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State v. Aschbrenner

Supreme Court of Iowa

April 5, 2019

STATE OF IOWA, Appellee,

          Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.

         Defendant appeals conviction for violating Internet identifier reporting requirement of Iowa's sex offender registration statute.

          Philip B. Mears of Mears Law Office, Iowa City, for appellant.

          Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant Attorney General, Jerry Vander Sanden, County Attorney, and Rena Schulte, Assistant County Attorney, for appellee.


         The legislature periodically updates statutes to keep pace with technology. Convicted sex offenders have long been required to report and update their resident addresses with the local sheriff. The sex offender registry alerts neighbors, especially those with children, of sex offenders and helps law enforcement track them. In this appeal, an adult registered sex offender presents constitutional challenges to his conviction for violating a more recent statutory requirement that he report his "Internet identifiers" (such as names used on social media).

         In 2007, the offender pleaded guilty to lascivious acts with a child and was placed on the sex offender registry pursuant to Iowa Code chapter 692A (2007). The legislature's 2009 amendment to that statute added the requirement that the offender disclose his Internet identifiers to the local sheriff and update the sheriff with any subsequent changes. The law is intended to prevent or detect a sex offender's use of Internet communications to lure new victims.

         In 2017, the offender was charged with failing to report his Internet identifier for a Facebook account he was using under an assumed name. He argued that the statute, as applied to him, violated the Free Speech and Ex Post Facto Clauses in the Federal and State Constitutions. The district court declined to depart from our precedent, holding that sex offender registration requirements are not punitive, and rejected his ex post facto and free speech challenges. He appealed his resulting conviction, and his appellate briefing relies in part on our decision in In re T.H., 913 N.W.2d 578 (Iowa 2018) (holding that sex offender registration requirements for a juvenile offender were punitive). We retained his appeal.

         On our review, we hold In re T.H. applies only to juvenile offenders and the district court correctly rejected the ex post facto challenge. Applying intermediate scrutiny, we hold the Internet identifier reporting requirement is content neutral, serves a significant state interest, is narrowly tailored, and therefore withstands challenge under the First Amendment and article I, section 7 of the Iowa Constitution. The statute allows the offender to use social media without requiring disclosure of passwords, the offender can update his Internet identifiers with the sheriff by phone or email within five business days, and similar Internet identifier reporting requirements have been upheld by other courts. Accordingly, we affirm the district court judgment.

         I. Background Facts and Proceedings.

         In 2007, Lloyd Aschbrenner, then age thirty-seven, pleaded guilty to one count of lascivious acts with a child in violation of Iowa Code section 709.8(3) (2007), a class "D" felony, after he molested his thirteen-year-old stepdaughter. The district court sentenced Aschbrenner to a five-year suspended prison sentence, supervised probation, and a ten-year special sentence requiring him to register as a sex offender. In 2008 and 2014, Aschbrenner was convicted of sex offender registry violations, each treated as a first offense, in Benton County and Linn County, respectively. As a result of his 2014 conviction, his registration requirement was extended another ten years. Id. § 692A.106(4) (2014).

         Under the sex offender registration statute in force when Aschbrenner was convicted and sentenced in 2007, he was required to provide the sheriff with his name, address, and telephone number. Iowa Code § 692A.3 (2007). He was obligated to report any changes. Id. In 2009, the legislature rewrote and renumbered chapter 692A, significantly amending the statute. 2009 Iowa Acts ch. 119, div. I (codified as amended at Iowa Code ch. 692A (2011)). One of the amendments changed the amount of information an offender was required to provide to the sheriff:

A sex offender shall appear in person to register with the sheriff of each county where the offender has a residence, maintains employment, or is in attendance as a student, within five business days of being required to register under section 692A.103 by providing all relevant information to the sheriff.

Iowa Code § 692A.104(1). Chapter 692A defines "relevant information" to include twenty-one categories. Id. § 692A.101(23)(a). The one at issue here is "Internet identifier," defined as

an electronic mail address, instant message address or identifier, or any other designation or moniker used for self-identification during internet communication or posting, including all designations used for the purpose of routing or self-identification in internet communications or postings.

Id. § 692A.101(15). The statute does not prohibit the offender from using the Internet and does not require the offender to provide the sheriff with any passwords. See Iowa Code ch. 692A.

         The offender is required to update the sheriff within five days of any changes in his or her Internet identifiers but need not report in person. Id. § 692A.104(3). The legislature authorized the Iowa Department of Public Safety (DPS) to promulgate rules implementing the reporting requirements. Id. The DPS issued a rule allowing offenders to update "any item of relevant information other than changes of address, places of attendance as a student, or places of employment . . . in person, by telephone, or electronically, within five days of the change occurring." Iowa Admin. Code r. 661-83.3(4) (2009).

         A member of the public may contact the sheriff's office to inquire about "relevant information from the registry regarding a specific sex offender," including whether a particular Internet identifier belongs to a registered sex offender. Id. § 692A.121(5)(a). But "[s]ex offender registry records are confidential records not subject to examination and copying by a member of the public and shall only be released as provided in this section." Id. § 692A.121(14).

         On April 24, 2017, the Iowa Division of Criminal Investigation (DCI) received an anonymous tip through the sex offender registry website that Aschbrenner had a Facebook profile under the name "Cyrus Templar." Although Aschbrenner had reported an email address to the sheriff, he had not reported his Facebook account.

         DCI agents investigated the tip and obtained records from Mediacom and Facebook showing two IP addresses linked to the Facebook account: one belonging to Aschbrenner's former employer and another belonging to the woman who owned the residence where Aschbrenner resided. The DCI also looked at Cyrus Templar's Facebook page. The page showed he was a member of a band called Lipstick Slick, which frequently performed at bars as well as at festivals minors attend. A DCI agent and a Linn County sheriff's deputy spoke to Aschbrenner's former employer, who identified Aschbrenner from a photo on Lipstick Slick's Facebook page. The investigators also spoke to a band member who told them Aschbrenner, who she knew as "Buddy," had been playing in the band since February 2017. When investigators interviewed Aschbrenner, he admitted the Cyrus Templar Facebook page was his and that he had failed to report it to the sheriff.

         In August 2017, Aschbrenner was charged by trial information with a sex offender registry violation, second or subsequent offense, in violation of Iowa Code sections 692A.103, .104, and .111 for "fail[ing] to provide all 'relevant information' concerning his internet identities to the Linn County Sheriff's Department as required by law."

         Aschbrenner filed a motion to dismiss, arguing the Internet identifier-reporting requirement violates the prohibitions on ex post facto punishment and the freedom of speech guarantees in the United States and Iowa Constitutions. The State resisted. The district court denied the motion.

         The parties stipulated to a bench trial on the minutes of testimony. Aschbrenner was found guilty as charged. The district court imposed a five-year suspended sentence, two years of supervised probation, and a $750 fine. Aschbrenner appealed, asserting the same constitutional challenges to the Internet identifier-reporting requirement. We retained his appeal.

         II. Scope of Review.

         Our standard of review for rulings on constitutional challenges to a sex offender registration statute is de novo. See In re T.H., 913 N.W.2d at 582.

[W]e must remember that statutes are cloaked with a presumption of constitutionality. The challenger bears a heavy burden, because [he] must prove the unconstitutionality beyond a reasonable doubt. Moreover, "the challenger must refute every reasonable basis upon which the statute could be found to be constitutional." Furthermore, if the statute is capable of being construed in more than one manner, one of which is constitutional, we must adopt that construction.

State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005) (quoting State v. Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002)), superseded by statute on other grounds by In re T.H., 913 N.W.2d at 588.

         III. ...

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