State of Iowa v. Steven J. Rees ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1124
Filed June 24, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
STEVEN J. REES,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Webster County, Thomas J. Bice
and Kurt L. Wilke, Judges.
A defendant appeals following his convictions of sexual exploitation of a
minor and invasion of privacy. CONVICTIONS AFFIRMED, SENTENCE
VACATED, AND REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kelli Huser and Andrew Prosser,
Assistant Attorneys General, Jennifer Benson, County Attorney, and Cori Kuhn
Coleman, Former County Attorney, for appellee.
Considered by Vogel, P.J., Potterfield, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, S.J.
Steven J. Rees has appealed from the jury’s verdict of guilty for sexual
exploitation of a minor and invasion of privacy, and from the sentences imposed
thereupon. We affirm the jury’s verdict but remand the matter for resentencing.
I. Facts and Course of Proceedings
Steven J. Rees was a church youth group leader and the victim, J.K., was
a sixteen year-old member of the group. Rees frequently provided J.K. a ride to
school and to church. Rees operated a business called DAC Security Systems.
J.K. asked if Rees knew of anything that she could do to earn extra money.
Rees told her that she could possibly do poses for a modeling company by the
name of Rose Industries, operated by Brenda Miller. Rees arranged a photo
shoot at his shop. J.K. came to the shop with a girlfriend, and Rees provided
clothes for the girls and took the pictures. He subsequently paid J.K. $300 and
told her that she had been approved as a model but her friend had not.
Rees then arranged a second photo shoot and had her pull down a
swimsuit so low that she felt uncomfortable, took off the top of the suit, and
covered her breasts with her arms or hands. A third photo shoot was arranged
that was initially to be at Rose Industries at Eagle Grove, but Rees advised that
Miller had sold her business and the photos would be taken on a nearby beach.
A girlfriend of J.K.’s accompanied them to where the photos were taken by Rees.
They then went back to the shop where more photos were taken. J.K. wore
string bikinis for the photos at the beach and was told to pull down her swimsuit
to the point that she believed her vagina almost showed and her buttocks were
clearly displayed. Photos were taken with a covering so light over her breasts
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that J.K. believed the nipples of her breasts could be seen through the clothing
that Rees had given her to wear. During the second and third photo shoots Rees
made comments to J.K. that indicated he was sexually aroused and asked her to
assume positions that would enhance his arousal.
After these incidents were reported to the police, a search warrant was
obtained and a video camera was found in the bathroom at Rees’s shop where
the girls had been directed to change. The video recording showed J.K.
changing outfits in the bathroom and showed her naked at times. The victim did
not know that a video had been taken of her changing in the bathroom.
Women’s clothes, including swimsuits and multiple pictures of J.K. that Rees had
taken, were discovered at his shop. The existence of Rose Industries and
Brenda Miller could not be established and appear to be a fabrication.
Rees filed a motion to suppress all items found at the shop as a result of
the search warrant, but it was overruled. At trial the court closed the courtroom
for a little less than twenty minutes while the court viewed Rees’s video of J.K.
undressing in the bathroom. Rees objected to the temporary closure of the
courtroom, but his objection was overruled. Rees made a motion for judgment of
acquittal as to both charges, but his motion was overruled. Rees contends that
each of the three above rulings was made in error.
Rees was found guilty of both charges and was sentenced to ten years
and one year, respectively, on the two counts with the sentences to run
concurrently. Rees had no prior record but was denied probation.
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Rees contends the court illegally took into consideration his election to
stand trial rather than plead guilty and otherwise abused its discretion in
pronouncing sentence.
II. Preservation of Error
Error preservation is generally considered present when the issue to be
reviewed has been raised and ruled on by the district court. Meier v. Senecaut,
641 N.W.2d 532, 537 (Iowa 2002). Each of the first three matters relate to issues
raised and ruled on by the trial court. Error has been preserved. A claim of a
sentencing error is not subject to the ordinary rules of error preservation and may
be raised for the first time on appeal. State v. Shearon, 660 N.W.2d 52, 57 (Iowa
2003).
III. Discussion and Standard of Review as to Each Issue Raised
A. Motion to Suppress
A search raises constitutional issues and is therefore reviewable de novo.
State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011). Probable cause must be
presented to the magistrate to support issuance of a search warrant. State v.
Davis, 679 N.W.2d 651, 656 (Iowa 2004). The reviewing court is limited to the
written information before the magistrate at the time of the issuance, but it is to
draw all reasonable inferences to support the magistrate’s finding of probable
cause. Id. The test is the determination of whether the magistrate had a
substantial basis for issuing the warrant and not a redetermination of probable
cause. Id. Nevertheless, a reviewing court’s duty is to make certain that the
magistrate performed his or her function in a neutral and detached manner.
State v. Swaim, 412 N.W.2d 568, 571 (Iowa 1987).
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The application on which the search warrant was issued stated that J.K.
had related Rees had taken pictures exposing her buttocks and the nipples of her
breasts. Such exposure constitutes nudity. See State v. Hunter, 550 N.W.2d
460, 465 (Iowa 1996) (noting the common meaning of the word “nudity” includes
exposure of the breasts, buttocks, or genitalia), overruled on other grounds by
State v. Robinson, 618 N.W.2d 306 (Iowa 2000). It is unlawful to cause a minor
to engage in a prohibited sexual act. Iowa Code § 728.12(1) (2013). A
prohibited sexual act is defined as nudity of a minor for the purpose of arousing
or satisfying the sexual desires of a person. Id. § 728.1(6)(g). The warrant
application recited that Rees had told her to look sexy and seductive, and show
her body in a manner to excite men. The warrant application also established
that the existence of Brenda Miller and Rose Industries appeared to be a
fabrication. A substantial basis existed for a reasonable person to believe
prohibited photos would be found at Rees’s shop. See Davis, 679 N.W.2d at 656(“The existence of probable cause to search a particular area depends on
whether a person of reasonable prudence would believe that evidence of a crime
might be located on the premises to be searched.”). The search warrant was
legally issued.
B. Closure of the Proceedings to the Public
A public trial is a constitutional right; therefore, the court’s review is de
novo. State v. Schultzen, 522 N.W.2d 833, 835-36 (Iowa 1994). In order for a
trial, or part thereof, not to be open to the public, four criteria must be met: (1) the
party seeking to close the hearing must advance an overriding interest that is
likely to be prejudiced; (2) the closure must be no broader than necessary to
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protect that interest; (3) the trial court must consider reasonable alternatives to
closing the proceedings; and (4) the trial court must make findings adequate to
support the closure. Id. at 836.
The State’s overriding interest was to protect J.K.’s right to privacy as
opposed to showing her changing clothes and in a naked condition to anyone
who chose to be present in the courtroom. The closure was limited to the twenty
minutes when J.K. was shown changing her clothes. At trial Rees, through
counsel, agreed the video should not be publicly viewed but suggested using a
video or TV screen close to the jury. The trial court considered Rees’s
alternative but was concerned that it would be difficult to keep the public from
viewing the screen given the courtroom layout. Furthermore, such a restriction
and limitation, if effective in its attempt to avoid public viewing, would have been
equal to closing the courtroom while the video was shown. The court’s ruling and
finding regarding the first three criteria constitute the fourth requirement. The
State’s interest and J.K.’s interest in her privacy outweighed Rees’s right to have
his twenty-minute, surreptitiously-obtained video of the victim’s nakedness shown
to the public.
C. Failure to Grant Rees’s Motion for a Judgment of Acquittal
A trial court’s denial of a defendant’s motion for judgment of acquittal is
reviewed for corrections of errors of law. State v. Serrato, 787 N.W.2d 462, 465
(Iowa 2010). A guilty verdict must be supported by substantial evidence. Id.Substantial evidence exists if it is such that a rational trier of fact could find the
accused guilty beyond a reasonable doubt. Id. In reviewing a ruling on a motion
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for judgment of acquittal, the evidence is viewed in the light most favorable to the
State. Id.Rees contends there was insufficient evidence that his activities were
intended to satisfy, arouse, or gratify sexual desires, an element of both charges
of which he was found guilty. See Iowa Code §§ 709.21(1), 728.1(7)(g),
728.12(1). Intent is frequently not susceptible to direct proof and often can only
be established by circumstantial evidence and the inferences that can be drawn
from it. State v. Olson, 373 N.W.2d 135, 136 (Iowa 1985).
There was adequate evidence for the jury to infer that Rees’s objective
was to satisfy his sexual desires. Rees made comments to J.K. that indicated he
was sexually aroused and requested a change in her position that would
enhance his arousal. No other explanation for having a video camera in the
bathroom where J.K. was dressing was given. Rees’s payment of money to J.K.
and, apparently, the whole story about Rose Industries and Brenda Miller were
designed to put the victim in a location where Rees could video her in a naked
condition.
D. Abuse of Discretion in Sentencing
In a broader sense, sentencing is ultimately reviewed for corrections of
law. State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006). However, where the
sentence imposed is within the statutory framework available to the sentencing
court, an abuse of discretion can constitute an error of law. Id. It is in that
context that Rees’s sentence will be reviewed.
A sentence within the statutory framework is clothed with a strong
presumption in its favor. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).
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An abuse of discretion will be found only when the court’s discretion was
exercised on grounds or reasons clearly untenable. Id.Rees contends that factors favorable to justifying probation were not
considered by the trial court. Rees had no prior criminal history, was the owner
of a business, and was married. A psychosexual evaluation showed him to have
a low to moderate risk of recidivism. The presentence investigation (PSI) report
recommends supervised probation and indicates Rees is amenable to treatment
in a community-based correctional facility.
The court stated it had read the PSI and considered Rees’s counsel’s
statement, and noted that the psychosexual assessment indicated a low risk of
recidivism. The sentencing court is not required to restate each claim of
mitigation. State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct. App. 1995).
Rees, in effect, contends that the court placed too much importance on
the nature of the offense. The sentencing court has the right to place greater
importance on one sentencing consideration than another. State v. Wright, 340
N.W.2d 590, 593 (Iowa 1983). The sentencing court gave adequate
consideration to the mitigating factors that support probation and did not
overemphasize the crime committed. No abuse of discretion occurred.
However, that determination does not dispose of Rees’s claim that the
sentencing court considered an improper factor—his decision not to plead guilty.
In sentencing Rees, the trial court stated,
What I find particularly bothersome is something Mr. Prosser
brought up about the fact that the defendant was, in fact, offered
quite a lenient situation with probation, if I’m not mistaken, but
rejected contending from day one that he was not guilty of this
offense.
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This court was taken aback during the course of trial seeing
that it couldn’t understand any real defense at all in this case. I
mean it just—it just baffled me that—a plea had not been entered
before the trial because there was just nothing there to lend itself to
the defendant’s defense.
When a sentence is imposed for reasons that violate a defendant’s right to
assert the constitutional right to stand trial, the sentence will not be permitted to
stand. State v. Drake, 224 N.W.2d 476, 479 (Iowa 1974). In Drake the matter
was sent back for resentencing when the court stated,
I am inclined to agree with you, Mr. Rosenberg, that this is a case
where this lady would probably have been given probation had she
entered a plea of guilty, but . . . my feeling is that the first step in
rehabilitation is a willingness to admit you’re wrong and to come in
and offer to straighten the matter out entirely. She chose not to do
that . . . .
Id.In State v. Nichols, 247 N.W.2d 249, 250 (Iowa 1976), the court—after
noting a rather far-fetched defense that the defendant had offered—stated,
And the rather glib way that you told that on the witness stand, I
might be willing to go along with these recommendations. In other
words I think I’m saying to you, had you said “Okay, I’ve done this
and I’m willing now to face the consequences of my acts” you might
then be able to persuade the court that sufficient turn-around had
occurred, that you should be afforded another chance. However,
under the circumstances under the record here I just don’t believe I
can do that.
Although the supreme court determined the record disclosed circumstances
warranting the sentence imposed, it remanded the matter for resentencing
because an impermissible consideration—the defendant’s exercise of the
fundamental and constitutional right of requiring the State to prove guilt at trial
and the right to raise defenses thereto—may have been employed in imposing
the sentence. Nichols, 247 N.W.2d at 255-56.
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Here, the State contends that the sentencing court was only commenting
on Rees’s lack of remorse. Anytime a defendant exercises his right against self-
incrimination, pleads not guilty, and insists upon trial, it can be inferred that the
defendant is not repentant. Id. at 253. Our criminal justice system has resolved
the inherent conflict by preserving the right against self-incrimination and the right
to trial as absolute rights, and holding the time for repentance is after trial. Id.We cannot make a rational distinction between the sentencing court’s
comments in either Drake or Nichols and the court’s comments in the instant
case. Admittedly there is a sharp contrast between what the State does in plea
bargaining and what the court is permitted to consider in sentencing, but it is a
sharp and clear line that is intended to preserve the integrity of the court.
This matter is affirmed but remanded for resentencing.
CONVICTIONS AFFIRMED, SENTENCE VACATED, AND REMANDED
FOR RESENTENCING.