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State v. Wickes

Supreme Court of Iowa

March 30, 2018

STATE OF IOWA, Appellee,

          Appeal from the Iowa District Court for Clinton County, Stuart Werling, Judge. Defendant

         challenges his conviction for sexual exploitation by a school employee. AFFIRMED.

          Eric S. Mail and Eric D. Puryear of Puryear Law P.C., Davenport, for appellant.

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

          ZAGER, Justice.

         This case requires us to determine whether hugs between a school employee and a student can constitute prohibited "sexual conduct" under Iowa Code section 709.15(3)(a) (2015). Wickes appeals his conviction on one count of sexual exploitation by a school employee under Iowa Code sections 709.15(3)(a)(1) and 709.15(5)(a). Wickes challenges the district court findings that his hugs with a student constituted "sexual conduct" under Iowa Code section 709.15(3)(a)(2) and that the State provided sufficient evidence to show he engaged in a pattern, practice, or scheme of conduct to engage in sexual conduct with a student. Wickes also forwards other claims on appeal. For the reasons set forth below, we affirm the judgment and sentence of the district court.

         I. Background Facts and Proceedings.

         In August 2015, Bradley Elroy Wickes was a licensed teacher in the State of Iowa at Camanche High School. Wickes taught high school social studies courses and was actively involved with the students outside of the classroom as the faculty sponsor of the school's student government and as the DJ at school dances. Around August 21, A.S., a 17-year-old student in Wickes's social studies class reached out to Wickes in person to proofread an English paper she had written. From the contents of her paper, Wickes would learn of personal issues A.S. was facing. Following this initial interaction, Wickes initiated contact with A.S. on Facebook Messenger[1] to discuss his thoughts on her paper. Thereafter, Wickes and A.S. continued to frequently message one another, and their relationship transformed from one of teacher and student to one of a more personal and intimate nature.

         Between August 21 and October 5, Wickes and A.S. exchanged approximately 638 pages of messages on Facebook with one another, with many of these pages containing multiple exchanges between them per page.[2] These daily messages took place at all hours of the day, sometimes beginning early in the morning and often ending early the next morning. As their relationship progressed, Wickes and A.S. began to openly share intimate details of their lives. Wickes frequently discussed his marital issues with A.S., including his sexual frustrations with his wife. They also discussed his ultimate decision to leave his wife and children.

         Throughout these discussions, Wickes made clear that part of his marital problems stemmed from his desire for more cuddling and physical contact with his wife. For example, Wickes stated, "[H]ugs, cuddling and laying together are so important to me." Wickes also told A.S. that he had previously complained to his wife about the lack of affection and sexual intimacy in their marriage. He made statements such as "I'm a guy that loves to cuddle and show affection"; "I don't need to be seduced after this long of a 'dry period' "; and "I NEED AFFECTION, I'm not saying the booty kind . . . well that too . . . but I freaking am crazy to just feel like [my wife] would like to hold my hand or sit beside me." A.S. responded to this statement about his need for affection by saying, "[Y]ou're not crazy for wanting those things. It's part of a relationship. It's a big part." Wickes replied, "Could you turn 30 tomorrow lol."

         Further, Wickes used these discussions to flirt with and encourage A.S. into a more intimate relationship with him. Initially, he encouraged A.S. to rely on him emotionally. After Wickes reviewed A.S.'s paper describing her move from the home of one parent to the other, Wickes made statements such as "I didn't know much about why you left. Sounds like it was pretty rough. You should share more with me sometimes if you ever want to"; "Hugs and high fives Monday"; and "Don't hold it all in. That just leads to more depression and anxiety. I'm always available." Wickes subsequently continued to encourage A.S. to rely on him for support in the form of conversations and hugging. For example, when A.S. said, "I know personally I tend to shut down after I open up to someone, " Wickes responded, "So can I expect you to shut down and pull away now? Better not."

         A.S. and Wickes would both message each other asking about when they would get their hugs from one another. The pair engaged in hugs on an almost daily basis. In addition to their conversations and testimony about the hugs, the evidence of these interactions includes two photographs of Wickes and A.S. embracing-one at the Camanche High School prehomecoming bonfire and one at the homecoming dance. From September 16 until his last Facebook conversation with A.S. on October 5, Wickes made a plethora of statements to A.S. about how sexually attractive he found her and his desire to be in a romantic relationship with her. For example, on September 20, Wickes messaged A.S., "I'm going to cross over to the creeper side a moment and tell you. You are hot. And pretty[;] kind of a rare combo." This comment came after Wickes had recently seen A.S. at Walmart, they had hugged, and he followed up on their in-person exchange by telling A.S., "I'm glad I just got to touch you[.] OMG[;] touch hug you lmfao."

         When A.S. was having issues with a prior boyfriend, Wickes told her, "If I was his age and had you tell me that. I['d] be breaking down walls to get to you." As their conversation that day continued, Wickes told A.S.,

I'm infatuated with your character and heart. The only reason I feel good these days is I see in you what I want in a woman. I found out there's a girl that gets me and I have hope someday I [will] find another age appropriate girl.

         Later, he told A.S., "I just want to hold you. Hug choke the shit out of you, " and "I'd sneak over a hug but think that's criminal charges." The next day, Wickes messaged A.S. at school, saying, "Come give me that hug." Later, Wickes messaged A.S., "[Your] hugs and saying just think booty made me keep it together today."

         The following day, Wickes told A.S. how "gorgeous, funny, kind, [and] smart" he found her. He continued,

Permission to be a pervy old man? . . . . Your eyes are amazing, freaking soulful and draws me in. Every face [you] make is freaking adorable. I told you a long time ago you look just like an actress from tv. Still do. And then the pervy stuff . . . you know you've got a great booty! Below that is some smoking legs [that] are beautiful and not the scrawny chicken legs like so many others. You've got a pin up girl build. An hour glass of curves. Read this then delete and I'll go turn myself in.

         He followed that comment by telling A.S. he would hug her the next day when she took a restroom break from another class.

         A few days later, Wickes and A.S. were discussing the school bonfire photograph that was taken and Wickes told A.S., "I'm keeping my self-portrait for my personal spank bank. I'm hot." They then discussed the school's "Gender Bender Day, " where students and teachers could dress like members of the opposite gender. After A.S. offered a dress for Wickes to borrow, Wickes stated, "I'm just glad you're just willing to give me your booty at a moment's notice . . . Yeah delete that." The pair then began discussing what gets their hearts racing and Wickes told A.S., "Honestly for me it's you and chatting. I look forward to it all day. And I know I probably shouldn't. But just enjoy it. Relaxing funny. Heart to heart." He continued, "I don't exactly know how to say it without violating my moral compass . . . in a different world . . . if time could be changed and I younger or you older. You'd be completely perfect for me."

         The following day, Wickes told A.S. that her "chest fits [her] perfectly" in response to a message from A.S. about her weight. When she complained about problems with her living arrangements, Wickes told A.S., "I'd buy you an apartment and be your sugar daddy lol if I could afford it. You deserve to feel comfortable[.] Hugs to you." Further, when A.S. told him she was getting offline to go to sleep, Wickes said, "I'm leaving you unsatisfied or wanting more . . . . That was dirty sorry." A.S. responded by telling Wickes she would be alone after she got offline, to which Wickes replied, "No you're never alone and you're going to go to sleep with me."

         On October 2, Wickes told A.S., "Ahhh you always look good. So glad I have you. Had [a] blast as always, " and "Can't wait for my hug." The next day, Wickes asked A.S. if he could vent for a moment. He proceeded to tell her,

Why ohhh why would I meet someone like you! I'll be honest[, ] you match me to [a] tee except I'm a pedophile for thinking so. And I'm not thinking sexual[, ] just emotional and personal . . . that's not fair for me to put on you.

         As their conversations that day continued, Wickes told A.S., "I hate that you feel I might leave ya. I'll be honest[, ] I worry about how close we are because I know it would get me in trouble, but I would [be] in a worse place without you." A.S. replied, "[I]f you leave[, ] I'd honestly be lost." When Wickes told her he feared a therapist might tell him he could not use social media or texting for a month, A.S. responded, "I hope they'd never suggest that. I just idk. I'd just cry." Wickes then assured A.S., "I wouldn't do it. I want to hug you." Later in the night, Wickes and A.S. were talking about the Camanche homecoming dance that Wickes was DJing and A.S. would be attending. When A.S. made a comment stressing out about her outfit, Wickes responded with, "You're amazing in anything."

         After the homecoming dance, where one of the photographs of Wickes and A.S are shown embracing, Wickes told A.S., "You're gorgeous" and "You're smoking." Their messaging continued into the early hours of the morning. Wickes told A.S. that she found him at the dance to take a picture with him "during the perfect song." That song was entitled "Hold Each Other, " which Wickes said he played because it made him think of A.S. and their hugs. After A.S. told Wickes that she "would have done anything for a dance tonight, " Wickes replied, "I think I would get completely lost if that happened, like everything would shut down around me and I would disappear into those eyes. If I was that someone." He proceeded to tell A.S., "You're hot obviously. But you're soulful. I don't know how to explain it[;] you're just captivating" and "you make me feel great."

         On October 4, Wickes separated from his wife and moved away from the marital residence. Later that night, Wickes and A.S. met at Walmart to give each other a hug. Following their physical encounter, they continued to converse with one another that evening on Facebook. Wickes mentioned to A.S. that she left him with a "wonderful perfume smell." Wickes told A.S. that he was jealous of her boyfriend because "He's got a shot with my perfect person." He further told A.S., "I've been walking alone for so long helping who I could along the way, to realize I was never going to meet someone that saw me. And then bam it's you." The two conversed about their romantic feelings for one another, and Wickes posed A.S. a "hypothetical" question. He asked her if she would like to take their relationship further despite their age gap after she graduated and turned eighteen if his marriage did not work out. He also asked her whether she could "really be happy with a guy that's 36[, ] divorced, and has 3 kids." A.S. replied, "Honestly yes. There's such a connection. And I love kids." Soon after, Wickes told A.S., "I'll just say it. I love you. I never meant for this [to] happen[.] [I]t just did." After A.S. acknowledged she felt the same way, Wickes told her, "I've only hugged you and chatted with you and I feel completely tied to you. When my phone light blinks green[, ] I know it's a message from you and I get so excited."

         This conversation continued early into the next morning, and it became increasingly sexual. Wickes told A.S., "My fantasy was laying in your lap listening to [music.]" After A.S. told Wickes about how she liked to cuddle, Wickes responded, "Booty touches me and it be [M]arvin [G]aye . . . for all of 5 seconds at this point." He also explained to A.S. that his wife had previously told him "she wasn't enjoying [sex] because . . . she didn't get what she needed." He declared that the "lack of closeness sure does kill the [sex] drive." Subsequently, Wickes described how he liked to give sensual back rubs by "lightly caressing with finger tips and . . . spelling out words." He told A.S. that he had "magical fingers, " and that he would "trac[e] along the back side of the leg and circles around the knee." Following this exchange, Wickes asked A.S., "Do you delete these messages? I think I'd be killed if your dad found them."

         At school later that day, Wickes messaged A.S., "So I totally freaked out today . . . saw one of the cops in the building then you called to the office . . . thought ut ohhh think I'm dead lol." Wickes and A.S. subsequently talked about their temptations to meet up with one another that evening before ultimately deciding it would cross the line. However, he continued to tell A.S. how "exhilarating" he found their relationship. Soon after this conversation, A.S.'s family discovered her relationship with Wickes, and her father and stepfather took the cell phone to the Camanche Police Department to report what was going on between Wickes and A.S.

         On October 6, the principal and school superintendent met with Wickes, who told them his conversations with A.S. had become flirty and turned into "conversations like boyfriend and girlfriend would have." Wickes told them about his hugs with A.S., as well as his out-of-school encounters with her. However, the principal and superintendent were unable to view the Facebook messages because Wickes told them he had deleted them and his smart phone had been destroyed. The school district placed Wickes on administrative leave. Wickes resigned from his teaching position on November 13.

         On November 19, Wickes was charged with one count of sexual exploitation by a school employee in violation of Iowa Code sections 709.15(3)(a)(1) and 709.15(5)(a) (2015), a class "D" felony. Wickes waived his right to a jury trial, and he was convicted following a bench trial. In its findings, the district court asserted,

[B]y September 20 and thereafter, the clear expression of Wickes' emotional needs and intent was that the hugs become a tool for his sexual gratification. As in Romer, Wickes' sexual gratification was from the emotional intimacy exchanged between him and the Student during the hugs and in the intense emotional exchange in the messages he shared with the student. As in Romer, there was no sex act between the teacher and student as such is defined by the Code. However, in this instance, unlike Romer, there was physical contact between the teacher and student. The Court therefore FINDS that hugging can satisfy the statutory requirements of sexual gratification as defined in Romer and in 709.15(3)(a)(1) and 709.15(5)(a) of the Code of Iowa (2015). If a hug is given or received for the sexual gratification of Wickes or A.S., then such conduct is "sexual conduct" under the Code. The Court FINDS Wickes' hugging of A.S. was for his sexual gratification and it was therefore sexual conduct.

         The district court subsequently ordered the preparation of a presentence investigation report and set the matter for sentencing.

         On August 24, 2016, Wickes filed a motion for new trial on the grounds that the verdict was both contrary to the law and evidence presented. Wickes also filed a motion in arrest of judgment. The district court denied each motion finding that substantial evidence supported the decision and verdict, which "when weighed, weigh[ed] in favor of the verdict." On October 6, the district court sentenced Wickes to a five-year term of incarceration and a ten-year special sentence. The district court also ordered Wickes to register and be placed on the sex offender registry; to submit a DNA sample; to pay a $750 fine, a thirty-five percent surcharge, and a $250 civil penalty. It also entered a no-contact order preventing Wickes from contacting A.S.

         During sentencing, the district court noted,

Hugs, pats on the back, the sort of encouragement that an adult can appropriately give to a young person to encourage them in their growth and in their studies would not result in criminal conduct or criminal behavior here. This went well beyond that sort of conduct.

         The district court further described the hugging, stating, "It was prurient. It was for Mr. Wickes' sexual satisfaction, a substitute for the lack of sexual fulfillment that he was receiving in his personal life, and that's what makes it a crime." Finally, in declining Wickes's request for a suspended or deferred sentence, the district court asserted that it would decline to impose such a sentence, even if those options were available, "based on the seriousness of the offense and the depth of the betrayal of this position of trust and mentorship that society has given to him." Wickes timely filed an appeal, which we retained.

         II. ...

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