State of Iowa v. Robert William Kuhn

IN THE COURT OF APPEALS OF IOWA

No. 19-1895
Filed March 17, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ROBERT WILLIAM KUHN,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.

Robert William Kuhn challenges his convictions for three counts of sexual

exploitation of a minor and three counts of invasion of privacy. AFFIRMED.

Edward S. Fishman of Hopkins & Huebner, P.C., Adel, for appellant.

Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.

Considered by Doyle, P.J., and Tabor and Ahlers, JJ.
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AHLERS, Judge.

Robert William Kuhn was convicted of three counts of sexual exploitation of

a minor and three counts of invasion of privacy after being caught secretly

recording three teenage girls in various states of undress in the bathroom of his

business. He appeals, challenging the sufficiency of the evidence and asserting

errors in the jury instructions.

I. Factual Background

Kuhn was the owner of a record store in West Des Moines that sold records,

women’s clothing, and other “vintage” items. The record store had an employee

bathroom that also served as a storage closet. However, Kuhn also allowed

patrons to use the bathroom as a changing room to try on women’s clothing for

sale in the store.

Sixteen-year-old K.E. entered the record store to browse one day while her

mother was at a hair appointment. Kuhn suggested she try on some jeans that

were for sale in the store. K.E. agreed, and Kuhn went to “clean up some stuff” in

the bathroom so she could use it. After Kuhn came out, K.E. went into the

bathroom, closed the door, removed her shorts, and tried on the jeans. After trying

on the jeans and deciding she did not want them, K.E. took the jeans off, put her

shorts back on, exited the bathroom, and left the store.

A few days later, sixteen-year-old R.S. began working in the record store as

Kuhn’s employee. On R.S.’s first day, Kuhn asked her to model some clothes he

had available for sale in the store. Although not entirely comfortable with the

request, R.S. relented, and she also agreed to allow Kuhn to photograph her in the

clothes after he offered her money to do so. When R.S. came in for her second or
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third day of work, Kuhn had things set up to take photographs. Before R.S. went

to change clothes in the bathroom, Kuhn went in by himself to “clean it out.” A few

seconds later, Kuhn came out and R.S. entered the bathroom. She closed the

door, took off her top and jeans, and tried on a dress. She later used the bathroom

to try on a t-shirt.

A few days after R.S.’s use of the bathroom as a changing room, another

of Kuhn’s employees, seventeen-year-old C.P., was in the store for what was

approximately her third day of work. C.P. asked to use the bathroom.1 Kuhn

indicated she could but he needed to clean it up first. Kuhn went into the bathroom

by himself and exited after a few seconds, and C.P. entered and closed the door

behind her.

While using the bathroom, C.P. looked around the room and noticed a video

camera on a shelf pointed straight at the toilet upon which she was seated. The

camera was partially covered by a shirt, but the lens of the camera was uncovered.

Further investigation by C.P. showed the red light was on, indicating it was

recording. C.P. tried to cover herself, pulled up her pants, and picked up the

camera. The camera display showed it had been recording for three minutes and

seventeen seconds—only slightly longer than the time C.P. had been in the

bathroom. C.P. watched the video on the camera and saw that it depicted her.

Having discovered the recording, C.P. removed the memory card from the

camera, deleted the video from the camera, set the camera back on the shelf so it

would not appear to have been moved, and tucked the memory card in the

1The first few times C.P. worked at the store, she only worked short introductory
shifts and did not use the bathroom.
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waistband of her leggings. She exited the bathroom, told Kuhn she had to go, and

left. C.P. called R.S., informed her about the camera, and told her not to return to

the store.2 C.P. informed her parents, and the parents contacted the police.

Approximately two days after C.P.’s discovery, search warrants were

executed at the record store and Kuhn’s residence. Officers seized a video

camera from the record store bathroom, which revealed deleted videos3 of K.E.,

R.S., and C.P. Each video showed a man starting the camera on the shelf in the

bathroom, the man immediately leaving the bathroom, and a girl entering the

bathroom. The camera was pointed directly at the toilet and the area in the small

bathroom where someone would naturally stand to change clothes. Each video

depicted a girl exposing her buttocks either in the course of changing clothes (in

the case of K.E. and R.S.) or using the toilet (in the case of C.P.). K.E., R.S., and

C.P. each identified Kuhn as the man in the videos and identified themselves in

their respective videos. The video of C.P. corroborated her testimony of her

discovery of the camera.

II. The Charges, Jury Instructions, and Outcome

As a result of these events, Kuhn was charged with sexual exploitation of a

2 R.S. and C.P. were friends and both worked at a convenience store near Kuhn’s
house at which Kuhn was a “regular.” While working at the convenience store,
C.P. overheard Kuhn talking about his record shop and asked Kuhn if he was
hiring. Kuhn eventually offered jobs to C.P. and R.S.
3 Although deleted, the investigating agent was able to recover the videos. The

agent explained that even deleted videos, while not being able to be accessed by
normal operation of the camera, could be retrieved with special software so long
as the videos had not been recorded over, which these videos had not.
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minor4 and invasion of privacy5 for each girl, resulting in three counts of each

charge. The case proceeded to jury trial.

At trial, the jury was given a separate marshaling instruction6 for each girl

on the sexual-exploitation-of-a-minor charge as follows:

[T]he State must prove both of the following elements of sexual
exploitation of a minor:
1. On or about [the specified date], the defendant used,
persuaded, induced, enticed, knowingly permitted or otherwise
caused or attempted to cause a minor . . . to engage in nudity for the
purpose of arousing or satisfying the sexual desires of a person who
may view a visual depiction of the nude minor; and

4 Iowa Code section 728.12(1) (2018) makes it a class “C” felony offense of sexual
exploitation of a minor to
employ, use, persuade, induce, entice, coerce, solicit, knowingly
permit, or otherwise cause or attempt to cause a minor to engage in
a prohibited sexual act. . . . A person must know, or have reason to
know, or intend that the act . . . may be photographed, filmed, or
otherwise preserved in a visual depiction.
A “prohibited sexual act” is defined to include “[n]udity of a minor for the purpose
of arousing or satisfying the sexual desires of a person who may view a visual
depiction of the nude minor.” Iowa Code § 728.1(7)(g). A “minor” is defined as
“any person under the age of eighteen.” Id. § 728.1(4).
5 Iowa Code section 709.21(1) defines this aggravated misdemeanor offense of

invasion of privacy as:
A person who knowingly views, photographs, or films another
person, for the purpose of arousing or gratifying the sexual desire of
any person, commits invasion of privacy if all of the following apply:
a. The other person does not consent or is unable to consent
to being viewed, photographed, or filmed.
b. The other person is in a state of full or partial nudity.
c. The other person has a reasonable expectation of privacy
while in a state of full or partial nudity.
“Full or partial nudity” is defined as “the showing of any part of the human genitals
or pubic area or buttocks, or any part of the nipple of the breast of a female, with
less than fully opaque covering. Iowa Code § 709.21(2)(a). “Photographs or films”
is defined as “the making of any photograph, motion picture film, videotape, or any
other recording or transmission of the image of a person.” Id. § 709.21(2)(b).
6 A marshaling instruction is one that “sets out, hopefully in plain language, what

the State must show in order to convict the defendant of the crime charged.” State
v. Kuhse, 937 N.W.2d 622, 633 (Iowa 2020) (Appel, J., concurring). It has been
referred to as “the crown jewel of the court’s instructions in a criminal case.” Id.
(Appel, J., concurring).
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2. The defendant knew, had reason to know, or intended that
the act would be filmed or preserved in a visual medium.
If the State has proved both of the elements, the defendant is
guilty of sexual exploitation of a minor. If the State has failed to prove
either one of the elements, the defendant is not guilty . . . .

Regarding the invasion-of-privacy charges, the jury was separately

instructed on each count as follows:

[T]he State must prove all of the following elements of invasion of
privacy:
1. On or about [the specified date] the defendant knowingly
filmed [the specified girl];
2. The defendant did so for the purpose of arousing or
gratifying the sexual desire of any person;
3. [The specified girl] did not consent to the filming or could
not consent to the filming;
4. [The specified girl] was in a state of full or partial nudity;
and
5. [The specified girl] had a reasonable expectation of privacy
while in a state of full or partial nudity.
If the State has proved all of the elements, the defendant is
guilty of invasion of privacy. If the State has failed to prove any one
of the elements, the defendant is not guilty . . . .

Kuhn was found guilty of all six charges and sentenced accordingly. He

appeals and raises two issues.

III. Sufficiency of the Evidence

As noted in the recitation of the marshaling instructions, based on the

theories of how Kuhn committed the crimes, both sexual exploitation of a minor

and invasion of privacy required the State to prove Kuhn acted with the purpose of

arousing or gratifying the sexual desire of someone. Here, the State alleges Kuhn

acted with the purpose of arousing or gratifying his own sexual desires. Kuhn

challenges the sufficiency of the evidence establishing he acted with that purpose.

Claims of insufficient evidence are reviewed for correction of legal error.

State v. Schiebout, 944 N.W.2d 666, 670 (Iowa 2020). “We will uphold the verdict
7

on a sufficiency-of-evidence claim if substantial evidence supports it.” Id.

“Evidence is substantial ‘if, when viewed in the light most favorable to the State, it

can convince a rational jury that the defendant is guilty beyond a reasonable

doubt.’” Id. (quoting State v. Trane, 934 N.W.2d 447, 455 (Iowa 2019)). All

evidence is considered, not just the evidence supporting the verdict. State v.

Huser, 894 N.W.2d 472, 490 (Iowa 2017).

Kuhn asserts the State failed to establish the sexual-desire elements of the

offenses because he placed the camera in the bathroom to prevent theft. Although

Kuhn did not testify, he was able to present this defense through the questioning

of a law enforcement officer who interviewed him. The officer testified that when

he arrived to conduct the interview, Kuhn “immediately said that he made a bad

decision [and] that he immediately regretted it.” The officer testified that Kuhn

“emphasized multiple, multiple times that [the camera in the bathroom] was a theft

prevention device.”

“Intent is ‘seldom capable of direct proof.’” State v. Evans, 671 N.W.2d 720,

724 (Iowa 2003) (citation omitted). “[A defendant] will generally not admit later to

having the intention which the crime requires . . . his thoughts must be gathered

from his words (if any) and actions in light of surrounding circumstances.” State v.

Radeke, 444 N.W.2d 476, 478–79 (Iowa 1989) (quoting W. La Fave & A. Scott,

Handbook on Criminal Law § 3.5(f), at 226 (2d ed. 1986)). Therefore, we permit

the fact finder to infer the requisite intent that a person acted with the purpose to

arouse or gratify the person’s sexual desires from the person’s “conduct, remarks,

and all surrounding circumstances.” State v. Jorgensen, 758 N.W.2d 830, 837

(Iowa 2008).
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Turning to Kuhn’s conduct, remarks, and the surrounding circumstances,

we look at Kuhn’s claim that he set up the camera for theft-prevention purposes.

His claim is contradicted by the evidence. As to K.E., the video clearly shows she

was allowed into the bathroom wearing a t-shirt and fairly short athletic shorts

along with the pair of jeans she was to try on. There was, realistically, nowhere

for K.E. to hide something to steal. As to R.S. and C.P., they were store employees

continuously captured on the store’s multiple security cameras monitoring the

public areas of the store. It is unlikely either girl would have hidden an item in her

clothing and then walked around the store concealing the item while working next

to Kuhn and being monitored by open and obvious security cameras. Furthermore,

the camera in the bathroom was not remote-activated and was not continuously

recording like the security cameras in the public areas of the store. The only times

Kuhn activated the camera were when he had reason to believe the girls entering

the bathroom would disrobe to some extent to change clothes or use the toilet,

suggesting his purpose was to capture them in a state of undress.

In addition, even Kuhn’s own explanation about setting up the camera

implicates him. As mentioned, Kuhn’s theft-prevention defense was presented

through the testimony of the law enforcement officer who interviewed Kuhn.

During that interview, Kuhn admitted following the procedure described by the

three girls, which is that Kuhn would claim the bathroom needed to be tidied up,

go into the bathroom alone, turn on the camera, adjust it, and then leave the

bathroom for use by the girls. When asked about the positioning of the camera,

Kuhn essentially acknowledged that directing the camera at the toilet would be

inappropriate by claiming he did not point it toward the toilet because “he wasn’t a
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perve.” Yet, a review of the three video recordings shows that is exactly what Kuhn

did. In each video clip, Kuhn trained the camera so as to allow it to capture anyone

seated on the toilet or standing in the area where one would naturally stand to

disrobe while changing clothes.

Finally, there is Kuhn’s interaction with his two teenage employees, R.S.

and C.P. The evidence demonstrated Kuhn took what a reasonable juror could

conclude was an inappropriate interest in the details of their personal lives and

attempted to engage in sexual banter with them. This interest in the personal lives

of teenage girls with sexual overtones was part of the surrounding circumstances

the jury could consider in determining whether Kuhn’s recording of the girls was

sexually-motivated.

Based on Kuhn’s conduct, his remarks, and the surrounding circumstances,

there is ample evidence to support the jury’s conclusion Kuhn acted to arouse or

satisfy his sexual desires in recording the three girls. As a result, his sufficiency-

of-the-evidence challenge fails.

IV. Jury Instructions Regarding Knowledge

For his final challenge, Kuhn claims instructional error. “We review

challenges to jury instructions for correction of errors at law.” State v. Bynum, 937

N.W.2d 319, 324 (Iowa 2020). “We review jury instructions to decide if they are

correct statements of the law and are supported by substantial evidence.” State

v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996).

As noted earlier, the marshaling instructions for both offenses included

elements that Kuhn acted “knowingly.” As to the sexual-exploitation-of-a-minor

charges, the district court instructed the jury that “‘knowingly’ means being aware
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of the character of the matter.” As to the invasion-of-privacy charges, the jury was

instructed that “‘knowingly’ means that the defendant had a conscious awareness

of it.”

Kuhn asserts these different definitions of “knowingly” were confusing and

misleading to the jury. He contends the reference to “conscious awareness” when

referring to the knowledge element of invasion of privacy while only requiring

“awareness” when referring to the knowledge element of sexual exploitation of a

minor could mislead and confuse the jury into believing an “unconscious

awareness” was all that was required to satisfy the knowledge element of the

sexual exploitation of a minor charges. To avoid this confusion, Kuhn suggests

“conscious awareness” should have been used in both definitional instructions.

The State counters by pointing out an “unconscious awareness” is oxymoronic, so

there was no reasonable likelihood the jury was confused.

We acknowledge Kuhn’s claim that prejudice results and reversal is

required when jury instructions mislead the jury or materially misstate the law.

State v. Benson, 919 N.W.2d 237, 241–42 (Iowa 2018). However, while the court

must give instructions that fairly state the law as applied to the facts of the case,

the court is not required to give any particular form of an instruction. State v. Booth-

Harris, 942 N.W.2d 562, 581 (Iowa 2020).

We begin our discussion by noting that the challenged instructions are

uniform jury instructions promulgated by the Iowa State Bar Association. While we

are free to find uniform instructions faulty, we are slow to do so. See Booth-Harris,

942 N.W.2d at 580 (noting “we are slow to disapprove of the uniform jury

instructions” (quoting State v. Ambrose, 861 N.W.2d 550, 559 (Iowa 2015))); State
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v. McMullin, 421 N.W.2d 517, 518 (Iowa 1988) (noting that “[w]hile we normally

approve the submission of uniform instructions,” we are free to find a “particular

instruction faulty”). Here, the difference between the two instructions defining

“knowingly” is driven by the fact that a specific statute defines the term for purposes

of the sexual-exploitation-of-a-minor charges but not for the invasion-of-privacy

charges.

Sexual exploitation of a minor is prohibited by Iowa Code section 728.12.

Iowa Code section 728.1 defines certain terms used in chapter 728. See Iowa

Code § 728.1 (setting forth definitions of various terms “[a]s used in this chapter”).

One of those terms is “knowingly,” which is defined as “being aware of the

character of the matter.” Id. § 728.1(2). This is the exact definition the district court

gave to the jury with respect to the sexual exploitation of a minor charges. The

legislature is free to act as its own lexicographer, and when it does so, we are

normally bound by the legislature’s definitions. State v. Fischer, 785 N.W.2d 697,

702 (Iowa 2010). Here, the legislature chose to be its own lexicographer in defining

“knowingly” with regard to the sexual-exploitation-of-a-minor charges. The district

court’s giving of an instruction that exactly tracked the legislature’s definition was

a correct statement of the law and there was no error in giving the instruction.

In contrast to the sexual-exploitation-of-a-minor charges, the invasion-of-

privacy charges are governed by Iowa Code chapter 709, which contains no

statutory definition of “knowingly.” With no specific statutory definition setting the

definition of the term for the invasion of privacy charges, the district court used the

general uniform instruction for the definition on those charges. Uniform instruction

200.3 states, “For the defendant to [know][have knowledge of] something means
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[he][she] had a conscious awareness that (element requiring knowledge).” Iowa

State Bar Ass’n, Iowa Criminal Jury Instruction 200.3 (2019); see also State v.

Buchanan, 549 N.W.2d 291, 294 (Iowa 1996) (citing uniform instruction 200.3 with

approval); State v. Simmer, No. 14-1323, 2015 WL 4642792, at *1 (Iowa Ct. App.

Aug. 5, 2015) (same). Appropriately, the district court customized the uniform

instruction to adapt it to the facts of this case, resulting in the instruction reading

“‘knowingly’ means that the defendant had a conscious awareness of it” with

regard to the invasion-of-privacy charges. This was a correct statement of the law

regarding the invasion-of-privacy charges, and there was no error in giving the

instruction.

Although the use of an adapted version of uniform instruction 200.3 for the

invasion-of-privacy charges resulted in slightly different definitions of the term

“knowingly” between the two types of charges, that difference was appropriate due

to the legislature’s choice to set a specific definition of “knowingly” for the sexual-

exploitation-of-a-minor charges while not doing so for the invasion-of-privacy

charges. Besides being correct statements of the law, there was no serious risk

of misleading or confusing the jury. See State v. Buman, ___ N.W.2d ___, ___,

2021 WL 646469, at *4 (Iowa 2021) (considering whether there was “a serious risk

of misleading or confusing the jury” in analyzing the propriety of a jury instruction).

Kuhn’s claimed fear that the jury would be confused into believing only

“unconscious awareness” was enough to satisfy the knowledge elements for the

sexual-exploitation-of-a-minor charges is not persuasive, as the phrase

“unconscious awareness” was not used in the instructions and there is no

legitimate risk the jury conjured the phrase themselves, as the concept of
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“unconscious awareness” makes little to no sense. Further, the knowledge

requirement for the sexual-exploitation-of-a-minor charges was limited to

knowingly permitting the girls to engage in nudity and knowing that the nudity

would be preserved in a visual medium, both of which were not seriously disputed

issues at trial. Kuhn’s defense was that he recorded the girls for theft-protection

purposes and not for the purpose of arousing or satisfying his sexual desires.

There is no serious risk the jury became misled or confused by the slight difference

in the definitions of “knowingly” in the instructions.

Finding no merit to the claimed error with the jury instructions, we reject

Kuhn’s challenge based on instructional error.

V. Conclusion

We find sufficient evidence to support Kuhn’s convictions for all six charges.

We find no error in the definitional instructions given by the district court. As a

result, we affirm Kuhn’s convictions.

AFFIRMED.