Opinion · Supreme Court of Iowa

State of Iowa v. Brent Michael Romer

2013 Iowa Sup. LEXIS 68

Type: Opinion
Court: Supreme Court of Iowa
Jurisdiction: Iowa
Date: 2013-06-07
Topic: litigation

holding a “single trial was in the interest of judicial economy as it was then unnecessary to require numerous witnesses to testify at multiple trials” | noting that we resolve ambiguities in criminal statutes in favor of the accused | explaining that when interpreting statutes, we must evaluate the entire statute | explaining that when interpreting statutes, we must evaluate the entire statute | dividing the analysis into two parts and stating the second part is whether prejudice outweighed judicial economy | dividing the analysis into two parts and stating the second part is whether prejudice outweighed judicial economy | stating “an attempt to equate our evidentiary rule’s principles with rule 2.6(1)’s principles is inapposite” | finding State established geographic proximity though offenses occurred at the victim’s home, a rock quarry, and at several other locations | considering the State’s interest in judicial economy in determining whether the court should sever multiple charges against a single defendant | finding no unfair prejudice where the jury was instructed “to look at each of the eight counts separately and reach a verdict on each count separately” | stating “the State had the right to charge multiple counts in the same offense to achieve judicial economy” in connection with whether there was a common scheme or plan | stating “the State had the right to charge multiple counts in the same offense to achieve judicial economy” in connection with whether there was a common scheme or plan | noting the defendant had a common scheme to victimize children to fulfill his sexual desires, the conduct was shown to be geographically proximate, and the defendant displayed a similar modus operandi | considering whether the jury “had a cautionary instruction which instructed the jury to look at each of the . . . counts separately and reach a verdict on each count separately” in undue-prejudice analysis | discussing “common scheme or plan” under Iowa Rule of Criminal Procedure 2.6(1) and finding the trial court did not abuse its discretion in not severing the trials of multiple victims and prejudice did not outweigh judicial economy | “[W]e have emphasized that it is exploitation of the power relationship that must be avoided” | “[W]e strictly construe criminal statutes and resolve doubts in favor of the accused.” (Internal quotation marks omitted.) | “[W]e strictly construe criminal statutes and resolve doubts in favor of the accused.” (Internal quotation marks omitted.) | “[W]e strictly construe criminal statutes and resolve doubts in favor of the accused.” (Internal quotation marks omitted.) | “[W]e have emphasized that it is exploitation of the power relationship that must be avoided.” | “[W]e strictly construe criminal statutes and resolve doubts in favor of the accused.” (Internal quotation marks omitted.) | “The crime of sexual exploitation of a minor is aimed at the creation, dissemination, and possession of child pornography . . . .” | “Two of the three events (and seven of the offenses charged) occurred at Romer’s home.” | “[The defendant’s] only arguments in this area pertain to our evidentiary rule on propensity, which we have unequivocally established as distinct from an analysis under our law dealing with joinder of offenses.” | noting we consider legislative history when interpreting an ambiguous statute | “In reviewing challenges to the sufficiency of evidence supporting a guilty verdict, courts consider all of the record evidence viewed in the light most favorable to the State, including all reasonable inferences that may be fairly drawn from the evidence.” | focusing on whether language of statute prohibited certain undisputed conduct | "We believe the legislature intended to protect students from being exploited by the teacher in the next classroom, the former middle school principal the student respected and admired, or the substitute teacher the student had in elementary school, for example." (emphasis added

Citator

Cited by: 47 opinions

               IN THE SUPREME COURT OF IOWA
                               No. 11–0270

                            Filed June 7, 2013


STATE OF IOWA,

      Appellee,

vs.

BRENT MICHAEL ROMER,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Adams County, David L.

Christensen, Judge.



      Defendant seeks further review of court of appeals decision which

affirmed his convictions for sexual exploitation of a minor and sexual

exploitation by a school employee. DECISION OF COURT OF APPEALS

AND JUDGMENT OF DISTRICT COURT AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Benjamin M. Parrott and

Denise A. Timmins, Assistant Attorneys General, and Jeffrey B.

Millhollin, County Attorney, for appellee.
                                      2

ZAGER, Justice.

      This case requires us to interpret the statutory language

prohibiting sexual exploitation by a school employee under Iowa Code

sections 709.15(3)(a) and (b).     Romer appeals his conviction on five

counts of sexual exploitation of a minor and three counts of sexual

exploitation by a school employee. Romer argues he did not violate Iowa

Code section 709.15(3) because, though he was a teacher and the minors

were students, no direct teacher–student relationship existed. He further

argues he could not have violated Iowa Code section 709.15(3), as
delineated in counts VII and VIII, because the State did not produce

evidence that he physically touched the students identified in those two

counts. Finally, he argues the district court abused its discretion in not

severing the eight counts of the trial information into five different trials.

The court of appeals rejected these arguments and affirmed his

convictions. We granted further review. Upon our review, we affirm the

decision of the court of appeals and the judgment of the district court.

      I. Factual Background and Procedural History.

      Viewing the trial evidence in the light most favorable to the jury’s

guilty verdicts, the jury could have found the following facts.         Brent

Michael Romer was a licensed teacher in the state of Iowa. He taught

elementary school for Cumberland and Massena Community Schools,

beginning as a substitute teacher in October 2000. He was subsequently

hired as a full-time teacher, which employment continued from June

2004 through July 2008. He also taught as a substitute teacher in the

Corning Community School District prior to his full-time position with

Cumberland and Massena. Romer lived in nearby Corning. Romer was

charged with five counts of sexual exploitation of a minor in violation of

Iowa Code section 728.12(1) and three counts of sexual exploitation by a
                                    3

school employee in violation of Iowa Code sections 709.15(3)(a) and (b),

and 709.15(5)(a). These charges stem from three separate and distinct

events. All of the charges involved students who attended school in the

Corning Community School District. None of the students involved with

Romer were in an existing teacher–student relationship at the time that

any of the events charged in the trial information occurred.

      The first event involved an admitted sexual relationship with R.A.

R.A. initially met Romer when Romer was a substitute teacher for her

elementary school class.    Romer reinitiated contact with R.A. in 2005
when she was fifteen years old. This contact was initiated through the

social networking website MySpace. Shortly after R.A. turned sixteen, a

sexual relationship commenced.      This sexual relationship lasted until

R.A. was eighteen, at which time she broke off the relationship. R.A. and

Romer engaged in sexual contact and sexual intercourse multiple times

during this relationship.

      The second event occurred in November 2007.         Fifteen-year-old

L.A. was babysitting at Romer’s house, and fourteen-year-old K.G. visited

L.A. while she was babysitting.   As in the case of R.A., K.G. first met

Romer when he was her substitute teacher in her elementary school

class. During this visit, L.A. exchanged text messages with Romer. In

these text messages, Romer stated there was a camera available and

suggested the two girls take nude photographs of each other. While the

girls took some photographs of themselves, there is no evidence that

these photographs were inappropriate. However, when Romer returned

home, he began taking photographs of both of the girls in various sexual

poses he suggested. These photographs depict L.A. nude from the waist

up and K.G. touching L.A.’s breasts with her hands and mouth.
                                     4

      The third event occurred on July 4, 2008. N.S., a fifteen-year-old

female, and L.A. attended a party at Romer’s house where alcohol was

being consumed. Z.G., a seventeen-year-old male, also attended. The

three minors became intoxicated at the party, and Romer took pictures of

them in various sexually explicit poses. The pictures depict the female

minors kissing, taking off their clothing, and embracing.      Most of the

pictures show L.A. and N.S. naked from the waist up and wearing only

their underwear. One of the pictures shows Z.G. touching L.A.’s genital

area. Another adult male is also visible in some of the pictures and in
one photograph is seen touching N.S.’s breast.

      After R.A.’s mother discovered the sexual relationship between R.A.

and Romer, she reported the sexual relationship to Romer’s school

officials. Romer resigned his teaching position with the Cumberland and

Massena Community Schools on June 17, 2008, which resignation was

accepted by the school board on July 21, 2008. In November 2009, R.A.

reported her relationship with Romer to the police, and an investigation

commenced. In March 2010, the State charged Romer with five counts of

sexual exploitation of a minor and three counts of sexual exploitation by

a school employee.

      On April 14, 2010, Romer filed a motion to bifurcate the multiple

offenses into separate trials. After a hearing, the district court overruled

the motion on the basis that the alleged acts, if proven, were part of a

common scheme or plan and should therefore be tried together. Romer

renewed his objection to a joint trial of the multiple offenses shortly

before trial in his third motion in limine. The district court denied this

motion in limine.

      On November 4, 2010, Romer also filed a motion to adjudicate law

points, arguing that the charges of sexual exploitation by a school
                                     5

employee mischaracterized the intent of Iowa Code section 709.15

because Romer did not have a direct teacher–student relationship with

the students he was charged with exploiting. The district court denied

the motion, finding a direct teacher–student relationship was not

required.   Romer renewed his objection shortly before trial by filing a

motion in limine. The district court denied this motion as well.

      Jury trial commenced on December 14, 2010. At the close of all of

the evidence, Romer moved for a directed verdict on counts VII and VIII

of the amended trial information involving K.G. and L.A.        Specifically,
Romer argued the State had not met its burden with respect to proving

that Romer had “engaged in any sort of sexual conduct or any prohibited

sexual conduct” with either K.G. or L.A. to support the offense of sexual

exploitation by a school employee. The district court denied this motion.

The jury returned its verdicts of guilty to all eight counts of the amended

trial information on December 17, 2010. Romer appealed, arguing the

district court committed reversible error in three ways: (1) in its rulings

on the applicability of sexual exploitation by a school employee, (2) in its

ruling that Romer’s actions in directing students to pose in sexually

explicit positions constituted sexual exploitation, and (3) in its refusal to

sever the various counts of the trial information.

      We transferred the case to the court of appeals which affirmed the

rulings of the district court and the convictions.     We granted Romer’s

application for further review.

      II. Standard of Review.

      To the extent Romer’s appeal involves questions of statutory

interpretation, we review for correction of errors of law.     In re Det. of

Johnson,

805 N.W.2d 750, 753

 (Iowa 2011). Romer also claims the State
                                           6

did not produce sufficient evidence to convict him of several of the counts

for which he was convicted.

       Sufficiency of evidence claims are reviewed for a correction of
       errors at law. In reviewing challenges to the sufficiency of
       evidence supporting a guilty verdict, courts consider all of
       the record evidence viewed in the light most favorable to the
       State, including all reasonable inferences that may be fairly
       drawn from the evidence.       We will uphold a verdict if
       substantial record evidence supports it.

State v. Sanford,

814 N.W.2d 611, 615

 (Iowa 2012) (citations and internal

quotation marks omitted).

       Finally, we review a district court’s “refusal to sever multiple

charges against a single defendant for abuse of discretion.”                   State v.

Elston,

735 N.W.2d 196, 198

 (Iowa 2007).

       III. Discussion and Analysis.

       Romer appeals on three issues.             First, he argues he cannot be

convicted of a violation of Iowa Code section 709.15(3), prohibiting sexual

exploitation by a school employee, because there was not an existing

teacher–student relationship between him and any of the minors whom

he was convicted of exploiting.             Second, he argues he cannot be

convicted of sexual exploitation because the behavior he engaged in did
not constitute sexual conduct with two of the minors, as defined in

sections 709.15(3)(b) or 702.17.1           Finally, Romer argues his charges

       1This   section provides:
               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, 151, or 152; or by
       use of artificial sexual organs or substitutes therefor in contact with the
       genitalia or anus.

Iowa Code § 702.17

 (2009).
                                         7

should have been severed into multiple trials, and the district court’s

refusal to do so resulted in unfair prejudice. We address each of these

issues in turn.

       A. Teacher–Student Relationship. Romer argues he cannot be

convicted of a violation of Iowa Code section 709.15(3), prohibiting sexual

exploitation   by    a   school    employee,    because     there    was    not   a

contemporaneous teacher–student relationship between him and any of

the minors whom he was convicted of exploiting.                Section 709.15(3)

provides:

            3. Sexual exploitation by a school employee occurs
       when any of the following are found:

            a. A pattern or practice or scheme of conduct to
       engage in any of the conduct described in paragraph “b”.

             b. Any sexual conduct with a student for the purpose
       of arousing or satisfying the sexual desires of the school
       employee or the student. Sexual conduct includes but is not
       limited to the following: kissing; touching of the clothed or
       unclothed inner thigh, breast, groin, buttock, anus, pubes,
       or genitals; or a sex act as defined in section 702.17.

             Sexual exploitation by a school employee does not
       include touching that is necessary in the performance of the
       school employee’s duties while acting within the scope of
       employment.

Iowa Code § 709.15

(3) (2009).2

       The district court found that

       there is no requirement in Iowa Code section 709.15(3)(b)
       that the minor be a student of the teacher during the time
       frame they were allegedly being exploited. By omitting
       specific language to require a direct teacher–student
       relationship, the legislature clearly did not intend to limit
       exploitation of minor students to occur only when the



       2The charged acts occurred between January 2005 and July 2008. Unless
otherwise indicated, all references are to the 2009 Code, which included legislation
enacted on or before July 1, 2008.
                                            8
       teacher is in the student’s school or was in fact the student’s
       teacher.3

       A jury convicted Romer of violating Iowa Code section 709.15(3)(a),

finding that Romer had engaged in sexual exploitation by a school

employee because he had engaged in “[a] pattern or practice or scheme of

conduct to engage in any of the conduct found in paragraph ‘b’.”

Id.

§ 709.15(3). The State does not dispute that at the time of the events

giving rise to these convictions, no current teacher–student relationship

existed between Romer and any of the involved students.4

       We apply our time-honored principles of statutory construction in

order to determine whether the district court made errors of law.

       The purpose of statutory interpretation is to determine the
       legislature’s intent.   We give words their ordinary and
       common meaning by considering the context within which
       they are used, absent a statutory definition or an established
       meaning in the law. We also consider the legislative history
       of a statute, including prior enactments, when ascertaining
       legislative intent. When we interpret a statute, we assess the
       statute in its entirety, not just isolated words or phrases.
       We may not extend, enlarge, or otherwise change the
       meaning of a statute under the guise of construction.

In re Estate of Buckwoldt,

814 N.W.2d 215, 223

 (Iowa 2012) (citations

and internal quotation marks omitted). However, “we strictly construe

criminal statutes and resolve doubts in favor of the accused.” State v.

Adams,

810 N.W.2d 365, 369

 (Iowa 2012) (citation and internal

quotation marks omitted).


       3Iowa   Code section 709.15(2) governs sexual exploitation of a counselor or
therapist and prohibits “[a]ny sexual conduct with a patient or client or former patient
or client within one year of the termination of the provision of mental health services by
the counselor or therapist . . . .” The legislature did not include corresponding limiting
language in Iowa Code section 709.15(3). Compare

Iowa Code § 709.15

(2)(c), with

id.

§ 709.15(3)(b).
       4Romer had been a substitute teacher for two of the students when they had
been in elementary school, but the events giving rise to his convictions did not occur
when they were his students.
                                           9

      The legislature defined “student” as

      a person who is currently enrolled in or attending a public or
      nonpublic elementary or secondary school, or who was a
      student enrolled in or who attended a public or nonpublic
      elementary or secondary school within thirty days of any
      violation of subsection 3.

Iowa Code § 709.15

(1)(g). It defined “school employee” as “a practitioner

as defined in section 272.17.”

Id.

 § 709.15(1)(f).   This section defines

“practitioner”    as   “an      administrator,    teacher,    or       other   licensed

professional,    including      an   individual   who   holds      a    statement    of

professional     recognition,     who    provides   educational         assistance   to

students.” Id. § 272.1(7).

      We have not yet analyzed whether the legislature intended for a

teacher–student relationship to concurrently exist before a teacher could

be found guilty under Iowa Code section 709.15(3).                 Romer concedes

that, under the plain language of the statute, he was a school employee

and the minors involved were students. His contention is that he did not

have a “fiduciary relationship” with the students, as he was not their

teacher at the time of the incidents and, thus, “did not create a coercive

and unequal balance of power over the students that forced them to

engage in sexual conduct with him.” He argues that the legislature did

not intend for the conduct in which he engaged to be subject to Iowa

Code section 709.15(3).

      Romer argues that Stotts v. Eveleth,

688 N.W.2d 803

 (Iowa 2004),

should control this question.           In Stotts, an eighteen-year-old student

engaged in a consensual sexual relationship with a teacher.

Id. at 806

.

We evaluated whether a teacher–student relationship was required to

determine if Stotts was entitled to monetary damages for the teacher’s

conduct in initiating the sexual relationship.

Id. at 807

. We defined a
                                      10

“fiduciary relationship” as “one in which a person is under a duty to act

for the benefit of another as to matters within the scope of the

relationship.”