STATE OF IOWA, Plaintiff-Appellee, vs. FRANK RICHARD DOTSETH, Defendant-Appellant.Annotate this Case
IN THE COURT OF APPEALS OF IOWA
No. 9-020 / 08-0504
Filed March 11, 2009
STATE OF IOWA,
FRANK RICHARD DOTSETH,
Appeal from the Iowa District Court for Winneshiek County, Margaret L.
The defendant appeals from his conviction of five counts of third-degree
sexual abuse. AFFIRMED.
Dean Stowers of Rosenherg, Stowers & Morse, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney
General, and Andrew F. Vandermaaten, County Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
Frank Dotseth appeals from his conviction of five counts of third-degree
sexual abuse, in violation of Iowa Code section 709.4(2)(b) (2007). He contends
there is insufficient evidence to support the conviction. He also contends the
court erred in refusing to instruct the jury on his religious practices and beliefs.
We review these claims for corrections of errors at law. State v. Jorgensen, 758
N.W.2d 830, 834 (Iowa 2008) (“Sufficiency-of-the-evidence challenges are
reviewed for correction of errors at law.”); State v. Martinez, 679 N.W.2d 620,
623 (Iowa 2004) (“We review the trial court’s refusal to give a requested
instruction for correction of errors at law.”).
Dotseth is an ordained minister and practitioner of his own religion, the
Church of One. He admits that in 2006, he touched the vagina of a thirteen-yearold neighbor with his fingers.
He claims the contact occurred when he was
applying oils to the girl as part of a holistic treatment of a rash in her pubic area.
This occurred on five separate occasions, each treatment lasting approximately
fifteen minutes. On the fifth occasion, the victim claims Dotseth penetrated her
vagina with his penis three times.
A jury’s findings of guilt are binding on appeal if supported by substantial
State v. Enderle, 745 N.W.2d 438, 443 (Iowa 2007).
evidence is evidence that could convince a rational trier of fact a defendant is
guilty beyond a reasonable doubt.
When reviewing a challenge to the
sufficiency of the evidence, we view the evidence in the light most favorable to
the State, including legitimate inferences and presumptions that may fairly and
reasonably be deduced from the evidence in the record. Id.
Dotseth admits his fingers came in contact with the victim’s vagina, but
argues the contact was not “sexual in nature” as established in State v. Pearson,
514 N.W.2d 452, 455 (Iowa 1994). In Pearson, our supreme court found that the
sexual nature of an act can be determined by the type of contact and the
circumstances surrounding it. Pearson, 514 N.W.2d at 455.
Such circumstances certainly include whether the contact was
made to arouse or satisfy the sexual desires of the defendant or the
victim. However, the lack of such motivation would not preclude a
finding of sexual abuse where the context in which the contact
occurred showed the sexual nature of the contact. Other relevant
circumstances include but are not limited to the relationship
between the defendant and the victim; whether anyone else was
present; the length of the contact; the purposefulness of the
contact; whether there was a legitimate, nonsexual purpose for the
contact; where and when the contact took place; and the conduct of
the defendant and victim before and after the contact.
Viewing the evidence in the light most favorable to the State, we conclude
the nature of the act and the circumstances surrounding it support a finding the
act was sexual in nature. Dotseth admitted he touched the girl’s clitoris and
inserted fingers inside her vagina without wearing gloves. He also admitted he
may have talked to the girl about sexual feelings during that time. He explained
that her claim he had intercourse with her could have been caused by
inadvertently hypnotizing her.
The jury was free to accept or reject any of
Dotseth’s claims and to place credibility where it belongs. State v. Shanahan,
712 N.W.2d 121, 135 (Iowa 2006).
Dotseth next contends the court erred when it failed to give two jury
instructions regarding his religious practice and beliefs. Assuming arguendo that
error was preserved, we conclude the district court did not err in refusing to
instruct the jury as requested. Dotseth asserts the court should have instructed
the jury on Iowa Code section 622.10, which provides that “a member of the
clergy shall not be allowed, in giving testimony, to disclose any confidential
communication properly entrusted to the person in the person’s professional
capacity . . . .”
Although Dotseth alleges this instruction was necessary to
prevent the jury from drawing an inference of guilt because Dotseth did not tell
the victim’s parents about his treatment of her, section 622.10 does not apply to
this situation. In addition, no confidential communication or testimony is involved
here. The child told her sister and Dotseth’s wife about her rash, and there is no
evidence the child approached Dotseth as a clergyman.
Dotseth also argues the jury should have been instructed about a religious
exception for the sexual conduct. He contends the following instruction should
have been given:
Defendant has asserted that he touched J.B. as he did for the
purpose of treating her condition pursuant to the practice of his
religious beliefs and for no other purpose. The burden is on the
State to prove beyond a reasonable doubt that defendant’s
touching of J.B. was sexual in nature. To meet this burden the
State must prove beyond a reasonable doubt that defendant was
not touching J.B. for religious treatment purposes that he has
alleged and that his touching was sexual in nature.
This instruction was unnecessary as the jury was instructed, “In order for the act
to be a sex act, the contact must be sexual in nature” in another instruction. See
State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996) (“As long as a requested
instruction correctly states the law, has application to the case, and is not stated
elsewhere in the instructions, the court must give the requested instruction.”
Dotseth had every opportunity to argue his theory of
defense with the given instructions.