State of Iowa v. Aquiles Gonzalez Alvarado

IN THE COURT OF APPEALS OF IOWA

No. 14-0889
Filed August 5, 2015

STATE OF IOWA,
Plaintiff-Appellee,

vs.

AQUILES GONZALEZ ALVARADO,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Muscatine County, Mary E. Howes,

Judge.

A defendant appeals following a jury verdict finding him guilty of lascivious

acts with a child, challenging the sufficiency of the evidence. AFFIRMED.

Benjamin Bergmann and Gina Messamer of Parrish, Kruidenier, Dunn,

Boles, Gribble, Gentry, Brown & Bergmann, L.L.P., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Louis S. Sloven, Student Legal Intern, and Alan Ostergren, County

Attorney, for appellee.

Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
2

MULLINS, J.

Aquiles Alvarado appeals his conviction for two counts of lascivious acts

with a child, in violation of Iowa Code section 709.8 (2013). He maintains there

was not sufficient evidence to prove his guilt because there was no evidence of

skin-to-skin contact between himself and the victim. The State maintains there is

no statutory requirement of skin-to-skin contact, and thus, the evidence is

sufficient to support the convictions. We agree.

I. Background Facts and Proceedings.

At the trial in this case, the victim, a nine-year-old girl, testified that

Alvarado, who was married to the victim’s grandmother, touched her vagina with

his hand over the top of her clothing. He did so as he was hugging her, kissing

her neck and upper chest, and telling her that he loved “playing with [her]

beautiful body.” She further testified this occurred in the backroom of her

grandmother’s store in the mall and had occurred on other occasions both at her

home and at the mall that summer.

The State also admitted the audio recording of a police interview with

Alvarado, in which Alvarado admitted to touching the victim between her legs on

top of her clothing on at least two occasions and he was embarrassed for what

he did. Alvarado testified at trial that he accidentally touched the victim between

her legs as he tried to prevent himself from falling. He asserted he was confused

during the police interview due to his lack of understanding of the English

language.
3

Defense counsel made a motion both at the close of the State’s case and

at the close of the evidence that the State failed to prove there was skin-to-skin

contact between Alvarado and the victim, and therefore, there was insufficient

evidence. The court denied both motions concluding the law did not require skin-

to-skin contact. The jury returned a guilty verdict on two of the four counts of

lascivious acts with a child with which Alvarado had been charged. Alvarado was

sentenced to two concurrent ten-year terms of incarceration for the convictions.

The fine was suspended, but the court imposed court costs along with a $250

civil penalty. Alvarado was also ordered to register as a sex offender and placed

on lifetime parole under section 903B.1. He now appeals.

II. Scope and Standard of Review.

Alvarado’s appeal centers on the statutory interpretation of section 709.8

and whether skin-to-skin contact is needed in order to qualify as touching or

fondling under that code section. We review questions of statutory interpretation

for correction of errors at law. See State v. Romer, 832 N.W.2d 169, 174 (Iowa

2013).

III. Lascivious Acts with a Child.

Iowa Code section 709.8 provides, in part:

It is unlawful for any person sixteen years of age or older to
perform any of the following acts with a child with or without the
child’s consent unless married to each other, for the purpose of
arousing or satisfying the sexual desires of either of them:
1. Fondle or touch the pubes or genitals of a child.

Alvarado asserts that the terms “fondle” and “touch” require skin-to-skin contact.

In support of the argument, Alvarado points out the sexual abuse chapter of the
4

Iowa Code contains different sections that specifically criminalize sexual contact

with the clothes of the victim covering certain body parts. See Iowa Code §

709.12(2) (criminalizing conduct where a person touches “the clothing covering

the immediate area of the inner thigh, groin, buttock, anus, or breast of the child”

as indecent contact with a child), § 709.15(2), (3) (criminalizing sexual conduct

where a counselor, therapist, or school employee touches “the clothed or

unclothed inner thigh, breast, groin, buttock, anus, pubes, or genitals” of a

patient, client, or student as sexual exploitation by a counselor, therapist or

school employee). Alvarado asserts that the absence of a reference in section

709.8—lascivious acts with a child—to touching or fondling the clothing of the

child covering the pubes or genitals means that such conduct does not amount to

a violation of that code section. See Oyens Feed & Supply, Inc. v. Primebank,

808 N.W.2d 186, 192 (Iowa 2011) (“‘Where the legislature includes particular

language in one section of a statute but omits it in another section of the same

Act, it is generally presumed that [the legislature] acts intentionally and purposely

in the disparate inclusion or exclusion.’” (quoting Farmers Coop. Soc’y of Sioux

Center v. First Nat’l Bank of Omaha, No. 7:10–CV–202–H, 2011 WL 8812379, at

*3 (E.D.N.C. Sept. 15, 2011)). Because the evidence only supported the

conclusion that he touched the victim’s vagina over her clothes, Alvarado claims

there was insufficient evidence to support his conviction for lascivious acts with a

child.

The State asserts the terms “fondle” and “touch” do not require skin-to-

skin contact, and in support of its argument, the State cites to State v. Pearson,
5

514 N.W.2d 452, 454–55 (Iowa 1994), where our supreme court determined

skin-to-skin contact was not required in order to amount to “sexual contact” as

contained in the definition of a “sex act” under section 702.17.1 In Pearson the

defendant asserted his conduct did not amount to sexual abuse in the second

degree because he masturbated by moving his covered penis against the child’s

clothed buttocks. 514 N.W.2d at 454. The supreme court rejected Pearson’s

argument that there needed to be skin-to-skin contact in order to qualify as

sexual contact, noting “there is no language in the statute which would limit its

scope in this way.” Id. at 455. The court’s holding in Pearson affirmed a prior

court of appeals ruling, State v. Phipps, 442 N.W.2d 611, 612-13 (Iowa Ct. App.

1989), where the State noted the absurdity that would result if such a

requirement were read into the code section—a defendant could never be

convicted of sexual abuse if he used a condom, glove, or underwear while

performing the sex act. The Pearson court held, “prohibited contact occurs when

(1) the specified body parts or substitutes touch and (2) any intervening material

would not prevent the participants, viewed objectively, from perceiving that they

have touched.” 514 N.W.2d at 455.

1
Sex act is defined in section 702.17 as
The term “sex act” or “sexual activity” means any sexual contact between
two or more persons by: penetration of the penis into the vagina or anus;
contact between the mouth and genitalia or by contact between the
genitalia of one person and the genitalia or anus of another person;
contact between the finger or hand of one person and the genitalia or
anus of another person, except in the course of examination or treatment
by a person licensed pursuant to chapter 148, 148C, 151, or 152; or by
use of artificial sexual organs or substitutes therefor in contact with the
genitalia or anus.
6

While acknowledging the limits of the Pearson holding because neither the

term “sex act” nor “sexual contact” is located in the lascivious-acts-with-a-child

statute, the State argues the same interpretation should be used for the terms

“touch” and “fondle.” The State argues the common definition of touch includes

perceiving or experiencing a tactile sense. See Webster’s Third Int. Dictionary

2415 (2002) (defining “touch” to include “1a: to bring a bodily part briefly into

contact with so as to feel . . . b: to perceive or experience through the tactile

sense”). Because Alvarado and the victim could both perceive or experience a

tactile sense between Alvarado’s hand and the victim’s vagina, despite the

barrier of the victim’s clothing, the State argues a touch therefore occurred,

satisfying that requirement of the statute.

When interpreting a statute, we resort to the rules of statutory construction

only when there is an ambiguity present. State v. Gilmour, 522 N.W.2d 595, 597

(Iowa 1994). “When the text of a statute is plain and its meaning clear, the court

should not search for meaning beyond the express terms of the statute.” State v.

Tesch, 704 N.W.2d 440, 451 (Iowa 2005). “Ambiguity arises in two ways—either

from the meaning of specific words or ‘from the general scope and meaning of

the statute when all of its provisions are examined.’” State v. McCullah, 787

N.W.2d 90, 94 (Iowa 2010) (citation omitted). Here, we find no ambiguity in

section 709.8.

“Absent a statutory definition or an established meaning in the law, we

give words used by the legislature their ordinary and common meaning by

considering, among other things, the context in which they are used.” State v.
7

Tarbox, 739 N.W.2d 850, 853 (Iowa 2007). As the State points out, the

commonly understood meaning of touch is “to perceive or experience through the

tactile sense” or “to bring a bodily part briefly into contact with so as to feel.” See

Webster’s Third Int. Dictionary 2415 (2002). Under no definition does the word

touch require skin-to-skin contact to occur. One can be touched even though his

skin does not come into contact with another person’s skin. So long as the

person experiences or feels a tactile sensation, a touch has occurred. This

definition is also consistent with our supreme court’s ruling in Pearson where the

court determined sexual contact occurs when “(1) the specified body parts or

substitutes touch and (2) any intervening material would not prevent the

participants, viewed objectively, from perceiving that they have touched.” 514

N.W.2d at 455.

We need not compare section 709.8 to other sections in chapter 709 that

criminalize the touching of clothing covering certain body parts as the meaning of

section 709.8 is unambiguous. See id. at 456 (noting we need not resort to the

rules of statutory construction “where legislative intent is evident through a

reasonable construction of the statute”). The victim testified she felt or

experienced Alvarado’s hand on her vagina. Alvarado admitted in his police

interview that he touched the victim between her legs. It is immaterial that there

was clothing in between the two body parts. We conclude section 709.8 does

not required skin-to-skin contact to qualify as a touch and, as a result, conclude

the evidence is sufficient to sustain Alvarado’s conviction.

AFFIRMED.