IN THE COURT OF APPEALS OF IOWA

No. 14-0723

Filed March 11, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

DALE BENJAMIN BUCK,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, 

Judge. 

Defendant appeals his sentence on the ground the court relied on an 

impermissible sentencing consideration. AFFIRMED.

Webb L. Wassmer of Wassmer Law Office, P.L.C., Marion, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant 

Attorney General, Jerry Vander Sanden, County Attorney, and Nicholas Scott, 

Assistant County Attorney, for appellee.

Considered by Vogel, P.J., McDonald, J., and Mahan, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2015). 
2

MCDONALD, J.

Dale Buck pleaded guilty to one count of incest, in violation of Iowa Code 

sections 726.2 and 903B.2 (2011), and was sentenced to an indeterminate term 

of incarceration not to exceed five years. On appeal, Buck challenges his 

sentence, contending the sentencing court considered unreliable information at 

the time of sentencing.

I.

This matter came on for sentencing on April 1, 2014. Prior to the time of 

sentencing, the Sixth Judicial District Department of Correctional Services 

prepared a presentence investigation report (“PSI”). The PSI contained a 

psychosexual screening statement prepared by a psychologist. The psychologist 

opined Buck could benefit from sex offender programming and that a more 

complete psychological evaluation was warranted. The foundation of the 

psychologist’s opinion and recommendation was her understanding of the nature 

of the offense, the results from six administered assessments, and her interview 

with Buck. A summary of the result from each of the six administered 

assessments was contained in the psychosexual screening statement, including 

the result from the Sexual Adjustment Inventory (“SAI”). The SAI purports to 

identify sexually deviant and paraphilia behaviors in adults.

At sentencing, Buck’s counsel objected to the SAI because it lacked 

scientific rigor:

[DEFENSE COUNSEL]: . . . I believe that this—at least 

there should be a footnote as part of this sentencing that this [the

SAI] is something that was just created more or less out of whole 

cloth, the Sexual Adjustment Inventory. I would ask the Court to at 
3

least in comparison to some of the other studies or some of the 

other inventories as part of the Presentence Investigation and the 

Psychosexual Evaluation—that there are other measures than this 

Psychosexual Eval that hold greater weight, and it appears that 

they’re in conflict with this SAI finding.

The basis for counsel’s objection was that he could not find any peer-reviewed 

studies regarding the reliability of the SAI. In response, the prosecutor 

suggested a hearing be set to allow the State to call a witness from the 

Department of Correctional Services to testify about the SAI methodology and 

use. The sentencing court concluded no further hearing was required, and the 

following exchange occurred:

THE COURT: . . . while I will note your argument in the 

record that it shouldn’t get as much weight as perhaps some of the 

other indices in the Psychosexual Report, I am going to consider it 

as part of the record in this case.

[DEFENSE COUNSEL:] As long as the Court at least 

understands the argument that we ask the Court to consider it as 

part of the overall Psychosexual Evaluation in which there is 

evidence in conflict and it’s one of many tests that the Department 

of Correctional Services uses, I’m comfortable with that your Honor. 

THE COURT: I understand that.

The district court sentenced Buck to incarceration. In imposing the 

sentence, the district court stated it considered the assessments in the 

psychosexual evaluation as well as other factors, including the defendant’s age 

and criminal history, the nature of the offense, and the harm caused to the 

victrim. Buck timely filed this appeal.

II.

A sentence imposed by the district court is reviewed for errors at law. See

Iowa R. App. P. 6.907. “Sentencing decisions . . . are cloaked with a strong 

presumption in their favor.” State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995). “A 
4

sentence will not be upset on appellate review unless the defendant 

demonstrates an abuse of trial court discretion or a defect in the sentencing 

procedure, such as trial court consideration of impermissible factors.” State v. 

Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). To prove an abuse of discretion, 

the defendant must show the sentencing court exercised its discretion on 

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

See State v. Pappas, 337 N.W.2d 490, 493 (Iowa 1983). 

The State contends Buck failed to preserve error on the issue of whether 

the SAI should have been relied upon at sentencing. Under our error 

preservation rules, an issue must ordinarily be raised in and decided by the 

district court before we will address it on appeal. See Stammeyer v. Div. of 

Narcotics Enforcement of Iowa Dep’t of Pub. Safety, 721 N.W.2d 541, 548 (Iowa 

2006); State v. Tidwell, No. 13-0180, 2013 WL 6405367, at *2 (Iowa Ct. App. 

Dec. 5, 2013). The State contends defense counsel made argument regarding 

only the weight to be given to the SAI and not its admissibility. When the 

sentencing hearing is viewed as a whole, we agree with the State that Buck 

failed to preserve error on this issue. 

The sentencing transcript reflects that defense counsel wanted to draw 

attention to the fact that the results of the SAI were contrary to, or at least more 

negative than, the results of the five other assessments used in preparing the 

psychosexual screening statement and that the SAI should be given less weight

than the other assessments. The district court acknowledged the argument. 

Defense counsel indicated that he was “comfortable” with the district court’s 
5

acknowledgement and resolution of the issue. Sentencing then proceeded 

without further discussion of the issue. Defense counsel’s consent to the district 

court’s use of the SAI during sentencing waives error on this issue. See State v. 

Garrison, 04-0141, 2006 WL 138280, at *14 (Iowa Ct. App. Jan. 19, 2006) (“A 

defendant cannot both object and consent to evidence if he expects to preserve 

error for appeal.”). 

Even assuming error was preserved, we conclude the district court did not 

abuse its discretion in considering the SAI during sentencing. The sentencing 

court is required to consider “all pertinent information” at the time of sentencing. 

See Iowa Code § 901.5. In determining what information is pertinent and subject 

to consideration, the sentencing court is not bound by the rules of evidence. See 

Iowa R. Evid. 5.1101(c)(4). “Sentencing procedures are governed by different 

evidentiary rules than the trial itself. The sentencing judge should be in 

possession of the fullest information possible concerning the defendant’s life and 

characteristics and should not be denied an opportunity to obtain pertinent 

information by rigid adherence to restrictive rules of evidence properly applicable 

to trial.” State v. Stanley, 344 N.W.2d 564, 570 (Iowa Ct. App. 1983). 

Here, regardless of the burden of proof, the district court did not err or 

abuse its discretion in considering the SAI. There is no requirement at 

sentencing that the State come forward with evidence sufficient to establish the 

reliability of the testing instrument as if this were trial. See id. Here, there were 

sufficient indicia of reliability. The psychosexual screening statement itself

contains the psychologist’s explanation of the SAI as a brief screening tool that 
6

may detect sexually deviant and paraphilia behaviors. The prosecutor stated the 

State had reports regarding the SAI and would call a witness to testify regarding 

the same. Defense counsel acknowledged the corporate author of the SAI made 

publicly available on its website research in support of the SAI. More important, 

the district court did not rely on the SAI instrument; it relied on the psychologist’s 

opinion as expressed in the psychosexual screening statement, which only 

referenced and summarized some information from the SAI as one of six 

instruments used by the psychologist in preparing the opinion. The reliability or 

lack of reliability of the SAI thus only goes to the weight to be given to the 

psychologist’s recommendation, which was acknowledged by the sentencing 

court and defense counsel. See Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 

693 (Iowa 2010) (“[T]he factual basis of an expert opinion goes to the credibility 

of the testimony, not the admissibility.”); Williams v. Hedican, 561 N.W.2d 817, 

830 (Iowa 1997) (“The fact that a theory or technique has not been widely peerreviewed—meaning subject to the scrutiny of the scientific community—does not 

necessarily brand the theory or technique as scientifically invalid.”). We thus 

conclude the district court did not abuse its discretion or err in relying on the 

psychosexual screening statement and the information regarding the SAI 

contained therein.

III.

We have considered each of the parties’ arguments, whether or not 

directly addressed herein, and we affirm the defendant’s sentence.

AFFIRMED.