State v. Alvarado, 14–0889.

Citation875 N.W.2d 713
Decision Date26 February 2016
Docket NumberNo. 14–0889.,14–0889.
Parties STATE of Iowa, Appellee, v. Aquiles Gonzalez ALVARADO, Appellant.
CourtUnited States State Supreme Court of Iowa

875 N.W.2d 713

STATE of Iowa, Appellee,
Aquiles Gonzalez ALVARADO, Appellant.

No. 14–0889.

Supreme Court of Iowa.

Feb. 26, 2016.

875 N.W.2d 714

Benjamin Bergmann and Gina M. Christensen Messamer (until withdrawal) of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry, Brown & Bergmann, L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Tyler Buller, Jean Pettinger, and Louis S. Sloven, Assistant Attorneys General, and Alan Ostergren, County Attorney, for appellee.

HECHT, Justice.

A jury convicted Aquiles Alvarado of two counts of lascivious acts with a child because it concluded Alvarado inappropriately touched his granddaughter's genitals over her clothing on more than one occasion. See Iowa Code § 709.8(1) (2013).1 Alvarado contends the evidence does not support his convictions because he only touched his granddaughter over her clothing and a person does not "touch the pubes or genitals of a child" within the meaning of section 709.8(1) if they do not make skin-to-skin contact. The district court and court of appeals both rejected Alvarado's assertion, and on further review, so do we. Therefore, we affirm Alvarado's convictions.

I. Background Facts and Proceedings.

Alvarado co-owned a clothing store in Muscatine with his wife Maria Morfin, and he also worked there part time. The store had a sales floor, a back room that doubled

875 N.W.2d 715

as an employee break room and storage area, and a fitting room. Morfin, who only speaks Spanish, often operated the store with assistance from her bilingual nine-year-old granddaughter I.M., who served as an interpreter. On July 18, 2013, Morfin and I.M. were at the store when Alvarado arrived around 11:00 a.m. after completing a shift at his second job. He took over supervising I.M. and the store while Morfin went home for lunch.

After Morfin left, Alvarado asked I.M. to make him coffee using the coffee machine located in the store's back room. As I.M. was making the coffee, Alvarado entered the back room and turned off the lights. He hugged I.M., then kissed her upper chest and neck, reached between her legs, touched her genitals over her clothes, and told her, "I love playing with your beautiful body." After a brief time, he stopped abruptly and returned to the sales floor.

Although Morfin had intended to go home, she reached her car in the parking lot and remembered she needed a money order from the bank for a shipment of shoes to be delivered to the store later that day. She obtained the money order and returned to the store so that Alvarado would have it in case the shipment arrived while she was away. As she returned, she noticed the sales floor was empty and saw Alvarado quickly leaving the back room. She went into the back room, turned the lights on, and saw I.M. with a flushed red neck and upper chest. I.M. explained what had happened, so Morfin called her daughter (I.M.'s mother), who in turn contacted the police.

Based on I.M.'s report to an investigating officer that Alvarado had touched her genitals on several other occasions throughout the summer of 2013 before the incident at the store, the State charged Alvarado with four counts of committing lascivious acts with a child. See id. Alvarado pled not guilty and the case proceeded to trial. At trial, I.M. testified she had not alerted anyone about Alvarado's conduct before July 18 because she was scared.

Alvarado moved for a directed verdict of acquittal both after the State's evidence and after presenting his own, contending a conviction under section 709.8(1) must be supported by proof of skin-to-skin contact but the State proved only that he had touched I.M. over her clothing. The court denied both motions. The jury returned a verdict convicting Alvarado of two counts of lascivious acts with a child.

Alvarado appealed his convictions, and we transferred the case to the court of appeals. That court affirmed, concluding section 709.8 is unambiguous because the verb "touch" means "to perceive or experience through the tactile sense" and I.M. testified she experienced a tactile sense despite the fact her clothes covered her genitals. Alvarado sought further review, and we granted his application.

II. Scope of Review.

Alvarado asserts the evidence was insufficient to convict him. "We review challenges to the sufficiency of evidence presented at trial for correction of errors at law." State v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011). "[W]e review the evidence in the light most favorable to the State to determine if, when considered as a whole, a reasonable person could find guilt beyond a reasonable doubt." State v. Pearson, 514 N.W.2d 452, 456 (Iowa 1994).

The sufficiency of the evidence in this case turns on whether section 709.8(1) requires skin-to-skin contact—a question of statutory interpretation that we also review for correction of errors at law. See

875 N.W.2d 716

State v. Paye, 865 N.W.2d 1, 3–4 (Iowa 2015). If the statute requires skin-to-skin contact, the evidence is insufficient to support the verdict because all the trial testimony indicated Alvarado touched I.M. over her clothes. However, if the statute does not require skin-to-skin contact, I.M.'s testimony provides sufficient evidence to affirm the convictions.

III. The Parties' Positions.

A. Alvarado. Alvarado contends section 709.8(1) requires skin-to-skin contact because section 709.12, the statute prohibiting indecent contact, specifically addresses touching over clothing, while section 709.8(1) does not. See Iowa Code § 709.12(2) (providing a person commits indecent contact with a child by "[t]ouch[ing] the clothing covering the immediate area of the inner thigh, groin, buttock, anus, or breast of the child"). In Alvarado's view, this omission from section 709.8(1) was purposeful because it prevents overlap between the separate crimes of lascivious acts and indecent contact.

B. The State. The State responds with a multifaceted argument probing purported deficiencies in Alvarado's assertion. First, it contends, there is no need to consider section 709.12 because there is no ambiguity in the plain language and meaning of the word "touch" in section 709.8. See People v. Pifer, 350 P.3d 936, 938 (Colo.App.2014) (concluding touching through clothes and a sheet "falls within the plain and ordinary meaning of ‘touching’ " because the victim experiences a tactile sense).

Second, the State asserts, section 709.8 and section 709.12 address separate parts of the body and "create disparate offenses based on the perceived harmfulness of each." In other words, the "pubes or genitals" described in section 709.8 are different from the inner thigh and groin described in section 709.12. See State v. Shearon, 660 N.W.2d 52, 56 (Iowa 2003) (contrasting lascivious acts with indecent contact by noting "the crime of indecent acts criminalizes the touching or fondling of non-genital body parts, e.g., inner thigh, groin, buttock, anus or breast"). Thus, given the distinction this court drew in Shearon, the State contends the two statutes simply address different harms and there is no overlap, nor does the omission of "over the clothes" language from section 709.8 indicate the legislature intended to permit over-the-clothes touching of the pubes or genitals.

Finally, the State contends interpreting section 709.8(1) to require skin-to-skin contact is unsupportable because it would produce absurd results. For example, if skin-to-skin contact is required, a person could touch a child's naked genitals and not commit lascivious acts as long as they wear a glove—or even a thimble.

IV. Analysis.

A "sex act" under section 702.17 includes "[c]ontact between the finger or hand of one person and the genitalia ... of another." Iowa Code § 702.17. "[S]kin-to-skin contact is not required in order to establish a ‘sex act’ under section 702.17." Pearson, 514 N.W.2d at 455. However, this case does not directly involve section 702.17 because section 709.8 does not prohibit "sex acts." See Iowa Code § 709.8(1). Instead, the subsection under which the State charged Alvarado prohibits certain sexual touching. See id.

But that does not mean Pearson is irrelevant to our analysis despite its focus on different language. The gist of Alvarado's argument in this case is that touching under section 709.8 does not constitute "sexual contact" when the touching occurs through a layer of clothing. Yet "touch" means "to bring a bodily part into contact with." Touch, Merriam–Webster's Collegiate

875 N.W.2d 717

Dictionary (10th ed.2002). The word "touch" literally references the word "contact." We conclude Pearson, though not directly controlling, remains...

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