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State v. Sullivan

Court of Appeals of Iowa

May 15, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
JOSHUA JAMES SULLIVAN, Defendant-Appellant.

          Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.

         Joshua Sullivan appeals from his conviction on two counts of indecent exposure.

          Mark C. Smith, State Appellate Defender, (until withdrawal), and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee.

          Considered by Vogel, C.J., Mullins, J., and Danilson, S.J. [*]

          DANILSON, SENIOR JUDGE.

         Joshua Sullivan appeals from his conviction on two counts of indecent exposure, each in violation of Iowa Code section 709.9 (2017). He challenges the sufficiency of the evidence supporting the jury's findings of guilt and a jury instruction. Because there is substantial evidence to support both convictions and we find no error in the jury instruction given, we affirm.

         I. Background Facts and Proceedings.

         In June and July of 2017, Sullivan was working for a construction company on a project in Muscatine. Sullivan and other employees of the construction company would be in town for a week at a time and stay at a hotel in Muscatine. The lobby of the hotel has a sitting area and a public restroom. The lobby restroom is unisex, and its door opens directly out into the lobby and locks from the inside. There is no stall around the toilet; when the door is fully open, the toilet and sink are visible.

         On June 5, Sullivan was staying at the hotel and had been there frequently enough that he was acquainted with Denaa Burger, who worked the 3:00 to 11:00 p.m. shift at the front desk. The evening of June 5, Sullivan approached Burger and told her that the toilet in the lobby restroom was not flushing. Because there was no maintenance person on duty after about 3:00 p.m., Burger told Sullivan she would "get to it." Before she went to check on the restroom, Burger went outside with another guest to have a cigarette. While they were outside, the guest saw Sullivan walk back into the restroom, so Burger waited about half an hour more to go check on the toilet. Burger knocked on the restroom door, waited "a few minutes" to make sure there was no one in the restroom. Getting no response and finding the door unlocked, she walked into the restroom. Burger observed Sullivan standing by the toilet with his back to the door-he was not urinating. Burger did not see Sullivan's penis or any part of his genitalia. She quickly left the room. Later, Burger reentered the restroom to try to fix the problem. She discovered the toilet was not broken; the water to the toilet had been turned off at the valve behind the toilet. While Burger did not know who turned off the water to the toilet, no other guest had reported a problem with the toilet, and there would have been a note in the hotel log book if the maintenance person had turned off the water.

         Later that same evening, Lisa Luna was working the overnight shift (11:00 p.m. to 7:00 a.m.) at the front desk. Shortly after Luna got to work, Sullivan approached her at the front desk. He told Luna the toilet in the lobby restroom was not working properly. Luna told Sullivan she was going to finish her paperwork and then she would go check on the toilet. Luna finished her paperwork and went to check on the problem. The door to the lobby restroom was "wide open," so she just walked in. Luna saw Sullivan standing over the toilet and saw his penis. At trial, Luna explained Sullivan had one hand "cuffed like he was holding himself while he was going to the bathroom." Luna was shocked and embarrassed. She turned and walked right back out of the restroom. Luna later returned to the restroom to check the toilet. She discovered the chain inside the toilet was disconnected. The chain was not broken or rusty and did not appear to be malfunctioning in any way. After the incident, Luna made a notation in the hotel's log book, describing the incident.

         The next time Luna worked with Burger, Luna told her what had happened and learned that something similar had happened to Burger involving Sullivan and the lobby restroom.

         Several weeks later, on the night of July 18 to 19, 2017, Audra Garcia was working the night shift at the hotel. It was Garcia's practice upon arriving at work to go first into the laundry room behind the front desk to sign in. She then would do a "walkthrough" to check on things before starting her paperwork for the night. After finishing her paperwork, Garcia would clean the lobby and then the pool area. To get to the pool, she walked by the lobby restroom. That evening, Garcia walked past the restroom on the way to clean the pool area and noticed that the restroom door was shut, the light was on, and water could be heard running. Garcia thought there might be someone in the restroom, so she did not investigate at that time. Garcia cleaned the pool area. When she returned to the lobby about an hour later, she passed the restroom again and could still hear water running. Garcia was aware of the prior incidents of Sullivan reporting problems with the lobby restroom and was hesitant to check on the running water. No one came out of the restroom.

         Garcia started mopping the lobby floor and opened the restroom door part way as she mopped past it. The door was unlocked. Garcia saw a shadow, so she knew someone was in the restroom. She could hear the sink water was still running. She let the door go but the door did not close completely. No one shut the door from inside the restroom. Garcia "waited and waited" but no one came out of the restroom or said anything about being in the restroom or not to enter. Garcia went back behind the front desk and called her husband to come to the hotel and check the restroom for her because she did not want to "walk in on anything." Garcia was concerned that she would see something she did not want to see.

         Garcia's husband arrived five to ten minutes later and found her standing behind the lobby counter. She asked him to check the lobby restroom. Garcia seemed afraid to check the restroom herself and "was kind of frantic." Garcia stayed behind the lobby counter while her husband listened at the restroom door. The door was open "a crack," and Mr. Garcia could hear the sink running. He told his wife the sink water was still running and she asked him to check what was going on. Mr. Garcia returned to the restroom door and knocked on the door. He waited "a few seconds." When he did not get a response, he pulled the door open and walked into the restroom. There, he saw Sullivan sitting on the toilet masturbating. Sullivan's pants were around his ankles and he was holding a cellphone at eye level. Mr. Garcia "didn't really see" Sullivan's penis because Sullivan was sitting on the toilet and Garcia "was not gonna sit there looking at it." Mr. Garcia "saw the motion [Sullivan's] hand was doing." He could see that Sullivan's hand was on his genitals, making a "masturbating motion," and Mr. Garcia could hear the slap of Sullivan's hand hitting his thigh. Mr. Garcia confronted Sullivan. Sullivan's face got bright red and he immediately started to apologize. Sullivan did not deny that he had been masturbating and said he thought he locked the ...


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