Appeal from the Iowa District Court for Scott County, Mark R. Fowler, Judge. A sex offender who was convicted of loitering within 300 feet of a public library appeals his conviction.
Mark C. Smith, State Appellate Defender, Martha J. Lucey, Assistant Appellate Defender, and Kyle Mendenhall, Student Legal Intern, for appellant.
Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant Attorney General, Michael J. Walton, County Attorney, and Alan R. Havercamp and Robert C. Bradfield, Assistant County Attorneys, for appellee.
A registered sex offender was arrested after sitting on a bench facing a public library. It was the middle of the day and he had been there approximately forty-five minutes. We must decide whether sufficient evidence exists to support the defendant's conviction by the district court for loitering within 300 feet of a public library in violation of Iowa Code section 692A.113(1)( g ) (2011). Additionally, we are asked to decide whether the defendant's counsel was ineffective for failing to challenge the constitutionality of this criminal statute on vagueness grounds.
For the reasons discussed herein, after construing the statute to avoid constitutional difficulties, we are uncertain whether the district court applied the correct legal standard in finding the defendant guilty. Accordingly, we reverse the conviction and remand for further proceedings.
I. Facts and Procedural History.
Darrell Showens has a 1999 conviction for third-degree sexual abuse involving a minor. Because of tat conviction, he is required to register as a sex offender. See Iowa Code § 692A.103');"> 692A.103(1). In addition, Showens is subject to certain " exclusion zones." See id. § 692A.113. Among other things, he may not " [b]e present upon the real property of a public library without the written permission of the library administrator." Id. § 692A.113(1)( f ). And, he may not " [l]oiter within three hundred feet of the real property boundary of a public library." Id. § 692A.113(1)( g ).
On Friday, May 11, 2012, at around 1:30 p.m., Showens was seated on a park bench located across the street from the main entrance to the downtown Davenport Public Library. He was facing the library, and the bench was seventy-two feet from the front door of the library.
Deputy Bawden of the Scott County Sheriff's Office, whose primary job is to register sex offenders and insure compliance with the sex offender registry, was leaving the library on a separate investigation. He spotted Showens. Deputy Bawden could identify Showens based on his previous familiarity with him. The deputy proceeded to his vehicle which was parked outside the library. From the vehicle, he confirmed that Showens was still a registered sex offender required to comply with Iowa Code section 692A.113. For the next ten minutes, Deputy Bawden observed Showens sitting on the bench, eating chips and drinking what appeared to be a sports beverage.
At this point, Deputy Bawden approached Showens and asked him what he was doing. Showens first said he was waiting for a friend, but when Deputy Bawden offered to wait with him, Showens said his friend had left twenty minutes ago. When Deputy Bawden asked Showens what he had been doing since his friend left, Showens stated he had been scratching lottery tickets. Because Deputy Bawden did not observe any residue from scratch tickets around, he asked Showens to show him the lottery tickets. Showens responded that he had already thrown them away.
Deputy Bawden then asked Showens why he was sitting across from the library. Showens indicated he was waiting for a bus. Deputy Bawden pointed out that the bench was not a bus stop, and Showens responded that he was planning to catch a bus to his home at a stop that was two blocks away. As Deputy Bawden later noted, Showens's home was only seven
blocks away, or five blocks beyond the bus stop.
Several times during the conversation, Showens indicated he was " just hanging out" on the bench. He told Deputy Bawden he was not loitering and that he did not think he was within 300 feet of the library. However, when Deputy Bawden asked him if he believed he was a football field away from the library, Showens admitted he was not. At the end of the conversation, Deputy Bawden arrested Showens and transported him to the Scott County Jail.
By the time Deputy Bawden arrested Showens, twenty minutes had passed since he had first seen Showens sitting on the bench. Showens later admitted he had been sitting across from the library for forty-five minutes. Showens also admitted that he been informed of the prohibition on entering a public library without permission from the administrator, as well as the prohibition on loitering within 300 feet of a public library.
Showens was charged with failure to comply with the sex offender exclusion zone requirements based on loitering within 300 feet of a public library. See id. § § 692A.111');"> 692A.111(1), .113(1)( g ). He went to trial before the court on September 13, 2012. Both Deputy Bawden and Showens testified, and the parties also agreed to enter into evidence the minutes of testimony that included Deputy Bawden's report.
Showens did not contest that he was a registered sex offender, that he was subject to the restriction in section 692A.113(1)( g ), that he had received notice of the restriction before, and that he was within 300 feet of the library on the day in question. He only claimed his actions did not constitute " loitering." At the conclusion of the trial, his attorney stated, " We are not quarreling with the fact we were there and within 300 feet of the library, and the question is whether it was loitering under the definition."
In a written ruling on September 18, the district court denied the defense's motion for directed verdict and found Showens guilty of failure to comply with the sex offender exclusion zone requirements, in violation of sections 692A.111');"> 692A.111(1) and 692A.113(1)( g ). As the court explained,
The Court finds there is substantial evidence in the record that would warrant a reasonable person to believe that Mr. Showens was seated in front of the Davenport library in order to become familiar with a location where a potential victim could be found, or to locate a potential victim. This is sufficient to satisfy the element that Showens was engaged in " loitering" within three hundred feet of the Davenport Public Library.
Showens was sentenced to 240 days in jail with all but three days suspended. Additionally, Showens was ordered to pay a fine of $625 and serve 213 hours of community service.
Showens appealed, arguing that there was insufficient evidence he was " loitering" in violation of section 692A.113(1)( g ). Showens also maintained that his trial counsel had been ineffective for failing to argue that the statutory definition of " loitering" was unconstitutionally vague and violated the Due Process Clause of the United Statess and Iowa Constitutions. We retained the appeal.
II. Standard of Review.
We review sufficiency-of-the-evidence claims for correction of errors at law. State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013).
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. Romer, 832 N.W.2d 169, 174 (Iowa 2013) (citation and internal quotation marks omitted).
" We review claims of ineffective assistance of counsel de novo." State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).
A. The Statutory Background.
Showens argues that the State failed to present sufficient evidence to sustain his conviction. Iowa Code section 692A.111');"> 692A.111 provides that a violation of section 692A.113 is " an aggravated misdemeanor for a first offense." Iowa Code § 692A.111');"> 692A.111(1). " For purposes of this subsection, a violation occurs when a sex offender knows or reasonably should know of the duty to fulfill a requirement specified in this chapter as referenced in the offense charged." Id. The district court found Showens violated section 692A.113(1)( g ) which prohibited him from ...