STATE OF IOWA, Plaintiff-Appellee, vs. JAMES MAYNNARD MUSSMANN, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-282 / 06-1173
Filed June 27, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAMES MAYNNARD MUSSMANN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, David H. Sivright,
Jr., Judge.
James M. Mussmann appeals his conviction, following trial to the court, for
failure to comply with sex offender registry residency requirements. AFFIRMED.
William M. Vilmont, Clinton, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, Michael L. Wolf, County Attorney, and Elizabeth A. Srp, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
2
MILLER, J.
James M. Mussmann appeals his conviction, following trial to the court, for
failure to comply with sex offender registry residency requirements. He contends
the district court erred in finding he committed an offense involving sexual
conduct directed toward a minor and in concluding a postdeprivation review was
not a violation of his due process rights. We affirm.
I.
BACKGROUND FACTS AND PROCEEDINGS.
On October 24, 2000, Mussmann was a janitor at a school in Andrew,
Iowa. He was supervising two eleven-year-old girls when they asked him if they
could draw on a board in one of the classrooms. Mussmann gave the girls
permission to go into the classroom. He then came into the classroom, sat on a
desk, and told the girls he would give them each two dollars if they would lift up
their shirts. On February 2, 2001, Mussmann pled guilty to child endangerment
in violation of Iowa Code sections 726(1)(a) and (3) (1999) as a result of his acts.
In his guilty plea Mussmann stated that he discussed the minutes of testimony
with his counsel and that “the minutes of testimony are essentially correct and
true.” He also admitted in his plea that he “did endanger a child.” The minutes of
testimony which Mussmann agreed were correct and true included the following:
[K.C.] . . . will testify that on October 24, 2000 she and her friend
[S.F.] were at the Andrew Community School . . . and that the
janitor [Mussmann] . . . said [to them] “I’ll give you two dollars a
piece if you lift your shirts up.” This witness will testify that she ran
out of the room, and went outside to wait for [S.F.] . . . . [O]n the
date of this incident, she was 11 years of age.
[S.F.] . . . will testify that on October 24, 2000, she and her friend
[K.C.] were at the Andrew Community School . . . and that the
janitor [Mussmann] . . . said he would give us each $2.00 if we
3
would take off our shirts. This witness will testify that [K.C.] went
running out of the room; that she stayed behind and the janitor
gave her some money . . . . [O]n the date of this incident she was
11 years of age.
The district court found Mussmann guilty as charged, granted him a
deferred judgment, and placed him on supervised probation for two years. The
court also ordered Mussmann to undergo a psychological evaluation to
determine whether sex offender treatment was warranted.
In approximately June 2001, Mussmann’s probation officer told him that
he was required to register as a sex offender. On June 5, 2001, Mussmann was
fingerprinted and photographed at the Jackson County Jail and registered as a
sex offender with the Jackson County Sheriff’s Office the next day. On June 8,
2001, Mussmann filed an application for determination with the Iowa Department
of Public Safety (IDPS), pursuant to Iowa Code section 692A.8(1) (2001). This
section provides:
A person who is registered under this chapter may request that the
department determine whether the offense for which the person
has been convicted requires the person to register under this
chapter or whether the period of time during which the person is
obligated to register under this chapter has expired.
Once the IDPS received all of Mussmann’s required paperwork, it sent him a
“Decision of Determination” dated March 16, 2002, stating he was required to
register as a sex offender because he was convicted of an “indictable offense
involving sexual conduct directed toward a minor.”
See Iowa Code §§
692A.1(5)(c) and 692A.2(1).
On June 16, 2004, Mussmann complied with a requirement of the sex
offender registry by notifying the Clinton County Sheriff’s Office of his new
4
address.
On October 26, 2005, the Clinton County Sheriff’s Office notified
Mussmann by certified letter that he was violating the law by living within two
thousand feet of an elementary or secondary school or licensed care center.
Mussmann continued to live at the address. Thus, on February 14, 2006, he was
charged, by trial information, with failing to comply with the sex offender registry
residency requirements in violation of Iowa Code section 692A.2A(2) (2005).
Mussmann waived jury trial and agreed to be tried on the stipulated facts.
The district court found him guilty as charged. He was sentenced to the custody
of the Clinton County Sheriff for thirty days and ordered to pay a fine of $500.
The court suspended the sentence. On appeal Mussmann contends the district
court erred in finding he committed an offense involving sexual conduct directed
toward a minor, and in finding the postdeprivation review was not a violation of
due process.
II.
SCOPE AND STANDARDS OF REVIEW.
Our scope of review of sufficiency-of-evidence challenges is for correction
of errors at law. Iowa R. App. P. 6.4; State v. Thomas, 561 N.W.2d 37, 39 (Iowa
1997). In reviewing such challenges we give consideration to all the evidence,
not just that supporting the verdict, and view such evidence in the light most
favorable to the State. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). To
the extent Mussmann raises a constitutional challenge our review is de novo in
light of the totality of the circumstances. State v. Bower, 725 N.W.2d 435, 44041 (Iowa 2006).
5
III.
MERITS.
Mussmann first claims there was insufficient evidence to support the
finding that he had to comply with the requirements of the sexual offender
registry because he only pled guilty to child endangerment. For two reasons we
find Mussmann entitled to no relief on this first claim of error.
The determination of whether a defendant is subject to chapter 692A and
is required to register as a sex offender is the responsibility of the IDPS, not the
courts. See Iowa Code § 692A.8; State v. Bullock, 638 N.W.2d 728, 735 (Iowa
2002). As set forth above, Mussmann properly challenged the applicability of the
sex offender registry requirements to his conviction for child endangerment by
filing an application for determination with the IDPS in June 2001. The IDPS
determined Mussmann was required to register because the crime of which he
was convicted involved sexual conduct directed toward a minor.
IDPS regulations provide that if there is an issue of fact that “cannot be
evaluated based upon the record of convictions, sentencing and adjudicatory
order, relevant statutory provisions, and other records provided”, the issue may
be made the subject of a contested case hearing before an administrative law
judge. Iowa Admin. Code r. 661-83.3(4); Kruse v. Iowa Dist. Court, 712 N.W.2d
695, 701 n.3 (Iowa 2006). Mussmann neither suggested the existence of such
an issue nor requested the matter be heard by an administrative law judge in a
contested case hearing as allowed by the administrative rules. The decision by
the IDPS became the final agency action. See Iowa Admin. Code r. 661-83.3(5).
6
Mussmann did not seek judicial review of the final agency action pursuant to
Iowa Code chapter 17A.
Our courts “have held that the final adjudicatory decision of an
administrative agency . . . is entitled to res judicata effect as if it were a judgment
of a court.” Bennett v. MC No. 619, Inc., 586 N.W.2d 512, 517-18 (Iowa 1998);
see Robbins v. Heritage Acres, 578 N.W.2d 262, 265 (Iowa Ct. App. 1998)
(same). Accordingly, Mussmann’s challenge at this juncture to the IDPS’s March
2002 decision is a collateral attack on a final decision of an administrative
agency. State v. Clark, 608 N.W.2d 5, 9 (Iowa 2000). We conclude Mussmann
is precluded, by the doctrine of res judicata, from collaterally attacking the
agency’s final decision. Toomer v. Iowa Dept. of Job Service, 340 N.W.2d 594,
598 (Iowa 1983) (citing United States v. Utah Construction & Mining Co., 384
U.S. 394, 422, 86 S. Ct. 1545, 1560, 16 L. Ed. 2d 642, 661 (1966) (“When an
administrative agency is acting in a judicial capacity and resolves disputed issues
of fact properly before it which the parties have had an adequate opportunity to
litigate, the courts have not hesitated to apply res judicata to enforce repose.”);
also citing Restatement (Second) of Judgments § 83 (1982) (“[A] valid and final
adjudicative determination by an administrative tribunal has the same effects
under the rules of res judicata, subject to the same exceptions, as a judgment of
a court.”); 2 Am.Jur.2d, Administrative Law, section 493 (“[A] determination made
by an administrative agency in its judicial or quasi-judicial capacity is not subject
to collateral attack. . . .”)); see also State v. Bettenhausen, 460 N.W.2d 394, 395
(N.D.1990) (holding defendant, who did not request a hearing on the
7
administrative suspension of his license, could not later challenge that
suspension during a trial for driving while under suspension).
We conclude Mussmann is precluded from now, in this much later and
separate proceeding, collaterally attacking the final decision by the administrative
agency, the IDPS.
Further, and assuming Mussmann is entitled to now collaterally attack the
IDPS decision, the evidence noted above more than sufficiently supports the
district court’s determination Mussmann’s offense of child endangerment
involved sexual conduct directed toward a minor.
Mussmann
also
argues
the
district
court
erred
in
finding
the
postdeprivation review was not a violation of due process. For two reasons we
find Mussmann entitled to no relief on this second claim of error.
First, we conclude Mussmann in fact did not preserve error on this issue.
In cases involving Iowa Code chapter 17A judicial review of final action of an
administrative agency, an issue must generally be presented to the agency to
satisfy error preservation requirements. Strand v. Rasmussen, 648 N.W.2d 95,
100 (Iowa 2002). Even constitutional issues must be raised at the agency level
to be preserved for judicial review. Soo Line R.R. Co. v. Iowa Dep’t of Transp.,
521 N.W.2d 685, 688 (Iowa 1994). This is true despite the agency’s lack of
authority to decide such issues. Id. Because a party cannot raise an issue for
the first time on judicial review of final agency action, the party surely cannot
raise the issue for the first time by way of collateral attack in a separate, later
8
action, as Mussmann attempts to do in this case. Mussmann has made no claim
or showing that he presented his due process claim to the IDPS.
Second, and assuming error has been preserved, the State argues, in
part, that Mussmann has waived this issue on appeal because he failed to cite
authority in support of this claim in his brief. We agree and deem this issue
waived. See Iowa R. App. P. 6.14(1)(c) (“Failure in the brief . . . to cite authority
in support of an issue may be deemed waiver of that issue.”).
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
