IN THE SUPREME COURT OF IOWA No. 14–0889
Filed February 26, 2016
Amended May 3, 2016
STATE OF IOWA,
Appellee,
vs.
AQUILES GONZALEZ ALVARADO,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Muscatine County, Mary E.
Howes, Judge.
A criminal defendant contends there was insufficient evidence to
convict him of lascivious acts with a child because the phrase “touch the
pubes or genitals of a child” in Iowa Code section 709.8 requires skin-to-
skin contact. DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT AFFIRMED.
Benjamin Bergmann and Gina M. Christensen Messamer (until
withdrawal) of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry, Brown
& Bergmann, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Tyler Buller, Jean Pettinger,
and Louis S. Sloven, Assistant Attorneys General, and Alan Ostergren,
County Attorney, for appellee. 2
HECHT, Justice.
A jury convicted Aquiles Alvarado of two counts of lascivious acts
with a child because it concluded Alvarado inappropriately touched his
granddaughter’s genitals over her clothing on more than one occasion.
See Iowa Code § 709.8(1) (2013). 1 Alvarado contends the evidence does
not support his convictions because he only touched his granddaughter
over her clothing and a person does not “touch the pubes or genitals of a
child” within the meaning of section 709.8(1) if they do not make skin-to-
skin contact. The district court and court of appeals both rejected
Alvarado’s assertion, and on further review, so do we. Therefore, we
affirm Alvarado’s convictions.
I. Background Facts and Proceedings.
Alvarado co-owned a clothing store in Muscatine with his wife
Maria Morfin, and he also worked there part time. The store had a sales
floor, a back room that doubled as an employee break room and storage
area, and a fitting room. Morfin, who only speaks Spanish, often
operated the store with assistance from her bilingual nine-year-old
granddaughter I.M., who served as an interpreter. On July 18, 2013,
Morfin and I.M. were at the store when Alvarado arrived around 11:00
a.m. after completing a shift at his second job. He took over supervising
I.M. and the store while Morfin went home for lunch.
After Morfin left, Alvarado asked I.M. to make him coffee using the
coffee machine located in the store’s back room. As I.M. was making the
coffee, Alvarado entered the back room and turned off the lights. He
1The current provision is Iowa Code section 709.8(1)(a) (2015). The legislature renumbered several criminal statutes—including those prohibiting lascivious acts and indecent contact—in 2013 but did not make substantive language changes. 2013 Iowa Acts ch. 30, §§ 202–203; see also State v. Ceretti, 871 N.W.2d 88, 90 n.3 (Iowa 2015) (noting a few other criminal statutes that were renumbered in 2013). 3
hugged I.M., then kissed her upper chest and neck, reached between her
legs, touched her genitals over her clothes, and told her, “I love playing
with your beautiful body.” After a brief time, he stopped abruptly and
returned to the sales floor.
Although Morfin had intended to go home, she reached her car in
the parking lot and remembered she needed a money order from the
bank for a shipment of shoes to be delivered to the store later that day.
She obtained the money order and returned to the store so that Alvarado
would have it in case the shipment arrived while she was away. As she
returned, she noticed the sales floor was empty and saw Alvarado quickly
leaving the back room. She went into the back room, turned the lights
on, and saw I.M. with a flushed red neck and upper chest. I.M.
explained what had happened, so Morfin called her daughter (I.M.’s
mother), who in turn contacted the police.
Based on I.M.’s report to an investigating officer that Alvarado had
touched her genitals on several other occasions throughout the summer
of 2013 before the incident at the store, the State charged Alvarado with
four counts of committing lascivious acts with a child. See id. Alvarado
pled not guilty and the case proceeded to trial. At trial, I.M. testified she
had not alerted anyone about Alvarado’s conduct before July 18 because
she was scared.
Alvarado moved for a directed verdict of acquittal both after the
State’s evidence and after presenting his own, contending a conviction
under section 709.8(1) must be supported by proof of skin-to-skin
contact but the State proved only that he had touched I.M. over her
clothing. The court denied both motions. The jury returned a verdict
convicting Alvarado of two counts of lascivious acts with a child. 4
Alvarado appealed his convictions, and we transferred the case to
the court of appeals. That court affirmed, concluding section 709.8 is
unambiguous because the verb “touch” means “to perceive or experience
through the tactile sense” and I.M. testified she experienced a tactile
sense despite the fact her clothes covered her genitals. Alvarado sought
further review, and we granted his application.
II. Scope of Review.
Alvarado asserts the evidence was insufficient to convict him. “We
review challenges to the sufficiency of evidence presented at trial for
correction of errors at law.” State v. Meyers, 799 N.W.2d 132, 138 (Iowa
2011). “[W]e review the evidence in the light most favorable to the State
to determine if, when considered as a whole, a reasonable person could
find guilt beyond a reasonable doubt.” State v. Pearson, 514 N.W.2d 452,
456 (Iowa 1994).
The sufficiency of the evidence in this case turns on whether
section 709.8(1) requires skin-to-skin contact—a question of statutory
interpretation that we also review for correction of errors at law. See
State v. Paye, 865 N.W.2d 1, 3–4 (Iowa 2015). If the statute requires
skin-to-skin contact, the evidence is insufficient to support the verdict
because all the trial testimony indicated Alvarado touched I.M. over her
clothes. However, if the statute does not require skin-to-skin contact,
I.M.’s testimony provides sufficient evidence to affirm the convictions.
III. The Parties’ Positions.
A. Alvarado. Alvarado contends section 709.8(1) requires skin-to-
skin contact because section 709.12, the statute prohibiting indecent
contact, specifically addresses touching over clothing, while section
709.8(1) does not. See Iowa Code § 709.12(2) (providing a person
commits indecent contact with a child by “[t]ouch[ing] the clothing 5
covering the immediate area of the inner thigh, groin, buttock, anus, or
breast of the child”). In Alvarado’s view, this omission from section
709.8(1) was purposeful because it prevents overlap between the
separate crimes of lascivious acts and indecent contact.
B. The State. The State responds with a multifaceted argument
probing purported deficiencies in Alvarado’s assertion. First, it contends,
there is no need to consider section 709.12 because there is no
ambiguity in the plain language and meaning of the word “touch” in
section 709.8. See People v. Pifer, 350 P.3d 936, 938 (Colo. App. 2014)
(concluding touching through clothes and a sheet “falls within the plain
and ordinary meaning of ‘touching’ ” because the victim experiences a
tactile sense).
Second, the State asserts, section 709.8 and section 709.12
address separate parts of the body and “create disparate offenses based
on the perceived harmfulness of each.” In other words, the “pubes or
genitals” described in section 709.8 are different from the inner thigh
and groin described in section 709.12. See State v. Shearon, 660 N.W.2d
52, 56 (Iowa 2003) (contrasting lascivious acts with indecent contact by
noting “the crime of indecent acts criminalizes the touching or fondling of
non-genital body parts, e.g., inner thigh, groin, buttock, anus or breast”).
Thus, given the distinction this court drew in Shearon, the State
contends the two statutes simply address different harms and there is no
overlap, nor does the omission of “over the clothes” language from
section 709.8 indicate the legislature intended to permit over-the-clothes
touching of the pubes or genitals.
Finally, the State contends interpreting section 709.8(1) to require
skin-to-skin contact is unsupportable because it would produce absurd
results. For example, if skin-to-skin contact is required, a person could 6
touch a child’s naked genitals and not commit lascivious acts as long as
they wear a glove—or even a thimble.
IV. Analysis.
A “sex act” under section 702.17 includes “[c]ontact between the
finger or hand of one person and the genitalia . . . of another.” Iowa Code
§ 702.17. “[S]kin-to-skin contact is not required in order to establish a
‘sex act’ under section 702.17.” Pearson, 514 N.W.2d at 455. However,
this case does not directly involve section 702.17 because section 709.8
does not prohibit “sex acts.” See Iowa Code § 709.8(1). Instead, the
subsection under which the State charged Alvarado prohibits certain
sexual touching. See id.
But that does not mean Pearson is irrelevant to our analysis
despite its focus on different language. The gist of Alvarado’s argument
in this case is that touching under section 709.8 does not constitute
“sexual contact” when the touching occurs through a layer of clothing.
Yet “touch” means “to bring a bodily part into contact with.” Touch,
Merriam-Webster’s Collegiate Dictionary (10th ed. 2002). The word
“touch” literally references the word “contact.” We conclude Pearson,
though not directly controlling, remains relevant in this context.
A. Pearson. In Pearson, the defendant “masturbated by moving
his covered penis against [the victim]’s clothed buttocks.” Pearson, 514
N.W.2d at 454. We rejected his argument that the definition of “sex act”
and “sexual contact” required skin-to-skin contact because there was “no
language in the statute which would limit its scope in this way.” Id. at
455. We further concluded the question whether an intervening material
prevents sexual contact “must be determined on a case-by-case basis,
considering the nature and amount of the intervening material”: 7 If the intervening material would, from an objective viewpoint, prevent a perception by the participants that the body parts (or substitutes) have touched, contact has not occurred. Thus, prohibited contact occurs when (1) the specified body parts or substitutes touch and (2) any intervening material would not prevent the participants, viewed objectively, from perceiving that they have touched.
Id. We were “confident that the legislature did not intend to immunize a
defendant from liability for a sex act simply because he wore a condom
which prohibited skin-to-skin contact.” Id. at 456.
Pearson relied in part on the court of appeals decision in State v.
Phipps, 442 N.W.2d 611 (Iowa Ct. App. 1989). In Phipps, the defendant
“placed his hand inside a fourteen-year-old boy’s jeans, but over the
boy’s underwear” and “rubbed the boy’s genitalia.” Id. at 611. Faced
with an argument that skin-to-skin contact was required to constitute a
sex act, the court declined to hold “that our legislators intended that a
piece of clothing,” especially a flimsy one, “would insulate a defendant
from the term ‘sex act.’ ” Id. at 613. The court also concluded any
overlap in statutes was irrelevant because “[t]he mere fact defendant’s
conduct is or could be interpreted as falling within the confines of a
different section does not preclude” a finding that it violated the one
actually charged. Id.
B. Overlap. In Alvarado’s view, interpreting section 709.8 to
include touching over the clothes creates significant overlap between
section 709.8 and section 709.12 and likely means any touching will be
prosecuted as lascivious acts, a class “C” felony, instead of indecent
contact, an aggravated misdemeanor. In other words, he contends, if
section 709.8 does not require skin-to-skin contact, section 709.12 is
superfluous.
Alvarado is correct that section 709.12 specifically references
touching “the clothing covering” certain body parts. See Iowa Code 8
§ 709.12(2). However, if the statutes overlap, they would overlap even
without that language, because section 709.12(1) prohibits fondling or
touching the same body parts that might be covered by clothing in
section 709.12(2). Thus, Alvarado’s contention boils down to an
assertion that “pubes or genitals” are the same as “inner thigh” or
“groin.” While those body parts may be only centimeters apart, we
conclude the State’s distinction—that the two statutes address slightly
different conduct—makes more sense: section 709.8 prohibits genital
contact of any kind, while section 709.12 prohibits contact of any kind
with specified nongenital parts. See Shearon, 660 N.W.2d at 56.
To the extent it exists, the legislative history of section 709.12 also
supports this distinction. In 1980, we held a defendant could not be
convicted of lascivious acts for attempting to grope a twelve-year-old girl’s
breast. See State v. Baldwin, 291 N.W.2d 337, 338–40 (Iowa 1980). The
defendant in that case could not be convicted for touching or fondling
because a breast is not within the definition of “pubes or genitals,” and
in any event, he did not actually touch the girl’s breast. See id.
Furthermore, the defendant could not be convicted of soliciting a child to
engage in a sex act because the definition of sex act proscribes sexual
contact with a person’s genitalia or anus and the purpose of his contact
“might very well have been limited to the [touch]ing of the little girl’s
breast.” Id. at 340; see Iowa Code § 702.17 (1979); id. § 709.8(3).
Suggesting the defendant’s conduct was still objectively wrong, just not a
crime under existing law, we noted some states had statutes
criminalizing indecent liberties with children but Iowa was not one of
them. Baldwin, 291 N.W.2d at 340 (“Some states proscribe as a criminal
act taking indecent liberties with children . . . . Baldwin, however, was
not charged with indecent liberties. Such an offense does not appear to 9
be included within Chapter 709.”). Just one year later, the legislature
passed section 709.12. 1981 Iowa Acts ch. 204, § 7. The timing of the
enactment strongly suggests it was a response to Baldwin, intended to
rectify what the legislature perceived as a specific gap in the law
protecting children—not as part of a comprehensive legislative package
revising section 709.8.
Additionally, we have previously rejected a contention that reading
statutes in their entirety always means an action expressly prohibited
under one section is permitted in another similar section that does not
make an express prohibition. See State v. Whetstine, 315 N.W.2d 758,
760 (Iowa 1982). In Whetstine, we reasoned that a person can commit a
sex act with a finger although section 702.17 did not expressly provide as
much at the time (and another statute, which also defined sex act, did).
Id. at 760–61. The same logic holds true here.
Finally, even if the statutes did overlap, common ground would not
be problematic. Overlap only prevents double convictions or double
punishments, not a single conviction on one charge based on the
prosecutor’s charging discretion. As we have explained:
When a single act violates more than one criminal statute, the prosecutor may exercise discretion in selecting which charge to file. This is permissible even though the two offenses call for different punishments. It is common for the same conduct to be subject to different criminal statutes.
State v. Perry, 440 N.W.2d 389, 391–92 (Iowa 1989) (citation omitted);
see also State v. Anspach, 627 N.W.2d 227, 233 (Iowa 2001) (“When
there is sufficient evidence to charge a suspect with a particular crime, it
does not matter that his conduct may also constitute a violation of
[another] offense with a lighter penalty.”); State v. Johns, 140 Iowa 125,
131, 118 N.W. 295, 298 (1908) (“It often happens that a defendant, by 10
the same criminal act, violates more than one criminal statute. And it is
not true as a legal proposition that, if his criminal act is covered by one
statute, it cannot be covered by another.”).
C. Other States. Most courts that have addressed similar
questions under other states’ statutes have concluded skin-to-skin
contact is not required to sustain a conviction.
In State v. Schnaidt, the defendant was charged with “sexual
contact” under South Dakota law—defined as “any touching . . . of the
breasts of a female or the genitalia or anus of any person.” State v.
Schnaidt, 410 N.W.2d 539, 540 (S.D. 1987) (quoting S.D. Codified Laws
§ 22-22-7.1 (1985)). It was “undisputed that Schnaidt grabbed the
child’s genitals through the clothing,” but he contended he did not violate
the statute because he did not make skin-to-skin contact. Id. The court
rejected this argument because it found “nothing in the statute to
suggest that the prohibited conduct can only be committed by skin-to-
skin contact” and the language was therefore unambiguous. Id. at 541.
The court concluded that grabbing a “child’s genitals through his
trousers is . . . ‘any touching’ of his genitalia.” Id. at 543. We relied on
Schnaidt in Pearson, 514 N.W.2d at 455, and we conclude it again has
persuasive value for us in this case. “Any touching” is not exactly the
same as “touch,” but the difference is slight.
North Dakota also considered language criminalizing “any touching
of the sexual or other intimate parts” of a child and concluded a
defendant who “patted and poked at [the fifteen-year-old victim’s] ‘private
area’ ” over her pajamas and underwear committed “touching” within the
meaning of the statute. State v. Brown, 420 N.W.2d 5, 6 (N.D. 1988)
(quoting N.D. Cent. Code § 12.1-20-02(4) (1985)). The court concluded
“[i]t would be an absurd result . . . to determine that a person cannot 11
perceive by the sense of feeling the ‘sexual or other intimate parts’ of a
person because clothing was interposed between such a bodily part and
the offender.” Id. (quoting N.D. Cent. Code § 12.1-20-02(4)).
In State v. Samson, the highest court in Maine considered whether
a skin-to-skin requirement would frustrate the legislature’s intent and
concluded it would:
The legislative intent was to protect children against the perpetration of sexual indignities to their person in a manner abhorrent to society and to save them from being subjected to iniquitous conduct having a tendency to produce serious emotional and psychological impact on such minors who, because of their tender age, are deemed incapable of protecting themselves. The statutory purpose would be frustrated to a very substantial degree if the only prohibited . . . contact had to be of the flesh-to-flesh variety.
388 A.2d 60, 63 (Me. 1978).
In Miles v. State, a Texas court concluded when the defendant
grabbed the victim’s penis through his pants, he violated a statute
criminalizing placing one’s hands “upon or against a sexual part of a
male or female under the age of fourteen.” 247 S.W.2d 898, 899 (Tex.
Crim. App. 1952) (quoting Tex. Penal Code § 535d (1952)). The court
rejected the defendant’s contention that the statute required skin-to-skin
contact, and in reaching its decision, the court reasoned:
[T]here is nothing in the statute suggesting that the crime there denounced could be committed only by the application of the bare hand of the accused to the bare or naked sexual part of the child. This court, under the guise of statutory construction, cannot write into the statute that which obviously is not contained therein.
Id.
Several years later, another Texas court, relying on Miles,
expounded upon the meaning of touching, and found it 12 quite plain that the essence of the act of touching is to perceive by the sense of feeling. It is a matter of the commonest knowledge that the interposition of a layer of fabric between a person’s hand and an object upon which the hand is placed will not prevent that person from feeling the object thus concealed.
Resnick v. State, 574 S.W.2d 558, 560 (Tex. Crim. App. 1978). The court
also rejected a flesh-to-flesh contact requirement because
absurd results would follow. Under such an analysis, a defendant who thrust his hand beneath a victim’s undergarments and fondled his or her genitals in a public place could not be prosecuted . . . if he were wearing a glove.
At least one court has adopted a different interpretation analogous
to the one Alvarado suggests here. In State v. Jacobs, the Utah Court of
Appeals conceded “the words ‘touch’ and ‘touching’ might commonly be
understood to include contact that was made over clothing.” 144 P.3d
226, 228 (Utah Ct. App. 2006). However, several other Utah statutes
criminalized touching “even if accomplished through clothing,” and the
court concluded the omission from the statute under which Jacobs was
charged was purposeful. See id. at 228–29 (quoting Utah Code Ann.
§ 76-5-407 (2003)). The court suggested the statute’s focus on skin did
not necessarily require skin-to-skin contact, just that the victim’s skin
was bare, even if the defendant wore a glove. See id. at 229.
D. Application of Legal Principles. After considering the
statutes, Pearson, and the authority from other states addressing similar
questions, we conclude a person can touch another’s pubes or genitals
within the meaning of Iowa Code section 709.8 (2013) without making
skin-to-skin contact. As under section 702.17, there is no express
requirement of skin-to-skin touching in section 709.8. See Pearson, 514
N.W.2d at 455 (“There is no language in [section 702.17] which would 13
limit its scope in this way.”). Indeed, the interpretation of section 709.8
advanced by Alvarado requiring skin-to-skin contact would, in effect, add
words to the statute, contrary to our rules of statutory interpretation.
See State v. Hesford, 242 N.W.2d 256, 258 (Iowa 1976) (“No court, under
the guise of judicial construction, may add words of qualification to the
statute . . . .”); see also State v. Graves, 491 N.W.2d 780, 781–82 (Iowa
1992) (declining to “add modifying words to a statute”). Our
interpretation does not create overlap between section 709.8 and section
709.12 because the two statutes address different (though proximate)
body parts. See Shearon, 660 N.W.2d at 56. Additionally, requiring
proof of skin-to-skin contact for a conviction under section 709.8 would
plainly insulate from liability a gloved suspect who touches a naked
victim. We decline to interpret the statute to produce such an absurd
result. See Paye, 865 N.W.2d at 7 (applying the absurd results doctrine
in interpreting a criminal statute).
V. Conclusion.
Because we conclude a person can “touch the pubes or genitals of
a child,” Iowa Code § 709.8(1), without making skin-to-skin contact, the
evidence was sufficient to support Alvarado’s convictions. We therefore
affirm both lower courts’ decisions.
DECISION OF COURT OF APPEALS AND DISTRICT COURT
JUDGMENT AFFIRMED.