State v. Whetstine

• Decision Date: 17 February 1982
• Docket Number: No. 65822,65822
• Citation: 315 N.W.2d 758
• Parties: STATE of Iowa, Appellee, v. David Dean WHETSTINE, Appellant.
• Court: Iowa Supreme Court

Page 758

315 N.W.2d 758

STATE of Iowa, Appellee, v. David Dean WHETSTINE, Appellant.

No. 65822.

Supreme Court of Iowa.

Feb. 17, 1982.

Mary K. Hoefer, Iowa City, for appellant.

Thomas J. Miller, Atty. Gen., Roxann M. Ryan, Asst. Atty. Gen., and Ralph R. Potter, Asst. County Atty., for appellee.

Considered by REYNOLDSON, C. J., and HARRIS, McCORMICK, ALLBEE and McGIVERIN, JJ.

McGIVERIN, Justice.

Defendant David Dean Whetstine appeals from his conviction of third degree sexual abuse in violation of section 709.4(1), The Code 1979. He raises four issues on appeal: 1) whether third degree sexual abuse can be committed by digital penetration of the female genitalia; 2) whether the definition of "sex act" in section 702.17, The Code, is vague and therefore violative of fourteenth amendment due process; 3) whether there was improper admission of testimony concerning three out-of-court identifications of defendant; and 4) whether there was evidence sufficient to support the jury's determination of guilt. We affirm.

The following chain of events appears from the record. In the early morning hours of April 7, 1980, Karen, the victim of the sexual abuse at issue in this appeal, finished work at midnight at her place of employment in Iowa City. She went to the Burlington Street Laundromat, also in Iowa City, to do her laundry. At approximately 2:00 a. m. she noticed a man walking around inside the laundromat reading the bulletin boards. He approached her and asked the time. She told him it was approximately 2:00 a. m.

Karen had insufficient change to operate the dryers in the laundromat. She was going to obtain change at a nearby convenience store but first began to load clothes that had already been dried into the back of her automobile parked in front of the laundromat. As she was placing a load of clothes into the automobile, someone grabbed her from behind. She was forced, face down, into the back of the car.

After a brief struggle, she turned around to face her attacker. It was the man who inquired as to the time in the laundromat. Despite her resistance he continued the attack, threatening to kill her if she screamed. He unfastened her blouse, pants and undergarments. The assailant touched her breasts and inserted his fingers into her vagina. The entire assault occurred within two to four minutes.

After partially composing herself, Karen reported the assault to the police within five minutes, at approximately 2:25 a. m. She gave the police a detailed description of the assailant. Within twenty minutes, a man matching the description was apprehended and brought to the laundromat. Karen identified the man as her assailant. He was the defendant, David Dean Whetstine. Defendant was subsequently identified as the assailant by Karen on two additional occasions.

Defendant was charged by trial information with sexual abuse in the third degree in violation of sections 709.1 and .4, The Code. ¹ After defendant was found guilty by a jury after trial, judgment was entered and sentence pronounced. Defendant appeals.

I. Definition of "sex act" in section 702.17. Defendant contends that trial court erred in its refusal to grant his motions to dismiss and for judgment of acquittal. His contention is premised upon the argument that penetration of the female genitalia with a human finger is not a "sex act" as defined in section 702.17, The Code, and therefore he cannot be guilty of third degree sexual abuse under section 709.4(1) which requires a sex act as an element of the offense. We disagree.

The question defendant raises is one of statutory construction. The polestar of statutory construction is legislative intent. Eggman v. Scurr, 311 N.W.2d 77, 78 (Iowa 1981); State v. Conner, 292 N.W.2d 682, 684 (Iowa 1980). We are, then, essentially asked to interpret section 702.17, The Code, which provides:

The term "sex act" or "sexual activity" means any sexual contact between two or more persons, by penetration of the penis into the vagina or anus, by contact between the mouth and genitalia or by contact between the genitalia of one person and the genitalia or anus of another person or by use of artificial sexual organs or substitutes therefor in contact with the genitalia or anus.

A. Obscenity analogy. When we engage in statutory construction of a particular code section, we must construe the statute in its entirety. City of Des Moines v. Elliott, 267 N.W.2d 44, 45 (Iowa 1978). Defendant uses this well-known rule of statutory construction to argue that there can be no sex act via digital penetration of genitalia under section 702.17 because such behavior is expressly included within the definition of sex act in our obscenity statute, section 728.1(7). Section 728.1(7) provides:

"Sex act" means any sexual contact, actual or simulated, either natural or deviate, between two or more persons, or between a person and an animal, by penetration of the penis into the vagina or anus, or by contact between the mouth or tongue and genitalia or anus, or by contact between a finger of one person and the genitalia of another person or by use of artificial sexual organs or substitutes therefor in contact with the genitalia or anus.

(Emphasis added). Defendant argues that the inclusion of "finger" in section 728.1(7) shows the legislature did not intend to include "finger" in the sex act definition of section 702.17. ² We cannot agree.

The definition of "sex act" in section 728.1(7) is very explicit to avoid a due process challenge on vagueness grounds. See 4 J. Yeager & R. Carlson, Iowa Practice, Criminal Law and Procedure § 44 at 16 (1979). ³ It is also broader than the definition of sex act used in section 702.17, although not as broad as that used in section 728.1(8). K. Dunahoo, The New Iowa Criminal Code: Part II, 29 Drake L.Rev. 491, 543-48 (1980). ⁴ We do not find the omission of "finger" in section 702.17 to be controlling on the issue of the legislature's intent.

B. Prostitution analogy. Defendant also contends that our holding in State ex rel. Clemens v. ToNeCa, Inc., 265 N.W.2d 909 (Iowa 1978), supports his interpretation of section 702.17. In ToNeCa, we found that masturbation by hand was not a sex act under section 99.1, The Code 1975, a civil statute concerning prostitution. Id. at 913. We also found that sale of masturbation by hand was insufficient to make the vendor a "prostitute" under section 725.1, The Code 1977 Supp. Id. Defendant asserts no legitimate distinction can be drawn between the alleged acts of female prostitution in ToNeCa and the assault in the present case. We conclude otherwise.

The facts in ToNeCa indicate the hand was to be used as an instrument of massage, not as a substitute for a vagina. The facts here indicate the defendant's finger was used as a substitute for a penis. ⁵

C. Logic. The final clause of section 702.17, "use of artificial sexual organs or substitutes therefor ...." may be inartfully drafted. It is unclear whether "substitutes therefor" applies to artificial sexual organs or natural sexual organs, or both. "Probably what is meant is an artificial sex organ or a substitute for a sex organ.' " 4 Yeager & Carlson § 44 at 16. "(I)n a sexual abuse case the finger would probably be considered a substitute for a sex organ." Id. § 629 at 155.

We agree that a finger is a substitute for a sexual organ in the present case. It may also be considered as a substitute for an artificial sexual organ. Such an interpretation is just and reasonable. § 4.4(3), The Code. It would not be logical to allow a defendant to be convicted of sexual abuse for using a plastic penis, or a similar inanimate object as a substitute for the plastic penis, but to prohibit his conviction if he used his fingers or hand. The emphasis in the offense of sexual abuse is on the forcible nature of the assault, not on whether defendant used his penis or his finger to carry out the sexual abuse. See Yeager & Carlson § 201 at 57.

D. Other Jurisdictions. The conclusion that digital penetration of genitalia is a sex act that can be the underlying actus reus in sexual abuse, rape, or similar offenses has been reached in other jurisdictions.

In Arizona, sexual assault requires sexual intercourse, which is defined as "penetration into the penis, vulva or anus by any part of the body or by any object ...." Ariz.Rev.Stat. §§ 13-1401(3), 13-1406 (1978). In Montana, sexual intercourse is defined in connection with its sexual abuse statute to include penetration by any body member. Mont.Rev. Codes Ann. § 45-2-101(61) (1981). Nebraska's sexual abuse statutes prohibit sexual penetration, defined to include "any intrusion, however slight, of any part of the actor's body or any object manipulated by the actor into the genital or anal openings of the victim's body...." Neb.Rev.Stat. § 28-318(5) (1979).

Several judicial decisions of other jurisdictions have found digital penetration of genitalia to be an element of rape, sexual abuse, or some similar offense. In Commonwealth v. Gallant, 373 Mass. 577, 560, 369 N.E.2d 707, 709 (1977), defendant was convicted of unnatural sexual intercourse with a child under the age of sixteen. The court defined unnatural sexual intercourse "to include oral and anal intercourse, including fellatio, cunnilingus, and other intrusions of a part of a person's body or other object into the genital or anal opening of another person's body." Id. at 584, 369 N.E.2d at 712. This definition was relied upon in Commonwealth v. Mamay, 5 Mass.App. 708, ----, 369 N.E.2d 1036, 1037 (1977), to reverse the dismissal of an indictment charging defendant with having unnatural sexual intercourse with a child under sixteen. The charge was based upon the allegation that "defendant had forcefully and unlawfully penetrated the sexual organs of the victim, a female child, by means of his hand and/or fingers.' " Id., 369 N.E.2d at 1037. The court found a finger was comprehended within the meaning of the words "a part of a...