December 21, 2016
STATE OF IOWA, Plaintiff-Appellee,
JAMIE LEE COLE, Defendant-Appellant.
from the Iowa District Court for Buchanan County, George L.
Cole appeals his judgment and sentence for indecent exposure
enhanced as a second sexually predatory offense. AFFIRMED.
J. Sullivan of Sullivan Law Office, P.C., Oelwein, for
J. Miller, Attorney General, and Sheryl A. Soich, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
Cole appeals his judgment and sentence for indecent exposure
enhanced as a second sexually predatory offense. He contends
(1) he was denied his right to represent himself and (2) the
evidence was insufficient to support the jury's finding
Right of Self-Representation
argues, "The district court violated [his]
constitutional right to self-representation under the Sixth
Amendment when it denied his request to proceed without an
attorney." See State v. Johnson, 756
N.W.2d 682, 687 (Iowa 2008) ("The Sixth Amendment
guarantees the right to self-representation as well as the
right to counsel."). The State counters that Cole waived
waiver [of the right to self-representation] may be found if
it reasonably appears to the court that defendant has
abandoned his initial request to represent himself."
State v. Spencer, 519 N.W.2d 357, 359 (Iowa 1994)
(citation omitted). The record supports a finding of a
the State filed a trial information and the district court
appointed Cole an attorney, Cole asked his attorney to
withdraw and filed a motion to represent himself. At a
hearing on these motions, the district court asked Cole if he
wished to "continue to request that [his attorney] be
withdrawn as [his] attorney." Cole responded, "Yes,
ma'am." The court then asked, "Let me make sure
that I understand: are you wanting a new attorney appointed
to represent you, or are you intending to represent
yourself?" Cole responded, "I would have no problem
with James Peters out of Independence being appointed."
In an effort to clarify, the court stated, "Well, when
we do court-appointed counsel, you do not necessarily get to
pick your attorney. My question is, are you requesting the
appointment of new counsel?" Cole initially responded,
"No, ma'am, " but when asked if he "would
agree to the appointment of Peters" if the court
"were to appoint [him], " Cole responded,
"Correct." The court expressed reservations about
appointing "a specific attorney to represent
someone" but ultimately decided "to appoint Mr.
Peters" to represent Cole. The court reset all pending
motions to give new counsel an opportunity to consider and
discuss them with Cole.
time, Cole filed a motion to fire Peters and a motion to
represent himself. At a hearing on these motions, the
district court engaged in the following exchange with Cole:
COURT: This matter comes before the Court for hearing on
several matters this date, most of which are pro se
applications of Mr. Cole. There is a July 16, 2015
application to fire Attorney James Peters. What is that
about, Mr. Cole? You filed that pro se.
ATTORNEY PETERS: I've asked-Mr. Cole filed this on the
17th, I believe, to have me removed, and I'd let him
address the Court on what he wants to do.
COURT: Mr. Cole.
DEFENDANT: I'd withdraw that, Your Honor. Me and James
have talked since then.
COURT: Okay. That resolves that. There is a motion to
represent yourself. I presume that is withdrawn as well; is
that correct or not?
DEFENDANT: Well, it must have been one of them that we had a
hearing on a couple weeks ago.
COURT: No, this was filed on July 21. You filed a great many
things, and so today is the 28th, and so there was no hearing
on that. But in any regard, I assume you're withdrawing
DEFENDANT: Yeah, that's the one that-I want to withdraw
conclude Cole abandoned his request to represent himself.
See id. at 360 (noting the defendant's
"request for self-representation came out of frustration
rather than a distinct and unequivocal request for that
constitutional right" and stating "even if [the
defendant] wished to proceed pro se at the time of the
withdrawal hearing, he waived and abandoned that right by
acquiescing to attorney McCoy's full representation of
his case for the following year leading up to and during the
jury trial"); State v. Slater, No.
10-1593, 2011 WL 3925727, at *5 (Iowa Ct. App. Sept. 8, 2011)
(stating the defendant "clearly and unambiguously
abandoned the request and informed the court he wanted
counsel to represent him before proceeding to trial").
Sufficiency of the Evidence
challenges the sufficiency of the evidence supporting the
jury's finding of guilt. Our review is for substantial
evidence. State v. Robinson, 859 N.W.2d
464, 467 (Iowa 2015).
jury was instructed the State would have to prove the
following elements of indecent exposure:
1. On or about the 21st day of May, 2015, the defendant
exposed his genitals or pubes to [a correctional officer] who
was not then the defendant's spouse.
2.The defendant did so with the specific intent to arouse or
satisfy the sexual desire of the defendant or [the
3. [The correctional officer] was offended by the
4. The defendant knew or reasonably should have known that
the act was offensive to [the correctional officer].
only contests the third and fourth elements. The jury
reasonably could have found both elements satisfied based on
the testimony of a correctional officer and jail
was jailed at the Buchanan County jail facility. The
correctional officer testified Cole sat on his bed naked
during the night cell check and masturbated in full view of
her. She characterized his conduct as "very
offensive." The jail administrator acknowledged,
"It's not unusual for inmates to masturbate"
but testified they were usually "discrete about it"
and, in any event, they were always required "to have
their pants on." He explained that even Cole generally
stopped masturbating if he saw correctional staff. This time
he did not. According to the administrator, Cole acted
"different[ly]" by lying "naked . . . on his
bunk knowing that [the correctional officer] was coming up
the stairs." He saw her, "look[ed] right at her,
" and continued to masturbate. This testimony amounts to
substantial evidence in support of the third and fourth
affirm Cole's judgment and sentence for indecent exposure
enhanced as a second sexually predatory offense.