Opinion
No. 5-005 / 03-1640
Filed February 24, 2005
Appeal from the Iowa District Court for Warren County, Artis Reis, Judge.
Monte Devore appeals from his convictions for three counts of lascivious acts with a child. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Scott D. Brown, County Attorney, and Jane Orlanes, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Monte Devore appeals from his convictions for three counts of lascivious acts with a child in violation of Iowa Code section 709.8 (2003). He contends the district court erred in denying his motion for judgment of acquittal because there was insufficient evidence to support his convictions. We affirm.
I. Background Facts Proceedings.
The charges involved in this case arose out of a series of events that occurred in December 2002. Devore's two children, C.D. and D.D., ages nine and seven respectively, were visiting their father over the holidays. Devore's girlfriend and her two children, K.C. and Ka.C., ages ten and seven respectively, resided with Devore. According to C.D., all four children were seated at the dinner table when Devore entered the dining room. C.D. recalled that Devore "stuck his penis in our faces" and rubbed it on both of C.D.'s cheeks. Similarly, D.D. stated that his father touched him all over the face with his penis. K.C. relayed a similar version of events and indicated that Devore's penis came into contact with the back of his head. Ka.C. saw Devore "st[i]ck out his private." She hid under the dining room table in an attempt to avoid Devore. She recalled hearing cries of disgust from the remaining three children seated at the dinner table.
On December 30, 2002, Devore was charged by trial information with four counts of second-degree sexual abuse, two counts of incest, four counts of lascivious acts with a child, four counts of indecent exposure, and four counts of child endangerment. On August 13, 2003, Devore pled guilty to the four counts of child endangerment. The State subsequently filed an amended trial information charging Devore with one count of second-degree sexual abuse and three counts of lascivious acts with a child. These charges proceeded to a jury trial on August 22, 2003. During trial, Devore testified the children never physically came into contact with his genitals. He admitted to exposing himself to the children on two occasions as a prank, but denied ever physically touching the boys with his penis. The jury found Devore not guilty of second-degree sexual abuse, but guilty on all three counts of lascivious acts with a child. The district court sentenced Devore to serve an indeterminate term of five years for each count of lascivious acts with a child, to be served consecutively. Devore appeals.
Devore was also sentenced to serve an indeterminate term of two years for each of the four counts of child endangerment to which he pled guilty. The court ordered Counts XV and XVI to be served concurrently and Counts XVII and XVIII to be served concurrently. However, these sentences were ordered to run consecutive to the sentences imposed for the lascivious acts charges.
II. Standard of Review.
We review sufficiency of the evidence claims for errors at law. Iowa R. App. P. 6.4. A jury's verdict is binding if it is supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999). In deciding whether there is substantial evidence, we view the record in a light most favorable to the State. State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct.App. 1998). Direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)( p).
III. The Merits.
Under section 709.8, a person commits lascivious acts with a child if the person causes a child to touch the person's genitals "for the purpose of arousing or satisfying the sexual desires of either of them." Devore contends the district court should have granted his motion for judgment of acquittal because there was insufficient evidence in the record to prove he physically touched the children with his genitals. He further asserts that if the incident did occur, there was no evidence it was done with the intent to arouse his or the victims' sexual desires.
In the present case, the three boys testified during trial that Devore touched them with his penis. C.D. testified that Devore's penis touched both of his cheeks. Similarly, D.D. testified his father touched him all over the face with his penis. Additionally, K.C. testified that Devore's penis came into contact with the back of his head. Although Devore denied ever physically touching the boys with his penis, in light of the testimony elicited from the three children, we determine there is substantial evidence in the record to support the jury's verdict. It is within the province of the jury to determine the credibility of witnesses and the weight to be given their testimony. See State v. Robinson, 288 N.W.2d 337, 341 (Iowa 1980). The jury was free to believe the boys' testimony and to disbelieve or attach less weight to Devore's contrary testimony.
The question of whether there was sufficient evidence of an intent to arouse or satisfy the sexual desire of either of them is also for the jury to decide. See State v. Murphy, 462 N.W.2d 715, 717 (Iowa Ct.App. 1990) (indicating it was for the jury to determine whether or not the defendant had the requisite intent based on the testimony presented during trial). In this case, the jury could well find that Devore's actions were done to arouse or satisfy his sexual desires. Cf. State v. Pearson, 514 N.W.2d 452, 456 (Iowa 1994) ("Whether certain conduct constitutes `sexual contact' is a fact question."). Although Devore averred his actions were a mere prank, the jury was free to disbelieve his assertions in light of the surrounding circumstances and Devore's purposeful conduct. See id. ("The fact that no nonsexual purpose for the contact was discernable also demonstrated the sexual nature of the contact."). Consequently, we affirm Devore's convictions.