State of Iowa v. Jesse Lee McCollaugh

IN THE SUPREME COURT OF IOWA

No. 23–0600

Submitted March 20, 2024—Filed April 19, 2024

STATE OF IOWA,

Appellee,

vs.

JESSE LEE MCCOLLAUGH,

Appellant.

Appeal from the Iowa District Court for Boone County, James B. Malloy,

District Associate Judge.

A defendant appeals his conviction for child exploitation. AFFIRMED.

Oxley, J., delivered the opinion of the court, in which all justices joined.

Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.

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OXLEY, Justice.

The crime of child exploitation includes possessing a visual depiction of a

minor engaged in a “prohibited sexual act,” which is defined to include the

“[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), .12(3) (2022). The defendant—convicted for possessing a video of

a partially nude minor after using the bathroom—challenges his conviction by

arguing that such nudity is insufficient to meet the statutory definition of a

“prohibited sexual act.” We disagree and affirm his conviction.

I.

On April 7, 2022, Jesse McCollaugh arrived home from a work trip, and

his wife, Raylee McCollaugh, helped him unpack his bags. While unpacking,

Raylee discovered three cell phones inside his bag. She found a substantial

amount of pornography on one of the phones, which included videos of her

mother and younger sister that had been secretly recorded by her husband years

prior. There were two videos of Raylee’s younger sister using the bathroom. The

videos were filmed through an outside window and were timestamped July 8,

2017—when her sister would have been only 15 years old. The videos show

Raylee’s sister urinating and then wiping—revealing her genitalia in the

process—clearly unaware of the fact that she was being filmed.

After she discovered the videos, Raylee immediately confronted her hus-

band, who admitted to recording the videos of her sister when the couple was

living with Raylee’s mother and sister in Boone, Iowa. He also admitted that he

had a sexual problem. Following her husband’s admission, Raylee contacted law

enforcement and turned the phone over to police on April 10, 2022, who secured

a search warrant to search its contents. Law enforcement discovered the videos

of Raylee’s sister in the bathroom on the phone, which confirmed the information

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Raylee provided. As a result of the investigation, McCollaugh was charged on

November 17 with one count of sexual exploitation of a minor, in violation of

Iowa Code sections 728.12(3) and 903B.2. He subsequently pleaded not guilty

to the aggravated misdemeanor.

McCollaugh waived his right to a jury trial and stipulated to a bench trial

on the minutes of testimony, which was held on March 1, 2023. On March 3, the

district court filed its verdict finding McCollaugh guilty as charged. The sentenc-

ing hearing was held on April 11, and the district court ordered McCollaugh to

serve an indeterminate prison term not to exceed two years. The sentencing order

also required McCollaugh to register as a sex offender. Now, McCollaugh appeals

his conviction, sentence, and judgment.

On appeal, McCollaugh challenges the sufficiency of the evidence support-

ing his conviction, arguing that it fails to establish that the victim had the pur-

pose of engaging in nudity to arouse or satisfy the sexual desires of a person who

may view the visual depiction, as he argues is required by Iowa Code section

728.1(7)(g). The State counters that McCollaugh misinterprets the statute as re-

quiring the State to prove the victim’s purpose in being nude. The State points

out that section 728.1(7)(g) does not mention the minor’s purpose at all, so

McCollaugh’s contention that the minor’s purpose is an element of sexual ex-

ploitation that must be proved is contrary to a plain reading of the statute. We

conclude that McCollaugh misinterprets the plain language of section 728.1(7)(g)

to impose an additional element that the State was not required to prove.

II.

Both sufficiency of the evidence challenges and claims involving statutory

interpretation are reviewed for correction of errors at law. State v. Sanford, 814

N.W.2d 611, 615 (Iowa 2012); Doe v. State, 943 N.W.2d 608, 609 (Iowa 2020).

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A.

The language of the statutory provisions at issue furnishes the necessary

starting point for our analysis. Section 728.12(3) provides in pertinent part: “It

shall be unlawful to knowingly purchase or possess a visual depiction of a minor

engaging in a prohibited sexual act or the simulation of a prohibited sexual act.”

Iowa Code § 728.12(3). Section 728.1(7) defines “prohibited sexual act” to mean

several things for purposes of section 728.12(3), but this appeal only implicates

the definition provided in paragraph (g): “Nudity of a minor for the purpose of

arousing or satisfying the sexual desires of a person who may view a visual de-

piction of the nude minor.” Id. § 728.1(7)(g). Reading the statutory provisions in

tandem, McCollaugh argues that the State was required to prove that the victim

engaged in nudity for the purpose of arousing or satisfying the sexual desires of

a person who may view the visual depiction of her nudity. And because the video

only depicted the victim using the bathroom, unaware of the fact she was being

filmed, the State failed to show that she engaged in the nudity depicted by the

video for the purpose of arousing the viewer.

“The first step in our statutory interpretation analysis is to determine

whether the statute is ambiguous.” State v. Zacarias, 958 N.W.2d 573, 581 (Iowa

2021) (quoting State v. Ross, 941 N.W.2d 341, 346 (Iowa 2020)). Our inquiry

ends if we find no ambiguity because we do not search for the meaning of a

statute “beyond the express language of a statute when that language is plain

and the meaning is clear.” McGill v. Fish, 790 N.W.2d 113, 118 (Iowa 2010). When

the general assembly chooses to act as its own lexicographer, we are normally

bound by its definitions, even if they do not coincide with dictionary or common

law definitions. Sherwin–Williams Co. v. Iowa Dep’t of Revenue, 789 N.W.2d 417,

425 (Iowa 2010) (acknowledging the significance of the general assembly’s choice

to define words used within a statute).

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Here, it is unnecessary for us to look beyond the statutory language to

resolve this case. We agree with the State that a plain reading of the two statutory

provisions reveals that the relevant “purpose” that the State must prove is

identified after the word “purpose” in the definition, not before. See Iowa Code

§ 728.1(7)(g) (“Nudity 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.”

(emphasis added)). In other words, the State must prove the purpose of

purchasing or possessing a visual depiction of the nude minor—not the minor’s

purpose in being nude. The relevant purpose is illustrated by inserting the

definition of “prohibited sexual act” from paragraph (g) into section 728.12(3),

which would then read as follows: “It shall be unlawful to knowingly purchase

or possess a visual depiction of a minor engaging in nudity 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.” See Iowa Code §§ 728.1(7)(g), .12(3). The

statute simply cannot be read to require the State to prove why the minor is

engaging in the prohibited sexual activity.

McCollaugh attempts to circumvent the plain language by arguing that we

have previously described Iowa Code section 728.12(3) as prohibiting “the

purchase and possession of child pornography,” State v. Robinson, 618 N.W.2d

306, 313 (Iowa 2000) (en banc), which, he argues, does not encompass the mere

nudity depicted in the videos he possessed. As further support, McCollaugh

notes that the current statute originated from a prohibition on minors viewing

obscenity or obscene materials, which initially did not even address child

pornography. See id. at 315–16 (citing 1976 Iowa Acts ch. 1245, § 2804 (codified

at Iowa Code § 728.4 (1979))). With later statutory amendments, the general

assembly created the crime of sexual exploitation of a minor with the stated

purpose of prohibiting individuals “from photographing a child involved in

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certain prohibited sexual acts.” 1978 Iowa Acts ch. 1188; see also Robinson, 618

N.W.2d at 316 (citing 1978 Iowa Acts ch. 1188, § 1 (codified at Iowa Code

§ 728.12(1) (1979))). Therefore, McCollaugh contends that the nature of the

nudity depicted in the videos here is not prohibited by the statute’s language.

Even considering McCollaugh’s historical account of the statute’s

evolution, we are unconvinced by his argument. The general assembly extended

sexual exploitation of a minor to include the mere possession of imagery

depicting a child engaged in a sexual act, and it chose to define “prohibited

sexual act” 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). It is our job to interpret that language as

written. It is not our job to incorporate generalized notions of child pornography

into our interpretation—even if we characterized a prior version of the statute as

prohibiting “child pornography.” Robinson, 618 N.W.2d at 313.

Reading section 728.1(7) in its entirety reinforces our interpretation. See

State v. Doe, 903 N.W.2d 347, 351 (Iowa 2017) (“In interpreting a statute, we first

consider the plain meaning of the relevant language, read in the context of the

entire statute, to determine whether there is ambiguity.”). Subsection 728.1(7)

defines “prohibited sexual act” to mean “any of the following” definitions, which

are contained in the following paragraphs. Iowa Code § 728.1(7). The provision

includes seven paragraphs, and only three of those include the qualifying

language “for the purpose of.” See id. § 728.1(7)(e)–(g). When comparing the

different types of conduct prohibited by each paragraph, the reason for this

distinction becomes clear.

For example, paragraph (b) defines “prohibited sexual act” to include “[a]n

act of bestiality involving a minor.” Id. § 728.1(7)(b). This paragraph targets an

entire category of conduct without regard to the purpose of any individual

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because the general assembly has deemed it per se sexual. The general

assembly’s exclusion of qualifying language reveals its intention to ensure this

paragraph applies in situations with widely varying facts. Likewise, paragraphs

(c) and (d) define a prohibited sexual act to include the touching of pubes or

genitals involving a minor—irrespective of the minor’s role in the act—and

neither paragraph contains language that references purpose. See id.

§ 728.1(7)(c)–(d). Again, paragraphs (c) and (d) define conduct that is inherently

sexual in nature.

Conversely, in addition to paragraph (g), the phrase “for the purpose of” is

also found in paragraphs (e) and (f). See id. § 728.1(7)(e)–(f). Both paragraphs

concern “[s]adomasochistic abuse . . . for the purpose of arousing or satisfying

the sexual desires of a person who may view a visual depiction of the abuse,”

whether that abuse is being inflicted upon the minor, id. § 728.1(7)(e) (emphasis

added), or inflicted by the minor, id. § 728.1(7)(f) (emphasis added). Including

this identical language in some paragraphs while excluding it from others, see

Chiodo v. Section 43.24 Panel, 846 N.W.2d 845, 853 (Iowa 2014) (“If the drafters

intended the two concepts to be coextensive, different words would not have been

used.”), reveals that the general assembly intentionally included the qualifying

language “for the purpose of” in paragraphs targeting conduct that is not

inherently sexual in nature, thus requiring an additional showing of purpose to

meet the definition of “prohibited sexual act.”

Giving the identical language addressing purpose operative effect in each

of the paragraphs containing the “for the purpose of” condition further refutes

McCollaugh’s argument here. Requiring the State to prove the minor engaged in

the identified act for the specific purpose of arousing the viewer’s sexual desires

would lead to absurd results when applied to paragraphs (e) and (f). For example,

under McCollaugh’s interpretation, visual depictions of a person inflicting

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sadomasochistic abuse upon a minor would only constitute a prohibited sexual

act if the state proved that the minor’s purpose in engaging in the abuse was to

arouse the sexual desires of a person who may view the depiction. See Iowa Code

§ 728.1(7)(e). This illustrates that McCollaugh’s interpretation of the language

“for the purpose of” as requiring proof of the minor’s purpose for engaging in the

identified act defies logic and common sense.

Paragraph (e) solely targets the unilateral conduct of a person other than

the minor, and the nature of that conduct—sadomasochistic abuse inflicted on

the minor—renders inquiry into the minor’s purpose nonsensical. See id.

Regardless of a minor’s actions or demeanor in visual depictions of such abuse,

we simply cannot conclude that a conviction under paragraph (e) rises and falls

on a determination that the minor “engaged in” sadomasochistic abuse as a

victim for the purpose of arousing sexual desires of someone who later views a

depiction of the abuse. And because that paragraph contains the same “for the

purpose of” language that McCollaugh’s argument relies on in paragraph (g), we

cannot accept his proposed interpretation of Iowa Code section 728.1(7)(g). See

Farmers Co-op. Co. v. DeCoster, 528 N.W.2d 536, 538–39 (Iowa 1995) (per

curiam) (recognizing that identical language in different statutes should be given

the same meaning and noting that “need for uniformity becomes more imperative

where the same word or term is used in different statutory sections that are

similar in purpose and content”).

Our decision today is consistent with our prior caselaw. In State v. Hunter,

we considered a constitutional challenge to Iowa Code section 728.1(7)(g)1 based

1

At the time of our decision in Hunter, the relevant Code provision was Iowa Code section

728.1(6)(g) (1993). That section has since been renumbered to 728.1(7)(g). See 1997 Iowa Acts

ch. 125, § 2 (codified at Iowa Code § 728.1(7)(g) (Supp. 1997)). For purposes of clarity, we will

refer to section 728.1(7)(g) in this opinion.

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on the defendant’s claim that the statute’s definition of “prohibited sexual act”

was unconstitutionally vague. 550 N.W.2d 460, 462–63 (Iowa 1996), overruled

in part on other grounds by Robinson, 618 N.W.2d 306. In that case, we rejected

the defendant’s vagueness challenge because the qualifying phrase “for the pur-

pose of arousing or satisfying the sexual desires of a person” sufficiently informed

the general public of the distinction between prohibited conduct and protected

expression. See id. at 465–66. Notably, we explicitly rejected the defendant’s ar-

gument that section 728.1(7)(g) criminalized “the mere nudity of a minor.” Id. at

466. The statute’s language addressing purpose “requires an element of scien-

ter,” and the defendant’s “conduct clearly fell within the statute’s prohibition of

photographing a nude minor for the purpose of arousing or satisfying the sexual

desires of a person viewing the pictures.” Id. at 466–67 (emphasis added).

McCollaugh attempts to distinguish Hunter by arguing that we did not

squarely determine the issue presented in this case because our consideration

of the defendant’s vagueness claim focused solely on whether the statutory lan-

guage adequately alerted him that his conduct was prohibited, a claim we re-

jected based on the circumstances surrounding his actions. Id. at 465–66. We

are not convinced by McCollaugh’s argument. The scienter requirement was nec-

essary to our rejection of a vagueness challenge, and the scienter requirement

we identified was “for the purpose of arousing or satisfying the sexual desires of

a person who may view a depiction of the nude minor.” Id. at 466 (quoting Iowa

Code § 728.1(7)(g)). McCollaugh’s attempt to distinguish Hunter goes to a vague-

ness challenge he did not make below or even mention on appeal until his reply

brief, which was too late. See Iowa R. App. P. 6.903(4) (“Issues may not be as-

serted for the first time in the reply brief.”). Even so, McCollaugh’s argument

about whose purpose is at issue runs head-on into our holding in Hunter that

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the purpose phrase identifies the defendant’s scienter, not the victim’s purpose

for being nude. See 550 N.W.2d at 465–66.

McCollaugh also asserts that we considered the victim’s purpose in Hunter

when we noted that she posed provocatively for the photographs. See id. at 462.

McCollaugh mischaracterizes our discussion of the photos in that case. First,

there is no indication that the victim posed herself—as opposed to the defendant

posing her—for the pictures. Id. at 462, 466. Second, the fact that the victim was

in provocative poses was not critical to our holding. To the contrary, we explicitly

concluded that the “purpose” language imposed an element of scienter, making

clear that the relevant purpose was that of the defendant, not of the victim. See

id. at 466. McCollaugh’s position is inconsistent with our holding in Hunter, and

we have no intention of walking back the scienter requirement we identified

there.

The out-of-state cases cited by McCollaugh reinforce our interpretation.

Each case interpreted statutory language that differed in a material way from

section 728.1(7)(g) by requiring the nudity to be lewd or lascivious. See State v.

Gates, 897 P.2d 1345, 1348 (Ariz. Ct. App. 1994) (considering whether vide-

otapes possessed by defendant showed minors “engaged in the lewd exhibition

of [their] genitals, pubic or rectal area” as prohibited by Ariz. Rev. Stat. § 13-

3551(2)(f) (1992)), superseded by statute, Ariz. Rev. Stat. §§ 13-3551, -3553

(1996), as recognized in State v. Chandler, 418 P.3d 1109 (Ariz. Ct. App. 2017);

Lockwood v. State, 588 So. 2d 57, 58 (Fla. Dist. Ct. App. 1991) (per curiam) (de-

termining videos of minor undressing and showering did not show presentation

of sexual conduct under Fla. Stat. § 827.071(5)(1)(g) (1989) that included “actual

lewd exhibition of the genitals” (quoting Fla. Stat. § 827.071(5)(1)(g))); State v.

Whited, 506 S.W.3d 416, 430–31 (Tenn. 2016) (determining mere nudity of a

minor did not fall within the definition of “lascivious exhibition” as used in Tenn.

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Code § 39-17-1002(8)(G) (2014)). Moreover, the reasoning discussed in those

cases directly refutes McCollaugh’s argument here. See Gates, 897 P.2d at 1349

(“The knowledge or intent of the children is generally not material in child por-

nography cases . . . . [T]he defendant’s intent is relevant to the inquiry. The de-

fendant is the one who sets up the exhibition, and the lewdness of that exhibition

is measured, in part, by the defendant’s intent.” (citation omitted)); Whited, 506

S.W.3d at 440–41 (distinguishing Tennessee statute from other states that have

“included in their child sexual exploitation statutes explicit language making the

defendant’s subjective purpose of sexual gratification an element of the offense”).

To the extent they inform our analysis, these cases support the State’s position

over McCollaugh’s.

Based on the foregoing discussion, we reject McCollaugh’s challenge to the

sufficiency of the evidence because the statute does not require the State to prove

the minor’s purpose as an element of the offense. With this understanding of the

statute, we conclude that there was sufficient evidence to prove McCollaugh’s

purpose for taking the videos was for his sexual gratification based on the videos

being found among other pornography, the secret nature of the filming, and

McCollaugh’s admission that “he had a sexual problem” when confronted by his

wife. We affirm his conviction for sexual exploitation of a minor.

B.

The second issue raised on appeal concerns the district court’s

consideration of and reliance on an improper factor in its sentencing order. We

review sentences imposed in criminal cases for correction of errors at law. State

v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “A sentencing court’s decision to

impose a specific sentence that falls within the statutory limits ‘is cloaked with

a strong presumption in its favor, and will only be overturned for an abuse of

discretion or the consideration of inappropriate matters.’ ” State v. Damme, 944

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N.W.2d 98, 105–06 (Iowa 2020) (quoting Formaro, 638 N.W.2d at 724). “We afford

sentencing judges a significant amount of latitude because of the ‘discretionary

nature of judging and the source of respect afforded by the appellate process.’ ”

Id. at 106 (quoting Formaro, 638 N.W.2d at 725).

To establish reversible error based on an improper sentencing factor, the

defendant is required to show that the court was not just merely aware of the

factor, but that it relied on the factor in determining its sentence. State v. Ashley,

462 N.W.2d 279, 282 (Iowa 1990). When that showing is made, “[w]e cannot

speculate about the weight a sentencing court assigned to an improper

consideration[,] and the defendant’s sentences must be vacated and the case

remanded for resentencing.” State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998)

(per curiam). The sentence ordered by the district court in this case was within

the statutory limits, so there is a strong presumption in favor of the sentence

that can only be overcome by an affirmative showing that the district court relied

on improper evidence. See Damme, 944 N.W.2d at 105–06.

Here, McCollaugh argues that the State presented unproven facts during

the sentencing hearing when it stated that “[w]e don’t know how often he viewed

[the videos]. It could have been every day.” McCollaugh argues that this amounts

to improper evidence because nothing in the record establishes whether he ever

viewed the videos at all. Furthermore, he contends that the district court’s

statement that the sentence was “based on all of the things we’ve talked about

here,” and its failure to disavow the prosecutor’s comments—when taken

together—clearly establish that the court actually considered and relied on the

unsupported fact in determining its sentence. In response, the State argues that

McCollaugh’s argument disregards important context because the district

court’s reference to “all of the things we’ve talked about here” was made directly

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after explaining the many determinants behind its sentencing decision—which

did not include how often McCollaugh viewed the videos.

Considering the respective positions, we conclude that McCollaugh cannot

make the necessary showing from the record presented. In its sentencing order,

the district court explicitly delineated the reasons for the sentence and never

mentioned the comment made by the prosecutor during the sentencing hearing.

Furthermore, we agree with the State that the district court’s statement about

considering “all of the things” does not support McCollaugh’s position. In fact,

reading that statement within the context in which it was made reveals that the

district court did not consider the unproven fact mentioned by the prosecutor.

Therefore, we conclude that the district court properly exercised its sentencing

discretion.

III.

McCollaugh’s conviction and sentence are affirmed.

AFFIRMED.