Everson Found Not Guilty

At approximately 1:00 p.m. on Thursday afternoon, a Johnson County jury returned its verdict in the sexual abuse trial of Cedric Everson, a former University of Iowa football player. Mr. Everson was acquitted of the sexual abuse allegations but was convicted of simple assault, a simple misdemeanor. The verdict left many wondering how the case starts out as felony sexual assault but ends up simple assault.

Mr. Everson was initially charged with sexual abuse in the 2nd degree, a Class B forcible felony requiring 25 years in prison if he were convicted. After the State's evidence was concluded, the defense moved for Judgment of Acquittal on all charges but focused its attack on the most serious charge, sexual abuse in the 2nd degree. Sexual abuse in the second degree can occur in a number of different situations but the allegation against Mr. Everson was that he aided and abetted Abe Satterfield in the commission of a sex act on the victim using force against her will. The allegation in essence was one of "gang rape." The "aiding and abetting" allegation was the focus of the defense's request for that charge to be dismissed. Ultimately the judge concluded that even taking the evidence in the light most favorable to the prosecution as he is required to do at that stage of the proceeding, the evidence failed to establish the essential elements of sexual abuse in the 2nd degree. That being the case he was required to dismiss that charge.

The dismissal of the most serious charge was not the end of the case however. Anytime a defendant is charged with an offense such as sexual assault, there are multiple levels of that charge (1st, 2nd, 3rd degree). Charging a person with a higher level of an offense also charges them with all of what are called, lesser included offenses. In Mr. Everson's case the "lesser included" charges included sexual abuse in the third degree, assault with intent to commit sexual abuse and simple assault. With the sexual abuse in the second degree dismissed the case was then argued to the jury on the remaining sexual abuse in the third degree and lesser offenses of that. The allegation for this charge was then that Mr. Everson committed a sex act against the victim by force or against her will or that she was in a condition rendering her incapable of consenting, i.e. drunk.

The allegation that a defendant had sex with an intoxicated person who was incapable of consenting due to intoxication is a difficult one to disprove. See prior blog, "An Allegation Impossible to Disprove." However, Mr. Everson's defense attorney did an excellent job of reminding the jury and emphasizing the fact that just because someone claims not to remember, does not mean that they were incapable of consenting at the time. The jury obviously found the evidence insufficient to convict Mr. Everson of this charge as well.

Ultimately the jury concluded that the State proved that Mr. Everson committed simple assault. Simple assault is defined as: "Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act." Given the allegations against Mr. Everson one is curious how the jury could return a verdict of guilty on an offense that did not include a sexual element to it but their verdict stands as given. Mr. Everson is now facing sentencing on a simple misdemeanor which carries the possibility of up to 30 days in jail and a fine of up to $625. Because the conviction was for a non-sexual offense, Mr. Everson will not be required to be placed on the sexual abuse registry.

Roadblocks

There has been quite the buzz recently about roadblocks in the State of Iowa. Just this past weekend there was one on Merle Hay Road in Des Moines, and the previous weekend attendees of the Iowa vs. Iowa State game were greeted with one as they left the game on Melrose Avenue in Iowa City.

Roadblocks, or “safety checkpoints”, tend to strike up considerable controversy, primarily because they are seen as interfering with the motoring public’s freedom to be free from unreasonable government searches and seizures. Anytime a vehicle is pulled over or stopped by the police, the occupants of that vehicle have been “seized,” meaning they are not free to go on about their normal activities. Ordinarily a “seizure” by law enforcement must be supported by a sufficient basis for the officer to believe the individual has committed a crime. If there is not a sufficient suspicion than the “seizure” violates the Fourth Amendment to the United States Constitution and any evidence obtained as a result of that violation is thrown out of court.

Roadblocks, on the other-hand, result in people being “seized” without any suspicion whatsoever. They may be completely innocent, or in some circumstances, evidence may surface showing that they had committed some sort of criminal offense. Nonetheless the constitutional requirement of suspicion is set aside in favor of the “public's” interest in ensuring compliance with traffic safety regulations. This practice has been approved by both the United States Supreme Court (See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990)) as has the Iowa Supreme Court (See State v. Hilleshiem, 291 N.W.2d 314 (Iowa 1980). However, roadblocks are not without limitations. It is important for the general public to know what is required for a roadblock to be legal in the State of Iowa.

Iowa Code section 321K.1 governs roadblocks conducted by law enforcement agencies. It authorizes roadblocks for emergency situations in response to immediate threats to the health, safety and welfare of the public (murder suspect on the lose, escaped convict, etc.) and also routine roadblocks to “enforce compliance with the law regarding:” (a) Licensing of operators of motor vehicles; (b) registration of motor vehicles; (c) safety equipment required on motor vehicles; and (d) trucking regulations. All “routine” roadblocks must meet the following requirements:

1. The location, the time and the procedure to be used must be determined by policymaking administrative officers of the law enforcement agency;
2. The location must be selected for its safety and visibility to oncoming motorists, and adequate advance warning sings, that must be illuminated at night or other poor visibility conditions are required;
3. There must be uniformed officers and marked official vehicles of the law enforcement agency or agencies involved;
4. The selection of motor vehicles to be stopped may not be arbitrary. There must be a set determination as to what vehicles will be stopped, for example, every 5th vehicle.
5. It must minimize inconvenience to the motoring public.

If any of the requirements are not met, the roadblock is illegal and anybody charged with a criminal offense as a result of the roadblock may be able to successfully have their case dismissed. Thus, it is important to be as attentive as possible when entering a roadblock because what is, and more importantly, what is not, present may be the difference between ones liberty and freedom.

It is important to remember that even if you find yourself caught in a roadblock web, you still have rights under the law. While no doubt and intimidating environment surrounded by a multitude of law enforcement officers, calmly and politely exercising ones rights in this situation can often times be the best defense.