State of Iowa v. Stewart O. Newman ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 4-012 / 12-2222
Filed June 11, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
STEWART O. NEWMAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.
Kilnoski, Judge.
Stewart Newman challenges the sufficiency of the evidence supporting his
convictions for lascivious acts with a child. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Nolan M. McGowan, student legal intern, Matthew D. Wilber, County
Attorney, and Shelly Sedlak, Assistant County Attorney, for appellee.
Considered by Potterfield, P.J., and Doyle and Bower, JJ.
2
BOWER, J.
Following a bench trial, Stewart Newman was convicted of twelve criminal
offenses arising from three Thanksgiving camping trips he took with his daughter,
E.N, in November of 2007, 2008, and 2009. In this appeal, Newman only
challenges his convictions for lascivious acts with a child—solicitation
alternative.1 See Iowa Code § 709.8(3) (2009). He claims the record lacks
sufficient proof he solicited his daughter to engage in a sex act. See id.Because we conclude sufficient evidence supports the “solicitation” element, we
affirm his convictions.
I. Background Facts and Proceedings
Stewart Newman is the biological father of E.N. and was married to E.N.’s
mother. The family included E.N.’s older brother and two younger brothers.
Newman’s father, Newman, and E.N.’s older brother were active in a Boy Scout
troop. The troop’s annual Thanksgiving campout was held on a weekend in
November and was open to the scout’s siblings, parents, and friends. Some
families stayed overnight in tents on both Friday and Saturday nights—camping
ended on Sunday morning. The 2007, 2008, and 2009 Thanksgiving campouts
were held at a park in Pottawattamie County, Iowa. Sometimes E.N.’s mother
would attend the Saturday afternoon Thanksgiving feasts but she never camped
overnight.
1
The June 2012 trial information charged Newman with twelve counts—three counts
(2007, 2008, and 2009) on each of four charges—(1) indecent conduct with a child, (2)
second-degree sexual abuse, (3) lascivious acts with a child, and (4) incest. The district
court found Newman guilty on all twelve counts.
3
E.N. testified she slept alone with her father in a cream-and-white, dome-
shaped tent during the 2007, 2008, and 2009 Thanksgiving campouts. During
those trips E.N. was, respectively, eight, nine, and ten years old. Pictures from
the 2007, 2008, and 2009 events show the cream-and-white, dome-shaped tent
present each year. An adult scout leader saw Newman and E.N. retire for the
night alone in the tent at least once in 2008 or 2009, and he thought that was “a
little odd.”
E.N. told her mother and Omaha law enforcement of the abuse by her
father in February 2010. E.N. started seeing a counselor, and in July, she told
the counselor her father had abused her on camping trips.
During the September 2012 bench trial, E.N. testified to the abuse and
testified similarly about the abuse each year—the abuse occurred on the first
evening of the campout, Friday evening. E.N. testified when she asked her
father if she could sleep in the tent with her brothers and her grandpa in 2007,
her father told her she had to sleep with him. In 2008 and 2009, when E.N.
asked if she could sleep in a tent with her friend Sara, her father “wouldn’t let
me.”
When E.N. and her father were in the tent alone in 2007, he asked her to
take off her clothes. Her father’s pants and underwear were off. E.N. stated her
father rubbed his penis on her vagina while they faced each other lying on their
sides. No penetration occurred. E.N. testified her father then told her to turn
over. She did so. He then rubbed his penis on her “butt.” E.N. stated his
4
rubbing continued until “stuff came out of his penis.” He used a sock or old shirt
to wipe it off her.
E.N. testified in 2008, “It started the same way where he asked me to take
off my clothes.” E.N. again took off her pants and underwear, and her father
committed the same acts, including asking her to turn over, ejaculating after
rubbing his penis on her butt, and wiping her off.
E.N. testified in 2009, when her father again asked her to take off her
clothes, she said no at first. He kept asking her. E.N. then complied by taking off
her pants and underwear. E.N. testified her father touched her the same way as
he had in 2007 and 2008, and it ended the same way—he ejaculated and again
wiped her off.
The district court, in its findings of fact, found:
It is no surprise that E.N., like the adults who participated in the
many scouting campouts, could not recall every detail of every
campout. The court does not find that her memory had been
tainted by suggestions from counselors, interviewers, her mother,
or others . . . . E.N. has consistently described sexual abuse by her
father during the first night of three Thanksgiving camping trips in
2007, 2008, and 2009. The court finds her testimony is credible
and highly persuasive.
In its conclusions of law, the district court ruled Newman committed the
offense of lascivious acts with a child, stating:
[T]he State must prove beyond a reasonable doubt that Stewart
Newman solicited E.N. to engage in a sex act with him; that he did
so with the specific intent to arouse or satisfy his sexual desires;
that he was eighteen . . . or older; that E.N. was under . . . fourteen;
and that [Newman] and E.N. were not married to each other. Solicit
means to ask or induce another to commit a crime. The court
concludes that Stewart Newman entreated E.N. to remove her
clothes on each of the three [November] evenings [in 2007, 2008,
and 2009] with the specific intent to commit a sex act against her.
5
Newman was sentenced2 in December 2012. This appeal followed.
II. Standard of Review
We review Newman’s challenge to the sufficiency of evidence for errors at
law. See State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). “The trial court’s
findings of guilt are binding on appeal if supported by substantial evidence.”
State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). We 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.’” Sanford, 814 N.W.2d at
615 (quoting State v. Keopasaeuth, 645 N.W.2d 637, 640 (Iowa 2002)).
Substantial evidence exists to support a verdict when the record reveals a
rational trier of fact could find the defendant guilty beyond a reasonable doubt.
Thomas, 561 N.W.2d at 39.
III. Analysis
Newman was convicted of soliciting a sex act with a child and challenges
the sufficiency of the State’s proof on the element of solicitation. See Iowa Code
§ 709.8(3). He does not contest the evidence showed he engaged “in sex acts
2
The court sentenced Newman to a term (1) not to exceed two years in prison on each
of the three counts of indecent contact with a child, (2) not to exceed twenty-five years
on each of the three counts of second-degree sexual abuse—no parole or work release
until he has served 7/10ths of the maximum term, and (3) not to exceed five years on
each of the three counts of lascivious acts with a child. These sentences run
concurrently. The court also ordered Newman to serve a term not to exceed five years
on each of the three counts of incest—those terms to run concurrently with each other
but consecutively to the other Iowa sentences. The court ordered Newman’s Iowa
sentence to be served consecutively to his Nebraska sentence and also ordered
Newman “shall not be given credit for time served in Nebraska for his Iowa sentence.”
On the counts of indecent contact with a child, lascivious acts with a child, and incest,
the court ordered Newman to serve “an additional special sentence” of ten years
“pursuant to section 903B.2.” The court ordered Newman to register as a sex offender.
6
with his daughter during each of the Boy Scout camping trips.” Newman claims,
however, the “only act of solicitation was in the initial request for her to disrobe.
He did not ask for her permission to have sexual contact. He never offered her
any candy, money, gifts, or favors to let him engage in a sex act with her.”
Newman claims there is a lack of substantial evidence in the record that he
commanded, entreated, or otherwise attempted to persuade E.N. to engage in a
sex act.
Chapter 709 of the Iowa Code does not define the term “solicit.” But
Chapter 705 defines the offense of “solicitation” as:
Any person who commands, entreats, or otherwise attempts to
persuade another to commit a particular felony or aggravated
misdemeanor, with the intent that such act be done and under
circumstances which corroborates that intent by clear and
convincing evidence, solicits such other to commit that felony or
aggravated misdemeanor. One who solicits another to commit a
felony of any class commits a class “D” felony.
Id. § 705.1 (emphasis added). The definition in section 705.1 “mirrors the
generally accepted meaning of the term.” State v. Propp, 532 N.W.2d 784, 786
(Iowa 1995); see Hajek v. Iowa State Bd. of Parole, 414 N.W.2d 122, 124 (Iowa
1987) (“Laws can be more readily understood and uniformly applied when terms
do not shift in meaning from one statute to another.”).
Our supreme court recognizes the “word ‘solicit’ connotes ‘asking or
urging’ conduct.” State v. Shearon, 660 N.W.2d 52, 56-57 (Iowa 2003). The
crime is “in the asking.” State v. Anderson, 618 N.W.2d 369, 372 (Iowa 2000);
see Propp, 532 N.W.2d at 786 (stating “the ultimate success or failure of the
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solicitation is irrelevant”); State v. Williams, 315 N.W.2d 45, 50 (Iowa 1982)
(stating the solicitation “is committed when the inducement is attempted”).
Newman claims he only asked his daughter to disrobe in their tent while
they were alone and never asked her to perform sex acts. We note Newman
does not challenge the intent element of the crime. Viewing the evidence in the
light most favorable to the State including all reasonable inferences that may be
fairly drawn from the evidence, we find no error in the district court’s conclusion:
“Stewart Newman entreated E.N. to remove her clothes on each of the three
[November] evenings [in 2007, 2008, and 2009] with the specific intent to commit
a sex act against her.” (Emphasis added.) Because the crime of solicitation is
“in the asking,” Newman asking his eight-year-old daughter to take her clothes off
while they were alone in a tent together so that he could have sexual contact with
her is an act of solicitation.3
Alternatively and additionally, Newman solicited a sex act with E.N. when
he commanded or entreated or asked her to turn over after he had completed his
sexual acts with her vagina. That second solicitation was made in order for
Newman to commit additional sex acts, this time with his daughter’s buttocks.
Because he told her to “turn over” and then immediately proceeded to have
sexual contact—including ejaculation—a rational trier of fact could find that
Newman solicited E.N. when he asked her to turn over—he made that request in
order to facilitate an illicit act.
3
We also note the victim’s initial refusal to disrobe in 2009 shows she knew why her
father was asking her to disrobe.
8
The evidence amply supports the court’s finding Newman committed the
crime of lascivious acts by soliciting a child to engage in a sex act. We therefore
affirm the judgment and sentence of the district court.
AFFIRMED.