TERNUS, Justice.
The defendant, Kris Kanon Pearson (Pearson), was convicted in a bench trial of four counts of second-degree sexual abuse in violation of Iowa Code section 709.3(2) (1991). He appeals his conviction of count four only.
Pearson argues on appeal that sexual abuse requires the occurrence of a “sex act” which is defined in part as “sexual contact.” Because both Pearson and his victim remained clothed throughout the incident that gave rise to count four, Pearson contends there was no sexual contact. He asserts, therefore, that there was insufficient evidence to convict him of count four. We affirm.
I.Underlying Facts.
The victim and his brother recounted the events giving rise to count four at trial. At the time of the trial in 1992, the victim, B.S., was eight years old and his brother, J.S., was ten. They testified that in August of 1990 they were with Pearson in Pearson’s parked truck. J.S. was seated in the front passenger seat and B.S. was sitting on Pearson’s lap in the driver’s seat. Pearson had reclined the driver’s seat and was laying back. B.S. was pretending to drive the truck.
At one point Pearson unzipped his pants and his penis was out. Pearson told B.S. he was “going to get come all over [B.S.].” Eventually, Pearson covered his penis and had B.S. sit on top of him. B.S. continued to face forward. Pearson pressed B.S.’s body close to his with B.S.’s anus over Pearson’s penis. B.S. could feel Pearson’s penis beneath him. Pearson masturbated by moving his covered penis against B.S.’s clothed buttocks.
II. Applicable Law.
Section 709.3 provides that a person is guilty of sexual abuse in the second degree when a person commits sexual abuse and the other participant is under the age of twelve. Section 709.1 defines sexual abuse as any “sex act” between persons when one of the participants is a child. The definition of “sex act” is found in section 702.17:
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; contact between the mouth and genitalia or by contact between the genitalia of one person and the genitalia or anus of another person; contact between the finger or hand of one person and the genitalia or anus of another person, except in the course of examination or treatment by a person licensed pursuant to chapter 148, 148C, 150, 150A, 151, or 152; or by use of artificial sexual organs or substitutes therefor in contact with the genitalia or anus.
(Emphasis added.) We must decide whether the incident in the truck was “sexual contact” between the genitalia of Pearson and the anus of B.S. Pearson argues there was no contact because his penis and B.S.’s anus were covered by clothing.
III. Sexual Contact.
In State v. Phipps, 442 N.W.2d 611, 613 (Iowa App.1989), our court of appeals held that a “lack of skin-to-skin contact alone does not, as a matter of law, put defendant’s conduct outside the definition of ‘sex act.’ ” In Phipps, the defendant placed his hand inside a fourteen-year-old boy’s jeans but over the boy’s underwear. While defendant was touching the boy, he placed the boy’s hand on the outside of defendant’s underwear and on defendant’s genitalia.
[455]*455The State argued that to require skin-to-skin contact would prevent a finding of sexual abuse whenever a defendant had used a condom, glove, or underwear while performing the “sex act.” State v. Phipps, 442 N.W.2d 611, 612 (Iowa App.1989). The court decided the legislature did not intend “that a piece of clothing as flimsy as a pair of shorts or even a girl’s panties” would insulate a defendant from punishment for performing a “sex act” with a child. Id. at 613. Recognizing that certain types of sexual contact may not be possible with intervening clothing present, the court concluded that the State would have to prove on a case-by-case basis whether the defendant’s conduct fell within the definition of contact described in section 702.17. Id.
Pearson does not argue on appeal that the lack of skin-to-skin contact automatically puts his conduct outside the scope of section 702.17. However, he does contend that his conviction “represents an illustration of Phipps carried to its absurd extreme.” He urges that the holding of Phipps should be limited to those situations where a defendant has used a condom, glove or underwear while performing the “sex act.” Pearson contends that an expansion of Phipps beyond these parameters would encompass conduct never intended to be labeled sexual abuse. For example, he claims that because intent to arouse or satisfy one’s sexual desires is not necessary for a finding of second-degree sexual abuse, an adult who bounces a child on his or her lap could be found guilty of sexual abuse.
We reject Pearson’s argument. First we hold that skin-to-skin contact is not required in order to establish a “sex act” under section 702.17. There is no language in the statute which would limit its scope in this way. Consequently, prohibited contact may occur even though the specified body parts or substitutes are covered. See State v. Schnaidt, 410 N.W.2d 539, 540 (S.D.1987).
Nor are we inclined arbitrarily to limit our holding to situations involving the use of a condom or glove. Whether intervening material prevents contact must be determined on a case-by-case basis, considering the nature and amount of the intervening material. 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.
We do not agree with Pearson that an adult who bounces a child on his or her lap risks a conviction of sexual abuse under our interpretation of “contact.” Not all contact is a “sex act.” The contact must be between the specified body parts (or substitutes) and must be sexual in nature.
The sexual nature of the contact can be determined from the type of contact and the circumstances surrounding it. For example, in Phipps, the sexual nature of the contact was shown by evidence that the defendant rubbed the victim’s genitalia, placed the victim’s hand on the defendant’s genitalia and ejaculated. Phipps, 442 N.W.2d at 612. The fact that no nonsexual purpose for the contact was discernible also demonstrated the sexual nature of the contact.
On the other hand, the contact between an adult and a child bouncing on his or her lap would not be sexual in nature unless the circumstances surrounding it suggested it was. Such circumstances certainly include whether the contact was made to arouse or satisfy the sexual desires of the defendant or the victim. However, the lack of such motivation would not preclude a finding of sexual abuse where the context in which the contact occurred showed the sexual nature of the contact.
Free access — add to your briefcase to read the full text and ask questions with AI
TERNUS, Justice.
The defendant, Kris Kanon Pearson (Pearson), was convicted in a bench trial of four counts of second-degree sexual abuse in violation of Iowa Code section 709.3(2) (1991). He appeals his conviction of count four only.
Pearson argues on appeal that sexual abuse requires the occurrence of a “sex act” which is defined in part as “sexual contact.” Because both Pearson and his victim remained clothed throughout the incident that gave rise to count four, Pearson contends there was no sexual contact. He asserts, therefore, that there was insufficient evidence to convict him of count four. We affirm.
I.Underlying Facts.
The victim and his brother recounted the events giving rise to count four at trial. At the time of the trial in 1992, the victim, B.S., was eight years old and his brother, J.S., was ten. They testified that in August of 1990 they were with Pearson in Pearson’s parked truck. J.S. was seated in the front passenger seat and B.S. was sitting on Pearson’s lap in the driver’s seat. Pearson had reclined the driver’s seat and was laying back. B.S. was pretending to drive the truck.
At one point Pearson unzipped his pants and his penis was out. Pearson told B.S. he was “going to get come all over [B.S.].” Eventually, Pearson covered his penis and had B.S. sit on top of him. B.S. continued to face forward. Pearson pressed B.S.’s body close to his with B.S.’s anus over Pearson’s penis. B.S. could feel Pearson’s penis beneath him. Pearson masturbated by moving his covered penis against B.S.’s clothed buttocks.
II. Applicable Law.
Section 709.3 provides that a person is guilty of sexual abuse in the second degree when a person commits sexual abuse and the other participant is under the age of twelve. Section 709.1 defines sexual abuse as any “sex act” between persons when one of the participants is a child. The definition of “sex act” is found in section 702.17:
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; contact between the mouth and genitalia or by contact between the genitalia of one person and the genitalia or anus of another person; contact between the finger or hand of one person and the genitalia or anus of another person, except in the course of examination or treatment by a person licensed pursuant to chapter 148, 148C, 150, 150A, 151, or 152; or by use of artificial sexual organs or substitutes therefor in contact with the genitalia or anus.
(Emphasis added.) We must decide whether the incident in the truck was “sexual contact” between the genitalia of Pearson and the anus of B.S. Pearson argues there was no contact because his penis and B.S.’s anus were covered by clothing.
III. Sexual Contact.
In State v. Phipps, 442 N.W.2d 611, 613 (Iowa App.1989), our court of appeals held that a “lack of skin-to-skin contact alone does not, as a matter of law, put defendant’s conduct outside the definition of ‘sex act.’ ” In Phipps, the defendant placed his hand inside a fourteen-year-old boy’s jeans but over the boy’s underwear. While defendant was touching the boy, he placed the boy’s hand on the outside of defendant’s underwear and on defendant’s genitalia.
[455]*455The State argued that to require skin-to-skin contact would prevent a finding of sexual abuse whenever a defendant had used a condom, glove, or underwear while performing the “sex act.” State v. Phipps, 442 N.W.2d 611, 612 (Iowa App.1989). The court decided the legislature did not intend “that a piece of clothing as flimsy as a pair of shorts or even a girl’s panties” would insulate a defendant from punishment for performing a “sex act” with a child. Id. at 613. Recognizing that certain types of sexual contact may not be possible with intervening clothing present, the court concluded that the State would have to prove on a case-by-case basis whether the defendant’s conduct fell within the definition of contact described in section 702.17. Id.
Pearson does not argue on appeal that the lack of skin-to-skin contact automatically puts his conduct outside the scope of section 702.17. However, he does contend that his conviction “represents an illustration of Phipps carried to its absurd extreme.” He urges that the holding of Phipps should be limited to those situations where a defendant has used a condom, glove or underwear while performing the “sex act.” Pearson contends that an expansion of Phipps beyond these parameters would encompass conduct never intended to be labeled sexual abuse. For example, he claims that because intent to arouse or satisfy one’s sexual desires is not necessary for a finding of second-degree sexual abuse, an adult who bounces a child on his or her lap could be found guilty of sexual abuse.
We reject Pearson’s argument. First we hold that skin-to-skin contact is not required in order to establish a “sex act” under section 702.17. There is no language in the statute which would limit its scope in this way. Consequently, prohibited contact may occur even though the specified body parts or substitutes are covered. See State v. Schnaidt, 410 N.W.2d 539, 540 (S.D.1987).
Nor are we inclined arbitrarily to limit our holding to situations involving the use of a condom or glove. Whether intervening material prevents contact must be determined on a case-by-case basis, considering the nature and amount of the intervening material. 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.
We do not agree with Pearson that an adult who bounces a child on his or her lap risks a conviction of sexual abuse under our interpretation of “contact.” Not all contact is a “sex act.” The contact must be between the specified body parts (or substitutes) and must be sexual in nature.
The sexual nature of the contact can be determined from the type of contact and the circumstances surrounding it. For example, in Phipps, the sexual nature of the contact was shown by evidence that the defendant rubbed the victim’s genitalia, placed the victim’s hand on the defendant’s genitalia and ejaculated. Phipps, 442 N.W.2d at 612. The fact that no nonsexual purpose for the contact was discernible also demonstrated the sexual nature of the contact.
On the other hand, the contact between an adult and a child bouncing on his or her lap would not be sexual in nature unless the circumstances surrounding it suggested it was. Such circumstances certainly include whether the contact was made to arouse or satisfy the sexual desires of the defendant or the victim. However, the lack of such motivation would not preclude a finding of sexual abuse where the context in which the contact occurred showed the sexual nature of the contact. Other relevant circumstances include but are not limited to the relationship between the defendant and the victim; whether anyone else was present; the length of the contact; the purposefulness of the contact; whether there was a legitimate, nonsexual purpose for the contact; where and when the contact took place; and the conduct of the defendant and victim before and after the contact.
[456]*456We are well aware of the general principles that penal statutes are to be strictly construed and any ambiguity should be resolved in favor of the defendant. Bown v. State, 475 N.W.2d 3, 6 (Iowa 1991); State v. Byers, 456 N.W.2d 917, 919 (Iowa 1990). However, resort to these rules is not necessary where legislative intent is evident through a reasonable construction of the statute. Bown, 475 N.W.2d at 6; State v. Kirklin, 357 N.W.2d 310, 313 (Iowa 1984) (“[s]trict construction is not to be used to inject doubt when legislative intent is evident through a reasonable construction of the statute”).
We are 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. Therefore, we have rejected a strict interpretation of the statute which would require contact between the skin of the defendant and the skin of the victim. The only task remaining is to give the term “sexual contact” a reasonable construction consistent with the legislature’s intent. The standards we have adopted do so.
We believe the factors and circumstances discussed above, when applied to particular conduct, will result in a fair application of Iowa’s sexual abuse laws consistent with the intent of the legislature. We do not agree with Pearson that innocent persons will be unjustly convicted of sexual abuse because of our interpretation of the statute. Whether certain conduct constitutes “sexual contact” is a fact question. As in any fact-finding process, judges and juries must exercise common sense in their deliberations and be reasonable in their judgments. Common sense and reasonableness, together with the standards set forth above, will protect the innocent person from an arbitrary perversion of the sexual abuse laws.
IV. Sufficiency of the Evidence.
When a defendant challenges the sufficiency of the evidence, we 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. Mulder, 313 N.W.2d 885, 888 (Iowa 1981), cert. denied, 459 U.S. 841, 103 S.Ct. 90, 74 L.Ed.2d 83 (1982). We consider all legitimate inferences and presumptions which may fairly and reasonably be deduced from the evidence. State v. Hy, 458 N.W.2d 609, 612 (Iowa App.1990).
In this case, although both Pearson and B.S. were clothed when the contact occurred, there was evidence that Pearson’s covered penis touched B.S.’s covered anus. Both B.S. and J.S. described the position of Pearson and B.S. such that the court could fairly conclude that B.S.’s anus was positioned directly over Pearson’s penis. Although there was no description of the clothing worn by Pearson and B.S. on this August day, B.S. could feel Pearson’s penis beneath him. We believe the trial court could reasonably find that contact occurred between Pearson’s penis and B.S.’s anus.
There was also abundant evidence of the sexual nature of the contact that took place between Pearson and B.S. Pearson reportedly made the comment to B.S. that he was “going to get come” all over B.S. B.S. and J.S. testified that Pearson purposefully moved his hips up and down while his penis was pressed against B.S.’s buttocks. We believe the circumstances surrounding the contact provide substantial evidence that the contact between Pearson and B.S. was of a sexual nature and constituted a “sex act” under section 702.17.
V. Summary.
We conclude there was sufficient evidence to support a finding that Pearson’s contact with B.S. fell within the definition of “sex act” in section 702.17. Consequently, we affirm Pearson’s conviction on count four, sexual abuse in the second degree.
AFFIRMED.
All Justices concur except CARTER, J., who concurs in part and dissents in part, and SNELL, J., who dissents.