State of Iowa v. Corey Robert Fenton

• Court: Court of Appeals of Iowa
• Decided: January 10, 2024
• Docket: 22-1681
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1681 Filed January 10, 2024

STATE OF IOWA, Plaintiff-Appellee,

vs.

COREY ROBERT FENTON, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Samantha Gronewald,

Judge.

Corey Fenton appeals his conviction and sentence for solicitation of

commercial sexual activity. CONVICTION CONDITIONALLY AFFIRMED,

SENTENCE VACATED IN PART, AND REMANDED FOR FURTHER

PROCEEDINGS.

Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, Nicholas E. Siefert and Kyle Hanson (until

withdrawal), Assistant Attorneys General, and Morgan Smith, Student Legal Intern,

for appellee.

Considered by Tabor, P.J., and Badding and Chicchelly, JJ. 2

CHICCHELLY, Judge.

Corey Fenton appeals after a jury found him guilty of solicitation of

commercial sexual activity. He challenges the admissibility of photographic

evidence and contends there is insufficient evidence supporting the jury’s verdict.

He also contends the court applied the wrong standard in evaluating his motion for

new trial and imposed an illegal sentence.

Because the district court did not abuse its discretion by admitting the

evidence, and substantial evidence supports the jury’s verdict, we conditionally

affirm Fenton’s conviction. But the district court applied the incorrect standard in

ruling on Fenton’s motion for new trial and imposed an illegal sentence by requiring

Fenton to complete the sex offender treatment program as a term of his sentence.

We therefore remand to the district court for further proceedings.

I. Background Facts and Proceedings.

The evidence shows that Fenton was thirty-six years old when he started a

conversation on Facebook Messenger with a detective posing as a fifteen-year-

old girl named Neveah. The two exchanged messages for more than one month.

In those messages, the two discussed meeting for sex and Fenton sent Neveah a

photo of his erect penis. When Neveah raised the possibility of involving another

fifteen-year-old girl in their sexual encounter, Fenton asked what he would need to

do for that to happen and stated he had no problem with “spoiling” Neveah a little.

Eventually, the two agreed to meet in a shower room at a truck stop for sex. When

Fenton arrived at the truck stop, law enforcement officers arrested him.

The State charged Fenton with solicitation of commercial sexual activity, in

violation of Iowa Code section 710A.2A (2022). After a trial, the jury found Fenton 3

guilty. The court sentenced Fenton to serve five years in prison, ordering him to

complete the sex offender treatment program as a term of his sentence.

II. Evidentiary Ruling.

Fenton first contends that the court erred by admitting a photographic

exhibit into evidence. We review the trial court’s evidentiary rulings for an abuse

of discretion. See State v. Thoren, 970 N.W.2d 611, 620 (Iowa 2022). The trial

court abuses its discretion when it acts for reasons not supported by substantial

evidence or when it erroneously applies the law. See State v. Gomez Garcia, 904

N.W.2d 172, 177 (Iowa 2017).

During Fenton’s trial, the State introduced the Facebook Messenger

conversation between Fenton and Neveah into evidence.1 Some messages were

not included in the exhibit because Fenton sent them using a feature that erased

the message five seconds after the recipient viewed it. Among these “secret”

messages was the photo of Fenton’s erect penis. But the detective who played

the role of Neveah took a screenshot before the message disappeared, and the

State introduced the photo into evidence as a separate exhibit. Fenton objected

to the photo exhibit as unfairly prejudicial. He also argued the evidence was

cumulative because the jury watched a video of his police interview, during which

detectives questioned him about the photo. The trial court overruled the

objections. Fenton now makes those arguments on appeal.

Iowa Rule of Evidence 5.403 allows the trial court to exclude relevant

evidence if its probative value is substantially outweighed by the danger of unfair

1 At trial, two officers read the messages aloud while the State displayed the

transcript of that conversation for the jury. 4

prejudice or the danger of needlessly presenting cumulative evidence. Because

the rule allows the court to exclude relevant evidence, our supreme court has

cautioned that it should be used “sparingly.” State v. Buelow, 951 N.W.2d 879,

889 (Iowa 2020). The court uses a two-part test to assess whether to exclude

under rule 5.403. See Thoren, 970 N.W.2d at 622. We first consider the probative

value of the evidence. See id. We then “balance the probative value ‘against the

danger of its prejudicial or wrongful effect’” on the jury. Id. (citation omitted).

Because this test “is not an exact science,” “we give a great deal of leeway to the

trial judge who must make this judgment call.” State v. Thompson, 954 N.W.2d

402, 408 (Iowa 2021) (citation omitted).

The trial court did not abuse its discretion by admitting the photo into

evidence. First, the photo exhibit is not cumulative to Fenton’s recorded interview

with police. Although detectives asked Fenton about sending the photo, Fenton

never admitted that he sent it.2 Second, the danger of unfair prejudice does not

outweigh the photo’s probative value. Fenton claims the photo has little probative

value of his intent to engage in sexual activity because the Facebook Messenger

transcript shows his conversation with Neveah “was clearly sexual in nature at

various points and included discussions of various sex acts.” But the photo has

probative value beyond Fenton’s intent to engage in sexual activity. Fenton sent

the photo using the feature that caused the message to disappear after Neveah

2 When asked if he sent any explicit photos of himself to Neveah, Fenton’s answers

alternated between “I don’t think so” and “I sure hope not.” He claimed that he talked to a lot of people on Facebook Messenger, suggesting that he might have confused his conversations. He also speculated that an ex-girlfriend may have sent the photo from his account. Finally, when the detectives showed Fenton the photo, he denied that it depicted his penis. 5

viewed it, indicating knowledge of his guilt. See State v. Crawley, 633 N.W.2d 802,

804–05 (Iowa 2001) (noting that evidence of concealment is probative of

consciousness of guilt). The evidence is relevant to Fenton’s knowledge that he

was talking to a minor, which Fenton repeatedly claimed he either did not know or

forgot. Because the jury viewed the sexually explicit messages Fenton exchanged

with Neveah, it is unlikely that the photo drove the jury to determine Fenton’s guilt

based on anything besides the facts shown by the evidence. See State v.

Rodriquez, 636 N.W.2d 234, 240 (Iowa 2001) (stating that unfairly prejudicial

evidence “appeals to the jury’s sympathies, arouses its sense of horror, provokes

its instinct to punish, or triggers other mainsprings of human action [that] may

cause a jury to base its decision on something other than the established

propositions in the case”(alteration in original) (citation omitted)).

III. Sufficiency of the Evidence.

Fenton next challenges the sufficiency of the evidence showing he engaged

in solicitation of commercial sexual activity. We review the sufficiency of the

evidence for correction of errors at law. State v. Cook, 996 N.W.2d 703, 708 (Iowa

2023). We uphold the verdict if supported by substantial evidence. Id. Substantial

evidence is evidence that is “sufficient to convince a rational trier of fact the

defendant is guilty beyond a reasonable doubt.” Id. (citation omitted). We view

the evidence and all legitimate inferences and presumptions that may be drawn

from it in the light most favorable to the State. Id.

For the jury to find Fenton guilty of solicitation of commercial sexual activity,

the State had to prove that Fenton enticed, coerced, or recruited (or attempted to

entice, coerce, or recruit) a person under the age of eighteen or a law enforcement 6

officer representing to be a person under the age of eighteen to engage in

commercial sexual activity. See Iowa Code § 710A.2A. The court instructed the

jury that commercial sexual activity “means any sex act or sexually explicit

performance for which anything of value is given, promised to, or received by any

person and includes, but is not limited to, prostitution, participation in production of

pornography, and performance in strip clubs.” See id. § 710A.1(1).

Although Fenton concedes that he discussed sexual activity with Neveah

and arranged to meet her for sex, he argues the evidence does not support a

finding that he gave or promised anything of value in exchange for sex. We

disagree. During one conversation with Neveah, Fenton promised to pay for the

shower room at the truck stop, saying, “i’l[l] get it no worries.” By paying for a

shower room, Fenton would be providing “[some]thing of value.” Although Fenton

argues that he made this offer to secure a place to meet rather than in exchange

for sex, it is clear from the conversation that they were meeting for the purpose of

sex. Although Fenton did not have money to rent a shower room on the day they

arranged to meet, that does not negate his earlier promise to do so. Promising to

pay for the shower room for the purpose of sex act is commercial sexual activity.

Even if providing the money for the shower room was not something of

value to Neveah, Fenton made other statements that support the verdict. In one

conversation, Neveah asks Fenton what he would do to engage in sex with both

her and a fifteen-year-old friend and Fenton replies, “what do i need to do lol.”

When Neveah tells him that “[g]irls like food and clothes,” Fenton replies, “ok i have

no prob spoiling a [lil].” During another conversation, Fenton says he is bored, and

Neveah tells him that he should “go make some money” because it “always feels 7

good to have a lil $.” Fenton then tells Neveah, “i have some money and you

have?” before initiating more sexually explicit conversation. Although the details

are not specific, the jury could also infer from these conversations that Fenton was

offering Neveah something of value if she had sex with him.

Fenton also challenges the evidence showing that he enticed, coerced, or

recruited Neveah to engage in commercial sexual activity. The court instructed

the jury that

the phrase “enticed, coerced, or recruited, or attempted to entice, coerce, or recruit, a person to engage in commercial sexual activity” refers to any verbal statement, act, or conduct which invites a person to be a partner in a sex act for money or other thing of value, regardless of whether a sex act occurred or a person made an actual payment of any kind. The request, solicitation, or acceptance does not have to be in any particular form of words. It can arise from a gesture or other expression which indicates a sex act was to occur.

Fenton argues that Neveah is the one who “initiated and drove many of the

discussions.” But it is clear from the evidence that Fenton wanted to engage

Neveah in a variety of sex acts. It was a frequent topic of conversation, with Fenton

explicitly describing the acts he wanted to engage Neveah in. Fenton invited

Neveah to meet in person to follow through with those acts. Because one engages

in solicitation of commercial activity both by enticing and attempting to entice

another into commercial sexual activity, the State need not prove the enticement

was tempting. Cf. State v. Hansen, 750 N.W.2d 111, 114 (Iowa 2008)

(distinguishing enticement of a minor under Iowa Code under section 710.10 from

attempted enticement of a minor based on the impact the defendant’s actions had

on the victim). Asking Neveah to engage in sexual activity based on the promise

of renting a shower room (or providing something else of value) is enough to 8

sustain Fenton’s conviction. See Entice, Black’s Law Dictionary (11th ed. 2019)

(defining entice as “to wrongfully solicit (a person) to do something”); cf. Hansen,

750 N.W.2d at 113 (holding that the definition of enticement in Black’s Law

Dictionary cannot be applied to statute prohibiting enticement of a minor because

its focus is on the defendant’s conduct and therefore “encompasses both

enticement and attempted enticement”).

Substantial evidence supports the jury’s verdict.

IV. Weight of the Evidence.

Fenton contends the trial court applied the incorrect standard in ruling on

his motion for new trial. The State concedes that the court denied the motion after

applying a sufficiency-of-the-evidence standard rather than a weight-of-the-

evidence standard. See State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998) (stating

that the court in ruling on a motion for new trial must determine whether the verdict

is contrary to the weight of the evidence rather than applying a sufficiency-of-the-

evidence standard). On this basis, we vacate the ruling on Fenton’s motion for

new trial and remand to the trial court to reconsider the motion under the weight-

of-the-evidence standard. See id.

V. Illegal Sentence.

Finally, Fenton contends the court imposed an illegal sentence by ordering

him to complete the sex offender treatment program as a term of his sentence.

The State also concedes that the court did not have the authority to do so. See

Iowa Code §§ 901.5, 903A.2, .4; Dykstra v. Iowa Dist. Ct., 783 N.W.2d 473, 478–

79 (Iowa 2010) (stating that the Iowa Department of Corrections has “broad 9

discretion” to determine participation in the sex offender treatment program). We

therefore vacate this portion of Fenton’s sentence.

VI. Conclusion.

We conditionally affirm Fenton’s conviction for solicitation of commercial

sexual activity. We vacate the court’s ruling on Fenton’s motion for new trial and

the portion of his sentence requiring him to complete the sex offender treatment

program. We remand to the district to reconsider the motion for new trial under

the correct standard. If the court grants the motion on remand, it must set Fenton’s

conviction aside and order a new trial. If it denies the motion, our affirmance

stands, and the court must enter a corrected sentencing order.

CONVICTION CONDITIONALLY AFFIRMED, SENTENCE VACATED IN

PART, AND REMANDED FOR FURTHER PROCEEDINGS.