State v. Wickes

910 N.W.2d 554

STATE of Iowa, Appellee,

v.Bradley Elroy WICKES, Appellant.

No. 16-1684

Supreme Court of Iowa.

Filed March 30, 2018

Eric S. Mail and Eric D. Puryear of Puryear Law P.C., Davenport, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

ZAGER, Justice.

This case requires us to determine whether hugs between a school employee and a student can constitute prohibited "sexual conduct" under Iowa Code section 709.15(3)(a ) (2015). Wickes appeals his conviction on one count of sexual exploitation by a school employee under Iowa Code sections 709.15(3)(a )(1) and 709.15(5)(a ). Wickes challenges the district court findings that his hugs with a student constituted "sexual conduct" under Iowa Code section 709.15(3)(a )(2) and that the State provided sufficient evidence to show he engaged in a pattern, practice, or scheme of conduct to engage in sexual conduct with a student. Wickes also forwards other claims on appeal. For the reasons set forth below, we affirm the judgment and sentence of the district court.

I. Background Facts and Proceedings.

In August 2015, Bradley Elroy Wickes was a licensed teacher in the State of Iowa at Camanche High School. Wickes taught high school social studies courses and was actively involved with the students outside of the classroom as the faculty sponsor of the school’s student government and as the DJ at school dances. Around August 21, A.S., a 17–year–old student in Wickes’s social studies class reached out to Wickes in person to proofread an English paper she had written. From the contents of her paper, Wickes would learn of personal issues A.S. was facing. Following this initial interaction, Wickes initiated contact with A.S. on Facebook Messenger¹ to discuss his thoughts on her paper. Thereafter, Wickes and A.S. continued to frequently message one another, and their relationship transformed from one of teacher and student to one of a more personal and intimate nature.

Between August 21 and October 5, Wickes and A.S. exchanged approximately 638 pages of messages on Facebook with one another, with many of these pages containing multiple exchanges between them per page.² These daily messages took place at all hours of the day, sometimes beginning early in the morning and often ending early the next morning. As their relationship progressed, Wickes and A.S. began to openly share intimate details of their lives. Wickes frequently discussed his marital issues with A.S., including his sexual frustrations with his wife. They also discussed his ultimate decision to leave his wife and children.

Throughout these discussions, Wickes made clear that part of his marital problems stemmed from his desire for more cuddling and physical contact with his wife. For example, Wickes stated, "[H]ugs, cuddling and laying together are so important to me." Wickes also told A.S. that he had previously complained to his wife about the lack of affection and sexual intimacy in their marriage. He made statements such as "I’m a guy that loves to cuddle and show affection"; "I don’t need to be seduced after this long of a ‘dry period’ "; and "I NEED AFFECTION, I’m not saying the booty kind ... well that too ... but I freaking am crazy to just feel like [my wife] would like to hold my hand or sit beside me." A.S. responded to this statement about his need for affection by saying, "[Y]ou’re not crazy for wanting those things. It’s part of a relationship. It’s a big part." Wickes replied, "Could you turn 30 tomorrow lol."

Further, Wickes used these discussions to flirt with and encourage A.S. into a more intimate relationship with him. Initially, he encouraged A.S. to rely on him emotionally. After Wickes reviewed A.S.’s paper describing her move from the home of one parent to the other, Wickes made statements such as "I didn’t know much about why you left. Sounds like it was pretty rough. You should share more with me sometimes if you ever want to"; "Hugs and high fives Monday"; and "Don’t hold it all in. That just leads to more depression and anxiety. I’m always available." Wickes subsequently continued to encourage A.S. to rely on him for support in the form of conversations and hugging. For example, when A.S. said, "I know personally I tend to shut down after I open up to someone," Wickes responded, "So can I expect you to shut down and pull away now? Better not."

A.S. and Wickes would both message each other asking about when they would get their hugs from one another. The pair engaged in hugs on an almost daily basis. In addition to their conversations and testimony about the hugs, the evidence of these interactions includes two photographs of Wickes and A.S. embracing—one at the Camanche High School prehomecoming bonfire and one at the homecoming dance. From September 16 until his last Facebook conversation with A.S. on October 5, Wickes made a plethora of statements to A.S. about how sexually attractive he found her and his desire to be in a romantic relationship with her. For example, on September 20, Wickes messaged A.S., "I’m going to cross over to the creeper side a moment and tell you. You are hot. And pretty[;] kind of a rare combo." This comment came after Wickes had recently seen A.S. at Walmart, they had hugged, and he followed up on their in-person exchange by telling A.S., "I’m glad I just got to touch you[.] OMG[;] touch hug you lmfao."

When A.S. was having issues with a prior boyfriend, Wickes told her, "If I was his age and had you tell me that. I[’d] be breaking down walls to get to you." As their conversation that day continued, Wickes told A.S.,

I’m infatuated with your character and heart. The only reason I feel good these days is I see in you what I want in a woman. I found out there’s a girl that gets me and I have hope someday I [will] find another age appropriate girl.

Later, he told A.S., "I just want to hold you. Hug choke the shit out of you," and "I’d sneak over a hug but think that’s criminal charges." The next day, Wickes messaged A.S. at school, saying, "Come give me that hug." Later, Wickes messaged A.S., "[Your] hugs and saying just think booty made me keep it together today."

The following day, Wickes told A.S. how "gorgeous, funny, kind, [and] smart" he found her. He continued,

Permission to be a pervy old man?.... Your eyes are amazing, freaking soulful and draws me in. Every face [you] make is freaking adorable. I told you a long time ago you look just like an actress from tv. Still do. And then the pervy stuff ... you know you’ve got a great booty! Below that is some smoking legs [that] are beautiful and not the scrawny chicken legs like so many others. You’ve got a pin up girl build. An hour glass of curves. Read this then delete and I’ll go turn myself in.

He followed that comment by telling A.S. he would hug her the next day when she took a restroom break from another class.

A few days later, Wickes and A.S. were discussing the school bonfire photograph that was taken and Wickes told A.S., "I’m keeping my self-portrait for my personal spank bank. I’m hot." They then discussed the school’s "Gender Bender Day," where students and teachers could dress like members of the opposite gender. After A.S. offered a dress for Wickes to borrow, Wickes stated, "I’m just glad you’re just willing to give me your booty at a moment’s notice ... Yeah delete that." The pair then began discussing what gets their hearts racing and Wickes told A.S., "Honestly for me it’s you and chatting. I look forward to it all day. And I know I probably shouldn’t. But just enjoy it. Relaxing funny. Heart to heart." He continued, "I don’t exactly know how to say it without violating my moral compass ... in a different world ... if time could be changed and I younger or you older. You’d be completely perfect for me."

The following day, Wickes told A.S. that her "chest fits [her] perfectly" in response to a message from A.S. about her weight. When she complained about problems with her living arrangements, Wickes told A.S., "I’d buy you an apartment and be your sugar daddy lol if I could afford it. You deserve to feel comfortable[.] Hugs to you." Further, when A.S. told him she was getting offline to go to sleep, Wickes said, "I’m leaving you unsatisfied or wanting more.... That was dirty sorry." A.S. responded by telling Wickes she would be alone after she got offline, to which Wickes replied, "No you’re never alone and you’re going to go to sleep with me."

On October 2, Wickes told A.S., "Ahhh you always look good. So glad I have you. Had [a] blast as always," and "Can’t wait for my hug." The next day, Wickes asked A.S. if he could vent for a moment. He proceeded to tell her,

Why ohhh why would I meet someone like you! I’ll be honest[,] you match me to [a] tee except I’m a pedophile for thinking so. And I’m not thinking sexual[,] just emotional and personal ... that’s not fair for me to put on you.

As their conversations that day continued, Wickes told A.S., "I hate that you feel I might leave ya. I’ll be honest[,] I worry about how close we are because I know it would get me in trouble, but I would [be] in a worse place without you." A.S. replied, "[I]f you leave[,] I’d honestly be lost." When Wickes told her he feared a therapist might tell him he could not use social media or texting for a month, A.S. responded, "I hope they’d never suggest that. I just idk. I’d just cry." Wickes then assured A.S., "I wouldn’t do it. I want to hug you." Later in the night, Wickes and A.S. were talking about the Camanche homecoming dance that Wickes was DJing and A.S. would be attending. When A.S. made a comment stressing out about her outfit, Wickes responded with, "You’re amazing in anything."

After the homecoming dance, where one of the photographs of Wickes and A.S. are shown embracing, Wickes told A.S., "You’re gorgeous" and "You’re smoking." Their messaging continued into the early hours of the morning. Wickes told A.S. that she found him at the dance to take a...