State v. Evans

• Decision Date: 13 November 2003
• Docket Number: No. 02-0668.,02-0668.
• Citation: 671 N.W.2d 720
• Parties: STATE of Iowa, Appellee, v. Hubert Gene EVANS, Appellant.
• Court: Iowa Supreme Court

671 N.W.2d 720

STATE of Iowa, Appellee, v. Hubert Gene EVANS, Appellant.

No. 02-0668.

Supreme Court of Iowa.

November 13, 2003.

Raymond M. Tinnian, Bjorklund Law Firm, LLC, Coralville, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, William E. Davis, County Attorney, and Robert Bradfield, Assistant County Attorney, for appellee.

STREIT, Justice.

A man claiming to have a foot fetish appeals his convictions for stalking and two counts of harassment. He alleges there is insufficient evidence to support the convictions, his first amendment rights were violated, extreme prejudice demanded a change of venue, and his sentence was unreasonable. After reviewing the record, we reject these arguments and affirm the district court on all counts.

I. Background and Facts

The evidence, as viewed most favorably to the state, reveals the following facts. Hubert Gene Evans has a foot fetish. He is also, it appears, a published photographer.¹ While a nursing student at Scott County Community College in the late 1990s, Evans asked Rebecca Arnold if she would let him photograph her feet. Evans told Arnold he took pictures for a magazine in New York and had helped other women become "big models." Arnold declined Evans' offer.

In 1998, Evans called Arnold at her house, and left a message with Arnold's father. Evans called a second time. Arnold's father told him not to call her again.

In 2000, Arnold saw Evans in a drug store parking lot. As Arnold made her way from her car to the store, Evans asked her if he could take pictures of her feet. He told her he would like her "legs bare and apart." A nervous and repulsed Arnold again declined Evans' offer, and went into the store.

On August 7, 2001, Evans called Arnold's house and left his phone number and a message with Arnold's mother. In the message, Evans said he had a surprise for Arnold. Arnold did not return Evans' phone call. Worried Evans would discover where she lived, Arnold called the police the next day. At a later date, this incident resulted in a charge of harassment, of which a jury found Evans not guilty.

On August 31, 2001, Evans went to Arnold's house. Evans asked Arnold if she would be willing to play a dominant female role in a new pictorial he was producing about Dred Scott. Arnold told Evans she thought it was weird. Evans replied, "Well, I do weird things because I'm a weird guy." Evans offered Arnold $100 simply to read his script. Arnold repeatedly said she wasn't interested. After Evans left, Arnold called the police. This encounter, too, would later result in another harassment charge against Evans. On this count, a jury found him guilty.

After this incident, Arnold saw Evans' phone number on her caller identification screen four or five times.

On September 21, 2001, Arnold went to a car wash. While standing at a change machine, Evans approached her. Evans told her he noticed she had gotten a new car. As she fled the car wash, Arnold, attempting to mislead Evans, told him the car wasn't hers. Arnold left without getting her change or washing her car. That evening, Evans called Arnold at home. Arnold "told him [she] wasn't interested" and immediately hung up.

On September 25, 2001, Evans and a friend went to Arnold's house. A frightened Arnold asked her mother to answer the door and to tell Evans she wasn't home. Evans told Arnold's mother to let Arnold know he had dropped by and wanted to take photographs of her. As Evans left, Arnold's mother noticed Evans was wearing "red strap high heels" and had painted his toenails red. Eventually, the State charged Evans with a third count of harassment for this second incident at Arnold's home, and a jury again found him guilty.

On October 12, 2001, Arnold saw a woman standing outside her front door. When Arnold opened the door, Evans, who apparently had been bent over in front of the woman, "pop[ped] up" and asked Arnold for a drink of water. Arnold cussed at Evans, told him to "get off my property," and slammed the door shut. Arnold called the police. She then went to her window in order to try to catch Evans' license plate. Evans smiled and waved at Arnold. This incident did not result in a harassment charge, but was used to prove Evans stalked Arnold.

Evans was arrested for all these incidents and tried by jury for first-offense stalking (Count I) and three counts of first-degree harassment (Counts II-IV). See Iowa Code §§ 708.11, 708.7 (2001). Whereas the stalking charge drew upon the entire course of the defendant's conduct which culminated with Evans' appearance at Arnold's house on October 12, the three harassment charges were focused upon three discrete incidents, as indicated above: 1) on August 7, 2001, when Evans left a message for Arnold indicating he had a "surprise" for her (Count II); 2) on August 31, 2001, when Evans asked Arnold to read his "script" (Count III); and 3) on September 25, 2001, when Evans went to Arnold's house in high heels and with painted toenails (Count IV). The harassment charges were elevated to the first-degree because Evans had previously been convicted of harassment four times. See id. § 708.7(2) (enhancing harassment charge to the first-degree where defendant has three or more convictions for harassment within the previous ten years).

A jury convicted Evans of stalking and two counts of first-degree harassment. The jury acquitted Evans of Count II. The judge sentenced Evans to a term not to exceed two years of prison for each conviction, to be served consecutively. He also ordered Evans to pay $3000 in fines.

On appeal, Evans claims there is insufficient evidence to support the convictions, his first amendment rights were violated, extreme prejudice demanded a change of venue, and his sentence was unreasonable. We now consider each of these claims, in turn.

II. The Merits

A. Insufficiency of Evidence & Free Speech Claim

Evans claims the district court erred in denying his motion for a judgment of acquittal, because there was insufficient evidence to support his convictions for stalking and harassment. In tandem with this argument, Evans contends he could not have committed harassment because his actions were protected by his right to free speech. See U.S. Const. amend. I. We recently considered and rejected a similar claim in another case involving Evans. See State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003).

As a threshold matter, in this case we refuse to consider Evans' constitutional claim, because Evans did not preserve error. Reviewing the record, we find Evans did not raise this issue in the district court. "Issues not raised before the district court, including constitutional issues, cannot be raised for the first time on appeal." State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997). We now consider Evans' claim there was insufficient evidence presented at trial to support his convictions for harassment and stalking.

We review insufficiency claims for errors at law. State v. Sanborn, 564 N.W.2d 813, 816 (Iowa 1997) (quoting State v. Bayles, 551 N.W.2d 600, 608 (Iowa 1996)). We view the evidence in the light most favorable to the State, and will not disturb a jury verdict unless we find the evidence supporting the conviction was not substantial. Id. "Evidence is substantial if it could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt." Id.

1. Harassment

Evans was convicted of two counts of first-degree harassment in violation of Iowa Code sections 708.7(2) and 708.7(1)(b). In order to address Evans' sufficiency challenge, we review Iowa Code section 708.7(1)(b), which states, in relevant part:

A person commits harassment when the person, purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person....

Iowa Code § 708.7(1)(b). Evans claims that, as a published photographer, his sole purpose in contacting Arnold was to take her picture. Moreover, the defendant maintains he never threatened Arnold; he points out we have yet to sustain a conviction for harassment in the absence of a showing of a threat on the part of the defendant, and therefore ought not to do so here.

We are satisfied a reasonable jury could find the defendant guilty on the charges of harassment beyond a reasonable doubt. Threatening the victim is not a necessary element of our harassment statute. To conclude otherwise would ignore the disjunctive language of section 708.7(1)(b), which forbids a person from "personally and without legitimate purpose... [having] personal contact with another person, with the intent to threaten, intimidate, or alarm that other person." Iowa Code § 708.7(1)(b) (emphasis added); see State v. Anderson, 636 N.W.2d 26, 37 (Iowa 2001) ("We avoid interpreting a statute to render any part of it superfluous.").

There is substantial evidence in the record Evans intended to alarm, if not intimidate, Arnold. Our court has not previously had occasion to define "alarm" for the purposes of Iowa Code section 708.7(1)(b). "In the absence of a legislative definition of a term or a particular meaning in the law, we give words their ordinary meaning." State v. White, 563 N.W.2d 615, 617 (Iowa 1997). To ascertain the ordinary meaning of a word, we may consult the dictionary. Id. The dictionary defines "alarm" as to "cause (someone) to feel frightened, disturbed, or in danger...." The New Oxford American Dictionary 36 (2001).

Evans correctly points out harassment is a specific intent crime. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). Intent is "seldom capable of direct proof," however, and "a trier of fact may infer intent from the normal consequences of one's actions." Evans, 672 N.W.2d at 331 (citing State v. Chang, 587 N.W.2d 459, 462 (Iowa 1998); State v. Farnum, 554 N.W.2d 716, 720 (Iowa Ct.App.1996)).

Given the prior history between the two parties, we believe the evidence...