The Honorable Michael J. Melloy, Chief Judge, United Sta tes District Court for 1 the Northern District of Iowa.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2898

___________ Wendell A. Beets, * * Appellant, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Iowa Department of Corrections * Services, Director; State of Iowa, * * Appellees. *

___________ Submitted: October 19, 1998 Filed: January 8, 1999

___________ Before BOWMAN, Chief Judge, RICHARD S. ARNOLD, and MORRIS SHEPP ARD ARNOLD, Circuit Judges.

___________ BOWMAN, Chief Judge. Wend ell A. Beets, who was convicted of assault with intent to commit sexua l abuse in violation of Iowa Code § 709.11 (1991), appeals from the judgment of th e District C ourt denying Beets's petition for a writ of habeas corpus pursuant to 2 8

1 U.S. C. § 2254 (1994). Beets argues the District Court erred in concluding that th e state-2-

trial court's reliance on an erroneous jury instruction in Beets's trial before the bench did not violate Beets's Fourteenth Amendment right to due process. We affirm. We begin with the facts of the crime as determined by the sta te trial court, which found th e testimony of the victim, Kim Frazier, to be an accurate account of th e pertinent events.
Kim Frazier and her parents were long-standing, active members of the Sound Doctrine Church in Cedar Rapids, Iowa. Frazier regularly sang in the church choir , whichperiodically toured various other churches to perform during Sunday services. On Sund ay, July 19, 1992, the choir, additional church members, and Pasto r Wendell A. Be ets journeyed via chartered bus to Des Moines to sing at a churc h function and engage in other church activities . At around midnight on the night of July 19, the c hoir returned to Cedar Rapids and the parking lot of the Sound Doctrin e Chu rch. Because Frazier did not have a car at the church, she, along with roughly a dozen other church members, rode home on the church van. Wendell Beets drove the
van.
As Beets neared the end of the route connecting the various church members ' homes, he dropped off Frazier's cousin at her destination three blocks from Frazier' s home , leaving only Frazier and Beets in the van. Beets apparently made sure that h e and Frazi er would be alone in the van by manipulating the order in which he dropped off the various church members. Despite the late hour and the proximity to Frazier's home, Beets insisted that Frazier accompany him to look at a car she might b e interested in buying, and Frazier grudgingly consented. After a protracted drive taking Frazier and Beets outside the Cedar Rapids city limits, Frazier found herself, not at a used car lot as Beets had represented, but on a dark, unfamiliar gravel road in rura l Linn County, Iowa.-3-

Upon stopping the van, Beets moved toward the passenger seat where Frazier
was sitting, lunged at her, and began trying to kiss her. Although Frazier objected , Beets , who was much larger than Frazier, persisted in kissing Frazier on the face and neck. As Frazier st

ruggled to protest further, Beets inserted his hands inside Frazier's shirt and fondled her chest. Beets used one of his legs to pry open Frazier's legs and reached under her skirt to fondle her inner thighs and vagina. Beets took Frazier's hand in his own and attempted to place her hand on his penis, which at some earlier poin t had been removed from B eets's pants. Although Beets's exposed penis never touched F r azier's hand, it came into contact with Frazier's upper leg, very close to her vaginal
area. When Frazier finally began to w eep and covered her face with her hands, Beets
cease d his advances and withdrew to the driver's seat of the van. Beets apparentl y realized the depravity of his behavior and expressed remorse for his weakness. He also pleadedwith Frazier not to reveal the night's events to anyone for fear that his good reputation would be destroyed and the church community and Frazier's family would suffer. The entire episode, from the time the van stopped to Beets's attempts a t penitence, lasted approximately thirty to forty-five minutes.

Bee ts was charged in Linn County, Iowa, with assault with intent to commi t sexual abuse in violation of Iowa Code § 709.11. Be ets waived his right to a jury trial, and his trial

was conducted with the Iowa district court sitting as factfinder. The trial court mad e findings of fact and drew conclusions of law, found Beets guilty beyon d a reasonable doubt, and sentenced him to a prison term n ot to exceed two years. Beets appealed to the Supreme Court of Iowa, claiming that the instruction upon which the trial c ourt relied, Iowa Criminal Jury Instruction 900.6, omitted an essential elemen t of the crime for which Beets was convicted. The Supreme Court of Iowa concluded that the uni form instruction was "not a correct statement of the law," but affirme d Beets's conviction because Beets was not prejudiced by the erroneous instruction

. State v. Beets , 528 N.W.2d 521 (Iowa 1995).Beets has been released from custody during the pendency of his habea s 2 petition. Because he was in the custody of the State of Iowa when he filed his habeas petition, t he "in custody" requirement of 28 U.S.C. § 2254 is satisfied and the federal co urts have jurisdiction to entertain his petition. See Carafas v. Lavallee , 391 U.S

. 234, 238-40 (196 8); Harvey v. South Dakota , 526 F.2d 840, 841 (8 Cir. 1975), cert. th denied , 426 U.S. 911 (1976). -4- Beets filed a peti tion for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The State conceded that Beets had exhausted his state remedies despite his not having used the state's post-conviction procedure s. (He apparently had no claim to assert that had not already been raised and adjudicated on direct appeal to the Supreme Court of Iowa). The District Court denied Beets's petition, and Beets appeals. 2 For his first argument on appe al, Beets claims that the state trial court's reliance
on Io wa Criminal Jury Instruction 900.6 resulted in Beets's being convicted withou t a find ing of an essential element of the crime in violation of the Due Process Claus e of the Fourteenth Amendment. "[T]he Due Process Clause protects the accused against
co nvictionexcept upon proof beyond a reasonable doubt of every fact necessary t o constitute the crime with which he is charged." In re Winship , 397 U.S. 358, 36 4 (1970).
That the trial court relied upon an erroneous instruction omitting an essentia l element of the crime of assault with intent to commit sexual abuse is uncontroverted. In its written ruling, the trial court explicitly found in the erroneous instruction th e legal standard to be applied, and on direct appeal, the Supreme Court of Iow a acknow ledgedthe trial court's reliance on the instruction and determined that th e instruction incorrectly stated the law. State v. Beets , 528 N.W.2d at 523.
The Iowa Code delineates assault with intent to commit sexual abuse as follows: "Any person who commits an assault . . . with the intent to commit sexual abuse i s guilty of . . . an aggravated misdemeanor if no injury results." Iowa Code § 709.11-5-

(1991) (emphasis added). The Iowa statutes in turn define sexual abuse: "Any sex act betwe en persons is sexual abuse by either of the participants when . . . . [t]he act i s do ne by force or against the will of the other ." Iowa Code § 709.1 (1991) (emphasis added). Thus, to convic t Beets of assault with intent to commit sexual abuse, the trial court had t o find beyond a reasonable doubt each of the following elements of tha t crime: (1) Beets assaulted Frazier, (2) with the intent to commit a sex act, (3) by force
or against Frazier's will. By comparison, the instruction in question, Iowa Crimina l Jury Instruction 900. 6, required a finding only that Beets assaulted his victim with the specific intent to commit a sex act . As the Supreme Court of Iowa concluded, and the State concedes, the instruction conspicuously omitted the "by force or against the will" element required by the Iowa Code and, therefore, misstated Iowa law. See State v. Beets , 528 N.W.2d at 523.
That the inst

ruction was erroneous as a matter of state law is not determinative of the issue whether the trial court's reliance on the instruction deprived Beets of th e process he was due pursuant to the Fourteenth Amendment. See Estelle v. McGuire , 502 U.S. 62 , 66 (1991); Seiler v. Thalacker , 101 F.3d 536, 539 (8 Cir. 1996 ) th ("Whether a jury instruction is correct un der state law is not the same issue as whether
a jury i nstruction violated the due process clause."), cert. denied , 117 S.Ct. 144 7 (1997). Before we may overturn a state convic tion, the validity of which is questioned
on account of a deficient instruction, "it must be established not merely that th e inst ructionis undesirable, erroneous, or even 'universally condemned,' but that i t violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten , 414 U.S. 141, 146 (1973); see also Smith v. Phillips , 455 U.S. 209, 221 (1982).

In the present case, however, because we conclude any error of constitutiona l dimens ionwas harmless, we need not reach the question whether the trial court' s re liance on Iowa Criminal Jury Instruction 900.6 violated a right guaranteed to Beets by the Fourteenth Amendment. The Supreme Court has "repeatedly reaffirmed theThe Supreme Court has squarely determined that the harmless error standar d 3 requiri ng a reviewing court to find harmlessness beyond a reasonable doubt, se e Chapman , 386 U.S. at 24, g enerally is inapplicable in the context of collateral review. See Brecht v. Abrahamson , 507 U.S. 619, 637 (1993). Instead, the Court has adopted the " less onerous" standard found in Kotteakos v. United States , 328 U.S. 750, 77 6 (1946), for application o n habeas review. See Brecht , 507 U.S. at 637-38. However, this Circui t continues to apply the strict Chapmanstandard in the context of habea s review when a state court has not conducted its own harmless error analysis on direct appeal

. See Cox v. Norris , 133 F.3d 565, 572 (8 Cir. 1997) cert. denied , 119 S.Ct. th 89 (1998); Starr v. Lockhart , 23 F.3d 1280, 1292 (8 Cir.), cert. denied , 513 U.S. 995 th (1994). In the present case, the Supreme Court of Iowa couched its opinion in terms of pr ejudice to the defendant, rather than in terms of harmlessness. See State v. Beets , 528 N.W.2d at 523 ("Beets was not prejudice d by the [trial] court's reliance on . . . the uniform instruction

. . . ."). The Supreme Court of Iowa's conclusion on direct appeal that the i nstructional error in this case was not prejudicial does not constitute a de terminationof harmlessness. See Seiler , 101 F.3d at 539. Because the Suprem e Court of Iowa did not conduct harmless error review on direct appeal, we apply th e Chapmanstandard requiring that the State show "beyond a reasonable doubt that the erro r complained of did not contribute to the verdict obtained." Chapman , 386 U.S

. at 24.
-6- pri nciple that an otherwise valid conviction should not be set aside if the reviewin g court may confidently say, on the whole record, that the constitutional error wa s harm less beyond a reasonable doubt." Delaware v. Van Arsdall , 475 U.S. 673, 68 1 (1986) (citi ng Chapman v. California , 386 U.S. 18, 24 (1967)). In conducting thi s 3 harm less error analysis, we must view the instruction in question not in isolation bu t in the context of the entire record. See United States v. Park , 421 U.S. 658, 674-7 5 (197 5) ("[I]n reviewing jury instructions, our task is . . . to view the charge itself a s part of the whole trial.")); see also United States v. West , 28 F.3d 748, 751 (8 Cir

. th 1994) (explaining United States v. McMillan , 820 F.2d 251, 256 (8 Cir. 1987)). We th review the record de novo. Williams v. Clarke , 40 F.3d 1529, 1541 (8 C ir.1994), cert. th denied , 514 U.S. 1033 (1995).-7-

Undertaking "a fair evaluation of the omission in the context of the entir e record," the Supreme Court has held that a state trial court's failure to instruct a jury
on a n essential causation element in a second-degree murder trial was no t constitutional error requiring a grant of habeas corpus relief. See Henderson v. Kibbe , 431 U.S. 145, 152-54 (1977). In Henderson , despite the trial court's omission, th e Supreme C ourt determined that "the evidence was plainly sufficient to prove [th e omitted] fact beyond a reasonable doubt" and that the record required the "conclu[sion] that the jury made such a finding." Id. at 153.

In the p resent circumstance of Beets's trial before the bench, we need no t speculate about the effect of the instructional error on a jury's deliberations; we have the trial court's written

findings in the record before us. From the testimony regarding Beets's deception of Frazier, his relentless groping of Frazier, his refusal to hee d Frazier 's repeated protests, and his size relative to Frazier, the trial court expressl y determin ed that Beets "grabb[ed] and fondl[ed] her body against her will." State v

. B e ets , No. AG-9092 at 4 (Dec. 15, 1993) (trial court's Findings of Fact, Conclusions of Law, and Judgment). By way of these actions, the trial court found, Beets "intended to commit asex act of penis to vagina contact or contact between his penis and th e hand o f Ms. Frazier." Id. The trial court concluded that "all [Beets's] actions poin t toward that s pecific intent and that this was not simply the case of an unwelcom e touching of Ms. Frazier." Id.
The dissent does not discern from the record a finding by the trial court tha t Beets intended to commit a sex act against Frazier's will. But the difference between the finding actually made and the finding the dissent demands is negligible. The trial court explicitly found that Beets grabbed and fondled Frazier against her will and that, concurrent with the

grabbing and fondling, Beets intended to commit a sex act, which clearly must also have been against Frazier's will.-8-

The Supre me Court of Iowa, on direct appeal, determined that the "by force or against the will" element existed in fact, see State v. Beets , 5 28 N.W.2d at 523, and we presume the validity of the Supreme Court of Iowa's factual findings. See 28 U.S.C. § 2254(d) (1994); Pruett v. Norris , 153 F.3d 579, 584 (8 Cir. 1998) ("The [§ 2254(d)] th presumptionof correctness applies to all factual determinations made by state courts of compet ent jurisdiction, including trial courts and appellate courts."). Moreover , Beets has pointed to nothing in the record to rebut the § 2254(d) presumption. Viewing th e deficient instruction in the context of the entire record before us , we conclude that the findings of the trial court rega rding the element in question render any instructional error of constitutional dimension harmless beyond a reasonabl e doubt.

Beets ma intains, nonetheless, that we may not make a determination whethe r any error in the present cas e is harmless because the error here is "structural error," to which the harmless error analysis cannot apply. We disagree.
Since the Supreme Court's decision in Chapman , 386 U.S. 18, in which th e Court rejected the argument that co nstitutional error necessitates automatic reversal of
a cr iminal conviction, the Court has found harmless a wide variety of errors

. Consiste nt

with Supreme Court mandate, this Court has determined that there exist s a str ong presumption that most constitutional errors are amenable to harmless-erro r an alysis. See United States v. Raether , 82 F.3d 192, 194 (8 Cir. 1996) (citing Rose th
v. Clark , 478 U.S. 570, 578-79 (1986)). "[W]hile there are some errors to whic h Chapman do es not apply, they are the exception and not the rule." Rose , 478 U.S. at 578. The exception is the structural error, an error that so pervasively contaminates the tria lmechanism–the "structure" of the trial–from beginning to end that it is no t su sceptible to quantitative assessment in the context of the entire trial to determin e whether it was harmless. See Rush v. Smith , 56 F.3d 918, 927 (8 Cir.) (citin g th Arizona v. Fulminante , 499 U.S. 279, 307-10 (1991)), cert. denied , 516 U.S. 95 9 (1995). This sort of error renders the trial fundamentally unfair and requires automatic reversal of the criminal-9-

c o nviction obtained therefrom. See Rose , 478 U.S. at 577; Van Arsdall , 475 U.S. at 681.
On the other hand, an error that is subject to harmless error review–so calle d "trial error"–generally occurs in the presentation of the case to the factfinder and , therefo re, may be assessed to determine whether it contributed to the verdict. Se e Fulmin ante , 499 U.S. at 309-10; Rose , 478 U.S. at 578. A case in which a jur y ins tructionomits or "misdescribes" an intent element essential under state law ma y presen t that kind of error and, as the Supreme Court has determined, is a case fo r application of the harmless error analysis. S ee California v. Roy , 519 U.S. 2, 5 (1996) (per cur iam) (remanding for harmless error analysis). In accord with the applicabl e Supreme Court precedent, this Court has subjected errors of omission of an essential element to harmless error review. See McMillan , 820 F.2d at 256-57; Redding v

. Bens on , 739 F.2d 1360, 1363-64 (8 Cir. 1984), cert. denied , 469 U.S. 1222 (1985). th

Beets relies on Sullivan v. Louisiana , 508 U.S. 275, 281 (1993), in which th e Supreme Court determined that an instruction misdescribing the burden of proo f amounted to structural error, for the proposi tion that the error in the present case is not susceptible to harmless error an alysis. In Sullivan , however, the erroneous instruction effe ctively lowered the government's burden of proof on all the elements of th e offense, th ereby vitiating the jury's findings as to every element and leaving th e revi ewing court no basis for a meaningful harmless error analysis. See id. at 281-82; see als o Raether , 82 F.3d at 194 (explaining Sullivan ). That of course is not the case here, and Beets's reliance on Sullivanis misguided.

We hold that the instruction in the present case did not so taint the tria l
mec hanism as to render the omission of the essential element incapable of review for ha rmlessness. Having already determined that any error in this case was in fac t harmless on account of the trial court's findings regarding the omitted element, we-10-

affi rm the District Court's conclusion that Beets was not convicted without a findin g of the essential elements of the crime of assault with intent to commit sexual abuse. Because Beets was not convicted without a finding o f all the necessary elements of the crime with which he was charged, his second claim of error–that he wa s convicted of a crime other than the one with which he was charged–must fail. The judgment of the District Court is affirmed. MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting. I respectfully dissent from the judgment of the court, because the findings of the trial judge who tried the criminal matter that underlies this case entirely failed to make the necessary finding that Mr. Beets intended to commit a sex act against Ms. Frazier's will.

It is true that the trial court found that Mr. Beets had grabbed and fondle d Ms. Frazier against her will, but grabbing and fondling is not a "sex act" under Iowa Code Ann. § 702.17. See also Iowa Code Ann. § 709.1. In fact, the sex act that the tria lcourt found that Mr. Beets intended to commit was penis-to-vagina or penis-to

hand contact. Since there is no finding that Mr. Beets intended to effect either of these acts a gainst Ms. Frazier's will, the record is fatally defective and cannot support a conviction for violating Io wa Code Ann. § 709.11. The record, no doubt, would have supported such a finding: But that finding was not expressly made, nor can such a finding reasonably be inferred from the finding that was made.

I cannot subscribe to the court's assertion that any sex act that Mr. Beet s intended to commit "clearly must also have been against Frazier's will." Mr. Beets may have hoped that Ms. Frazier would consent to sex acts. Indeed, it seems to be-11-

conceded that he relented when she resisted and committed no sex act, as the statute defines that term, against her. I would therefore reverse the judgment of the district court. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.