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State v. Fry

Court of Appeals of Iowa

March 21, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
TOBIAS ISSAC FRY, Defendant-Appellant.

          Appeal from the Iowa District Court for Des Moines County, John G. Linn, Judge.

         Tobias Issac Fry appeals his conviction and sentence for assault with intent to commit sexual abuse causing bodily injury. JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED.

          Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.

          VAITHESWARAN, Judge.

         Tobias Issac Fry was charged with assaulting an employee of a care center at which he stayed. Following a bench trial, the district court found him guilty of assault with intent to commit sexual abuse, in violation of Iowa Code section 709.11(2) (2015). On appeal, Fry (1) challenges the sufficiency of the evidence supporting the district court's finding of guilt and (2) argues the district court erred in ordering him to make restitution of $25 for court-appointed attorney fees and in requiring him to pay court costs.

         I. Sufficiency of the Evidence

         The district court set forth the elements of the crime as follows:

That on or about the 28th day of November of 2015, the defendant assaulted the complaining witness here in this case. An assault would be an act intending to cause pain or injury to, or which is intended to result in physical contact which would be insulting or offensive to the other, with the apparent ability. That the defendant did so with the specific intent to . . . commit a sex act by force or against the will of the complaining witness. And, finally, that the defendant's assault caused a bodily injury to the complaining witness.

         Fry concedes he assaulted the employee but argues the State did not produce "sufficient evidence to support a finding that [his] intent was to perform a sex act by force [or] against the will of" the employee. The district court defined specific intent as follows:

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[.] [B]ecause determining the defendant's specific intent requires the trier of fact to decide what the defendant was thinking when the act was done, [i]t is seldom capable of direct proof. The trier of fact should consider the facts and circumstances surrounding the act to determine the defendant's specific intent. The trier of fact may, but is not required to, conclude a person intends the natural results of his acts.

         The court found the State proved this element:

In this case, there was a great deal of force, in the Court's opinion, exercised by this defendant, who is quite a bit bigger than the complaining witness. He physically grappled, manhandled, grabbed, held this complaining witness. At one point, his elbow struck the complaining witness, and she sustained a bruise. These acts, the Court believes, were specifically intended to result in physical contact with the complaining witness, which was insulting or offensive to her, and the crime of assault is a ...

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