IN THE COURT OF APPEALS OF IOWA
No. 13-0792 Filed April 8, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
EARL DEAN DAWSON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Marion County, Terry R. Rickers,
Judge.
A defendant appeals from his convictions for failure to comply with the sex
offender registry. AFFIRMED.
James S. Nelsen of James S. Nelsen, P.L.C., West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney
General, and Edward W. Bull, County Attorney, for appellee.
Considered by Mullins, P.J., and Bower and McDonald, JJ. 2
MULLINS, J.
Earl Dean Dawson appeals from his convictions on two counts of failure to
comply with the sex offender registry. He was convicted of failing to timely
register an email address and Facebook account name. On appeal, he contends
he was denied the right of cross-examination and the right to present a defense
when the Court made several evidentiary rulings. He also contends there was
insufficient evidence to show he knew or reasonably should have known the sex
offender registry requires reporting the email address and Facebook account.
We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Dawson is a tier-one sex offender subject to the reporting requirements of
the sex offender registry statute set out in Iowa Code chapter 692A (2011). He
was convicted in 2006 of sex abuse in the third degree; the victim was his
fourteen-year-old stepdaughter. Iowa Code section 692A.109 requires law
enforcement officers or the court to inform a sex offender released from
incarceration of his obligation to register. In January 2010, Dawson was
released from prison and received a registration packet and a form in which he
provided the registry a number of personal and contact details. The registration
packet also contained an explanation of his obligations as a sex offender under
Iowa Code chapter 692A. The packet stated the offender is required to notify the
sheriff of each county where the offender maintains a residence, employment, or
is in attendance as a student, within five business days, of “all relevant 3
information, as defined by section 692A.121.”1 On the registration form, Dawson
was asked to provide “email addresses screen names any/all internet identifiers.”
He provided none. The form included a notification that, “A sex offender shall,
within five business days of any change of relevant information, appear in person
to notify the sheriff of each county where a change has occurred.” The packet
contained a disclaimer, which Dawson signed and dated, stating:
In signing below, I acknowledge that I have been notified of my duty to register with the Iowa sex offender registry and to comply with all of the requirements of Iowa Code chapter 692A, including those listed on this DCI-144 form. I also acknowledge that I have received a copy of Iowa Code sections 692A.101(2), 692A.113, and 692A.114.
In December 2010, Dawson created a Facebook account under a false
name, “Bob Harley,” using the unregistered email address,
“harleyboy01@live.com.” Dawson admitted at trial he used a false name to
access Facebook because Facebook does not allow sex offenders to have
accounts. Dawson did not notify law enforcement about this email address or
Facebook account within the required five days.
Dawson completed registration forms in 2011 and 2012. In 2011, the
registration packet stated the offender is required to register with law
enforcement by providing “all relevant information, as defined by section
692A.101(1)(23).”2 This is a typographical error; the relevant code section is
692A.101(23), providing “relevant information” includes “internet identifiers.”
1 Iowa Code section 692A.121 controls public access to offenders’ personal information in the sex offender registry. 2 Iowa Code section 692A.103 identifies offenders who are required to register. Iowa Code section 692A.104 describes the process for registration, including the requirement of “providing all relevant information to the sheriff.” 4
Iowa Code § 692A.101(23)(a)(9). “Internet identifier” is defined as “an electronic
mail address, instant message address or identifier, or any other designation or
moniker used for self-identification during internet communication or posting,
including all designations used for the purpose of routing or self-identification in
internet communications or postings.” Iowa Code § 692A.101(15).
The 2011 packet also provided partial texts of several important sections
of the chapter, including section 692A.101(1) and (2) (definitions of an
“aggravated offense” and an “aggravated offense against a minor”), .113
(exclusion zones and prohibition of certain employment-related activities), .114
(residency restrictions), and .115 (employment where dependent adults reside.)
Dawson did not notify law enforcement of the email address or Facebook
account in his 2011 registration. He signed another disclaimer acknowledging
his receipt and understanding of the registration requirements.
In 2012, the registration packet once again included the requirement that
the offender provide “all relevant information, as defined by section
692A.101(1)(23).” On February 7, 2012, Dawson provided an email address,
“dawson1@iowatelecom.net”, but did not report the “bobharley01@live.com”
email address or the Facebook account and false name of Bob Harley. He
signed the waiver acknowledging his receipt and understanding of the
registration requirements.
In February 2012, Department of Criminal Investigations Special Agent
Amy Kluender, who specializes in sex offender registry compliance, conducted a
compliance check on Dawson and interviewed him in person. On February 29, 5
2012, Kluender discovered Dawson was using “Bob Harley” as a false name
online in several email addresses and on Facebook. Dawson admitted to
Kluender he used these names to circumvent rules about sex offenders’ access
to social media sites. Shortly thereafter, he registered the email address and
Facebook account with the county sheriff.
Iowa Code section 692A.111 sets out a criminal penalty for a sex
offender’s failure to comply with the registration requirements. The State
charged Dawson with two aggravated misdemeanor counts of failure to comply
with the sex offender registry: count one for failure to register the Facebook alias
of “Bob Harley”; count two for failure to register the email address
“harleyboy01@live.com.” The court held a bench trial. The State’s only witness
was Kluender. The State also offered Dawson’s sex offender registry packets
from 2010, 2011, and 2012. Dawson testified on his own behalf. The court ruled
from the bench, finding Dawson guilty on both counts. Dawson appeals, arguing
he was denied the right to present a defense and to cross-examine Kluender. He
also contends there was insufficient evidence to support the convictions.
II. ANALYSIS.
A. Evidentiary Rulings.
Iowa Code section 692A.111(1) provides a criminal penalty for sex
offenders who fail to comply with the Sex Offender Registry requirements:
A sex offender who violates any of the requirements of section 692A.104, 692A.105, 692A.108, 692A.112, 692A.113, 692A.114, or 692A.115 commits an aggravated misdemeanor for a first offense and a class “D” felony for a second or subsequent offense . . . . For purposes of this subsection, a violation occurs when a sex offender knows or reasonably should know of the duty 6
to fulfill a requirement specified in this chapter as referenced in the offense charged.
Thus, section 692A.111(1) requires proof that the defendant knew or reasonably
should have known of the requirement.
Dawson contends on appeal that the district court violated his
constitutional rights. First, Dawson argues the district court violated his right to
cross-examine the State’s witness and to present a defense in two ways: first, by
refusing to allow him to elicit testimony from Kluender to show there was not
sufficient evidence that the State informed Dawson of what he was required to
report, as required under 692A.109; and second, by refusing to allow Dawson to
testify to his own subjective understanding of the requirements. Second,
Dawson argues because he was unable to elicit the testimony on cross-
examination, the court improperly placed the burden of proof on him to “disprove”
the knowledge element of the offense. The State contends Dawson elicited
testimony about Kluender’s personal knowledge of the registration requirements
and Dawson’s subjective understanding in an attempt to raise an untimely
constitutional vagueness challenge to the statute itself, arguing a reasonable
person would not have understood the requirements of the registry. According to
the State, the district court was correct to stop the questioning eliciting such
testimony and Dawson’s own testimony invoking such an argument.
During the trial, Dawson’s counsel engaged in the following cross-
examination of Kluender:
DEFENSE COUNSEL: Now, you know the definitions of the term relevant information, correct? KLUENDER: Yes. 7
DEFENSE COUNSEL: And did you learn those definitions through your training at the academy and through your college education? KLUENDER: No. DEFENSE COUNSEL: How did you learn of those definitions? KLUENDER: Reading the registration documents. DEFENSE COUNSEL: And is that reading the registration documents as— KLUENDER: It’s also the Iowa Code Section 692A. DEFENSE COUNSEL: Okay. So in 692A where does it talk about relevant—relevant information? KLUENDER: I believe it’s 691A.101—I believed it’s contained—I believe it’s the definition section in 692A. DEFENSE COUNSEL: Now [is a] sex offender ever told, you are to go look at 692A.101? KLUENDER: I don’t know if Mr. Dawson was specifically told. DEFENSE COUNSEL: Did you learn anything about legal research through your training either in college or at the academy? KLUENDER: What do you mean by did I learn anything about legal research, sir? DEFENSE COUNSEL: Did you ever have any training on legal research? KLUENDER: No. DEFENSE COUNSEL: They just turned you loose—sorry— THE COURT: The question is really vague, counsel. I’m not sure if I understand what you’re getting at. DEFENSE COUNSEL: Have you ever received any type of training that would—that specifically would go with legal search as in researching statutes? PROSECUTOR: Objection, Your Honor, relevance. THE COURT: How is it relevant, counsel? DEFENSE COUNSEL: Well, once again if he is—we’re trying to figure out how he should know to report this information. And if he needs to go do some legal research—We as attorneys go to law school and spend quite a—we get oriented to doing legal research and going through a statute. And plain reading of statute doesn’t necessarily give anybody the—the full requirements of what to register here. THE COURT: So you’re essentially arguing that if—if a Defendant comes in and said, I didn’t bother to read the code, that that is a defense? DEFENSE COUNSEL: It’s not that they didn’t bother to read the code; it’s that somebody would have to actually have some sort 8
of help in order to understand the requirements of the Sex Offender Registry or be specifically told what they need to register. PROSECUTOR: Your Honor, may the State be heard? THE COURT: You may. PROSECUTOR: Your Honor, the State would object to this line of questioning based on the grounds that it’s a constitutional vagueness argument that’s being made inside the framework of trial. If the defendant wanted to object to the code as written as vague, that should have been done pretrial. Additionally, we’re basically hearing an argument of ignorance of the law as defense, which no affirmative defense of that nature is recognized under Iowa law nor does the defense have the right to take up now [sic] affirmative defense—So the State would object, Your Honor, on relevance to the question, will be renewing its objection as we continue to go down this line of questioning. THE COURT: Well, I’m going to sustain the objection because clearly ignorance of the law is not a recognized defense, and it appears through the questioning that the Defendant’s trying to mount a due process attack of some sort on the statute. But the trial isn’t the time to do that. If you were going to attack the constitutionality of the statute that process should have occurred pretrial.
Later, Dawson testified as follows:
DEFENSE COUNSEL: Do you know what internet identifiers are? DAWSON: After listening to arguments today—I thought I did, but I’m not really sure. To me it’s a user name. DEFENSE COUNSEL: Do you think that email is included in internet identifiers? PROSECUTOR: Your Honor, objection, relevance. Specifically—I’m sorry—May I be heard further? THE COURT: Go ahead. PROSECUTOR: Your Honor, Iowa Code 701.6 deals [sic] ignorance of the law is not a defense; therefore it’s not essential to any element of the case before us. THE COURT: I guess I’m failing to see how it’s relevant. Code defines what internet identifier is. The Court makes the determination of what is or isn’t an internet identifier or alias so— I’m not quite sure what the Defendant’s opinion lends to it concerning the Court’s determination. DEFENSE COUNSEL: Well, specifically just has to do with—he knows of the duty to fulfill his requirement and if he has— in order to know or should know he needs to know what this requirement is. 9
The COURT: It—Again I—It sounds like you’re trying to mount a due—due process constitutionality that—that should have been raised by pretrial motion to dismiss. I guess, why are we discussing this at this stage of the proceedings? DEFENSE COUNSEL: I’m not actually—I mean I’m not trying to make an attempt to attack the statute at all, just questioning on—to whether or not he had the knowledge of his requirement to do this and therefore intentionally did not report this information. THE COURT: So aren’t you in fact making an ignorance of the law argument then? DEFENSE COUNSEL: I suppose in a roundabout way, yes, I am. THE COURT: That’s what it appears to the Court as well. For that reason I’m going to sustain the objection.
On appeal, the State responds to Dawson’s appeal arguments by
asserting Dawson is again attempting to attack the statute for being
unconstitutionally vague.3 Dawson filed no reply brief, therefore, he does not
assist us by confirming or denying the State’s reading of his arguments.
Nonetheless, Dawson somewhat attempts to attack the complexity and
vagueness of the statute on appeal, complaining, “The court’s sustaining of
objections by the State as to questions regarding knowledge ultimately resulted
in the defendant being forced to testify to attempt to disestablish the element of
knowledge by attempting to establish the unreasonableness of the assumption
that the defendant should easily grasp such a complex statute.” However, the
3 See, e.g., State v. Reed, 618 N.W.2d 327, 332 (Iowa 2000) (internal quotations omitted): Under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution, the void-for-vagueness doctrine requires that a penal statute 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. 10
trial transcript shows Dawson’s counsel insisted he was not attempting to argue
the statute was unconstitutionally vague.
Through the court’s discussion with defense counsel, we are persuaded
counsel did not intend to attack the statute as unconstitutionally vague, and we
agree that such an attack would have been untimely at trial.4 To the extent that
Dawson attempts to argue this on appeal, it is not preserved for review.5 Further,
we do not consider the court’s rulings to have the constitutional dimensions that
Dawson alleges; they are evidentiary rulings on relevancy objections, and we
assess them according to those standards.
Generally, we review questions involving the admissibility of evidence for
an abuse of discretion. State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014). An
abuse of discretion occurs “[w]hen the district court exercises its discretion on
grounds or for reasons clearly untenable or to an extent clearly unreasonable.”
Id. A ground or reason is untenable if it is “based on an erroneous application of
the law or not supported by substantial evidence.” Id. Even if there has been an
abuse of discretion, we need not reverse if the inclusion or exclusion was
harmless to the defendant. State v. Reynolds, 765 N.W.2d 283, 288 (Iowa
4 Iowa Rule of Criminal Procedure 2.11(2) provides: Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. The following must be raised prior to trial: a. Defenses and objections based on defects in the institution of the prosecution. b. Defenses and objections based on defects in the indictment or information . . . . 5 State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995) (“When a party fails to alert the district court to its contentions, that party cannot thereafter rely on those contentions to seek a reversal on appeal.”) 11
2009). Evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.” Iowa R. Evid. 5.401.
Generally, relevant evidence is admissible, and evidence that is not relevant is
inadmissible. Iowa R. Evid. 5.402.
Defense counsel admitted he was attempting to argue that Dawson was
subjectively unaware of the registration requirement. Thus, the testimony elicited
from Kluender regarding her knowledge of the requirements could not have been
probative of either Dawson’s subjective knowledge or whether he reasonably
should have known. The court sustained the State’s relevance objection. This
decision was neither untenable nor unreasonable; therefore, there was no abuse
of discretion.
In asking Dawson whether “email is included in internet identifiers,”
defense counsel admitted he was attempting to make an argument that Dawson
was ignorant of the law. As the court pointed out, the statute defines “internet
identifier” as:
an electronic mail address, instant message address or identifier, or any other designation or moniker used for self-identification during internet communication or posting, including all designations used for the purpose of routing or self-identification in internet communications or postings.
Iowa Code § 692A.101(15). Dawson’s opinion as to the definition was not
relevant to whether the email address and Facebook account were internet
identifiers; that is a legal question for the court, as determined by the code. The
trial court concluded the purpose of the testimony was not to help determine what 12
an internet identifier included but was to argue Dawson did not know of the
requirement; it found, therefore, that the testimony was irrelevant and sustained
the State’s objection.
The testimony from Dawson about his understanding of whether “email is
included in internet identifiers” could have been relevant in determining whether
he subjectively knew of the registration requirements. Iowa Code section
692A.111(1) requires that in order for a sex offender to be guilty of failure to
comply with registration requirements, the sex offender either “knows or
reasonably should know of the duty to fulfill” the requirements. The court abused
its discretion when it denied Dawson the opportunity to testify as to his ignorance
of the registration requirements.
Dawson was, however, allowed to testify without objection that he did not
know he was required to report the email address and Facebook account name
until Kluender interviewed him. But the evidence showed that Dawson had
disclosed an email address in the 2012 registration, twenty-two days before
Kluender discovered the Facebook account and false name. The evidence of
Dawson’s 2012 registration is both undeniable and in contradiction to any
testimony he might have given denying subjective knowledge of the requirement
to disclose email addresses and identifiers. Consequently, to the extent Dawson
should have been allowed to testify to his subjective knowledge of the
registration requirements governing email addresses and identifiers, we
determine such denial was harmless error. See Reynolds, 765 N.W.2d at 288. 13
Dawson further contends the court improperly shifted the burden of proof
on the knowledge element to him, thereby forcing him to testify on his own behalf
as to his knowledge to counter Kluender’s testimony about the information he
was provided in the registration packets. Dawson complains the court, in its
verdict, relied heavily on Dawson’s own statements under cross-examination that
he failed to register the email address and the Facebook account. The State, in
its case in chief, presented evidence in an attempt to show Dawson subjectively
knew of the requirement and that he reasonably should have known of it.
Dawson then testified to rebut this evidence. Although the court found that
Dawson admitted each element of the crime on the stand, the court, by not
allowing the irrelevant testimony from Kluender, did not force Dawson to testify
and did not shift the burden of proof to him.
B. Sufficiency of the Evidence.
Dawson contends the court erred in finding there was sufficient evidence
to find him guilty of the offense because he did not know and should not
reasonably have known the code required him to register the email address and
Facebook account. We review sufficiency-of-the-evidence challenges for
correction of errors at law. State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996).
We uphold a finding of guilt if the verdict is supported by substantial evidence.
State v. Henderson, 696 N.W.2d 5, 7 (Iowa 2005). Evidence is substantial if a
rational trier of fact could find the defendant guilty beyond a reasonable doubt.
Id. We consider all evidence in the case, including that which detracts from the
verdict. Id. We view the evidence in the light most favorable to the State. Id. 14
Iowa Code section 692A.111(1) provides a criminal penalty for sex
offenders who fail to comply with the Sex Offender Registry requirements. The
offender’s knowledge may be shown by direct or circumstantial evidence. State
v. Ogle, 367 N.W.2d 289, 292 (Iowa Ct. App. 1985). During his own testimony
and during his interview with Kluender, Dawson admitted every element of the
offense, except for the knowledge element.
Iowa Code section 692A.109 imposes a duty upon the sheriff or warden of
the jail or prison from which the sex offender is released or the court to inform the
sex offender of his or her obligations under chapter 692A. Section 692A.109
does not prescribe a specific list of information a sex offender must receive.
Among the obligations, the sheriff, warden, or court must “[i]nform the sex
offender of the duty to register under this chapter . . . and ensure registration
forms are completed and signed.” Iowa Code § 692A.109(1)(b). The sheriff,
warden, or court must also “[i]nform the sex offender that, within five business
days of a change in relevant information . . . the sex offender shall notify, in a
manner prescribed by ruled, the sheriff of the county of principal residence of the
change.” Iowa Code § 692A.109(1)(d) (emphasis added). The chapter also
requires the offender be informed of certain sections based on the type of
conviction:
(g) Inform the sex offender who was convicted of a sex offense against a minor of the prohibitions established under section 692A.113 by providing the offender with a written copy of section 692A.113 and relevant definitions of section 692A.101. (h) Inform the sex offender who was convicted of an aggravated offense against a minor of the prohibitions established under section 692A.114 by providing the offender with a written 15
copy of section 692A.114 and relevant definitions of section 692A.101.
Iowa Code § 692A.109(1)(g)-(h) (emphasis added). The chapter does not
specify what constitutes the “relevant definitions.” Dawson was convicted of an
aggravated sex offense against a minor. The 2011 and 2012 packets provided
the texts of sections 692A.113 and .114; they also provided the definitions of
“aggravated offense” and “aggravated offense against a minor” by excerpting
Iowa Code section 692A.101(1) and (2). They did not, however, provide the
definition of “sex offense against a minor” provided under section 692A.101(28).
This would seem to be a relevant definition under section 692A.101(g).
Dawson complains the registration packets did not inform him of the
relevant definitions in section 692A.101. According to Dawson, section
692A.109(g) required the State to inform him of all the definitions under section
692A.101, including the definition of “relevant information” under section
692A.101(23) and “internet identifier” under section 692A.101(15). Dawson
argues, because the entire text of section 692A.101 was not included in the
registration packets, the State did not fulfill its obligation to inform him and
consequently he could not reasonably have known of the requirements.
Dawson conflates the State’s obligation to inform him of his registration
requirements as a sex offender and his obligation to comply with the
requirements. The State’s failure to comply with its obligation does not
necessarily absolve Dawson of his. The omission of the section 692A.101
definitions from the informational registration packet does not automatically lead
us to conclude Dawson did not know or could not reasonably have known about 16
the necessity of reporting his internet identifiers. A failure to inform the sex
offender may be evidence of the offender’s lack of subjective knowledge as to
the requirements. It may also be evidence that the offender could not reasonably
have known of the requirements. It does not mean, per se, that the offender did
not know or could not reasonably be expected to know of the requirement.
First, we are not persuaded that 692A.109(1)(g) requires the State to
inform the sex offender of all the definitions under section 692A.101. It requires
only the “relevant definitions.” The definitions of “relevant information” and
“internet identifiers” are not relevant to (g) because they are not related to a “sex
offender who was convicted of a sex offense against a minor.” Second, Dawson
was informed in the informational registration packets in 2011 and 2012 (not, we
note, in 2010) that he was required to report “all relevant information, as defined
by section 692A.101(1)(23),” which includes “internet identifiers.” In 2011 and
2012, Dawson signed the form indicating he understood his obligation under the
registry. Even if he did not subjectively know email addresses and Facebook
accounts were included in the registry requirements, he reasonably should have
known from the informational packet, which instructed him to report “all relevant
information” and directed him to section 692A.101(1)(23). Most telling of
Dawson’s actual knowledge of an obligation to disclose internet identifiers is the
fact that in 2012 he had reported one email address, but not another one. The
fact he omitted to report the one he used to create the Facebook account would
appear to have either been intentional or negligent, not a result of lack of
knowledge. These omissions were the basis for the criminal prosecutions in this 17
case. He also admitted he made up the email address and fake name to
circumvent the rules against sex offenders using Facebook. The evidence is
sufficient to support a conclusion that Dawson reasonably should have known
about the requirement. Accordingly, we affirm the convictions.
III. CONCLUSION.
We affirm the district court’s evidentiary rulings and the convictions for
failure to comply with the sex offender registry requirements.
AFFIRMED.