### IN THE SUPREME COURT OF IOWA

No. 12

– 1862 Filed April 11 , 2014

STATE OF IOWA , Appellee ,

vs. PATRICK RYAN NICOLETTO , Appell ant

.
Appeal from the Iowa District Court for Davis County, Myron L. Gookin , Judge.

A criminal defendant appeals his conviction for sexual exploitation by a school employee in violation of Iowa Code section 709.15.
REVERSED.

John K. Rigg, Des Moines, for appellant

.

Thomas J. Miller, Attorney General , Thomas S. Tauber, until withdrawal, then Sheryl A. Soich, Assistant Attorneys General, Rick L. Lynch, County Attorney , for appellee.2

APPEL , Justice. A jury convicted the defendant , a worker at a local pipe
manufacturer who coached high school basketball pursuant to a coaching authorization but was not a licensed teacher , of sexual exploitation by a school employee in violation of Iowa Code section 709.15(3)( a ) and (5)( a ) (2009)

. The sexual exploitation statute defines “school employee” as “a p ractitioner as defined in section 272.1.” Iowa Code § 709.15(1)( f

). Section 272.1 defines “practitioner” as “an administrator, teacher, or other licensed professional, including an individual who holds a statement of professional recognition, who provide s educational assistance to students.” Id. § 272.1(7). T he State prosecuted the defendant solely under the theory that he fell into the category of “other licensed professional” because he held a coaching
authorization issued pursuant to Iowa Code sectio n 272.31. Although a coach who holds a teaching or other professi onal license is clearly subject to the statute, a mere holder of a coaching authorization without a professional license within the meaning of section 272.1(7) does not fall under the sexual exploitation statute. Accordingly, we reverse the
conviction and remand the case to the distric t court with instructions to
dismiss the case.
I. Background Facts and Prior Proceedings. A reasonable jury could have found the following facts. Pa trick Nicoletto worked as a night employee at a local pipe manufacturer. He
also entered into contracts with t he Davis County Community School
District to be an assistant high school girls’ basketball coach during the 2007 to 2008 and 2008 to 2009 school years. The first contract , dated August 29, 2007, stated Nicoletto’s term as coach would commence
Novem ber 5 of that year and include “90 days of service and such other3 time as may be assigned to coach post

- season tournaments or other
related duties.” The second contract , dated March 25, 2008, contained
the same language , except it stated Nicoletto’s coach ing term would
commence November 4 of that year. Under the contracts, the State paid Nicoletto $1940.40 per year
. As a condition of payment for his coaching services, Nicoletto was contractually required to obtain either a teaching
certificate with a coa ching endorsemen t or a coaching authorization. Because he is not a teacher, Nicoletto obtained a coaching authorization. In addition to basketball, Nicoletto coached high school baseball for Davis County. The Davis County high school b asketball season g enerally lasts from November through the second week in February. During his first season, Nicoletto coached the freshman girls’ basketball team and assisted with the varsity team. At some point during that season, S.L., a
sixteen

- year

- old junior on the varsity team, began an exchange of text messages with Nicoletto. Though the messages were originally basketball related, they soon turned flirty and sexual in nature. Sometime during 2008, Nicoletto invited S.L. to his house

. While
at first Nicoletto an d S.L. engaged in physical intimacy short of sexual intercourse, they eventually engaged in sexual intercourse every week or
two at Nicoletto’s home. Nicoletto and S.L. took steps to conceal their relationship. For instance, S.L. would park her vehicle behind Nicoletto’s house or park at a nearby park and wait for Nicoletto to pick her up. S.L. often informed her parents she was staying at the homes of various friends. Other times, S.L. would spend the night at a motel owned by her aunt and uncle and Nicoletto would pick her up. The relationship continued throughout the summer, at times during which S.L. would participate in4 organized basketball scrimmages against other high schools. Nicoletto was present at t hese scrimmages.
When S.L.’s senior year began in the fall, her school schedule did not require her to be at school until 10:00 a.m. In the morning s , S.L. would go to Nicoletto’s house to meet him after he arrived home from
work. At some point near th e beginning of the fall semester, the school principal became concerned about the possible relationship between Nicoletto and S.L. and telephoned Nicoletto to ask about it. Several weeks later, the principal called S.L. into his office to discuss the matt er
. S.L. denied existence of the relationship. Nicoletto ended the relationship with S.L. in mid

- September

. When the new basketball season started, S.L. and Nicoletto discussed how to keep their relationship from the rest of the team

. By January or Feb ruary 2009, S.L. learned Nicoletto was experiencing relationship difficulties with another woman whom he was dating at the time. Nicoletto had also moved by this time, and when S.L. went to see his new house, they engaged in intimacy, which may have inclu ded intercourse, once more. The State charged Nicoletto with sexual exploitation by a school employee in violation of Iowa Code section 709.15(3)( a ) and (5)( a ). A jury found Nicoletto guilty

. T he district court sentenced him to five years imprisonment p lus a ten

- year special sentence under Iowa Code section 903B.2. Nicoletto timely filed an appeal, which this court retained.
II. Issues. On appeal, Nicoletto raises a number of challenges. Among other things, Nicoletto argues that because he was not a school employee as tha t term is used under Iowa Code s ection 709.15(3)( a ), he was not subject to criminal prosecution under this statute. Because the question5 of whether Nicoletto was subject to prosecution under section 709.15(3)( a ) is dispositive, we need not reach the other issues.
III. Scope of Review. We review issues of statutory interpretation and application for
correction of errors at law. E.g. , State v. Romer , 832 N.W.2d 169, 174 (Iowa 2013 ) ; State v. Gonzalez , 718 N.W.2d 304 , 307 (Iowa 2006); State v. McCoy , 618 N.W.2d 324, 325 (Iowa 2000).
IV. Discussion.
A. Statutory Framework. S ection 709.15(3)( a ) prohibits “[s]exual exploitation by a school employee

. ” “Sexual exploitatio n” occurs when a school employee engages in “[a]ny sexual conduct with a student for the purpose of arousing or satisfying the sexual desires of the school employee or the student.” Iowa Code § 709.15(3 )( b ).
The s exual exploitation s tatute does not conta in a definition of “school employee

. ” Instead, the sexual exploitation statute provides that

“ ‘school employee’ means a practitioner as defined in section 272.1.” Id. § 709.15(1)( f

) (emphasis omitted )

. Accordingly , to understand who is a school employee subject to the criminal prohibitions of the sexual exploitation statute, we must refer to another chapter of the C ode.
Iowa Code c hapter 272 pertains to the board of educational
examiners. Section 272.1 , which is incorporated into the cr iminal statute under which Nicoletto was prosecuted, defines “practitioner” as “an administrator, teacher, or other licensed professional, including an individual who holds a statement of professional recognition, who provides educational assistance to stu dents.” Id. § 272.1(7). T he S tate concedes Nicoletto was not an administrator , teacher, or holder of a statement of professional recognition. It claims, however, Nicoletto was an “other licensed professional” u nder s ection 272.1(7).6

Section 272.1 does not define “other licensed professional , ” but it does
define “license”:

“ License ” means the authority that is given to allow a person to legally serve as a practitioner, a school, an institution, or a course of study to legally offer professional developme nt programs, other than those programs offered by practitioner preparation schools, institutions, courses of study, or area education agencies. A license is the exclusive authority to perform these functions.
Id. § 272. 1(5). Section 272.2 creates the boa rd of examiners and grants it exclusive authority to license practitioners and establish licensing
criteria. Id. § 272.2(1)

. Section 272.7 relates to the validity of the
licenses. Id. § 272.7. Section 272.31 separately sets forth the requirements to obtain a coaching authorization. Id. § 272.31 (1)

. 1
B. Positions of the Parties.
1. The State. The State centers its claim that Nicoletto is a licensed professional on definitions of “license” and “professional.” The
Sta te points to the definition of “license” in Iowa Code section 272.1(5) (2009) as well as Iowa Code section 272.7, which provides in part that “[a] person employed as a practitioner shall hold a valid license with an endorsement for the type of service for which the person is employed.” Under these two provisions, the State argues, a coaching authorization functions as a license because a person who is not a teacher cannot be employed as the coach of an interscholastic athletic activity unless he or

1 The legislature has amended chapter 2 72 in several ways since 2009. Section 272.2(1) now provides, in addition to the board of education examiners’ authority to license practitioners, that the board has exclusive authority to “[p]rovide annually to any person who holds a license , certificate, authorization , or statement of recognition issued by the board, training relating to the knowledge and understanding of the board’s code of professional conduct and ethics.” Iowa Code § 272. 2( 1 ) ( b ) (2013) (emphasis added)

. S ection 272.31 now provides for authorizations for both coaches and school business officials. See id. § 272.31 (1)

– (3).7 she pos sesses an authorization. The State notes the school district required Nicoletto to prove he possessed a coaching authorization as a condition of his employment. Relying on the definitional language of section 272.1(5), the State further remarks that Nico letto’s authorization was the exclusive authority to act in the capacity as a coach because he
could not be a part

- time paid coach without one. The State then points to a dictionary’s definition of “professional” as “one with sufficient authority of practi cal experience in an area of knowledge or endeavor to resemble a professional.” See Webster’s Third
New International Dictionary 1811 ( un a br. ed. 2002 ) [hereinafter
Webster’s ]

. The State argues one who holds a coaching authorization is a professional under this definition because he or she is authorized to act in a capacity regulated by statute and must have successfully completed certain courses. The State also maintains the h older of a coaching authorization must complete special training on topics not within the scope of common knowledge, which qualifies the holder of a coaching authorization as a professional.
As to the requirement of section 272.1(7) that the violator be

so meone who provides “ educational assistance to students, ” the State contends the scope of the statute is broad enough to encompass Nicoletto’s coaching activities. The State suggests the statute covers many people who do not engage in classroom teaching ac tivities, such as administrators, school service personnel, superintendents, athletic trainers, and counselors. For further support, the State cites State v.
Romer , 832 N.W.2d 169, 177 (Iowa 2013), in which we stated it would be “illogical . . . to conclu de the legislature intended to require an existing
teacher

– student relationship in order for a school employee to violate this
Code section.”8 The State then connects the dots, arguing that because Nicoletto is a licensed professional and therefore a practi tioner under section 272.1(7), it follows that he is a school employee subject to prosecution under section 709.15(3). To hold otherwise, the State claims, would
defeat our recent declaration in Romer that “the legislature’s clear intent [in enacting sect ion 709.15(3)] was to protect students from exploitation by school employees.” 832 N.W.2d at 181.
2. Nicoletto . Nicoletto generally argues he is not a licensed professional within the meaning of the statute . He contends that not every person employed b y a school district is subject to prosecution for sexual exploitation of a student under section 709.15. He acknowledges he was required to complete certain courses to obtain the coaching authorization, but argues the fact that these courses can be comple ted in
as little as two weekends undermines any suggestion that a coach holding only a coaching authorization is a licensed professional. He notes Iowa Code c hapter 272C provides a laundry list of licensed professionals and the position of coach is not am ong them. Nicoletto also maintains the legislature h as recognized the
difference between those holding coaching authorizations and those who are licensed school employees. In particular, Nicoletto points to section 232.69(1)( b )(4), which separately lists licensed school employees and holders of coaching authorizations as mandatory reporters of child abuse. Thus, Nicol etto contends that to construe “other licensed professionals” as used in section 2 7 2.1(7) to include holders of coaching
authorizations woul d render superfluous references to both types of persons in other parts of the Code, such as the mandatory reporting
statute.9 Nicoletto further notes the legislature has specifically regulated the activities of coaches in other parts of the Code, such as t he prohibition on gambling on certain athletic events, see Iowa Code § 99B.12(1)( f

), and the prohibition on bribing coaches to influence a game, see id. § 722.3(2). Accordingly, Nicoletto argues, because coaches are specifically referenced in other parts of the Code, the legislature ’s omission of coaches from the
definition of practitioner was intentional , and therefore, coaches are not
members of the list of persons subject to the sexual exploitation statute. Turning to definitions of “license” and “professional, ” Nicoletto asserts that while the definition of license in section 272.1(5) contemplates a license as the exclusive authority to perform a certain function, a coaching authorization does not impart exclusive authority to
coach interscholasti c athletics upon its holder because persons can still perform the function of a coach on a volunteer basis without a coaching
authorization. Nicoletto thus claims he does not hold a license because the ability to carry on the function of a coach does not depend upon it. Nicoletto questions why the legislature would exclude volunteer coaches from the purview of the sexual exploitation statute if it had intended the
statute to cover coaches. Further, like the State, Nicoletto provides definitions of profess ional , but focuses on those defining the word to refer to someone with specialized training after years of academic preparation, such as medicine or the law. Nicoletto cites thirty

- two professions for which the legislature has established licensing boards , and he notes coaching is not among them. See id. § 272C.1(6).
Nicoletto points to the absurdities that could arise from the S tate’s interpretation. If coaches are covered by the sexual exploitation statute,
he notes , an eighteen

- year

- old assistant coac h holding a coaching10 authorization could be prosecuted for kissing an eighteen

- year

- old
student even if the coach was also a student or had recently graduated from the school. He further notes the same eighteen

- year

- old coach would not be subject to crimi nal liability for the same conduct if he coached the same student in a local community league or if the eighteen

year

- old coach was a volunteer. Finally, Nicoletto generally argues a coach is not one who provides educational assistance to students. He arg ues the reason teachers must have a separate coaching endorsement is that interscholastic athletics are not part of the educational curriculum. Nicoletto cites Iowa Code
section 256H.1 (2)( f

) ( Supp. 2009 ) for the proposition that interscholastic
athletics are extracurricular, voluntary activities sponsored by the school
district.
C. Discussion. When interpreting a statute, we begin with the
words used in the statute. See, e.g. , State v. Hearn , 797 N.W.2d 577, 583 (Iowa 2011); State v. Kidd , 562 N.W.2d 764, 765 (Iowa 1997). “ ‘ To ascertain the meaning of the statutory language, we consider the context of the p rovision at issue and strive to interpret it in a manner consistent with the statute as an integrated whole.’ ” State v. Pickett , 671 N.W.2d 866, 870 (Iowa 2003) (quoting Griffin Pipe Prods. Co. v. Guarino , 663 N.W.2d 862, 865 (Iowa 2003)). When the express terms of a statute are unambiguous, we may not search for meaning beyond those terms. E.g. , Hearn , 797 N.W.2d at 583 ; State v. Chang , 587 N.W .2d 459, 461 (Iowa 1998). Thus we “may not extend, enlarge, or otherwise change the meaning of a statute” under the pretext of construction

. Auen v. Alcoholic Beverages Div. , 679 N.W.2d 586, 590 (Iowa 2004). “In the absence of a legislative definition, we give words their ordinary meaning.”
Hearn , 797 N.W.2d at 583; see also State v. White , 545 N.W.2d 552, 55511 (Iowa 1996). Further, we strive to interpret statutes “consistently with other statutes concerning the same or a related subject.” Pickett , 671 N.W.2d at 870. Moreover, we interpret statutes in a manner to avoid absurd results and to avoid rendering any part of an enactment superfluous. Id. In this case, we are called upon to interpret a criminal statute . In interpreting a criminal statute, “p rovisions establishing the scope of criminal liability are to be strictly construed with doubts resolved therein
in favor of the accused.” Hearn , 797 N.W.2d at 583 ; see also, e.g. , State
v. Allen , 708 N.W.2d 361, 366 (Iowa 2006) ; State v

. Schultz , 604 N.W .2d 60, 62 (Iowa 1999) ; State v. Gorman , 464 N.W.2d 122, 123 (Iowa 1990); Knott v. Rawlings , 250 Iowa 892, 895, 96 N.W.2d 900, 901 (1959). Further, as recently noted by Justice Antonin Scalia, writing for the majority in Burrage v. United States , a case in which the Supreme Court strictly construed a federal statute to preclude imposition of a penalty enhancement, “[t]he role of [a court] is to appl y the statute as it
is written

— even if we th i nk some other approach might ‘ “ accor [ d ] with good policy

. ” ’ ” 5 71 U.S. ___, ___, 134 S. Ct. 881, 892, 187 L. Ed. 2d 715 , 727

– 28 (2014) ( quoting Comm’ r v. Lundy , 516 U.S. 235, 252, 116 S. Ct. 647, 656, 133 L. Ed. 2d 611, 628 (1996) ) ; see also id. at ___, 134 S. Ct. at 892, 187 L. Ed

. 2d at 728 (Ginsburg, J., concurring ) (agreeing with the majority that “ ‘ in the interpretation of a criminal statute subject to the rule of lenity, ’ where there is room for debate, one should not choose the
construction ‘ that disfavors the defendant ’ ” (quoting id. at ___, 134 S. Ct.
at 891, 187 L. Ed. 2d at 726 (majority opinion) ) ). We have repeatedly expressed a similar view. See Anderson v. State , 801 N.W.2d 1, 1 (Iowa 2011) (“ ‘O urs not to reaso n why , ours but to read , and apply .’ ” (quoting
Holland v. State , 253 Iowa 1006, 1 011, 11 5 N.W.2d 161, 164 (1962) )) ;12

Gorman , 464 N.W.2d at 123 (“We only concern ourselves with what the legislature said rather than what it should have said or might have said.”); State v

. Wedelstedt , 213 N.W.2d 652, 656

– 57 (Iowa 197 3 ) (“It is
not our function to rewrite the statute. If changes in the law are desirable from a policy, administrative, or practical standpoint, it is for the legislature to enact them, not for the court to incorporate them by interpretation .” ( C itations and internal quotation marks o mitted

. ) ). Against the backdrop of these principles of statutory interpretation, we begin our analysis by considering the meaning of the term “licensed professional” and whether a person holding a coaching
authoriz ation falls within its meaning

. We do not believe the ordinary meaning of the term “licensed professional” includes a person who merely holds a coaching authorization un der Iowa Code section 272.31 (2009)

. Persons holding coaching authorization s may be as young as eighteen, lack secondary educati on, have only a minimum of training, and often conduct their coaching as an avocation ap art from their full

time jobs. To apply the term “licensed professional” to Nicoletto, who worked the night shift at a pipe manufacturer and received a very small stip end for his coaching services, would not comport with our longstanding rule of narrowly construing criminal statutes

. See, e.g. , Hearn , 797 N.W.2d at 583; Allen , 708 N.W. 2d at 366 ; Schultz , 604
N.W. 2d at 62. Under the S tate’s interpretation, an eighteen

- year

- old who recently graduated from high school and who obtained a coaching
authorization could be considered a lic ensed professional for being a paid assistant coach for a summer sport. We find this approach
counterintuitive and doubt whether a part

- time assistant coach would commonly be underst ood as a licensed professional. See Black’s Law13 Dictionary 1329 ( 9th ed. 2009) ( defining “professional” as “ [a] person who belongs to a learned profession or whose occupation requires a high level of training and proficiency”); Webster’s at 1811 (defining “profession” as “a calling requiring specialized knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical, or scholarly principles underlying such skills and methods, maintaining by force of organization or concerted opinion high standards of achievement and conduct, and committing its members to continued study and to a kind of work which has for its prime purpose the rendering of a public service” or “a principal calling, vocation, or employment” and defining “professional” as “one that engage s in a particular pursuit, study, or science for gain or livelihood” or “one who belongs to one of the learned professions or is in an occupat ion requiring a high level of training and proficiency”); American Heritage Dictionary
989 (198 5 ) (defining “profession” as “an occupation or vocation requiring training in the liberal arts or the sciences and advanced study in a specialized field” and def ining “ professional ” as “ [h] aving great skill or experience in a particular field or activity”).
Our case law is generally consistent with the thrust of the dictionary definitions. In State v

. Winneshiek Co

- op Burial Ass’n , 237 Iowa 556, 561, 22 N.W. 2d 800, 803 (1946), we held that for purposes of a licensing statute, there was a distinction between a license to engage in

a “profession” and a license to engage in “trade or business

. ” We
concluded that undertakers were not professionals even though th ey were required to be registered by the board of health and pass an
examination , and that instead undertakers engaged in a business

. Id. at 561, 22 N.W.2d at 803

– 04. W e observed the word profession implied “professed attainments in special knowledge, a s distinguished from mere14

skill.” Id. at 561, 22 N.W.2d at 803 (internal quotation marks omitted)

. Similarly, in Halverson v

. Lincoln Commodities, Inc. , 297 N.W.2d 518 , 523 (Iowa 1980), we noted that a profession “requires more than mere training.” We fu rther noted that the word profession “ presupposes special mental and other attainments, special discipline and a liber al education, or its equivalent ” and that a profession primarily involved “furnishing for others a needed faculty which they cannot provid e, at least as well, for themselves.” Id. at 523. We think the definitions in the dictionaries and in our caselaw strongly suggest that one merely holding a coaching authorization should not be considered a licensed professional und er Iowa Code section 272.1(7). Aside from the broad definitional analysis, there is at least one more technical reason why a person holding a coaching authorization under section 272.31 should not be considered a licensed professional.
W hile c hapter 272 does not define the te rm “other licensed professional,” it does prov ide a definition for “license.” See Iowa Code § 272.1(5). As noted above, this definition defines a license as in terms of exclusivity: “A license is the exclusive authority to perform [ the listed] functions. ” Id. Thus, b y the plain terms of section 272.1(5), the grant of a license by the
board of educational examiners confers exclusive legal authority to perform the function for which the license was issued. See i d. But the function of coaching can be per formed by persons without a coaching authorization, namely, by unpaid volunteers. As noted by the Iowa Administrative Code , the term “coach” includes an individual “ with [ a ] coaching endorsement or authorization . . . employed by a school district
under t he provisions of an extracurricular athletic contract” as well as

“ an individual who instructs, diagnoses, prescribes, evaluates, assists, or directs student learning of an interscholastic athletic endeavor on a15 voluntary b asis.” Iowa Admin. Code r . 281

— 3 6.1 ; see also Iowa Code § 279.19B(1) (“The board of directors of a school district may employ

. . . for assistant coach of any interscholastic athletic activity, an individual who possesses a coaching authorization . . . .”). Thus, the administrative code contemplates paid and unpaid coaches. Because the function of coaching may be conducted by unpaid volunteers without coaching
authorizations , the function of coaching is not with in the excl usive
domain of a holder of a coac hing authorization. A coach therefore cannot be a license holder within the meaning of section 272.1(5). More support for our conclusion may be found in the structure of relevant Code provisions that distinguish between licenses and
authorizations. For e xample, the authority of the board of educational
examiners over lice nsing is detailed in Iowa Code s ection 272. 2 , and the validity of those licenses is covered by section 272.7. The board’s authority with respect to authorizations is covered by Iowa Code section 272.31. The separate treatment of licenses and authorizations suggests the legislature saw a difference in the terms. See id. §§ 272. 2, .7, .31. Other provisions of the Code related to sex abuse also distinguish
between the holders of a license and the holders of an authorization

. For instance, section 232.69 (1) ( b )(4) lists licensed school employees and holders of coaching authorizations separately as mandatory reporters of
child abuse

. Id. § 232.69 (1) ( b )(4). Similarly, section 272.15 (1) requi res school officials to report the “resignation of a person who holds a license , certificate, or authorization issued by the board” for certain misconduct, including sexual abuse. Id. § 272.15(1) (emphasis added) ; see also § 272.2(14)( b )(i). I f an author ization was a license, the inclusion of
holders of authorizations in these statutory provisions would be meaningless.16

The Code further demonstrate s the legislature knows how to establish a licensing regime for those involved in athletics if it chooses to
d o so. Athletic trainers are subject to licensing pursuant t o Iowa Code

c hapter 152D. The c hapter provides for licensing requirements, which include certain educational, examination, and fee requirements; the
duties of a regulatory board ; and procedu res for suspending and revoking license s. See id. §§ 152D. 3 (licensing requirements), .5 (board duties), .6 (license suspension and revocation). Further, it is unlawful for a person to engage in the practice of athletic training without a
licens e. Id. § 152 D.7 (2)

. The legislature has thus established a n exclusive licensing regime for athletic trainers . It has not done so for
coaches , but has instead es tablished a separate track for authorization s
. In addition, we note that other jurisdictions find no trou ble expressly drawing coaches within the scope of their sexual exploitation
statutes. See , e.g
. , Ala. Code 13A

– 6

– 80 (LexisNexis Supp. 2013 ) ( defining “school employee” to include “a teacher, school administrator, student teacher, safety or resource officer, coach , and other school employee” (emphasis added) ); La. Re v. Stat. Ann

. § 14:81.4 ( 2012 ) (defining “educator” as “any administrator, coach , instructor, paraprofessional, student aide, teacher or teacher aide” (emphasis added) ) ; N.C. Gen

. Stat

. Ann

. § 14

– 27.7 ( LexisNexis 2013 ) ( specifically listing “teacher, school administrator, student teacher, school safety officer, or coach , . . . or . .
. other school personnel” (emphasis added) ); Ohio Rev. Code Ann. § 2907.03 (A)(7)

– (8) ( LexisNexis 2010 ) ( prohibiting sexual conduct between a student and “a teacher, administrator, coach , or other person in authority” employed by the school or institution o f higher learning (emphasis added) ); 18 Pa. Cons. Stat. Ann. § 3124.2 (a.2)(2)(ii)(A)( II ) ( West Supp. 2013 ) ( prohibiting conduct between volunteers or employees of17 schools and students and defining “employee,” in part, to include “[a]n independent contractor who has a contract with a school for the purpose of performing a service for the school, a coach , an athletic trainer, [and] a coach hired as an independent cont ractor by the Pennsylvania
Interscholastic Athletic Association” (emphasis added))

. Although each of
these statutes use linguistic approaches different from Iowa Code section
709.15

— we have not found a statute defining “school employee” or a
similar term to include a “licensed professional” in this context

— the se
statutes nonetheless demonstrate the ease with which legislators may draw coaches within the scope of a sexual exploitation statute

. Finally, o ur interpretation draws support from the legislative
h istory of Iowa Code section s 272.31 and 709.15

. As originally enacted in 1984, section 272.31, which was then located in chapter 260 along with the rest of the provisions governing the board of educational examiners, set forth the requirements to obtain a “coaching
authorization.” See 1984 Iowa Acts ch. 1296, § 3 (codified at Iowa C ode § 260.31 (1985)). At the time, no provision in the chapter governing the
board referenced licenses. Instead, for instance, teachers were required
to hold valid certificates. See Iowa Code § 260.7 (1985). In 1989, the legislature amended the chapter to require licenses instead of
certificates. See 1989 Iowa Acts ch. 265, § 2 (amending Iowa Code
section 260.2 (1989) to govern the board’s licensing authority). For example, the legislature now required teachers to hold licenses instead of
certificates and put a provision in place governing the conversion of
certificates to licenses

. See 1989 Iowa Acts ch. 265, § 1 ( amending Iowa Code section 260.1 to define “[t]eacher” as a “licensed member of a school’s instructional staff”), § 7 (amending Iowa Code section 260.7 to
g overn the validity of licenses), § 9 (amending Iowa Code section 260.9 to18

ad dress the continuity of certificates and licenses and to provide for the conversion of certificates to licenses). That same year, the legislature amended section 260.31 to refer to “coaching licenses .” See id. §§ 15

– 16 (codified at Iowa Code § 260.31 (Su pp. 1989)) (emphasis added). The next year, however, the legislature amended section 260.31 to restore the original language to once again set forth the requirements for a “coaching
authorization .” See 1990 Iowa Acts ch. 1249, § 11 (codified at Iowa Code § 260.31 (1991)). This history reinforces our conclusion that the legislature deliberately chose to use the word “authorization” rather than
“license” to describe what a coach must obtain under Iowa Code section
272.31.
Moreover , when the legislature ena cted the sexual exploitation
statute in 1991 , it applied only to counselors and therapists. See 1991 Iowa Acts ch. 130, § 2 (codified at Iowa Code § 709.15 (Supp. 1991)). In 2003, the legislature enacted H.F. 549, which amended the sexual exploitation statute to include school employees and defined “school employee” using the same definition the statute employs today

— a reference to the definition of practitioner in section 272.1. See 2003 Iowa Acts ch. 180, § 65 (codified at Iowa Code § 709.15 (Supp. 2 003)). T hat same year, multiple Senate Files were introduced that would have brought coaches or those holding coaching authorizations into the sexual exploitation statute’s definition of “school employee,” but they were not
enacted. See S.F. 44, 80th G.A ., Reg. Sess. § 4 (Iowa 2003) (“ ‘School employee’ means a teacher, employee, contract employee, coach , or assistant coach . . . .” (Emphasis added.) ); S.F. 169, 80th G.A., Reg. Sess. § 5 (Iowa 2003) (“ ‘School employee’ means a practitioner or para

educat or as defined in section 272.1, or a person who holds a coaching
authorization awarded pursuant to section 272.31.” (Emphasis added.) ).19 We decline to add to the statute what the legislature itself declined to
enact. We emphasize that it is not the provi n c e of this c ourt to speculate about probable legislative intent without regard to the wording of the statute, and any determination must be based upon what the legislature actually said rather than on what it might have said or should have said. E.g. , Marc us v. Young , 538 N.W.2d 285, 289 (Iowa 1995). As we have traditionally and repeatedly stated, “ W e do not inq uire what the legislature meant; w e ask only what the statute means.” State v.
Brustkern , 170 N.W.2d 389, 392 (Iowa 1969) (citations and internal quotation marks omitted) ; State v. Ricke , 160 N.W.2d 499, 501 (Iowa 1968); State v. Bishop , 257 Iowa 336, 339

– 40, 132 N.W.2d 455, 457 (1965); accord State v. Jennie Coulter Day Nursery , 218 N.W.2d 579, 582 (Iowa 1974); Kruck v. Nee dles , 259 Iowa 470, 477, 144 N.W.2d 296, 301 (1966); Lever Bro s
. Co. v. Erbe , 249 Iowa 454, 469, 87 N.W. 2d 469, 479 (1958); In re Guardianship of Wiley , 239 Iowa 1225, 1232, 34 N.W.2d
5 9 3, 596 ( 1948) ; Oliver Wendell Holmes, The Theory of Legal Interpretati on , 12 Harv. L. Rev. 417, 419 (1899)

. Policy arguments to amend statutes must be directed to the legislature. In re Estate of
W h alen , 827 N.W.2d 184, 194 (Iowa 2013) ; In re Estate of Myers , 825 N.W.2d 1, 8 (Iowa 2012). These principles are not hypertechnical , but rather they are fundamental to the separation of powers and must be applied in a consistent fashion, across all spectrum s of cases. For the above reasons, we conclude a holder of a coaching
authorization under Iowa Code section 272.31 is not a licensed professional unde r Iowa Code section 272.1(7). For us to reach the opposite conclusion, we would need to rewrite the statute and ignore the20 legislature’s choice to distinguish between licenses and authoriz ations.
We decline to do so. Our interpretation of section 709.15(3)( a ) in Romer is not contrary to our interpretation today. In Romer , a teacher argued he could not be convicted of sexual exploitation by a school employee under section 709.15(3) because no direct teacher

– student relationship existed between
him and any of the students whom he was convicted of exploiting

. 832 N.W.2d at 175. Unlike in the present case, because t he defendant in
Romer was a teacher, there was no question the defendant was at least the type of school employee that would be covered by the sexual exploitation statute. The issue instead involved the timing of the sexual relationship. We found the legislature defined “school employee” broadly to encompass situations beyond thos e only involving a direct teacher

– student relationship, such as those administrators and certain professionals, including para

- educators. Id. at 177; see also Iowa Code § 272.1(6) (defining “para

- educator” as “a person who is certified to assist
a teacher in the per formance of instructional tasks ”). We then found section 709.15 criminalizes the exploitation of a power relationship by those covered by the statute

. Romer , 832 N.W.2d at 177

– 78 (“It is the fact
that Romer was a teacher and the victims were s tudents, as defined
under the Code , which makes the conduct a crime.” (Emphasis added.)) ;

s ee also Romer , 832 N.W.2d at 184

– 85 (Hecht, J., concurring in part and dissenting in part) (concluding a violation of section 709.15(3) requires an existing “ school employee

– student education

- based relationship ” )

. Accordingly, we held section 709.15(3)( a ) does not require a contemporaneous teacher

– student relationship. Romer , 832 N.W.2d at
178 , 184 (majority opinion).21

Whether and to what extent coaches who are not “ licensed professionals” should be drawn into Iowa Code section 709.15 is a matter for the legislature. We conclude only that section 709.15 does not
include coaches who hold only coaching authorizations because they do
not amount to “ licensed professional s ” within the meaning of section 272.1(2)

. Because of the language of the relevant statutes, the structure of the statutes, and the relevant legislative history, we cannot through
construction expand the scope of the statute to include them

. See Burrage , 571 U.S. at ___, 134 S. Ct. at 892, 187 L. Ed. 2d at 727

– 28;
Anderson , 801 N.W.2d at 1; Hearn , 797 N.W.2d at 583; Allen , 708 N.W.2d at 366; Schultz , 604 N.W.2d at 62; Gorman , 464 N.W.2d at 123;
Wedelstedt , 213 N.W.2d at 656

– 57; Rawlings , 250 Iowa at 895, 96 N.W.2d at 901; see also Auen , 679 N.W.2d at 590.
V. Conclusion. Although a coach who holds a teaching or other professional license is clearly subject to prosecution under section 709.15(3) , a
person who coaches merely pursuant to a coaching authoriza tion but who is not also a “licensed professional , ” “teacher,” or “administrator” within the meaning of section 272.1(7) is not subject to prosecution
under section 709.15(3)

. We therefore reverse the jury’s verdict and
remand the case for the district co urt to dismiss the charges against
Nicoletto.
REVERSED. All justices concur except Waterman and Mansfield, JJ., who
dissent.22 # 12

– 1862 , State v. Nicoletto

WATERMAN , Justice (dissenting). I respectfully dissent because I conclude Ryan Nicoletto , the defendant basketball coach paid under a contract with the school district, was a “school employee” prohibited by Iowa Code section 709.15 (2009) from having sex with a student on his team. I would affirm his
conviction. As the district court correc tly stated, “To construe Section 709.15, The Code, to exclude a coach in a public school district would be contrary to the intent of the statute, and common sense.” The majority’s hypertechnical interpretation reaching the opposite conclusion opens a gapi ng loophole in that law, enacted to protect students from sexual exploitation by adults at their school. Today’s decision no doubt will surprise school officials, parents, and coaches who had assumed the same law that made it illegal for a teacher to enga ge in sexual activity with students also applied to coaches. The ball is now in the legislature’s court to amend section 709.15 to close this new loophole. The majority’s interpretation of section 709.15 fails to apply a fundamental rule of interpretat ion: “[S]tatutes are to be read so they make sense and achieve the legislature’s purposes.” State v. DeSimone , 839 N.W.2d 660, 667 (Iowa 2013). The legislature’s purpose in enacting section 709.15 was to criminalize the exploitation of students by school employees in a power relationship over their victims. State v. Romer , 832 N.W.2d 169, 177

– 78 (Iowa 2013) ( “[W]e have emphasized that it is exploitation of the power relationship that must be avoided.”). Our court of appeals in Romer aptly observed, “Our legislature could well have concluded that a school employee has a higher calling or duty than an ordinary citizen to protect school

- age children.” State v. Romer , No. 11

– 0270, 2012 WL 3590725, at *4 (Iowa Ct. App. Aug. 22, 2012)23 (unpublished opinion), a ff’d , 832 N.W.2d 169 (Iowa 2013). Most parents would agree. I do. Iowa legislators presumably understood there is a risk of sexual exploitation of student athletes by coaches that warrants at least the same statutory prohibitions that are applied to t eachers and other school employees. I see no persuasive indication the legislature intended to
exclude coaches from section 709.15. 2 Coaches, even more than classroom teachers, are in a power relationship over students, and those few who lack impulse con trol are well

- positioned to take advantage. As the district court aptly concluded, “The statute prohibits adults in schools from abusing their position of trust and authority with students, for the purpose of gratifying their sexual desires. Certainly, t he intent of the statute is to reach and include individuals in Nicoletto’s position.” Exactly right. Anyone with experience in youth sports understands that student athletes generally are more vulnerable to exploitation by coaches than by
classroom te achers or other school employees. The coach decides who makes the team, who plays, and who sits on the bench. College scholarship opportunities may hang in the balance. Practices are after school hours. Games are at night with travel to other towns. T ension

2 The majority notes two proposed bills were introduced in 2003 that would have expressly named coaches as “s chool employees” subject to criminal liability for sexual exploitation. Instead of enacting either of these stand

- alone bills, the general assembly adopted wide

- ranging school legislation that, in one section, extended criminal liability to all “school em ployees” who are “licensed professionals.” This legislative history is inconclusive. See Iowa Dental Ass’n v. Iowa Ins. Div. , 831 N.W.2d 138, 146 n.3 (Iowa 2013) (concluding “[i]t is difficult to draw definitive conclusions from .

. . legislative history ” when multiple versions of a bill are in play). One could infer that the general assembly intended the final legislation to have the same coverage as the stand

- alone bills. One could further infer that the legislature assumed it was unnecessary to name coaches in the final legislation because they were easily included under the definition of “licensed professional.”24 and emotional drama are inevitable. For obvious reasons, the training required to attain and renew coaching authorizations includes conduct advisories to avoid impropriety and the appearance of impropriety. See generally Iowa Admin. Code r. 282

— 22 .1(2)( a )(5) (requiring five hours of coursework “relating to the knowledge and understanding of professional ethics and legal responsibilities of coaches” to earn coaching authorization). Nicoletto serves as an example of what can happen. Commentators ag ree: The sad truth is that sports provide the perfect opportunity for adults to sexually exploit children. Coaches are placed on a pedestal by parents and children. They work closely with youngsters, often away from other adults. In some cases they tra vel out of town together, often staying overnight. Parents have assumed that their child will be protected because there are other children around. Clearly this is not a guarantee. Robert J. Shoop, Sexual Exploitation in Schools: How to Spot It and Sto p It 32 (2004).
Children in a coach

- player relationship tend to be more susceptible to sexual assault for various reasons. Whenever there exists a parenting or nurturing environment, children are much more likely to consent to activities they usually would never undertak e. Children look to coaches as role models, heroes, or even best friends; therefore, athletes almost always automatically trust them. Furthermore, from the earliest stages of athletics, children are taught to never argue with or disobey coaches. Jamie Peterson, “Don’t Trust Me with Your Child”: Non

- Legal Precautions When the Law Cannot Prevent Sexual Exploitation in Youth Sports , 5 Tex. Rev. Entm’t & Sports L. 297, 299 (2004) (footnotes omitted). The majority plays a linguistic shell game to ge t to its result. The majority concludes, erroneously, that a “coaching authorization” is not a “license” and a coach is not a “licensed professional.” A “coaching authorization” is simply a form of “license.” I disagree with the majority’s25

conclusion th at a paid sports coach is not a “professional.” Common definitions of “professional” plainly include trained coaches paid to do their job. We use the word “professional” to distinguish a paid employee
from a volunteer or amateur. See Webster’s Seventh N ew Collegiate Dictionary 680 (1972) (defining “professional” as “participating for gain or livelihood in an activity or field of endeavor often engaged in by amateurs”; “engaged in by people receiving financial return”; “one that engages in a pursuit or ac tivity professionally”); Webster’s Third New International Dictionary 1811 (unabr. ed. 2002) (defining “professional” as “one with sufficient authority or practical experience in an area of knowledge or endeavor to resemble a professional”). You can hire a professional painter to touch up your living room ceiling or do it yourself. The painter does not need a doctorate to be a professional. There is no contextual indication the legislature intended a narrow definition for “licensed professional” in secti on 709.15 limited to the learned professions requiring advanced degrees. I would affirm the rulings by two district court judges 3 that Coach Nicoletto was a “licensed professional” within the meaning of section 709.15. The majority’s effort to distingu ish a “coaching authorization” from a “license” is unpersuasive. Iowa Code section 709.15(1)( f) defines “school employee” to mean “a practitioner as defined in section 272.1,” which in turn defines “practitioner” as follows:

3 The first district court judge denied Nicoletto’s motion to dismiss in a thorough, well

- reasoned ruling filed July 6, 2012, that carefully addressed the interrelated statutory provisions in concluding a coach is a licensed professional subject to the criminal prohibitions of Iowa Code section 709.15. An other judge presided over the trial and reached the same conclusion in a separate, well

- reasoned ruling on Nicoletto’s posttrial motions.26 “Practitioner” means an admin istrator, teacher, or other licensed professional, including an individual who holds a statement of professional recognition, who provides educational assistance to students. Iowa Code § 272.1(7) (emphasis omitted). The fighting issue in this case
is wh ether a coach is a “licensed professional.” Section 272.1 defines
“license” as follows: “License” means the authority that is given to allow a person to legally serve as a practitioner, a school, an institution, or a course of study to legally offer prof essional development programs, other than those programs offered by practitioner preparation schools, institutions, courses of study, or area education agencies. A license is the exclusive authority to perform these functions. Iowa Code § 272.1(5) (emph asis omitted). Separately, a person who does not have a teaching license must obtain a “coaching authorization” to serve as a paid coach in an Iowa public school. See Iowa Admin. Code r. 282

— 22.1 (“A coaching
authorization allows an individual to coach any sport in a middle school, junior high school, or high school.”); see also Iowa Admin. Code r. 282

— 13.28(29)( b ) (stating requirements to receive an “Athletic coach” teaching endorsement). As the district court recognized, that coaching
authorization i s what authorizes the coach to serve as a coach

— which equates to a license. A coaching authorization is simply a form of a license. Many coaches have a teaching license. Under the majority’s interpretation, section 709.15 criminalizes a paid coach’s sex ual activity with a student if the coach has a teaching license, but not if, like Nicoletto, the coach has only the coaching authorization. That makes no

sense. Significantly, the legislature treats authorizations the same as licenses throughout chapte r 272, so why treat them any differently in this context? For example, Iowa Code section 272.2(1)( b ) (2013) charges27 the board with “[p]rovid[ing] annually to any person who holds a license , certificate, authorization, or statement of recognition issued by the board, training relating to the knowledge and understanding of the board’s code of professional conduct and ethics.” Iowa Code section 232.69(1)( b )(4) (2009) lists both licensed school employees and holders of coaching authorizations as mandatory rep orters of child abuse. Iowa Code section 272.15(1)( a )(2) (2013) requires school officials to report disciplinary action against “a person who holds a license, certificate, or
authorization issued by the board” for the same conduct. As the majority acknowledges, coaches like Nicoletto are mandatory reporters of child abuse, including improper sexual contact. Iowa Code § 232.69 (1) ( b )(4) (2009). Yet, now, under the majority’s interpretation of section 709.15, Nicoletto may lawfully ha ve consensual
sex with sixteen

- year

- old girls 4 he coaches

— conduct that would land their classroom teacher in prison. He would be legally obligated to report a teacher who did what he did, but not himself. This is absurd. The majority thereby disregards yet another rule Iowa courts are to follow: “We seek to ‘avoid strained, impractical, or absurd results’ in interpreting
statutes.” Rivera v. Woodward Res. Ctr., 830 N.W.2d 724, 733 (Iowa 2013). I would not give a pass to Coach Nicoletto, who at the ti me of his misconduct at issue was thirty years old, with a college degree and a decade of coaching experience. He is fourteen years older than his

4 It is a separate crime, commonly known as statutory rape, for an adult to have sex with a fourteen or fifteen year old if the adult is four or more years older than the minor. Iowa Code Ann. § 709.4(1)( b )(3)(d) (West, Westlaw current through immediately effective legislation signed as of April 4, 2014) (with exception for those cohabitating at the time as husband and wife); see also id. § 709.4(1)( b )(2) (criminalizing sex act with child age thirteen or younger by any person not cohabitating at the time as husband and wife); id. § 709.3(1)( b ) (criminalizing sex act with person under the age of twelve).28 victim. He began having sex with the victim when she was age sixteen, a junior in high school, and playing on the girls’ varsity basketball team he was paid to coach. She became enamored with her coach during the varsity season and initiated their relationship through text messages that hinted she “liked him.” He balked at first, texting back that “it sounded dangerous and he wasn’t sure he could trust [her].” She responded that she “was very trustworthy and he could trust” her. Their texts escalated into sexual banter. He invited her to his house in March of 2008, late in
the basketball season. She went t here alone, unsure what would happen. By April, they were having sex, and she was spending nights at his home, telling her parents that she was staying at a friend’s house. The relationship extended into the summer, as Nicoletto continued to
coach the ba sketball team in off

- season scrimmages and practices. Their clandestine sexual liaison continued into the fall semester and spanned
two basketball seasons. Nicoletto has never claimed he believed Iowa law permitted him to sleep with a girl he coached. Nicoletto obviously had “fair warning” that sleeping with a student
was wrong

— he acknowledged as much and went to great lengths to keep his relationship with the victim secret. See Crandon v. United States , 494 U.S. 152, 160, 110 S. Ct. 997, 1002, 108 L. Ed. 2d 132, 141 (1990) (“[C]onstruction of a criminal statute must be guided by the need for fair warning . . . .”). 5 He told her never to phone him because he did not

5 The majority und erstandably does not rely on the rule of lenity. See United States v. Castleman , ___ U.S. ___, ___, 134 S. Ct. 1405, 1416, 188 L. Ed. 2d 426, ___ ( 2014) (citing Crandon and noting “ ‘the rule of lenity only applies if, after considering text, structure, h istory, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the Court must simply guess as to what Congress intended’ ” (quoting Barber v. Thomas , 560 U.S. 474, 488, 130 S. Ct. 2499, 2508, 177 L. Ed. 2d 1, 12 (2010))). But see State v. Copenhaver , 844 N.W.2d 442, 453 n.4 (Iowa 2014) (Mansfield, J., dissenting) (questioning whether the rule of lenity in Iowa is limited “to situations where there was grievous ambiguity in a statute and no [other] basis for29 want her number on his phone bills. Yet, they exchanged thousands of text messages, n inety

- one in one day. He warned her never to tell anyone about their relationship. He got very angry when she told a friend. Nicoletto told the victim that his family “would disown him” if they knew what he was doing. He ended their relationship only b ecause a suspicious principal began asking them both questions. He had sex with the victim the morning he ended their relationship. When Nicoletto later tearfully confessed to his adult girlfriend, he asked if she “thought he was a pedophile.” After the relationship ended, Nicoletto “wouldn’t even look at [the victim] at practice.” When confronted by her mother and later the police, the victim initially denied any relationship with Nicoletto and later came clean. She testified at his jury trial. The j ury found him guilty. For those reasons, I would affirm the district court’s rulings that
Nicoletto’s misconduct is criminal under Iowa Code section 709.15. Mansfield, J., joins this dissent.

_______________________ __ choosing among plausible interpretations of a statute” (internal quotation marks omitted)).