Opinion
No. 04-0814.
March 31, 2005.
Appeal from the Iowa District Court for Muscatine County, Patrick J. Madden, Judge.
The State of Iowa appeals the district court's grant of a new trial. REVERSED.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Gary Allison, County Attorney, and Dana Christiansen, Assistant County Attorney, for appellant.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellee.
Heard by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
On March 5, 2004, a jury verdict was returned finding Kyle Cromer guilty of third-degree sexual abuse in violation of Iowa Code sections 709.4(1) and 709.4(4), (2003). The district court then determined the statutes upon which two jury instructions were based were vague in violation of due process and granted Cromer's motion for a new trial. The State appealed. Because we find the statutes did not violate Cromer's right to due process, we conclude the district court abused its discretion in granting Cromer's motion for new trial. We accordingly reverse this ruling.
I. Background Facts
On March 29, 2003, Nicole Schubick, while celebrating her cousin's wedding, consumed copious amounts of alcohol. Towards the end of the evening, Schubick found herself heavily intoxicated and at a tavern where she talked to and danced with Cromer and Donnie Schulthies. Both men had also consumed a large quantity of alcohol. Later that evening, Schubick accepted a ride home with Cromer and Schulthies. The testimony of the witnesses varied as to how intoxicated Schubick may have been when she left with the two men.
Schubick's next memory is waking up naked on a motel bed between Cromer and Schulthies. At trial both Schubick and her mother testified as to the number of small bruises she had on her body, the lump on her forehead, and her bruised jaw. The State's theory of prosecution was that Schubick was so intoxicated that the two men dragged her into the hotel room, disrobed her, and then preformed various sexual acts on her, as she remained "passed out". This theory was corroborated by Cromer's cell mate who testified that Cromer had described a similar course of events to him. Cromer also testified to the events of the evening and based his defense on his assertion that all sexual contact was consensual. He claimed that Schubick, while admittedly very drunk, was nonetheless a willing participant.
II. Background Proceedings
In a trial information, the State alleged that Cromer assaulted Schubick with the intent to commit sexual abuse upon her, resulting in a bodily injury other than a serious injury. The jury returned a verdict finding Cromer guilty of sex abuse in the third degree in violation of: (1) Iowa Code section 709.4(1), which provides a person commits sexual abuse in the third degree when they perform a sex act "by force or against the will of the other person," and (2) Iowa Code section 709.4(4), which provides a person commits sexual abuse in the third degree when they perform a sex act and "the act is performed while the other person is mentally incapacitated, physically incapacitated, or physically helpless."
Cromer moved for a new trial arguing, among other things, that the jury was not properly instructed. In his brief in support of his motion for a new trial Cromer elaborated on his jury instruction claim by arguing that Iowa Code section 709.1A(1) as applied to Iowa Code 709.4(2)(a) is vague and overbroad. Iowa Code section 709.1A(1) defines the term "mentally incapacitated" as "temporarily incapable of apprising or controlling the person's own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance." Specifically, Cromer argued that without a jury instruction requiring the jury to determine "that Mr. Cromer knew of [Schubick's] condition" to remedy the vagueness of section 709.1A(1) his right to due process was violated when section 709.1A(1) was applied to him through jury instructions 19 and 20. Jury instruction 19 provides in pertinent part:
Iowa Code section 709.4(2)(a) provides that a sex act committed between persons not co-habitating as husband and wife is sex abuse in the third degree when the other person is suffering from a mental defect or incapacity which precludes giving consent. Cromer was not charged with nor convicted of violating this section. Section 709.1A(1) was instead applied to section 709.4(4).
The State must prove all of the following elements of Sexual Abuse in the Third Degree under Count II:
1. On or about the 29th day of March 2003, the defendant performed a sex act with Nicole Schubick.
2.The sex act was performed while Nicole Schubick was mentally incapacitated or physically helpless. (Emphasis added).
Jury instruction 20 provides in pertinent part:
As used in Instruction No. 19, "Mentally Incapacitated" means that a person is temporarily incapable of controlling the person's own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance.
A hearing was held on Cromer's motion during which the district court concluded,
I'm concerned about the instruction that I agreed with you on and do agree with you on, that the statute requires the instruction we gave. I've concluded that under the circumstances of this case that's an unconstitutional instruction, because there's nothing in there that says the defendant had to have any knowledge that she was mentally incapacitated. (Emphasis added).
. . . .
. . . I don't think there's any way the defendant could have known that her consent wasn't an informed consent, and your argument, which is appropriate, I think under the statute, is it doesn't matter whether he knew or not . . . And I think that's unconstitutional when you're talking about two consenting adults.
In addition to addressing Cromer's due process claim, the district court, even though the issue was not raised by Cromer, engaged the attorneys in discussion regarding whether the jury instructions violated equal protection. In so doing the district court stated:
I'm focusing on whether, since the prosecutor didn't feel there was a crime committed by the victim but there was by the defendant, I'm concerned whether that decision has created an equal protection problem for the defendant. In other words, that the choice to prosecute the man for what he did but not the woman for what she did may imply an inequality under the equal protection clause based on gender.
However, the district court never decided this issue. Therefore, we may not consider it on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal."). Moreover, Cromer does not argue on appeal that the district court correctly granted him a new trial because the statute violated his right to equal protection.
In addition to the above-quoted passage from the motion for new trial hearing, the district court's comments regarding equal protection consisted of: "I also think there may be an equal protection argument" and "[i]f I say that the instruction given was unconstitutional and that there was a denial of due process and perhaps a denial of equal protection. . . ." (emphasis added). The district court's ultimate ruling is that "I'm going to order that Mr. Cromer be granted a new trial in this matter." The court never states Cromer's right to equal protection of the laws was violated.
Cromer does argue that the district court did not err in concluding that the verdict is "contrary to the weight of the evidence and that a miscarriage of justice may have resulted. . . ." However, while it is true that Cromer raised in his brief in support of his motion for a new trial a claim regarding the "sufficiency of the evidence" the district court never made a decision regarding the "sufficiency of the evidence," the "weight of the evidence," or a "miscarriage of justice." Therefore, we cannot consider this argument. See State v. Manna, 534 N.W.2d 642, 644 (Iowa 1995) (holding that error was not preserved on one of the two issue presented by a defendant in a motion when the trial court addressed only the other issue).
III. Scope and Standard of Review
The district court had broad discretion in ruling on Cromer's motion for a new trial. State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003). We review the district court's grant of Cromer's motion for new trial for abuse of discretion, and are slower to interfere with this grant than a denial. Id. To establish an abuse of discretion the State must show that the district court exercised its discretion for reasons "clearly untenable or to an extent clearly unreasonable." Id. An "untenable" reason lacks substantial evidentiary support or rests on erroneous application of the law. See State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001).
The district court granted Cromer a new trial solely because it agreed with Cromer's constitutional challenge to the jury instructions and statutes. Consequently, the State presents only one issue for our review: whether the reason for the grant of a new trial was an erroneous application of constitutional law. Therefore, in order to determine whether the district court abused its discretion, we must review the constitutionality of its conclusion regarding the jury instructions and statutes at issue. Because the district court concluded that the application of the statutes through the jury instructions violated Cromer's right to due process, our review of the reason for the exercise of the district court's discretion is de novo. See State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998) (stating that in assessing alleged violations of constitutional rights, the scope of review is de novo).
IV. Issue
The sole issue for our review is whether the district court's reason for granting a new trial is tenable. Cromer argued in his brief in support of his motion for a new trial that he was entitled to a new trial because Iowa Code section 709.4(4) and Iowa Code section 709.1A(1) are unconstitutional on their face and as applied. The district court ruled that Cromer was entitled to a new trial because these statutes, as applied to Cromer through instructions 19 and 20 were vague in violation of due process guarantees.
The district court in ruling that the jury instructions were unconstitutional stated that it found merit in Cromer's "vagueness argument" and that the "instruction that was given is an unconstitutional instruction in this case." (emphasis added). The district court did not rule with respect to Cromer's facial challenge as it never considered whether the statute was vague as applied to others.
A heavy presumption of constitutionality accompanies a legislative enactment. See State v. Sullivan, 298 N.W.2d 267, 270 (Iowa 1980). However, a "penal statute must `define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.'" State v. Robinson, 618 N.W.2d 306, 314 (Iowa 2000) (citation omitted). In reviewing the district court's vague-as-applied determination, we examine the statute on its face to determine whether Cromer's conduct clearly falls outside the exemption "under any construction." Id. (citation omitted). In considering the vagueness of a statutory term, the following rule is applied: "A statutory term provides fair warning if the meaning of the word `is [to be] fairly ascertainable by reference to similar statutes, prior judicial determinations, reference to the dictionary, or if the questioned words have a common and generally accepted meaning.'" Id. (citations omitted).
The district court's conclusion regarding vagueness was based on its determination that the jury instructions "didn't allow for the jury to consider whether the defendant knew or should have known that the victim was incapable of giving consent because she was mentally incapacitated." However, in State v. Sullivan, our supreme court rejected a similar complaint. See Sullivan, 298 N.W.2d at 273.
In Sullivan, the Iowa Supreme Court considered whether Iowa Code section 709.4(2) (1979) was unconstitutionally vague. Id. at 269. In reviewing the part of the statute requiring an alleged violator to determine the victim's mental capacity, the court stated:
Iowa Code section 709.4(2) provided that a sex act between persons not cohabitating as husband and wife is sex abuse in the third degree if "[t]he other participant is suffering from a mental defect or incapacity which precludes giving consent, or lacks the mental capacity to know the right and the wrong of conduct in sexual matters."
We are unimpressed by the defendant's arguments that the statute is rendered vague by its requirement that the alleged violator determine another's mental capacity . . .
. . . .
. . . The fact an erroneous judgment by an offender may still subject him or her to criminal sanction if the partner in fact does not possess the requisite mental capacity does not make the statute unconstitutional. This crime does not require knowledge or intent. As in the case of sexual abuse due to age statutes, the policies in support of protecting those who suffer mental incapacities outweigh the danger of mistake. . . . We hold the standard imposed by subsection 709.4(2) is clear.
Id. at 273.
We conclude the same is true of incapacity caused by intoxication. The fact Cromer is subject to criminal sanctions because he incorrectly assessed Schubick's mental capacity does not render the statute unconstitutional. Id. Furthermore, Iowa Code section 709.4(4) does not require knowledge of the other person's mental incapacitation. Compare Iowa Code § 709.4(4) with Iowa Code § 709.4(3) (requiring that a person who performs an act while the other person is under the influence of a controlled substance know or reasonably should know that the other person is under the influence of a controlled substance); see also State v. Bauer, 324 N.W.2d 320, 322 (Iowa 1982) (holding a defendant's subjective awareness of a sexual abuse victim's lack of consent is not an element of third-degree sexual abuse). Therefore, the statute did not violate Cromer's due process rights and the jury was properly instructed on all the statutory elements.
Moreover, Cromer's own intoxication and the result it may have had on his ability to determine Schubick's mental capacity does not change this conclusion. Sex abuse in violation of Iowa Code section 709.4(4) is a general intent crime. See State v. Christensen, 414 N.W.2d 843, 845-46 (Iowa Ct.App. 1987). Therefore, as Cromer's attorney acknowledged during the hearing on his motion for new trial, "one of the problems that [Cromer] had was, of course, that his intoxication is not a defense in this case." See State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000) (stating that defenses of intoxication and diminished capacity are not available on a general intent crime because these defenses negate only the specific intent element of a crime).
The standard imposed by Iowa Code section 709.4(4) is clear: to avoid the proscribed conduct Cromer should have refrained from performing a sex act with a person who is mentally incapacitated as that term is defined in Iowa Code section 709.1A(1). If he did engage in such conduct, his lack of knowledge of Schubick's mental incapacitation caused by his intoxication is no defense. SeeState v. Tague, 310 N.W.2d 209, 211 (Iowa 1981) (indicating that "statutes regarding sex offenses are common examples of employment of strict liability intended to protect the public welfare"). Moreover, even if Cromer's subjective knowledge of Schubick's mental incapacity was required by due process, the weight of the evidence supports a jury conclusion that Cromer knew of Schubick's mental incapacitation, as evidence indicated she was dragged into the hotel room and was unconscious throughout the entire incident. Consequently we conclude the district court erred in determining the jury instructions violated Cromer's due process rights. We reverse the ruling on the motion for new trial and remand for entry of a judgment of conviction.