Opinion
No. 5-436 / 04-0756
Filed June 29, 2005
Appeal from the Iowa District Court for Scott County, Douglas C. McDonald, District Associate Judge.
Scott Michael Williams appeals from his conviction and sentence for assault with intent to commit sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, William E. Davis, County Attorney, and Rex J. Ridenour, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
Scott Michael Williams appeals from his conviction and sentence for assault with intent to commit sexual abuse in violation of Iowa Code section 709.11 (2003). We affirm.
I. Background Facts Proceedings
The State charged Williams with the aforementioned offense following an incident at the Scott County Residential Correctional Facility in Davenport, Iowa. According to Katherine Harvey, Williams touched her breast and pubic area without her permission on February 28, 2004, while both were residents of the correctional facility. Harvey testified:
HARVEY: I was sitting at one of the dining tables in our cafeteria area filling out some paperwork and had my arm resting on a phone book. And I had a coat on; come in from smoking. Mr. Williams told me — after the first time I lifted my arm to look at the phone book he asked me if I would lift my arm again. I took it to mean that I had brushed the wall. I had something on my arm. When I proceeded to lift my arm the second time he reached underneath my arm and proceeded to grab my left breast.
COUNSEL: Did Mr. Williams say anything to you at that time?
HARVEY: Not right away. I asked him what he was doing, told him to stop. He then proceeded to sit and poke at my sides. I'm very ticklish and I told him to stop, because that is one of the areas where I'm very ticklish. And I told him he was going to get me laughing and we were going to get in trouble. It is a touch-free facility and somebody was going to hear me laughing. And he told me if he really wanted me — if he really wanted to tickle me, that he would go for here (indicating) and he proceeded to reach towards my genital areas, but I had my legs crossed, so he could not get full contact.
. . . .
COUNSEL: Did you clearly indicate to Mr. Williams that that type of contact was not acceptable to you?
HARVEY: Yes, sir, several times. I even made it a point to scoot further down the table bench to get further away from him.
On May 3, 2004, a jury found Williams guilty as charged and Williams was subsequently sentenced to serve one year in jail and ordered to pay a fine of $500 plus court costs and other charges. Williams appeals.
On appeal, Williams raises the following issues for review:
I.THERE IS INSUFFICIENT EVIDENCE TO SUPPORT THE DEFENDANT'S CONVICTION FOR ASSAULT WITH INTENT TO COMMIT SEXUAL ABUSE.
II.TO THE EXTENT ERROR WAS NOT PRESERVED, THE TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.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). Direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)( p).
III. Sufficiency of the Evidence
Concerned that his motion for judgment of acquittal was insufficient to preserve error on his sufficiency of the evidence claim, Williams raises this issue alternatively as an ineffective assistance of counsel claim. Because we find, and the State agrees, that Williams's motion for judgment of acquittal was adequate to preserve the issue for appeal, we need not address the ineffective assistance of counsel claim.
Williams argues "the State presented insufficient evidence that his acts were done with specific intent to commit sexual abuse." He contends his actions were "suggestive of flirting behavior. There was a mischievous, not menacing, tone in his conduct and statements." Therefore, Williams believes his conduct "may at worst be comparable to sexual harassment, but not sexual abuse." We disagree.
To find Williams guilty of assault with intent to commit sexual abuse, the jury was instructed that the State had to prove Williams assaulted Harvey with the specific intent to commit a sex act by force or against Harvey's will. A sex act was defined to include "any sexual contact between the finger or hand of one person and the genitals of another person. Skin-to-skin contact is not required to establish a `sex act.'" The jury was further instructed that:
"Specific intent" means not only being aware of doing an act and doing it voluntarily, but in addition, doing it with a specific purpose in mind.
Because determining the defendant's specific intent requires you to decide what he was thinking when an act was done, it is seldom capable of direct proof. Therefore, you should consider the facts and circumstances surrounding the act to determine the defendant's specific intent. You may, but are not required to, conclude a person intends the natural results of his acts.
Because Williams did not object to these instructions at trial, and raises no issue with them on appeal, we equate his "acquiescence with the instruction[s] as . . . adequate statement[s] of the applicable law." See Waterbury v. State, 387 N.W.2d 309, 310 (Iowa 1986).
A defendant's Intent to commit sexual abuse can be inferred from defendant's behavior, history of other criminal behavior, and attendant circumstances. See State v. Casady, 491 N.W.2d 782, 786-87 (Iowa 1992). The record shows that Williams touched Harvey's breast and pubic area without her permission. Harvey made it clear to Williams that those actions were unwanted when she told him to stop and moved further away from him. Additionally, only a week before, Harvey reported to a residential officer that Williams had been making sexual gestures to her. Harvey testified, "There were gestures of a sexual nature that he would make with his tongue, gestures that he would make towards his genital areas to me about, I will make you a seat, things along those lines." Viewing this "evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the record evidence," we conclude substantial evidence supports the jury's determination that Williams acted with the specific intent to commit sexual abuse. See State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005) (providing standard of review in resolving sufficiency of the evidence issues). Accordingly, we affirm Williams's conviction for assault with intent to commit sexual abuse.
AFFIRMED.