State v. Rethwisch

• Docket Number: 22-0530
• Decision Date: 30 August 2023
• Parties: STATE OF IOWA, Plaintiff-Appellee, v. JAMES PETER RETHWISCH, Defendant-Appellant.
• Court: Iowa Court of Appeals

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STATE OF IOWA, Plaintiff-Appellee,
v.
JAMES PETER RETHWISCH, Defendant-Appellant.

No. 22-0530

Court of Appeals of Iowa

August 30, 2023

Appeal from the Iowa District Court for Allamakee County, Richard D. Stochl, Judge.

James Rethwisch appeals his conviction for assault with intent to commit sexual abuse.

Kevin Stinn of Swartz Law Firm, PLLC, Waukon, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

Considered en banc.

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AHLERS, Judge.

James Rethwisch appeals his conviction for the crime of assault with intent to commit sexual abuse, in violation of Iowa Code section 709.11(3) (2019). He raises several issues, which we will address in turn after providing some factual background.

I. Factual Background

In 2019, then sixty-three-year-old Rethwisch was drinking at a bar with three other men-Craig, Charlie, and Jake-and his adult niece, who we will refer to as Sonya.^[1] After the bar closed, the five people went to Charlie's apartment for an afterparty where they continued to drink alcohol and smoked marijuana. Eventually, both Jake and Sonya retired to separate bedrooms, as they were both heavily intoxicated. This left Craig, Charlie, and Rethwisch in the kitchen. A little bit later, Rethwisch left the kitchen, telling Charlie he was going to lie down with his niece. Charlie did not view Rethwisch's suggestion as "weird" because Rethwisch was Sonya's uncle, and Charlie figured Rethwisch was staying overnight so no one had to drive.

Sometime later, Craig and Charlie heard Jake vomiting, so they went to check on him. Craig decided to check on Sonya as well. When Craig opened the door and looked in the bedroom where Sonya had gone, he saw Rethwisch jerk and noticed that Rethwisch was over the top of Sonya.^[2] Craig left the bedroom

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door open and went to Charlie to report what he had seen. Charlie expressed disbelief and told Craig to go back and check. When Craig returned to the bedroom the door had been closed to the point that Craig had to turn the knob to reopen it. Upon opening the door a second time, he saw the same thing.

Craig again left the door open and returned to Charlie. This time, both of them returned to the bedroom to find the bedroom door closed again. They opened the door and flipped on the light. They saw Sonya lying flat on her back, unconscious and partially naked. Her shirt and bra were pulled up above her breasts, but below her neck, and her underwear and pants were pulled down around her ankles. Rethwisch was on top of her, and when the light was switched on, he rose to a vertical position while still on his knees. Charlie yelled at Rethwisch, and Rethwisch responded by throwing a punch at Charlie. Craig struck Rethwisch with a plastic guitar, and Rethwisch fled the apartment.

After Rethwisch fled, Sonya began to speak as if she had just regained consciousness. She asked what had happened. When told what had happened, she thanked Craig for what he had done.

Sometime later that morning, Rethwisch sent text messages to Sonya apologizing and asking for Sonya's forgiveness. Law enforcement was notified later that day. As part of the investigation, an officer had Sonya place a telephone call to Rethwisch while the officer recorded the call. During the call, Rethwisch stated, "I don't know if you took them off or I did," referring to Sonya's clothes, and

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"I honestly didn't know who I was with," when Sonya asked if he thought she was someone else.

The law enforcement officer also interviewed Rethwisch. During the interview, Rethwisch expressed relief that Craig and Charlie stopped him when they did because he would have felt worse "if [he] would have had intercourse with [his] niece." Rethwisch also admitted that he intended to commit a sex act.

At trial, Rethwisch testified that he was bullied by the officer and led into saying what he had said, claiming the officer "was throwing things at me that I just hadn't really thought about, and basically I was getting tired of listening to him and I figured, basically, if I agreed with him, he'd shut up."

Additional facts will be discussed as needed.

II. Sufficiency of the Evidence

Rethwisch's first challenge is to the sufficiency of the evidence supporting his conviction.

A. Standard of Review

We review sufficiency-of-the-evidence claims for correction of errors at law. State v. Crawford, 972 N.W.2d 189, 202 (Iowa 2022). When a jury has delivered a verdict, we are bound by it if it is supported by substantial evidence. Id. Substantial evidence is evidence sufficient to convince a rational factfinder that the defendant is guilty of the crime beyond a reasonable doubt. Id. In assessing a sufficiency-of-the-evidence challenge on appeal, we view all evidence in the light most favorable to the State. Id.

B. Elements of the Offense

Three jury instructions inform our discussion of Rethwisch's challenge. The

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first of these instructions is the marshaling instruction,^[3] given to the jury as instruction number seventeen. It stated:

The State must prove both of the following elements of assault with intent to commit sexual abuse:

1. On November 25, 2019, James Rethwisch committed an act which was intended to cause pain or injury or result in physical contact which would be insulting or offensive to another person or place another person in fear of an immediate physical contact which would have been painful, injurious, insulting or offensive to the other person.

2. Defendant committed the act with the intent to commit sexual abuse as that term is described in instruction number eighteen[.]

If the State has failed to prove either of the above elements, defendant is not guilty of the offense of assault with intent to commit sexual abuse and you shall consider the offense of Simple Assault as set forth in instruction number twenty.

Jury instruction eighteen stated:

Any "sex act" between persons, as defined in instruction number nineteen, is sexual abuse by either of the persons when the act is performed with the other person in any of the following circumstances:

1. The act is done by force or against the will of the other. If the consent or acquiescence of the other is procured by threats of violence toward any person or if the act is done while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness, the act is done against the will of the other.

2. Such other person is suffering from a mental defect or incapacity which precludes giving consent, or lacks the mental capacity to know the right and wrong of conduct in sexual matters.

Jury instruction nineteen stated:

Concerning element number one of instruction number eighteen, "sex act" means any sexual contact:

1. By penetration of the penis into the vagina.

2. Between the mouth of one person and the genitals of another.

3. Between the genitals of one person and the genitals of another.

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4. Between the finger or hand of one person and the genitals of another.

You may consider the type of contact and the circumstances surrounding it in deciding whether the contact was sexual in nature.

Although Rethwisch unsuccessfully objected to nuances of the marshaling instruction before the district court, he does not repeat the challenges here. So, the instructions become the law of the case for purposes of assessing his sufficiency-of-the-evidence challenge. See State v. Schiebout, 944 N.W.2d 666, 671 (Iowa 2020) ("Jury instructions, when not objected to, become the law of the case for purposes of appellate review for sufficiency-of-evidence claims."); State v. Thomas, No. 19-0379, 2020 WL 5651563, at *3-4 (Iowa Ct. App. Sep. 23, 2020) (treating the instructions as the law of the case on a sufficiency-of-the-evidence challenge when the defendant objected to the instructions at trial but did not challenge the instructions on appeal).

C. Analysis

Rethwisch raises two sufficiency challenges. First, he contends the evidence was insufficient to establish that he committed an assault-implicating the first element listed in the marshaling instruction. Second, he contends the evidence was insufficient to establish that he acted with intent to commit sexual abuse-implicating the second element listed in the marshaling instruction.

The primary themes of Rethwisch's argument are that Sonya could not recall what happened in the bedroom and no one saw him assault Sonya. While this may be true, it ignores a great deal of other direct and circumstantial evidence. Direct and circumstantial evidence are equally probative. State v. Ernst, 954 N.W.2d 50, 57 (Iowa 2021). Likewise, "[j]uries must necessarily make inferences

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when finding facts based on circumstantial evidence." Id. at 59. Those inferences can be stacked, so long as the ultimate fact finding is based on evidence in the record rather than speculation. Id.

So, we look at the direct and circumstantial evidence. Based on the evidence presented, a reasonable juror could conclude the following. Rethwisch was found on top of Sonya multiple times while she was unconscious with her shirt and bra pulled up to her neck with her breasts exposed and her pants and underwear pulled down around her ankles, exposing her genitals. A rational juror could conclude that Rethwisch, as the only conscious person in the room, was the one responsible for moving Sonya's clothes to reveal her breasts and genitals. This is evidence of an assault, as a rational juror could conclude that Rethwisch had to have engaged in insulting or offensive contact with the unconscious Sonya in order to move her clothes in such a manner. This is also evidence of intent to perform a sex act, which, when performed upon an unconscious Sonya, would constitute intent to commit sexual abuse. See Iowa Code §...