State of Iowa v. Earl Dean Dawson

IN THE COURT OF APPEALS OF IOWA

No. 13-0792
Filed April 8, 2015

STATE OF IOWA,
Plaintiff-Appellee,

vs.

EARL DEAN DAWSON,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Marion County, Terry R. Rickers,

Judge.

A defendant appeals from his convictions for failure to comply with the sex

offender registry. AFFIRMED.

James S. Nelsen of James S. Nelsen, P.L.C., West Des Moines, for

appellant.

Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, and Edward W. Bull, County Attorney, for appellee.

Considered by Mullins, P.J., and Bower and McDonald, JJ.
2

MULLINS, J.

Earl Dean Dawson appeals from his convictions on two counts of failure to

comply with the sex offender registry. He was convicted of failing to timely

register an email address and Facebook account name. On appeal, he contends

he was denied the right of cross-examination and the right to present a defense

when the Court made several evidentiary rulings. He also contends there was

insufficient evidence to show he knew or reasonably should have known the sex

offender registry requires reporting the email address and Facebook account.

We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS.

Dawson is a tier-one sex offender subject to the reporting requirements of

the sex offender registry statute set out in Iowa Code chapter 692A (2011). He

was convicted in 2006 of sex abuse in the third degree; the victim was his

fourteen-year-old stepdaughter. Iowa Code section 692A.109 requires law

enforcement officers or the court to inform a sex offender released from

incarceration of his obligation to register. In January 2010, Dawson was

released from prison and received a registration packet and a form in which he

provided the registry a number of personal and contact details. The registration

packet also contained an explanation of his obligations as a sex offender under

Iowa Code chapter 692A. The packet stated the offender is required to notify the

sheriff of each county where the offender maintains a residence, employment, or

is in attendance as a student, within five business days, of “all relevant
3

information, as defined by section 692A.121.”1 On the registration form, Dawson

was asked to provide “email addresses screen names any/all internet identifiers.”

He provided none. The form included a notification that, “A sex offender shall,

within five business days of any change of relevant information, appear in person

to notify the sheriff of each county where a change has occurred.” The packet

contained a disclaimer, which Dawson signed and dated, stating:

In signing below, I acknowledge that I have been notified of
my duty to register with the Iowa sex offender registry and to
comply with all of the requirements of Iowa Code chapter 692A,
including those listed on this DCI-144 form. I also acknowledge
that I have received a copy of Iowa Code sections 692A.101(2),
692A.113, and 692A.114.

In December 2010, Dawson created a Facebook account under a false

name, “Bob Harley,” using the unregistered email address,

“harleyboy01@live.com.” Dawson admitted at trial he used a false name to

access Facebook because Facebook does not allow sex offenders to have

accounts. Dawson did not notify law enforcement about this email address or

Facebook account within the required five days.

Dawson completed registration forms in 2011 and 2012. In 2011, the

registration packet stated the offender is required to register with law

enforcement by providing “all relevant information, as defined by section

692A.101(1)(23).”2 This is a typographical error; the relevant code section is

692A.101(23), providing “relevant information” includes “internet identifiers.”

1
Iowa Code section 692A.121 controls public access to offenders’ personal information
in the sex offender registry.
2
Iowa Code section 692A.103 identifies offenders who are required to register. Iowa
Code section 692A.104 describes the process for registration, including the requirement
of “providing all relevant information to the sheriff.”
4

Iowa Code § 692A.101(23)(a)(9). “Internet identifier” is defined as “an electronic

mail address, instant message address or identifier, or any other designation or

moniker used for self-identification during internet communication or posting,

including all designations used for the purpose of routing or self-identification in

internet communications or postings.” Iowa Code § 692A.101(15).

The 2011 packet also provided partial texts of several important sections

of the chapter, including section 692A.101(1) and (2) (definitions of an

“aggravated offense” and an “aggravated offense against a minor”), .113

(exclusion zones and prohibition of certain employment-related activities), .114

(residency restrictions), and .115 (employment where dependent adults reside.)

Dawson did not notify law enforcement of the email address or Facebook

account in his 2011 registration. He signed another disclaimer acknowledging

his receipt and understanding of the registration requirements.

In 2012, the registration packet once again included the requirement that

the offender provide “all relevant information, as defined by section

692A.101(1)(23).” On February 7, 2012, Dawson provided an email address,

“dawson1@iowatelecom.net”, but did not report the “bobharley01@live.com”

email address or the Facebook account and false name of Bob Harley. He

signed the waiver acknowledging his receipt and understanding of the

registration requirements.

In February 2012, Department of Criminal Investigations Special Agent

Amy Kluender, who specializes in sex offender registry compliance, conducted a

compliance check on Dawson and interviewed him in person. On February 29,
5

2012, Kluender discovered Dawson was using “Bob Harley” as a false name

online in several email addresses and on Facebook. Dawson admitted to

Kluender he used these names to circumvent rules about sex offenders’ access

to social media sites. Shortly thereafter, he registered the email address and

Facebook account with the county sheriff.

Iowa Code section 692A.111 sets out a criminal penalty for a sex

offender’s failure to comply with the registration requirements. The State

charged Dawson with two aggravated misdemeanor counts of failure to comply

with the sex offender registry: count one for failure to register the Facebook alias

of “Bob Harley”; count two for failure to register the email address

“harleyboy01@live.com.” The court held a bench trial. The State’s only witness

was Kluender. The State also offered Dawson’s sex offender registry packets

from 2010, 2011, and 2012. Dawson testified on his own behalf. The court ruled

from the bench, finding Dawson guilty on both counts. Dawson appeals, arguing

he was denied the right to present a defense and to cross-examine Kluender. He

also contends there was insufficient evidence to support the convictions.

II. ANALYSIS.

A. Evidentiary Rulings.

Iowa Code section 692A.111(1) provides a criminal penalty for sex

offenders who fail to comply with the Sex Offender Registry requirements:

A sex offender who violates any of the requirements of
section 692A.104, 692A.105, 692A.108, 692A.112, 692A.113,
692A.114, or 692A.115 commits an aggravated misdemeanor for a
first offense and a class “D” felony for a second or subsequent
offense . . . . For purposes of this subsection, a violation occurs
when a sex offender knows or reasonably should know of the duty
6

to fulfill a requirement specified in this chapter as referenced in the
offense charged.

Thus, section 692A.111(1) requires proof that the defendant knew or reasonably

should have known of the requirement.

Dawson contends on appeal that the district court violated his

constitutional rights. First, Dawson argues the district court violated his right to

cross-examine the State’s witness and to present a defense in two ways: first, by

refusing to allow him to elicit testimony from Kluender to show there was not

sufficient evidence that the State informed Dawson of what he was required to

report, as required under 692A.109; and second, by refusing to allow Dawson to

testify to his own subjective understanding of the requirements. Second,

Dawson argues because he was unable to elicit the testimony on cross-

examination, the court improperly placed the burden of proof on him to “disprove”

the knowledge element of the offense. The State contends Dawson elicited

testimony about Kluender’s personal knowledge of the registration requirements

and Dawson’s subjective understanding in an attempt to raise an untimely

constitutional vagueness challenge to the statute itself, arguing a reasonable

person would not have understood the requirements of the registry. According to

the State, the district court was correct to stop the questioning eliciting such

testimony and Dawson’s own testimony invoking such an argument.

During the trial, Dawson’s counsel engaged in the following cross-

examination of Kluender:

DEFENSE COUNSEL: Now, you know the definitions of the
term relevant information, correct?
KLUENDER: Yes.
7

DEFENSE COUNSEL: And did you learn those definitions
through your training at the academy and through your college
education?
KLUENDER: No.
DEFENSE COUNSEL: How did you learn of those
definitions?
KLUENDER: Reading the registration documents.
DEFENSE COUNSEL: And is that reading the registration
documents as—
KLUENDER: It’s also the Iowa Code Section 692A.
DEFENSE COUNSEL: Okay. So in 692A where does it talk
about relevant—relevant information?
KLUENDER: I believe it’s 691A.101—I believed it’s
contained—I believe it’s the definition section in 692A.
DEFENSE COUNSEL: Now [is a] sex offender ever told,
you are to go look at 692A.101?
KLUENDER: I don’t know if Mr. Dawson was specifically
told.
DEFENSE COUNSEL: Did you learn anything about legal
research through your training either in college or at the academy?
KLUENDER: What do you mean by did I learn anything
about legal research, sir?
DEFENSE COUNSEL: Did you ever have any training on
legal research?
KLUENDER: No.
DEFENSE COUNSEL: They just turned you loose—sorry—
THE COURT: The question is really vague, counsel. I’m not
sure if I understand what you’re getting at.
DEFENSE COUNSEL: Have you ever received any type of
training that would—that specifically would go with legal search as
in researching statutes?
PROSECUTOR: Objection, Your Honor, relevance.
THE COURT: How is it relevant, counsel?
DEFENSE COUNSEL: Well, once again if he is—we’re
trying to figure out how he should know to report this information.
And if he needs to go do some legal research—We as attorneys go
to law school and spend quite a—we get oriented to doing legal
research and going through a statute. And plain reading of statute
doesn’t necessarily give anybody the—the full requirements of what
to register here.
THE COURT: So you’re essentially arguing that if—if a
Defendant comes in and said, I didn’t bother to read the code, that
that is a defense?
DEFENSE COUNSEL: It’s not that they didn’t bother to read
the code; it’s that somebody would have to actually have some sort
8

of help in order to understand the requirements of the Sex Offender
Registry or be specifically told what they need to register.
PROSECUTOR: Your Honor, may the State be heard?
THE COURT: You may.
PROSECUTOR: Your Honor, the State would object to this
line of questioning based on the grounds that it’s a constitutional
vagueness argument that’s being made inside the framework of
trial. If the defendant wanted to object to the code as written as
vague, that should have been done pretrial. Additionally, we’re
basically hearing an argument of ignorance of the law as defense,
which no affirmative defense of that nature is recognized under
Iowa law nor does the defense have the right to take up now [sic]
affirmative defense—So the State would object, Your Honor, on
relevance to the question, will be renewing its objection as we
continue to go down this line of questioning.
THE COURT: Well, I’m going to sustain the objection
because clearly ignorance of the law is not a recognized defense,
and it appears through the questioning that the Defendant’s trying
to mount a due process attack of some sort on the statute. But the
trial isn’t the time to do that. If you were going to attack the
constitutionality of the statute that process should have occurred
pretrial.

Later, Dawson testified as follows:

DEFENSE COUNSEL: Do you know what internet
identifiers are?
DAWSON: After listening to arguments today—I thought I
did, but I’m not really sure. To me it’s a user name.
DEFENSE COUNSEL: Do you think that email is included in
internet identifiers?
PROSECUTOR: Your Honor, objection, relevance.
Specifically—I’m sorry—May I be heard further?
THE COURT: Go ahead.
PROSECUTOR: Your Honor, Iowa Code 701.6 deals [sic]
ignorance of the law is not a defense; therefore it’s not essential to
any element of the case before us.
THE COURT: I guess I’m failing to see how it’s relevant.
Code defines what internet identifier is. The Court makes the
determination of what is or isn’t an internet identifier or alias so—
I’m not quite sure what the Defendant’s opinion lends to it
concerning the Court’s determination.
DEFENSE COUNSEL: Well, specifically just has to do
with—he knows of the duty to fulfill his requirement and if he has—
in order to know or should know he needs to know what this
requirement is.
9

The COURT: It—Again I—It sounds like you’re trying to
mount a due—due process constitutionality that—that should have
been raised by pretrial motion to dismiss. I guess, why are we
discussing this at this stage of the proceedings?
DEFENSE COUNSEL: I’m not actually—I mean I’m not
trying to make an attempt to attack the statute at all, just
questioning on—to whether or not he had the knowledge of his
requirement to do this and therefore intentionally did not report this
information.
THE COURT: So aren’t you in fact making an ignorance of
the law argument then?
DEFENSE COUNSEL: I suppose in a roundabout way, yes,
I am.
THE COURT: That’s what it appears to the Court as well.
For that reason I’m going to sustain the objection.

On appeal, the State responds to Dawson’s appeal arguments by

asserting Dawson is again attempting to attack the statute for being

unconstitutionally vague.3 Dawson filed no reply brief, therefore, he does not

assist us by confirming or denying the State’s reading of his arguments.

Nonetheless, Dawson somewhat attempts to attack the complexity and

vagueness of the statute on appeal, complaining, “The court’s sustaining of

objections by the State as to questions regarding knowledge ultimately resulted

in the defendant being forced to testify to attempt to disestablish the element of

knowledge by attempting to establish the unreasonableness of the assumption

that the defendant should easily grasp such a complex statute.” However, the

3
See, e.g., State v. Reed, 618 N.W.2d 327, 332 (Iowa 2000) (internal quotations
omitted):
Under the Due Process Clause of the Fourteenth Amendment to the
Federal Constitution, the void-for-vagueness doctrine requires that a
penal statute define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory
enforcement.
10

trial transcript shows Dawson’s counsel insisted he was not attempting to argue

the statute was unconstitutionally vague.

Through the court’s discussion with defense counsel, we are persuaded

counsel did not intend to attack the statute as unconstitutionally vague, and we

agree that such an attack would have been untimely at trial.4 To the extent that

Dawson attempts to argue this on appeal, it is not preserved for review.5 Further,

we do not consider the court’s rulings to have the constitutional dimensions that

Dawson alleges; they are evidentiary rulings on relevancy objections, and we

assess them according to those standards.

Generally, we review questions involving the admissibility of evidence for

an abuse of discretion. State v. Dudley, 856 N.W.2d 668, 675 (Iowa 2014). An

abuse of discretion occurs “[w]hen the district court exercises its discretion on

grounds or for reasons clearly untenable or to an extent clearly unreasonable.”

Id. A ground or reason is untenable if it is “based on an erroneous application of

the law or not supported by substantial evidence.” Id. Even if there has been an

abuse of discretion, we need not reverse if the inclusion or exclusion was

harmless to the defendant. State v. Reynolds, 765 N.W.2d 283, 288 (Iowa

4
Iowa Rule of Criminal Procedure 2.11(2) provides:
Any defense, objection, or request which is capable of determination
without the trial of the general issue may be raised before trial by motion.
The following must be raised prior to trial:
a. Defenses and objections based on defects in the institution of the
prosecution.
b. Defenses and objections based on defects in the indictment or
information . . . .
5
State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995) (“When a party fails to alert the
district court to its contentions, that party cannot thereafter rely on those contentions to
seek a reversal on appeal.”)
11

2009). Evidence is relevant if it has “any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Iowa R. Evid. 5.401.

Generally, relevant evidence is admissible, and evidence that is not relevant is

inadmissible. Iowa R. Evid. 5.402.

Defense counsel admitted he was attempting to argue that Dawson was

subjectively unaware of the registration requirement. Thus, the testimony elicited

from Kluender regarding her knowledge of the requirements could not have been

probative of either Dawson’s subjective knowledge or whether he reasonably

should have known. The court sustained the State’s relevance objection. This

decision was neither untenable nor unreasonable; therefore, there was no abuse

of discretion.

In asking Dawson whether “email is included in internet identifiers,”

defense counsel admitted he was attempting to make an argument that Dawson

was ignorant of the law. As the court pointed out, the statute defines “internet

identifier” as:

an electronic mail address, instant message address or identifier, or
any other designation or moniker used for self-identification during
internet communication or posting, including all designations used
for the purpose of routing or self-identification in internet
communications or postings.

Iowa Code § 692A.101(15). Dawson’s opinion as to the definition was not

relevant to whether the email address and Facebook account were internet

identifiers; that is a legal question for the court, as determined by the code. The

trial court concluded the purpose of the testimony was not to help determine what
12

an internet identifier included but was to argue Dawson did not know of the

requirement; it found, therefore, that the testimony was irrelevant and sustained

the State’s objection.

The testimony from Dawson about his understanding of whether “email is

included in internet identifiers” could have been relevant in determining whether

he subjectively knew of the registration requirements. Iowa Code section

692A.111(1) requires that in order for a sex offender to be guilty of failure to

comply with registration requirements, the sex offender either “knows or

reasonably should know of the duty to fulfill” the requirements. The court abused

its discretion when it denied Dawson the opportunity to testify as to his ignorance

of the registration requirements.

Dawson was, however, allowed to testify without objection that he did not

know he was required to report the email address and Facebook account name

until Kluender interviewed him. But the evidence showed that Dawson had

disclosed an email address in the 2012 registration, twenty-two days before

Kluender discovered the Facebook account and false name. The evidence of

Dawson’s 2012 registration is both undeniable and in contradiction to any

testimony he might have given denying subjective knowledge of the requirement

to disclose email addresses and identifiers. Consequently, to the extent Dawson

should have been allowed to testify to his subjective knowledge of the

registration requirements governing email addresses and identifiers, we

determine such denial was harmless error. See Reynolds, 765 N.W.2d at 288.
13

Dawson further contends the court improperly shifted the burden of proof

on the knowledge element to him, thereby forcing him to testify on his own behalf

as to his knowledge to counter Kluender’s testimony about the information he

was provided in the registration packets. Dawson complains the court, in its

verdict, relied heavily on Dawson’s own statements under cross-examination that

he failed to register the email address and the Facebook account. The State, in

its case in chief, presented evidence in an attempt to show Dawson subjectively

knew of the requirement and that he reasonably should have known of it.

Dawson then testified to rebut this evidence. Although the court found that

Dawson admitted each element of the crime on the stand, the court, by not

allowing the irrelevant testimony from Kluender, did not force Dawson to testify

and did not shift the burden of proof to him.

B. Sufficiency of the Evidence.

Dawson contends the court erred in finding there was sufficient evidence

to find him guilty of the offense because he did not know and should not

reasonably have known the code required him to register the email address and

Facebook account. We review sufficiency-of-the-evidence challenges for

correction of errors at law. State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996).

We uphold a finding of guilt if the verdict is supported by substantial evidence.

State v. Henderson, 696 N.W.2d 5, 7 (Iowa 2005). Evidence is substantial if a

rational trier of fact could find the defendant guilty beyond a reasonable doubt.

Id. We consider all evidence in the case, including that which detracts from the

verdict. Id. We view the evidence in the light most favorable to the State. Id.
14

Iowa Code section 692A.111(1) provides a criminal penalty for sex

offenders who fail to comply with the Sex Offender Registry requirements. The

offender’s knowledge may be shown by direct or circumstantial evidence. State

v. Ogle, 367 N.W.2d 289, 292 (Iowa Ct. App. 1985). During his own testimony

and during his interview with Kluender, Dawson admitted every element of the

offense, except for the knowledge element.

Iowa Code section 692A.109 imposes a duty upon the sheriff or warden of

the jail or prison from which the sex offender is released or the court to inform the

sex offender of his or her obligations under chapter 692A. Section 692A.109

does not prescribe a specific list of information a sex offender must receive.

Among the obligations, the sheriff, warden, or court must “[i]nform the sex

offender of the duty to register under this chapter . . . and ensure registration

forms are completed and signed.” Iowa Code § 692A.109(1)(b). The sheriff,

warden, or court must also “[i]nform the sex offender that, within five business

days of a change in relevant information . . . the sex offender shall notify, in a

manner prescribed by ruled, the sheriff of the county of principal residence of the

change.” Iowa Code § 692A.109(1)(d) (emphasis added). The chapter also

requires the offender be informed of certain sections based on the type of

conviction:

(g) Inform the sex offender who was convicted of a sex
offense against a minor of the prohibitions established under
section 692A.113 by providing the offender with a written copy of
section 692A.113 and relevant definitions of section 692A.101.
(h) Inform the sex offender who was convicted of an
aggravated offense against a minor of the prohibitions established
under section 692A.114 by providing the offender with a written
15

copy of section 692A.114 and relevant definitions of section
692A.101.

Iowa Code § 692A.109(1)(g)-(h) (emphasis added). The chapter does not

specify what constitutes the “relevant definitions.” Dawson was convicted of an

aggravated sex offense against a minor. The 2011 and 2012 packets provided

the texts of sections 692A.113 and .114; they also provided the definitions of

“aggravated offense” and “aggravated offense against a minor” by excerpting

Iowa Code section 692A.101(1) and (2). They did not, however, provide the

definition of “sex offense against a minor” provided under section 692A.101(28).

This would seem to be a relevant definition under section 692A.101(g).

Dawson complains the registration packets did not inform him of the

relevant definitions in section 692A.101. According to Dawson, section

692A.109(g) required the State to inform him of all the definitions under section

692A.101, including the definition of “relevant information” under section

692A.101(23) and “internet identifier” under section 692A.101(15). Dawson

argues, because the entire text of section 692A.101 was not included in the

registration packets, the State did not fulfill its obligation to inform him and

consequently he could not reasonably have known of the requirements.

Dawson conflates the State’s obligation to inform him of his registration

requirements as a sex offender and his obligation to comply with the

requirements. The State’s failure to comply with its obligation does not

necessarily absolve Dawson of his. The omission of the section 692A.101

definitions from the informational registration packet does not automatically lead

us to conclude Dawson did not know or could not reasonably have known about
16

the necessity of reporting his internet identifiers. A failure to inform the sex

offender may be evidence of the offender’s lack of subjective knowledge as to

the requirements. It may also be evidence that the offender could not reasonably

have known of the requirements. It does not mean, per se, that the offender did

not know or could not reasonably be expected to know of the requirement.

First, we are not persuaded that 692A.109(1)(g) requires the State to

inform the sex offender of all the definitions under section 692A.101. It requires

only the “relevant definitions.” The definitions of “relevant information” and

“internet identifiers” are not relevant to (g) because they are not related to a “sex

offender who was convicted of a sex offense against a minor.” Second, Dawson

was informed in the informational registration packets in 2011 and 2012 (not, we

note, in 2010) that he was required to report “all relevant information, as defined

by section 692A.101(1)(23),” which includes “internet identifiers.” In 2011 and

2012, Dawson signed the form indicating he understood his obligation under the

registry. Even if he did not subjectively know email addresses and Facebook

accounts were included in the registry requirements, he reasonably should have

known from the informational packet, which instructed him to report “all relevant

information” and directed him to section 692A.101(1)(23). Most telling of

Dawson’s actual knowledge of an obligation to disclose internet identifiers is the

fact that in 2012 he had reported one email address, but not another one. The

fact he omitted to report the one he used to create the Facebook account would

appear to have either been intentional or negligent, not a result of lack of

knowledge. These omissions were the basis for the criminal prosecutions in this
17

case. He also admitted he made up the email address and fake name to

circumvent the rules against sex offenders using Facebook. The evidence is

sufficient to support a conclusion that Dawson reasonably should have known

about the requirement. Accordingly, we affirm the convictions.

III. CONCLUSION.

We affirm the district court’s evidentiary rulings and the convictions for

failure to comply with the sex offender registry requirements.

AFFIRMED.