–student relationship between him and any of

the minors whom he was convicted of exploiting.                Section 709.15(3)

provides:

            3. Sexual exploitation by a school employee occurs
       when any of the following are found:

            a. A pattern or practice or scheme of conduct to
       engage in any of the conduct described in paragraph “b”.

             b. 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: 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 by a school employee does not
       include touching that is necessary in the performance of the
       school employee’s duties while acting within the scope of
       employment.

Iowa Code § 709.15(3) (2009).2

       The district court found that

       there is no requirement in Iowa Code section 709.15(3)(b)
       that the minor be a student of the teacher during the time
       frame they were allegedly being exploited. By omitting
       specific language to require a direct teacher–student
       relationship, the legislature clearly did not intend to limit
       exploitation of minor students to occur only when the



       2The charged acts occurred between January 2005 and July 2008. Unless
otherwise indicated, all references are to the 2009 Code, which included legislation
enacted on or before July 1, 2008.
                                            8
       teacher is in the student’s school or was in fact the student’s
       teacher.3

       A jury convicted Romer of violating Iowa Code section 709.15(3)(a),

finding that Romer had engaged in sexual exploitation by a school

employee because he had engaged in “[a] pattern or practice or scheme of

conduct to engage in any of the conduct found in paragraph ‘b’.”                      Id.

§ 709.15(3). The State does not dispute that at the time of the events

giving rise to these convictions, no current teacher–student relationship

existed between Romer and any of the involved students.4

       We apply our time-honored principles of statutory construction in

order to determine whether the district court made errors of law.

       The purpose of statutory interpretation is to determine the
       legislature’s intent.   We give words their ordinary and
       common meaning by considering the context within which
       they are used, absent a statutory definition or an established
       meaning in the law. We also consider the legislative history
       of a statute, including prior enactments, when ascertaining
       legislative intent. When we interpret a statute, we assess the
       statute in its entirety, not just isolated words or phrases.
       We may not extend, enlarge, or otherwise change the
       meaning of a statute under the guise of construction.

In re Estate of Buckwoldt, 814 N.W.2d 215, 223 (Iowa 2012) (citations

and internal quotation marks omitted). However, “we strictly construe

criminal statutes and resolve doubts in favor of the accused.” State v.

Adams, 810 N.W.2d 365, 369 (Iowa 2012) (citation and internal

quotation marks omitted).


       3Iowa   Code section 709.15(2) governs sexual exploitation of a counselor or
therapist and prohibits “[a]ny sexual conduct with a patient or client or former patient
or client within one year of the termination of the provision of mental health services by
the counselor or therapist . . . .” The legislature did not include corresponding limiting
language in Iowa Code section 709.15(3). Compare Iowa Code § 709.15(2)(c), with id.
§ 709.15(3)(b).
       4Romer had been a substitute teacher for two of the students when they had
been in elementary school, but the events giving rise to his convictions did not occur
when they were his students.
                                           9

      The legislature defined “student” as

      a person who is currently enrolled in or attending a public or
      nonpublic elementary or secondary school, or who was a
      student enrolled in or who attended a public or nonpublic
      elementary or secondary school within thirty days of any
      violation of subsection 3.

Iowa Code § 709.15(1)(g). It defined “school employee” as “a practitioner

as defined in section 272.17.”          Id. § 709.15(1)(f).   This section defines

“practitioner”    as   “an      administrator,    teacher,    or       other   licensed

professional,    including      an   individual   who   holds      a    statement    of

professional     recognition,     who    provides   educational         assistance   to

students.” Id. § 272.1(7).

      We have not yet analyzed whether the legislature intended for a

teacher–student relationship to concurrently exist before a teacher could

be found guilty under Iowa Code section 709.15(3).                 Romer concedes

that, under the plain language of the statute, he was a school employee

and the minors involved were students. His contention is that he did not

have a “fiduciary relationship” with the students, as he was not their

teacher at the time of the incidents and, thus, “did not create a coercive

and unequal balance of power over the students that forced them to

engage in sexual conduct with him.” He argues that the legislature did

not intend for the conduct in which he engaged to be subject to Iowa

Code section 709.15(3).

      Romer argues that Stotts v. Eveleth, 688 N.W.2d 803 (Iowa 2004),

should control this question.           In Stotts, an eighteen-year-old student

engaged in a consensual sexual relationship with a teacher. Id. at 806.

We evaluated whether a teacher–student relationship was required to

determine if Stotts was entitled to monetary damages for the teacher’s

conduct in initiating the sexual relationship. Id. at 807. We defined a
                                      10

“fiduciary relationship” as “one in which a person is under a duty to act

for the benefit of another as to matters within the scope of the

relationship.”    Id. at 811 (citing Mendenhall v. Judy, 671 N.W.2d 452,

455 (Iowa 2003)). We determined that no fiduciary relationship existed

between the “two consenting adults.” Id.

         Stotts, however, does not control. It deals with a different issue

than the one presented here. Stotts involved civil litigation and is not

analogous to Romer’s criminal conduct.          In Stotts, the plaintiff was

attempting to find a cause of action for which she could recover damages
in a situation where no existing law provided a specific cause of action.

Id. at 812. Finally, the events giving rise to Stotts’s lawsuit predate Iowa

Code section 709.15(3), and consequently, our court did not construe

that Code section. Thus, it is not persuasive in determining the intent of

the legislature in enacting Iowa Code section 709.15(3).

         1. Legislative intent to criminalize relationships broader than just

teacher–student relationships. “School employee” includes professionals

who are not teachers.       In drafting the statute, the legislature defined

“school employee” much more broadly than Romer acknowledges. The

legislature did not intend to criminalize actions only by teachers, but by

the much broader category of “school employee,” which it defines as “an

administrator, teacher, or other licensed professional, including an

individual who holds a statement of professional recognition, who

provides educational assistance to students.”        Iowa Code § 272.1(7).

Thus, the legislature included professionals, such as administrators and

teachers, as well as individuals who are certified, such as para-

educators. See id. § 272.1(6) (defining “para-educator” as “a person who

is certified to assist a teacher in the performance of instructional tasks

. . . .”).   These individuals may never have a direct teacher–student
                                         11

relationship. Thus, it would be an illogical interpretation to conclude the

legislature intended to require an existing teacher–student relationship

in order for a school employee to violate this Code section. See Andover

Volunteer Fire Dep’t v. Grinnell Mut. Reins. Co., 787 N.W.2d 75, 86 (Iowa

2010) (stating that when interpreting statutes, we “avoid creating

impractical or absurd results.”).

       2. Legislative intent to criminalize power relationships. “When we

interpret a statute, we assess the statute in its entirety, not just isolated

words or phrases.” Buckwoldt, 814 N.W.2d at 223. Iowa Code section
709.15(2) criminalizes sexual exploitation by a counselor or therapist.

In interpreting this Code section, we have emphasized that it is

exploitation of the power relationship that must be avoided.                State v.

Allen, 565 N.W.2d 333, 337 n.2 (Iowa 1997) (“Our cases have emphasized

that persons acting in professional roles have a disproportionate

influence on those they serve, and thus have a responsibility to

scrupulously observe the bounds of propriety.” (Citations and internal

quotation marks omitted.)).

       Iowa Code section 709.15(2)(b) criminalizes sexual conduct with an

“emotionally dependent” patient or client, emphasizing the legislature’s

intent to protect those who might potentially be exploited through that

power relationship. Iowa Code section 709.15(2)(c) also limits the time a

counselor or therapist can be charged with exploiting a former patient or

client to one year, again emphasizing that it is the power relationship

and not the mere status of a counselor or therapist that the legislature

intended to regulate.       Iowa Code section 709.15(3) has no analogous

limitations requiring emotional dependency or a time limitation.5 Iowa


       5Though   there is no specifically analogous time limitation governing the
relationship between the school employee and the student, we note that the legislature
                                          12

Code § 709.15(3). When the legislature added subsection (3), it copied

much of the language it used in subsection (2).                Compare Iowa Code

§ 709.15(2), with id. § 709.15(3).6 If the legislature had intended for a

student to be emotionally dependent, or to be in a direct and current

teacher–student relationship in order for the teacher to be convicted of

violating section 709.15(3), the legislature could have made it a part of

the statute. Based on our directive to interpret a statute in context, we

find the lack of inclusion of a requirement that a teacher–student

relationship exists to be instructive.         The legislature did not explicitly
require emotional dependency, or a direct or current teacher–student

relationship to exist prior to making the school employee subject to the

statutory prohibition. It is the fact that Romer was a teacher and the

victims were students, as defined under the Code, which makes the

conduct a crime.


__________________________________
did include time limitations in another part of the statute.     The word “student” is
defined as
       a person who is currently enrolled in or attending a public or nonpublic
       elementary or secondary school, or who was a student enrolled in or who
       attended a public or nonpublic elementary or secondary school within
       thirty days of any violation of subsection 3.
Iowa Code § 709.15(1)(g). This provides further evidence the legislature considered the
issue of timing and declined to otherwise limit the relationship parameters. This leads
us to conclude the legislature was not attempting to limit the relationship covered by
the statute.
       6The  legislature, in fact, omitted the language requiring an emotionally
dependent relationship. Iowa Code § 709.15(2)(b) says,
       Any sexual conduct, with an emotionally dependent patient or client or
       emotionally dependent former patient or client for the purpose of
       arousing or satisfying the sexual desires of the counselor or therapist or
       the emotionally dependent patient or client or emotionally dependent
       former patient or client . . . .
Id. § 709.15(2)(b). In contrast, Iowa Code section 709.15(3)(b) says, “Any sexual
conduct with a student for the purpose of arousing or satisfying the sexual desires of
the school employee or the student.” Id. § 709.15(3)(b).
                                    13

      We further find the legislature did not intend to restrict this

prohibition to those in a specific past or present teacher–student

relationship. We believe the legislature intended to protect students from

being exploited by the teacher in the next classroom, the former middle

school principal the student respected and admired, or the substitute

teacher the student had in elementary school, for example.

      We find no error of law by the district court in concluding that a

contemporaneous teacher–student relationship was not required for

Romer to be convicted of violating Iowa Code section 709.15(3).
      B. Requirement of Physical Contact to Constitute Sexual

Conduct.      Whether physical contact is required in order to find the

defendant engaged in “sexual conduct” under Iowa Code section

709.15(3) also presents an issue of first impression. Romer contends the

State presented no evidence of sexual conduct with K.G. or L.A.        This

contention relates to his convictions on counts VII and VIII, in which he

was charged with “engag[ing] in a pattern or practice or scheme of

conduct involving sexual conduct with” K.G. in count VII and L.A. in

count VIII.

      In determining whether sufficient evidence existed to support a

conviction for conduct involving K.G. and L.A., we review for correction of

errors at law. See Sanford, 814 N.W.2d at 615 (“Sufficiency of evidence

claims are reviewed for a correction of errors at law.”). We consider all of

the record evidence in the light most favorable to the State.            Id.

Similarly, in determining whether the legislature intended to criminalize

the acts of which Romer is accused—directing students to assume

sexualized poses and taking pictures of them for his own sexual

gratification—we review for correction of errors at law. See In re Det. of
                                      14

Johnson, 805 N.W.2d at 753 (“We review questions of statutory

interpretation for correction of errors at law.”).

      Substantial evidence supports the conclusion that Romer took

photographs of sexual conduct during the babysitting incident that

occurred in November 2007 and involved K.G. and L.A.               On appeal,

Romer does not dispute that the State introduced sufficient evidence to

find he photographed sexual conduct.            The State also introduced

sufficient evidence that Romer orchestrated the explicit photography

session. Though Romer disputes that he directed this session, we have
said, “Inherent in our standard of review of jury verdicts in criminal

cases is the recognition that the jury was free to reject certain evidence,

and credit other evidence.” State v. Nitcher, 720 N.W.2d 547, 556 (Iowa

2006) (citation and internal quotation marks omitted).            “Evidence is

considered substantial if, 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.   We conclude the jury could have reasonably

found not only that Romer both photographed the sexual conduct and

orchestrated the poses, but that the photographs were clearly sexual in

nature. We must then determine if Romer’s conduct violated Iowa Code

section 709.15(3).

      The language of the statute prohibits “any 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)(b). The statute

then enumerates what the legislature defines as “sexual conduct.”

Specifically, it states “ ‘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.” Id. Both the November

babysitting incident and the Fourth of July incident involved actions
                                      15

between the minors that meet the statutory definition of sexual conduct.

In order to convict Romer of violating Iowa Code section 709.15(3), the

State must prove Romer engaged in sexual conduct with K.G. and L.A.

See id. § 709.15(3).

      Romer argues that sexual conduct requires some physical contact

in order to meet the definition of the statute. The State urges us to find

that the phrase “engaged in” sexual conduct does not require actual

physical contact.      See id. § 709.15(3)(a).   We apply our principles of

statutory construction in making a determination as to whether the State
proved that Romer engaged in conduct in contravention of the statute.

See In re Estate of Bockwoldt, 814 N.W.2d at 223 (“Because reasonable

persons could disagree, the plain language of the statute is ambiguous,

and we must turn to the principles of statutory construction.”). “If the

legislature has not defined words of a statute, we may refer to prior

decisions of this court and others, similar statutes, dictionary definitions,

and common usage.” Jack v. P & A Farms, Ltd., 822 N.W.2d 511, 516

(Iowa 2012) (citation and internal quotation marks omitted).             The

dictionary has multiple definitions for the word “engage.” The one most

applicable defines “engage” as “to employ or involve oneself.” Webster’s

Third New International Dictionary 751 (unabr. ed. 2002). We conclude

that Romer’s conduct in orchestrating and photographing sexual conduct

between minors, including K.G. and L.A., constituted sexual conduct as

defined by Iowa Code section 709.15(3).

      We note the plain words of the statute do not restrict sexual

conduct to the actions listed in the statute. The statute 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. Sexual conduct
                                        16

includes but is not limited to the following . . . .” Iowa Code § 709.15(3)

(emphasis added).

       While we have not previously examined the definitional parameters

of what constitutes sexual exploitation by a school employee, reference to

our statute on sexual exploitation of a minor is instructive. Iowa Code

section 728.12(1) (2009) provides:

              It shall be unlawful to employ, use, persuade, induce,
       entice, coerce, solicit, knowingly permit, or otherwise cause
       or attempt to cause a minor to engage in a prohibited sexual
       act or in the simulation of a prohibited sexual act. A person
       must know, or have reason to know, or intend that the act or
       simulated act may be photographed, filmed, or otherwise
       preserved in a negative, slide, book, magazine, computer,
       computer disk, or other print or visual medium, or be
       preserved in an electronic, magnetic, or optical storage
       system, or in any other type of storage system.

       In 1978, the legislature enacted this statute prohibiting the sexual

exploitation of a minor by causing the minor to engage in a prohibited

sexual act intending that the act be photographed or filmed. 1978 Iowa

Acts ch. 1188, § 1 (codified at Iowa Code § 728.12(1) (1979)).7 The crime

of sexual exploitation of a minor is aimed at the creation, dissemination,

and possession of child pornography, rather than merely possessing
obscene materials. State v. Robinson, 618 N.W.2d 306, 316 (Iowa 2000).

We see no reason why the legislature would intend the definition of

sexual exploitation under Iowa Code section 709.15(3)(a) or (b) be more

restrictive than the general statute, or that it require an act of physical

contact.

       Indeed, we have interpreted the parallel restriction on a caretaker

from engaging in sexual conduct with a dependent adult in a similar


       7The   crime of sexual exploitation of a minor has been expanded by the
legislature on three separate occasions since then. However, none of the changes are
applicable to this case.
                                   17

manner. See Smith v. Iowa Dep’t of Human Servs., 755 N.W.2d 135, 138

(Iowa 2008). In Smith, we declared, “[T]here is no language in the statute

[defining sexual conduct] that confines the phrase to require the

caretaker to affirmatively touch the dependent adult in a sexual

manner.” Id. Though the situation here is not quite analogous—actual

prohibited physical contact did occur between the caretaker and the

dependent adult, with the dependent adult initiating it—Smith confirms

that we have previously construed the identical statutory language more

broadly than Romer now urges.

      “[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
      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.

Id.

      Further, we find the language the legislature chose to be

compelling. The legislature specifically stated that “sexual conduct” was

“not limited” to the list that it gave. Iowa Code § 709.15(3)(b). Romer

argues that because all of the items in the list following that language

included physical contact, the legislature only intended to include

physical contact. See id. We do not find this reasoning persuasive. We

conclude the legislature’s clear intent was to protect students from

exploitation by school employees. Further, we recognize the legislature

was acknowledging the limits of its own ability to identify ways in which

school employees could potentially exploit students. Here, there can be

little doubt that Romer persuaded and induced K.G. and L.A. to engage

in prohibited sexual conduct, and he photographed the conduct. Romer

engaged in interactive conduct with the students, and the students

engaged in sexual conduct based on his instructions.
                                      18

      The district court was correct in concluding 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. Thus, we find no error at law by the

district court in its ruling on this issue.

      C. Severance of the Counts.             Romer argues the district court

abused its discretion in refusing to sever the eight counts against him

into five separate trials.   We review a district court’s “refusal to sever

multiple charges against a single defendant for abuse of discretion.”
Elston, 735 N.W.2d at 198.        “To prove the district court abused its

discretion in refusing to sever charges, [the defendant] bears the burden

of showing prejudice resulting from joinder outweighed the State’s

interest in judicial economy.” Id. at 199.

      Elston provides the framework by which we interpret whether the

district court was required to sever counts. Just as in Elston, we begin

our analysis with Iowa Rule of Criminal Procedure 2.6(1), which provides:

      “Two or more indictable public offenses which arise from the
      same transaction or occurrence or from two or more
      transactions or occurrences constituting parts of a common
      scheme      or   plan,   when    alleged  and     prosecuted
      contemporaneously, shall be alleged and prosecuted as
      separate counts in a single complaint, information or
      indictment, unless, for good cause shown, the trial court in
      its discretion determines otherwise.”

Id. at 198 (quoting Iowa R. Crim. P. 2.6(1)).

      Further, we explained in Elston:

      We have held that transactions or occurrences are part of a
      common scheme or plan under Iowa Rule of Criminal
      Procedure 2.6(1) when they are the products of a single or
      continuing motive.    In ascertaining whether a common
      scheme or plan exists, we have found it helpful to consider
      factors such as intent, modus operandi, and the temporal
      and geographic proximity of the crimes.
                                   19

Id. at 198–99 (citations and internal quotation marks omitted).

       1. Common scheme or plan. We interpreted the phrase “common

scheme or plan,” as used in the Iowa Rule of Criminal Procedure 2.6(1),

in State v. Lam, 391 N.W.2d 245, 249 (Iowa 1986). “A ‘common scheme

or plan’ by its very definition presupposes that it involves a series of

separate transactions or acts.” Id. In Lam, we adopted the Missouri test

in finding “the essential test in determining whether a common scheme

or plan exists is the requirement that all offenses charged must be

products of a single or continuing motive.” Id. at 250. We cited Missouri
cases, including State v. Burroughs, 673 S.W.2d 474 (Mo. Ct. App. 1984).

Id.   In Burroughs, the Missouri court convicted the defendant of rape,

sodomy, incest, and promoting prostitution.    673 S.W.2d at 475.     The

Missouri Court of Appeals concluded that “[t]he defendant was involved

in a common scheme and plan to pervert his children’s morals, and to

use them for his own enjoyment and profit.” Id. at 476.

       Thus, in Lam, we found that the two offenses with which Lam was

charged—two otherwise unrelated burglaries—“were parts of a common

scheme or plan to burglarize apartments during normal working hours.

It is readily inferable that both offenses were products of a single and

continuing motive for obtaining small portable objects from apartments

for money.” Id. Evidence of one burglary was not needed to prove any of

the elements of the other burglary, yet we found that trying them

together was appropriate. Id.

       Similarly, in Elston, we found that joinder of the charges was

proper.   735 N.W.2d at 200.     “All of the crimes alleged in this case

against Elston could be found to have been motivated by his desire to

satisfy sexual desires through the victimization of children.” Id. We also

found that the transactions “occurred in close geographic proximity.” Id.
                                       20

Though we found that there was no temporal proximity and the modus

operandi was dissimilar, we nonetheless found a “common scheme or

plan” existed. Id.

      Here, the jury convicted Romer on all eight counts with which he

was charged.     The verdict form provided the jury with three options

regarding counts VI, VII, and VIII. Specifically, on these three counts,

the jury could find Romer “not guilty,” “guilty of sexual exploitation by a

school employee by pattern, practice, or scheme of conduct,” or “guilty of

sexual exploitation by a school employee.” Significantly, on all three of
these counts, the jury found Romer “guilty of sexual exploitation by a

school employee by pattern, practice, or scheme of conduct.” The jury,

which heard all of the evidence, found that these three counts, which

involved all three of the events that generated the criminal activity for

which Romer was convicted, were each part of a “pattern, practice, or

scheme of conduct.”       We show great respect for a jury’s fact-finding

function. See, e.g., State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006)

(finding that it is the jury’s role to be the primary trier of facts).

      Romer bases much of his argument on the contention that not all

of the evidence was required in order to convict Romer on each individual

count. This fact, even if true, is not material. In Lam, we noted that the

amended rule authorizing joinder of offenses in a single information

where the offenses charged are based either on “the same transaction or

occurrence” or “a common scheme or plan” was specifically intended to

achieve   judicial   economy     through    “liberaliz[ing]   and   broaden[ing]

charging practices so as to allow prosecutors more leeway in seeking to

join multiple offenses for a single prosecution.” Lam, 391 N.W.2d at 249.

Even if some of the evidence needed to prove count I was irrelevant to

whether Romer committed the acts he was charged with in count IV, for
                                    21

example, the State had the right to charge multiple counts in the same

offense to achieve judicial economy.

      The jury concluded that each count Romer was convicted of

constituted part of a “common scheme or plan,” and that Romer’s intent

in that common scheme was to victimize children to fulfill his sexual

desires.    Two of the three events (and seven of the offenses charged)

occurred at Romer’s home.        The other event—the long-term sexual

relationship with R.A.—occurred occasionally at her home, at the rock

quarry, or at numerous other locations in Iowa. This also establishes
geographic proximity.      Finally, Romer displayed a similar modus

operandi with all of the minors involved. Romer maintained contact with

victims in each of the three events through cell phone communication

and texting.     Romer requested the victims take nude or seminude

photographs of themselves or allow him to take seminude photographs of

them. Romer would choreograph or pose the minors in sexually explicit

poses, and would encourage others to participate as well. Romer offered

or provided alcohol to each of them, often resulting in intoxication. All of

these factors support Romer having engaged in a common scheme or

plan and that joinder of the counts was appropriate.

      2. Prejudice outweighing judicial economy. “Although the existence

of a “common scheme or plan’ indicates the charges should be joined, the

district court nonetheless had discretion to sever the charges for ‘good

cause.’ ”   Elston, 735 N.W.2d at 199.    Romer thus has the burden of

showing prejudice in order to demonstrate the district court abused its

discretion. See Elston, 735 N.W.2d at 199. (“To prove the district court

abused its discretion in refusing to sever the charges, [the defendant]

bears the burden of showing prejudice resulting from joinder outweighed

the State’s interest in judicial economy.”). Romer argues that because
                                     22

these charges were tried together, “the jury could not help but convict

based upon propensity.” The propensity to which Romer refers is based

on our evidentiary rules.    However, we have previously found that an

attempt to equate our evidentiary rule’s principles with rule 2.6(1)’s

principles is inapposite.

      This evidentiary rule deals with what evidence is properly
      admissible to prove the crime charged. The joinder of
      offenses rule deals with the more basic question of what
      crimes can be charged and tried in a single proceeding. . . .
      The two rules deal with different questions, making the
      wholesale importation of the evidentiary rule into the law
      dealing with joinder of offenses inappropriate.

Lam, 391 N.W.2d at 249 (citations and internal quotations omitted).

      Romer bears the burden of demonstrating that prejudice exists

because of the joinder of offenses, and that this prejudice outweighs the

State’s interest in judicial economy. See Elston, 735 N.W.2d at 199. His

only arguments in this area pertain to our evidentiary rule on propensity,

which we have unequivocally established as distinct from an analysis

under our law dealing with joinder of offenses. See Lam, 391 N.W.2d at

249. Here, in order to show a pattern, practice or scheme of conduct

necessary to prove certain counts, it was necessary and relevant to show
Romer’s sexual motivation and criminal intent on other counts.        The

evidence is clearly relevant and legally intertwined.   The district court

also had a cautionary instruction which instructed the jury to look at

each of the eight counts separately and reach a verdict on each count

separately.   Romer has not shown unfair prejudice by joining the

interrelated eight counts into one trial.

      Lastly, the State’s interest in judicial economy outweighs the

prejudice to Romer in allowing a single trial as stated earlier. Much of

the same evidence was relevant and admissible on each of the various
                                       23

counts. A single trial was in the interest of judicial economy as it was

then unnecessary to require numerous witnesses to testify at multiple

trials to the same operative facts. The district court did not abuse its

discretion in balancing the prejudice to Romer and the judicial economy

of a single trial.

       IV. Disposition.

       We affirm the rulings of the district court on each of the three

issues Romer raises. We conclude Romer was a school employee under

the statute and the minors involved were students within the meaning of
Iowa    Code    section   709.15(3).        We   further   conclude   that   no

contemporaneous teacher–student relationship was necessary to violate

Iowa Code section 709.15(3). We find Romer’s actions in orchestrating

and photographing sexual conduct between minors was sufficient to

satisfy the statutory definition for engaging in sexual conduct. Finally,

we conclude that the events at issue here all fall within a common

scheme or pattern, and thus, it was appropriate for the charges to be

joined. The district court did not abuse its discretion in denying Romer’s

motion to sever as any prejudice to Romer was outweighed by the State’s

interest in judicial economy. Romer’s convictions are affirmed.

       DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

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

part and dissent in part.
                                    24

                                                 #11–0270, State v. Romer

HECHT, Justice (concurring in part and dissenting in part).

         My colleagues conclude in the majority opinion that a school

employee may be convicted under Iowa Code section 709.15(3) for

conduct directed at a student enrolled in a school with which the

defendant has no current employment relationship. As I do not believe

the statute can properly be read so broadly, I respectfully dissent in part.

         Suppose a twenty-three-year-old person employed as a school

teacher in the State of California visited Iowa during the first week of
June.     During his week’s vacation in Iowa, the teacher was observed

kissing an eighteen-year-old girl who had graduated from an Iowa high

school less than thirty days before the embrace. Assume this conduct

offended the girl’s parents, and the teacher is charged with sexual

exploitation of a student.    Under the majority’s interpretation of the

statute, the teacher could be convicted of the crime.       The conviction

would be affirmed under the majority’s view because kissing is among

the types of conduct prohibited by the statute.            See Iowa Code

§ 709.15(3)(b) (2009) (defining sexual conduct to include kissing). The

defendant in this hypothetical scenario would fall within the definition of

“school employee” under section 709.15(1)(f) (including a teacher “who

provides educational assistance to students,” albeit in California, not

Iowa).    The recently-graduated girl would fall within the definition of

“student” under section 709.15(1)(g) (including a student who attended a

secondary school within thirty days of any violation). Indeed, under the

majority’s interpretation of the statute, a conviction of the teacher would

apparently be sustained even if the girl did not know the defendant was

employed as a teacher in California and the defendant did not know the

girl was a recent high school graduate because the offense is based
                                         25

entirely on the status of the teacher and the girl.               Simply put, my

colleagues in the majority view the crime of sexual exploitation under

section 709.15(3) broadly, requiring no proof a school employee–student

education-based relationship existed at the time of the exploitation.8 For

several reasons, I believe the legislature did not intend the statute to cut

such a wide swath.

       A statute is ambiguous if reasonable people could disagree as to its

meaning. IBP, Inc. v. Harker, 633 N.W.2d 322, 325 (Iowa 2001). “Even

. . . a statute appear[ing] unambiguous on its . . . face can be rendered
ambiguous by its interaction with and its relation to other statutes.” 2A

Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory

Construction § 46.4, at 185 (7th ed. 2007). “Ambiguity may arise from

specific language in a statute or when the provision at issue is

considered in the context of the entire statute or related statutes.”

Midwest Auto. III, LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 425

(Iowa 2002); accord State v. McCullah, 787 N.W.2d 90, 94 (Iowa 2010)

(“Ambiguity arises in two ways—either from the meaning of specific

words or ‘from the general scope and meaning of the statute when all of

its provisions are examined.’ ” (quoting Carolan v. Hill, 553 N.W.2d 882,

887 (Iowa 1996)).

       I believe reasonable people reading section 709.15(3) in context

with the other parts of the statute and related statutes could disagree

whether the general assembly intended a conviction of the crime of

sexual exploitation by a school employee must be supported by proof

that the defendant exploited an actual or perceived relationship of power,

authority, or influence over a student enrolled in the school employing

       8A  school employee–student relationship extends under the statute for thirty
days after a student was enrolled in or attended the school. Iowa Code § 709.15(1)(g).
                                     26

the defendant. It is significant in my view that when the statute was

enacted, see 2003 Iowa Acts ch. 180, § 65, the general assembly joined it

in section 709.15 with a previously enacted prohibition of sexual

exploitation by a mental health therapist or counselor, see 1991 Iowa

Acts ch. 130, § 2 (codified as amended at Iowa Code § 709.15).

      As the majority has correctly noted, the offense of sexual

exploitation by a mental health provider enacted by the general assembly

in 1991 requires proof of the exploitation of a relationship between an

emotionally dependent patient or client (or former such patient or client)
and a provider. Iowa Code § 709.15(2)(b)–(c). The evil targeted by those

provisions of the statute is exploitation of relationships between

professional providers of mental health services and their patients and

former patients.   The primary purpose of the statute is protection of

patients who, because of their mental health and other circumstances,

are especially vulnerable to sexual abuse perpetrated by mental health

providers in whom they place immense trust and implicit confidence.

The trust and confidence conferred by emotionally vulnerable patients to

providers contributes substantially to an immense imbalance of power

and control in the provider–patient relationship. It is the nature of the

relationship between a provider and a patient that is essential to a

positive therapeutic outcome and also to the commission of a criminal

violation of section 709.15(2)(b) and (c).    If the State fails to prove a

professional relationship between the defendant–provider and his patient

or client, or former patient or client, no criminal violation can result from

the varieties of sexual conduct enumerated in section 709.15.

      I of course concede the general assembly did not expressly

prescribe that conviction of a school employee under section 709.15(3)

requires proof of an education-based relationship between the defendant
                                      27

and the student with whom the sexual conduct has occurred.               Yet, a

reasonable person could conclude from the context of the statute, as I

do, that the general assembly intended the 2003 amendment of section

709.15 as a supplement to the list of relationships requiring protection

from sexual exploitation. Students in elementary and secondary schools

are especially vulnerable to sexual exploitation because of the actual or

perceived power, influence, and control of school employees with whom

they are regularly in contact. But for the education-based relationship—

whether direct or indirect—between a school employee and a student
within a school, the power imbalance favoring the school employee and

enabling the exploitation does not exist.            Put another way, any

vulnerability of a student in one school to sexual conduct of an employee

of another school does not arise from a relationship attended or

enhanced by a power imbalance based on the school employee’s status

as a provider of “education assistance” to the student. See Iowa Code

§ 272.1(7) (supplying definition of “school employee” as a “practitioner”

who “provides educational assistance to students”). In the absence of a

school employee–student education-based relationship, any sexual

misconduct perpetrated by a school employee is properly prosecuted

under other criminal statutes,9 but it is not in my view covered by

section 709.15(3)(b).

      My conclusion that the statute is ambiguous as to whether the

general assembly intended in section 709.15(3) to criminalize only sexual

conduct exploiting an education-based relationship is not based solely on

the general assembly’s placement of the criminal statute in a section

targeting sexual exploitation of persons whose vulnerability is enhanced

      9For    example, Romer was convicted in this case of five counts of sexual
exploitation of a minor under Iowa Code section 728.12(1).
                                     28

by their relationships with other types of professionals.         When the

general assembly enacted section 709.15(3) it established a limitation

period of ten years for the filing of an indictment or information for the

offense.   Iowa Code § 802.2A(2) (stating information or indictment for

sexual exploitation by school employee must be found within ten years of

date victim was enrolled in or attended “the school” (emphasis added)).

The legislation also recognized a civil claim in favor of the sexually

exploited student against the exploiting school employee, prescribing that

it must be brought “within five years of the date the victim was last
enrolled in or attended the school.” Id. § 614.1(12) (emphasis added). A

reasonable person could view the general assembly’s choice of “the”

school instead of “a” school in these statutes of limitation as a further

indication that the general assembly conceived the crime and the related

tort of sexual exploitation by a school employee would be based on an

employee’s exploitation of a student enrolled in the school employing the

defendant.

      Having concluded section 709.15(3) is ambiguous when read in

context and together with other related statutes, I would here apply the

principle that provisions establishing the scope of criminal liability are to

be strictly construed with doubts resolved therein in favor of the

accused.     State v. Muhlenbruch, 728 N.W.2d 212, 216 (Iowa 2007).         I

acknowledge that we decline invitations to narrow a broad legislative

formulation by implying or constructing limitations not present in a

statute when such narrowing would undercut the statute’s obvious

public purpose. See State v. Hearn, 797 N.W.2d 577, 583 (Iowa 2011);

State v. Hagedorn, 679 N.W.2d 666, 669–70 (Iowa 2004); State v. Nelson,

178 N.W.2d 434, 437 (Iowa 1970) (stating criminal statutes “ ‘are not to

be construed so strictly as to defeat the obvious intention of the
                                     29

legislature.’ ” (quoting United States v. Wiltberger, 18 U.S. (5 Wheat.) 76,

95, 5 L. Ed. 37, 42 (1820))); 3 Norman J. Singer & J.D. Shambie Singer,

Statutes and Statutory Construction § 59:3, at 171 n.1 (7th ed. 2008)

(“Although a penal statute must be strictly construed, that does not

justify a court in supplying restrictive language that is not there.”).     I

conclude, however, that these prudential maxims do not demand the

interpretation of section 709.15(3) favored by the majority in this case

because it is not obvious the general assembly’s purpose was to enact a

status crime in section 709.15(3) punishing a school employee for
conduct directed at a person with whom the employee has no exploitable

education-based relationship. It is instead obvious—at least to me—that

the legislature intended to criminalize in section 709.15 the exploitation

of only the enumerated special relationships in which the victims are

especially vulnerable to abuse by professionals providing them with

mental health services or education services. Sexual conduct not based

on, and not exploitive of, those special relationships is criminal only if it

is proscribed by other criminal statutes.

      As I find the State offered no evidence that Romer had an

education-based relationship with the persons he was charged with

exploiting, I would resolve in Romer’s favor my doubts about the

applicability of section 709.15(3). Accordingly, I would reverse Romer’s

convictions under section 709.15(3).         I concur, however, in the

affirmance of Romer’s convictions on the other charges.

      Appel, J., joins this concurrence in part and dissent in part.
