State v. Constable, 92-459

• Citation: 505 N.W.2d 473
• Decision Date: 25 August 1993
• Docket Number: No. 92-459,92-459
• Parties: STATE of Iowa, Appellee, v. Billy Dale CONSTABLE, Sr., Appellant.
• Court: United States State Supreme Court of Iowa

Page 473

505 N.W.2d 473

STATE of Iowa, Appellee, v. Billy Dale CONSTABLE, Sr., Appellant.

No. 92-459.

Supreme Court of Iowa.

Aug. 25, 1993.

Linda Del Gallo, State Appellate Defender, and Patricia Reynolds Lapointe, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Sheryl A. Soich, Asst. Atty. Gen., and James J. Koll, County Atty., for appellee.

Considered by McGIVERIN, C.J., and LAVORATO, NEUMAN, SNELL, and ANDREASEN, JJ.

SNELL, Justice.

The appellant, Billy Dale Constable, Sr., challenges his conviction in a jury trial of five counts of sexual abuse in the second degree pursuant to Iowa Code section 709.3(2) (1991). Constable claims the district court erred in: (1) failing to instruct the jury on sexual abuse in the third degree, assault with intent to commit sexual abuse, and simple assault as lesser included offenses of sexual abuse in the second degree; (2) allowing trial and sentencing of five counts of the crime in violation of his double jeopardy right; and (3) overruling his motion for judgment of acquittal based on insufficient evidence to find guilt beyond a reasonable doubt of the crimes charged. Constable also requests that we reserve an ineffective assistance of counsel claim for postconviction proceedings. We affirm.

I. Background facts and proceedings.

In the evening of October 18, 1991, Billy Dale Constable, Sr., called a friend J.W. from a bar in Fort Dodge and requested that he stay the night at J.W.'s home. Constable's home had recently been damaged by fire and Constable had stayed with J.W. once or twice. J.W., accompanied by her daughter S.W., and her daughter's friend J.H., drove to the bar, picked up Constable, and returned to J.W.'s home.

J.W. and Constable sat downstairs and drank beer, smoked, and talked. The girls played together in another room. After about an hour, the adults found themselves out of cigarettes, and Constable suggested that J.W. return to his car at the bar for a carton of cigarettes that he had left there. J.W. told the girls that she was going out for cigarettes and left the girls at home with Constable.

After J.W. left, Constable went to the bathroom, undressed, and went to bed in the room of J.W.'s son. The girls then entered the room because S.W. wanted to kiss Constable good night. Constable asked the girls to come in and talk to him for a minute. J.H. testified that Constable, dressed only in a tee shirt, then called S.W. into bed with him.

J.W. returned with the cigarettes after having been gone no more than five or ten minutes. She walked quietly upstairs where she heard voices from her son's bedroom. She testified that she heard Constable order the girls to remove their panties. J.W. then shouted to the girls to go downstairs, Constable dressed, and J.W. drove him to his car. The next day, Constable was informed by Fort Dodge police that he had been accused of sexual abuse.

At trial, Constable asked that the following lesser offenses be submitted to the jury: sexual abuse in the third degree, assault with intent to commit sexual abuse, and simple assault. The district court held that these were not lesser included offenses of sexual abuse in the second degree and refused the request. Constable was found guilty as charged of five counts of sexual abuse in the second degree: count I--contact between Constable's mouth and S.W.'s genitals; count II--contact between S.W.'s mouth and Constable's genitals; count III--contact between Constable's finger and J.H.'s genitals; count IV--contact between Constable's mouth and J.H.'s genitals; and count V--contact between J.H.'s mouth and Constable's genitals. Constable was sentenced to a term of incarceration not to exceed twenty-five years on each of the five counts. The sentences on count I, corresponding to contact with S.W., and count III, corresponding to contact with J.H., were to run consecutively and the remaining three sentences were to run concurrently.

II. Lesser included offenses of sexual abuse in the second degree under Iowa Code section 709.3(2).

A defendant may be found guilty of either the offense charged or any other offense the commission of which is necessarily included in the designated crime. Iowa R.Crim.P. 21(3). Accordingly, the trial court is required to instruct the jury both as to the offense charged and all lesser included offenses. Iowa R.Crim.P. 6(3).

Constable argues that the trial court erred in failing to instruct the jury on sexual abuse in the third degree, assault with intent to commit sexual abuse, and simple assault, which Constable claims are lesser included offenses of sexual abuse in the second degree. Our review is for errors at law. Iowa R.App.P. 4.

The lesser offense is necessarily included in the greater offense if it is impossible to commit the greater offense without also committing the lesser offense. State v. Jeffries, 430 N.W.2d 728, 740 (Iowa 1988). Under the legal elements test, if the lesser offense contains an element which is not required for commission of the greater offense, then the lesser offense cannot be included in the greater. Id. Thus, it would be possible to commit the greater offense without also having committed the lesser offense. We look to the statutory elements rather than the charge or the evidence. Id.

A. Sexual abuse in the third degree.

Constable was tried and convicted of sexual abuse in the second degree under Iowa Code section 709.3(2) (1991). The elements of sexual abuse in the second degree are: (1) a person commits sexual abuse as defined in section 709.1 and (2) the other participant is under the age of twelve. It was undisputed at trial that S.W. was eight years old and J.H. was seven years old when the alleged sex acts occurred.

Two other circumstances exist under which the State may charge an individual with sexual abuse in the second degree. See Iowa Code § 709.3(1), (3) (1991). The State did not allege that either of these situations formed the basis of any of the counts of sexual abuse in the second degree and relied solely on the basis that each child was under the age of twelve.

The elements of sexual abuse in the third degree under Iowa Code section 709.4(1) are (1) a sex act is performed and (2) the act is done by force or against the will of the other participant, whether or not the other participant is the person's spouse or is cohabiting with the person. Constable argues that this offense is necessarily included in sexual abuse in the second degree when the State alleges the participant is under the age of twelve. Constable bases this argument on the legal fiction that a child is not capable of giving consent, therefore any sex act with a child must necessarily be by force and against the child's will. Conversely, the State argues that under our legislative scheme, it is irrelevant whether the act is performed by force or against the will of a child; the youth of the child alone is sufficient to render the perpetrator of a sex act guilty of sexual abuse.

We agree that the legal fiction that a child is incapable of consent should not lead to the conclusion that any act performed on that child was necessarily by force or against the will of the child. When a child is under twelve, a sex act performed on that child constitutes sexual abuse in the second degree, regardless of whether that child understood the nature of the act, was forced to perform a sex act or submit to a sex act, or whether that act was against the child's will. When the State charges an individual with sexual abuse in the second degree and bases that charge on the age of the child, sexual abuse in the third degree based upon whether the act is done by force or against the will of the victim is not a lesser included offense.

In State v. Lampman, 345 N.W.2d 142 (Iowa 1984), we held that sexual abuse in the third degree is not a lesser included offense of sexual abuse in the second degree when the sex act occurs with a participant under twelve because sexual abuse in the third degree required that the participants in the sex act not be living together as spouses. Our analysis in Lampman does not bear on this issue now because the additional element that was central to the court's analysis in Lampman is no longer included under Iowa law.

B. Assault with intent to commit sexual abuse and simple assault.

Assault with intent to commit sexual abuse under Iowa Code section 709.11 occurs when a person: (1) commits simple assault under section 708.1, with (2) the intent to commit sexual abuse. Iowa Code § 709.11 (1991).

Simple assault under Iowa Code section 708.1 is: (1) an act which is intended to cause pain or injury to or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act; (2) an act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act; or (3) intentionally pointing any firearm toward another, or displaying in a threatening manner any dangerous weapon toward another. Iowa Code § 708.1 (1991).

We believe that the legislature recognized that an adult may have contact with a child which that child may not recognize as inappropriate; a sex act with a child may not necessarily occur by force or against the child's will. Consistent with this principle, it is also possible that a sex act performed with a child may not be painful, injurious, insulting, or offensive to that child or place the child in fear of immediate physical contact which will be painful, injurious, insulting, or offensive.

In State v. Mateer, this court faced the question of whether simple assault was a lesser included offense of indecent contact with a child. We stated:

Assault does not fit the indecent contact mold. The third element of assault--that the intended physical contact must be painful, injurious,...