State of Iowa v. Clarence Elton Widner ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0627
Filed May 11, 2022
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CLARENCE ELTON WIDNER,
Defendant-Appellant.
_________________________________________________________________
Appeal from the Iowa District Court for Buchanan County, Melissa Anderson-
Seeber, Judge.
A defendant appeals his conviction and sentence for failing to comply with
the sex offender registry requirements, second or subsequent offense, as a habitual
offender. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by May, P.J., and Schumacher and Badding, JJ.
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SCHUMACHER, Judge.
Clarence Widner appeals his conviction and sentence for violating the terms
of the sex offender registry. He contends there is insufficient evidence that he had
the requisite knowledge of the requirements imposed by the registry. He also
alleges the district court considered an improper factor when sentencing him. We
find sufficient evidence to affirm the conviction and conclude the district court did
not consider an improper factor during sentencing. Therefore, we affirm.
I. Background Facts & Proceedings
Widner has been a tier-three registered sex offender in Buchanan County
since 2000, a period of around twenty years at the time of the proceedings subject
to this appeal. As a tier-three offender, he was required to meet with the sheriff’s
office four times per year.
In November 2019, Widner was living with an individual and had registered
this person’s address with the Buchanan County Sheriff’s Department. On
November 29, Widner and the individual had a falling out. As a result, the individual
drove Widner to a homeless shelter in Waterloo. This individual later contacted the
Buchanan County Sheriff’s Department and informed the Department that Widner
was no longer residing with him.
A Buchanan County deputy confirmed that Widner was staying at the
homeless shelter on December 10, a period of over five days from his previous
address. The deputy requested and obtained a warrant for Widner’s arrest. The
State charged Widner with two counts of failure to comply with the sex offender
registry requirements. Count one alleged Widner failed to inform the sheriff of a
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change in a temporary residence. Count two alleged Widner failed to inform the
sheriff of a change of residence to a different jurisdiction.
After a bench trial on December 9, 2020, the court found Widner guilty of
failing to comply with the sex offender registry requirements, second or subsequent
offense, as a habitual offender, in violation of Iowa Code sections 692A.103, .105,
.111, 902.8, and 902.9(1)(c) (2019).
A presentence investigation report (PSI) was completed, and a sentencing
hearing was conducted. The court first sentenced Widner on a separate probation
revocation, in which the court revoked probation and imposed a fifteen-year
sentence. The court then imposed a fifteen-year sentence on the challenged
conviction, subject to a mandatory minimum of three years. The court ran this
sentence consecutively to the sentence imposed on the probation revocation. The
court dismissed count two as part of the sentencing order. Widner timely appeals.
II. Standard of Review
Our standard of review in a sufficiency-of-the-evidence challenge is for
errors at law. State v. Spies, 672 N.W.2d 792, 796 (Iowa 2003). The district court’s
finding of guilt is binding on us unless we find there was not substantial evidence in
the record to support such a finding. Id. In determining whether there was
substantial evidence, we review the record evidence in the light most favorable to
the State. Id. Substantial evidence means such evidence as could convince a
rational trier of fact that the defendant is guilty beyond a reasonable doubt. State
v. Sutton, 636 N.W.2d 107, 110 (Iowa 2001).
With respect to a challenge to a sentence, when a defendant’s sentence is
within the statutory limitations, we review the district court’s decision for an abuse
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of discretion, our most deferential standard of review. State v. Roby, 897 N.W.2d
127, 137 (Iowa 2017). We will reverse the sentence only if the court abused its
discretion or considered improper sentencing factors. State v. Formaro, 638
N.W.2d 720, 724 (Iowa 2002). “When assessing a district court’s decision for abuse
of discretion, we only reverse if the district court's decision rested on grounds or
reasoning that were clearly untenable or clearly unreasonable.” State v. Plain, 898
N.W.2d 801, 811 (Iowa 2017). “Grounds or reasons are untenable if they are
‘based on an erroneous application of the law or not supported by substantial
evidence.’” Id. (quoting State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014)).
III. Sufficiency of Evidence
Widner alleges there is insufficient evidence to support his conviction.
Specifically, Widner contends there is insufficient evidence that he knew or
reasonably should have known about the registration requirements imposed
because of his sex offender status. “In making determinations regarding the
sufficiency of the evidence, we view the evidence in the light most favorable to the
state, regardless of whether it is contradicted, and every reasonable inference that
may be deduced therefrom must be considered to supplement that evidence.”
State v. Lilly, 930 N.W.2d 293, 298 (Iowa 2019).
Widner was convicted under Iowa Code sections 692A.103, .105 and .111.
Section 692A.103 requires a person convicted of certain sex offenses to register as
a sex offender and comply with the requirements of the registry. Section 692A.105
requires a registered sex offender to “appear in person to notify the sheriff . . . of
any location in which the offender is staying when away from the principal residence
of the offender for more than five days.” Finally, section 692A.111 notes that to
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violate the requirements of the registry, the offender must “know[ ] or reasonably
should know of the duty to fulfill a requirement specified in [chapter 692A].”
Therefore, to convict Widner, proof of three elements was necessary: (1) Widner
was a registered sex offender; (2) he failed to inform the sheriff of a change in
temporary lodging; and (3) he knew or should have known of the requirement to
inform the sheriff. Widner only challenges the final element—whether he knew or
reasonably should have known of the requirement to inform the sheriff.
Widner alleges the State failed to show he knew about the requirement to
inform the sheriff of a temporary change in lodging. Deputy Conklin, the
administrative office deputy for the Buchanan County Sheriff’s Office, testified that
Widner needed to update and verify his information with the office four times per
year. During those in-person meetings, Conklin presented Widner with a seven or
eight page document that contained the rules and requirements he was expected
to follow. According to Deputy Conklin, that document came “verbatim through the
Code of Iowa that lists what [the offender’s] restrictions are, what they’re required
to do as a registered sex offender.” Copies of the document are made available to
offenders. Offenders are required to sign the document at each meeting. Because
Widner had been registered for nearly twenty years, he was required to meet with
the sheriff’s department of the county in which he was residing around eighty times.
The State did not move to admit the documentation that Widner signed during his
meetings with the sheriff’s department. However, the evidence supports a
determination that Widner knew, or at least reasonably should have known, about
the registration requirement from the times he was presented the documentation
containing the statutory requirements his registration status entailed. See State v.
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Holmes, No. 14-0622, 2015 WL 576088, at *2–3 (Iowa Ct. App. Feb. 11, 2015)
(finding testimony “minutes show[ing] an employee of the sheriff’s office would
testify concerning, ‘when the defendant had registered, the process for registration
or updating information, and the rules/regulations that are provided to the defendant
each time he registers,’” among other details, was sufficient to show the defendant
knew about the registry requirements).
Widner contends this case is similar to State v. Adams, where this court
found a defendant did not have knowledge of the registry’s requirements. No. 09-
1499, 2010 WL 3894440, at *7 (Iowa Ct. App. Oct. 6, 2010). But that case is readily
distinguishable. First, the Adams case “went to trial on a very limited, two-page,
agreed-upon record.” Id. Further, the court found that the two-page record
contained “no evidence” that Adams was informed of the requirement to register
within a certain amount of time. Id. The court found that merely registering with
the sheriff was insufficient to impute knowledge of other requirements. Id. Here,
the record evidences more than just a statement that Widner was required to
register. Widner met with the sheriff’s department roughly eighty times over a
period of twenty years and received or was offered written registry requirements at
each meeting.
While Deputy Conklin did not specifically state that the documents Widner
signed “contained section 692A.105,” we draw every reasonable inference from the
evidence in the record. See Lilly, 930 N.W.2d at 298. Deputy Conklin’s
uncontested testimony was that a verbatim recitation of the statutory requirements
imposed on Widner was in the documents provided to Widner at each meeting.
And at the time of this trial, Widner was on probation for a previous conviction for
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failing to register. Would the record be bolstered if the State had offered the
documentation from Widner’s file? Certainly. But on this record we find substantial
evidence to convince a rational trier of fact of Widner’s guilt beyond a reasonable
doubt.
IV. Sentencing
Widner alleges the district court considered improper information during
sentencing. When “a sentence imposed is within the statutory limits, as it is here,
we review for an abuse of discretion.” State v. Majors, 940 N.W.2d 372, 385 (Iowa
2020). Sentencing decisions are given a strong presumption of validity. Id. at 385–
86. However, a court may not consider “unproven or unprosecuted offense[s] when
sentencing a defendant unless (1) the facts before the court show the accused
committed the offense, or (2) the defendant admits it.” State v. Witham, 583 N.W.2d
677, 678 (Iowa 1998) (per curiam).
Widner contends the district court improperly considered information in the
PSI. In particular, Widner argues the court should not have considered information
in the employment history section, which recites that Widner, while at work,
inappropriately touched minors and then masturbated in the bathroom. That
information stems from Widner admitting to the inappropriate touching following a
polygraph examination in 1997 while he was on probation. During the sentencing
hearing, defense counsel stated:
[Widner and counsel] don’t have any additions, changes or
subtraction, however, both Mr. Widner and myself do object to the
[c]ourt, I guess, weighing some of the factors mentioned in the PSI as
factors for the sentencing determination in this case; specifically, any
allegation of any inappropriate contact between my client and a third
party that did not result in criminal charges and/or convictions. We
believe that [Widner] has not had the opportunity to benefit from the
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judicial system, and because of that, your Honor, they can only be
considered as allegations not as factors.
Counsel clarified that his objection related to a Department of Human Services
“report involving Winder and potentially his stepdaughter, also allegations involving
[Widner] and workers at a restaurant,” which counsel stated appeared on “page 6
under employment history comments” and on “page 10 under marital relationship
dynamics.” The state added that the admission was used in a previous probation
revocation proceeding. The court responded:
The [c]ourt will not consider anything about the current pending
situation Mr. Widner has. He is surrounded by the presumption of
innocence, and I take that very seriously. I will not consider any new
charges against him. I will not consider anything to do with the
Department of Human Services or any of their findings that do not
lead to any criminal prosecutions in this case. Any admissions,
however, Mr. Widner, that you made, I will be considering in the
sentence that I ultimately impose in this case.
The district court highlighted the reasoning for the sentence as the need for
protection of the community, rehabilitation of the defendant, Widner’s age, prior
record, employment history, and nature and circumstances of the offense. The
court emphasized that it believed Widner intentionally and repeatedly violated the
terms of the registry.
I’ve considered your request, I’ve considered the requests of
your attorney, as well as the requests of the county attorney, and I’ve
also considered all the sentencing options that are available in
Chapters 901 and 907 of the Code of Iowa. And my judgment for
this sentence is based on what I believe would provide maximum
opportunity for your rehabilitation, as well as protecting the community
from further offenses by you. And in structuring this sentence, I
specifically consider your age, your prior record, your employment
history, your circumstances at the time of the offense, the nature of the
offense of this, and the fact that it is designed to do to protect people
in the community.
So the bottom line, Mr. Widner, pursuant to [section] 902.9 of
the Code, you’re committed to the Iowa Department of Corrections for
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a term not to exceed 15 years in prison. There will be a three-year
minimum sentence. You are ordered that the Iowa Medical and
Classification Center is the receiving center at Oakdale, Iowa, and the
Buchanan County Sheriff will transport you to that facility. You’re
also given credit for time served.
The decision that I need to make in your case specifically is
whether this sentence runs concurrent as you and your counsel are
asking for or consecutive, which is what the State is asking from me.
And I’ve got to tell you, Mr. Widner, you strike me that you are an
intelligent man. You understand things, you are very conversant,
and I fully believe that you know exactly what you need to do for the
registry. You choose not to follow the rules. You told me that you
weren’t planning on living in Delaware County so that’s why you didn’t
register. Well, that’s not the way the registry is designed. And in
the current case, you didn’t—I’m sure you didn’t plan on living in Black
Hawk County, but you were already on probation for an offense that
you knew you have to keep law enforcement and the registry up to
date on where you’re at and what your activities are. That’s the
whole point they have advance notice—they have notice of where
you’re living. It is really important. In the PSI, it’s pretty clear that
you have a diagnosis of pedophilia. And I’m sure that’s something
that you are going to struggle with your entire life. And I’m sure you
want to control those impulses, but that’s even more important why the
registry is critical that you follow it.
I have reviewed the file. I just simply do not believe that this is
a matter of misunderstanding or homelessness. I think it’s you
simply not wanting to follow the rules. And the fact that this is the
third time in a very short period of time you’re in violation is very
troubling. So I believe we’re at the point— and I want to be very clear
on this—we’re at the point in your life where my job is to protect the
public. And as a result, I’m going to run these two sentences
consecutive to each other. Your attorney said that it seems very
heavy handed for the behavior, but the bottom line is, you have
demonstrated to me that in your view, these don’t apply for you. You
can come up with any sort of excuse not to follow the registry, but I’m
going to give you sufficient time to think about it and encourage you to
study up on every nuance of the registry. Even though I imposed the
sentence, that doesn’t mean you’re going to serve the whole sentence.
With program credits, earned credits, this sentence could be reduced
by as much as half. But I want you to understand your freedom is
completely dependent on you following the rules of the registry. So
for those reasons, I’m running the 15 years consecutive to the 15 years
on your probation revocation . . . .
The court’s written sentencing order set forth the reasons for the sentence
as “most likely to protect society and rehabilitate the defendant based on the nature
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of the offense, defendant’s prior record, and the recommendation of the parties and
for the reasons stated in the PSI, if any.”
The State, in a footnote, suggests the district court did not rely enough on
Widner’s conduct at work to be counted as a factor the court considered. First, we
question whether presenting the argument in a footnote is sufficient raise the issue
on appeal. See Yunek v. Continental Cas. Co., No. 11-1693, 2012 WL 3194113,
at * (Iowa Ct. App. Aug. 8, 2012). In any event, the State’s argument lacks support.
It is true that mere awareness of uncharged offenses is insufficient to overcome the
presumption of validity in sentencing. See State v. Ashley, 462 N.W.2d 279, 282
(Iowa 1990) (“[T]here must be an affirmative showing that the trial judge relied on
the uncharged offenses.”). We do not speculate on the weight the sentencing court
assigned these factors. State v. Zeien Cox, No. 17-0428, 2017 WL 6513976, at *3
(Iowa Ct. App. Dec. 20, 2017). By noting Widner’s prior record and employment
history, the court sufficiently relied on the disputed portion of the PSI to merit our
review. Further, the district court specifically noted that the court would consider
prior admissions, while rejecting any consideration of unproven matters.
As recognized by the district court, a court may not consider an unproven or
unprosecuted offense when sentencing a defendant unless (1) the facts before the
court show the accused committed the offense, or (2) the defendant admits it. See
State v. Mateer, 383 N.W.2d 533, 538 (Iowa 1986); State v. Black, 324 N.W.2d 313,
315–16 (Iowa 1982); State v. Messer, 306 N.W.2d 731, 732–33 (Iowa 1981). At
issue in this case is whether the district court improperly considered an admission
referenced in the PSI.
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A court may properly consider uncharged or unproven offenses if the
defendant admits to the conduct. Witham, 538 N.W.2d at 678. As noted above,
Widner admitted to the conduct after a polygraph examination in 1997. While
Widner objected to the lack of judicial process for the admission, he did not
challenge the accuracy of the actual admission. Such is sufficient to allow the
district court to consider the challenged admission referenced in the PSI. See State
v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998) (the defendant’s lack of “material
corrections” to the PSI allowed the court to consider the defendant’s admission to
the PSI investigator that he had assisted in distribution of cocaine that was charged
but eventually dropped); Witham, 538 N.W.2d at 678 (“The defendant did not claim
the mental health portions of the PSI report were inaccurate . . . . Under these
circumstances, the unchallenged portions of the PSI report constituted sufficient
facts from which the sentencing court could consider” uncharged conduct); State v.
Townsend, 238 N.W.2d 351, 358 (Iowa 1976) (finding that the court could consider
information in the PSI when the information was “unchallenged as to accuracy
except in two minor particulars”); see also State v. Grandberry, 619 N.W.2d 399,
402 (Iowa 2000) (applying Gonzalez to a case where the defendant did not make
the admission to the PSI investigator, but the information was “obtained from other
sources”).
Widner’s appellate brief points to the unreliability of polygraph examinations,
the lack of information showing the admission was voluntary, and the fact that it
would not have been clear to the court where the information came from because
no documents were submitted supporting the admission. Those arguments were
not raised before the sentencing court, with the only challenge being a lack of a
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conviction on the admission. Widner neither challenged the factual validity of the
admission nor that such admission was used to revoke a previously imposed
probationary period. We determine the district court did not abuse its discretion in
considering a prior admission and affirm Widner’s sentence.
AFFIRMED.