from the Iowa District Court for Muscatine County, Gary P.
Strausser, District Associate Judge.
Sullivan appeals from his conviction on two counts of
C. Smith, State Appellate Defender, (until withdrawal), and
Theresa R. Wilson, Assistant Appellate Defender, for
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.
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.
Background Facts and Proceedings.
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
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.
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
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.
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.
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
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 ...