from the Iowa District Court for Sioux County, John D.
Wetter appeals his conviction, following a bench trial, of
third-degree sexual abuse.
C. Smith, State Appellate Defender, for appellant.
J. Miller, Attorney General, and Sheryl Soich, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2015, S.L.R., a minor, lived with her mother, L.R., in a
two-bedroom home. L.R. paid for the utilities and groceries
for the home. In June of that year, Chance Wetter was
incarcerated. S.L.R. sent Wetter a letter on June 24,
offering him a "place to stay" upon his release
from jail. Wetter was released from jail in mid-July.
According to S.L.R.'s testimony, Wetter moved into the
home in late July or early August; Wetter kept personal
belongings in the home, did his laundry there, ate there, and
received mail there; and Wetter and S.L.R. shared a bedroom.
S.L.R. testified Wetter lived in the home "about three
months, and then he found a place." However, when Wetter
obtained new employment on August 17, he provided a different
address to the employer. In December, when law enforcement
was searching for Wetter, he was located at the address he
previously provided to his employer. According to L.R.'s
testimony, Wetter never lived in her home, he did not have a
key to the home, and he did not keep any personal belongings
there. Wetter's mother and step-mother both testified to
their belief that Wetter stayed with S.L.R. upon his release
and S.L.R. conceived a child on or about September 1. By
November, S.L.R. did not "really hang out with [Wetter]
too much" and she reported she did not know him very
well. S.L.R. gave birth to the child in May 2016. Wetter and
S.L.R. have never been married, nor have they ever held
themselves out to be. Following the child's birth, Wetter
was charged by trial information with sexual abuse in the
third degree. The matter proceeded to a bench trial. At
the close of the State's evidence, Wetter moved for
judgment of acquittal, arguing he and S.L.R. lived together
at the time of the sex act. The court denied the motion.
After trial, Wetter filed a written motion for judgment of
acquittal, arguing the State failed to meet its burden to
show he and S.L.R. were not cohabitating as husband and wife
at the time the sex act occurred. See Iowa Code
§ 709.4(1)(b) (2015). The district court rejected the
argument and entered a verdict finding Wetter guilty as
charged. Wetter appealed following the imposition of
appeal, Wetter argues the district court misapplied the law
in denying his motion for judgment of acquittal at the close of
evidence when it concluded there was sufficient evidence that
he and S.L.R. were not cohabiting as husband and wife at the
time of the underlying sex act.
review of issues of statutory interpretation and
sufficiency-of-the-evidence challenges is for correction of
errors at law. State v. Watkins, 914 N.W.2d 827, 837
(Iowa 2018) (statutory interpretation); State v.
Kelso-Christy, 911 N.W.2d 663, 666 (Iowa 2018)
(sufficiency of the evidence). In assessing the sufficiency
of the evidence, courts view "the evidence 'in the
light most favorable to the State, including all reasonable
inferences that may be fairly drawn from the
evidence.'" State v. Ortiz, 905 N.W.2d 174,
180 (Iowa 2017) (quoting State v. Huser, 894 N.W.2d
472, 490 (Iowa 2017)). All evidence is considered, not just
that of an inculpatory nature. See Huser, 894 N.W.2d
at 490. "[W]e will uphold a verdict if substantial
evidence supports it." State v. Wickes, 910
N.W.2d 554, 563 (Iowa 2018) (quoting State v.
Ramirez, 895 N.W.2d 884, 890 (Iowa 2017)).
"Evidence is substantial if, 'when viewed in the
light most favorable to the State, it can convince a rational
[factfinder] that the defendant is guilty beyond a reasonable
doubt.'" Id. (quoting Ramirez, 895
N.W.2d at 890). Evidence is not rendered insubstantial merely
because it might support a different conclusion; the only
question is whether the evidence supports the finding
actually made. See Brokaw v. Winfield-Mt. Union Cmty.
Sch. Dist., 788 N.W.2d 386, 393 (Iowa 2010). In
considering a sufficiency-of-the-evidence challenge,
"[i]t is not the province of the court . . . to resolve
conflicts in the evidence, to pass upon the credibility of
witnesses, to determine the plausibility of explanations, or
to weigh the evidence; such matters are for the
[factfinder]." State v. Musser, 721 N.W.2d 758,
761 (Iowa 2006) (quoting State v. Williams, 695
N.W.2d 23, 28 (Iowa 2005)).
was convicted of sexual abuse in the third degree in
violation of Iowa Code section 709.4(1)(b)(3)(d), the
elements of which include: (1) a sex act occurred between two
persons, (2) the persons were not cohabiting as husband and
wife at the time of the sex act, (3) the victim is fourteen
or fifteen years of age, and (4) the perpetrator is four or
more years older than the victim. Wetter only challenges the
sufficiency of the evidence on the second element. He argues
the participants to the sex act do not have to be married in
order to be considered "cohabiting as husband and
wife" within the meaning of the statute. Wetter points
to State v. Kellogg in support of his position.
See generally 542 N.W.2d 514 (Iowa 1996). In
Kellogg, the supreme court interpreted the meaning
of "family or household members" under Iowa Code
section 236.2(2)(a), which defines domestic abuse. See
id. at 516. The term's specific definition included
"persons cohabiting." Id.; see
also Iowa Code § 232.2(4). The court approved
consideration of six nonexclusive factors in determining
whether persons were "cohabiting" within the
meaning of chapter 236:
1. Sexual relations between the parties while sharing the
same living quarters.
2. Sharing of income or expenses.
3. Joint use or ownership of ...