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State of Iowa v. David Paul Spivey

April 10, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
DAVID PAUL SPIVEY, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Polk County, Odell McGhee, District Associate Judge.

The opinion of the court was delivered by: Mullins, J.

A defendant appeals his conviction for indecent exposure claiming there was insufficient evidence to support his conviction. AFFIRMED.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

David Spivey appeals from his conviction for indecent exposure, a serious misdemeanor, in violation of Iowa Code section 709.9 (2009). He claims there was insufficient evidence to support his conviction that he exposed himself to arouse the sexual desires of either party or that he exposed himself to someone who was not his spouse. As we find sufficient evidence to support both elements, we affirm his conviction.

I. BACKGROUND FACTS AND PROCEEDINGS.

Spivey was charged with indecent exposure. He waived a jury trial and stipulated to a bench trial on the minutes of testimony. The court found Spivey guilty, sentenced him to one year in jail, suspended that sentence, and placed him on probation for one year. Spivey was ordered to pay a $315 fine plus the surcharge, participate in the victim offender reconciliation program, participate in the sex offender treatment program, and register as a sex offender. The court also extended a no-contact order that was in place to protect the victim.

From the police reports attached to the trial information, the following facts can be gleaned. On December 15, 2009, a man approached a group of people in the parking lot of the Central Iowa Shelter. The victim was part of that group. The man asked the group if anyone was looking for work. He needed someone to pack and unload boxes for the day for $200. He seemed particularly interested in the two women of the group. The victim was the only one to get into the vehicle, and the man drove away. The victim's phone's GPS was activated before she left, and the other members of the group took down the vehicle's license plate. The victim gave the man directions, but instead of turning right as the victim directed, he turned left into Gray's Lake. The man parked the vehicle in the parking lot and said "something to the effect of, 'How would you like to make another (an additional) $200 today?'" When the victim looked over she discovered the man had pulled out his penis and was gesturing for her to do something with it or come closer to him. The victim said no and demanded to be taken back to the shelter. The man replied that no one knew where she was. The victim then took out her cell phone and told the man that her GPS was activated so her friends knew where she was. The man looked scared, dropped the victim back near the shelter, and then sped away.

The victim and her fiance were later approached by the same man again offering work, this time in the parking lot at DMACC. The man was wearing a blue polo shirt with a Karl Chevrolet logo on it. When the victim and her fiance mentioned they had seen the man before, the man drove off.

The police were able to locate the vehicle using the license plate information provided by the victim and her friends. It was registered to a David and Melissa Spivey. The police provided a photographic lineup to the victim who stated that Spivey's photo had an "uncanny resemblance" to the man who approached her. The police contacted Spivey who admitted the vehicle was his and he was the only person to drive it. He also worked for Karl Chevrolet. Spivey denied being in the parking lot of the shelter or offering people jobs. He denied that a female ever got into his van, though he did say exposing one's genitals to a stranger would be offensive.

II. INDECENT EXPOSURE-SUFFICIENCY OF THE EVIDENCE.

To prove Spivey guilty of indecent exposure, the State had to prove the following four elements:

1. The exposure of genitals or pubes to someone other than a spouse . . .;

2. That the act is done to arouse [or satisfy] the sexual ...


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