IN THE COURT OF APPEALS OF IOWA
No. 22

- 1130 Filed February 22, 2023
STATE OF IOWA, Plaintiff

- Appellee,

vs. MATTHEW LUKE HEIM , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, Linda Fangman , Judge.

Matthew Heim appeals his sentence for third

- degree sexual abuse and possession of a controlled substance, third or subsequent offense. AFFIRMED.

Martha J. Lucey , State Appellate Defender, and Ella M. Newell , Assistant Appellate Defender, for appellant.
Brenna Bird , Attorney General, and Anagha Dixit , Assistant Attorney General, for appellee.

Considered b y Vaitheswaran, P.J. , and Greer and Chicchelly, JJ.2

VAITHESWARAN , Presiding Judge

. Matthew Heim pled guilty to third

- degree sexual abuse of a fifteen

- year - old girl and possession of a controlled substance, third or subsequent offense. The district court imposed sentence. Heim appeals his sentence. See State v. Damme , 944 N.W.2d 98, 105 (Iowa 2020) (construing Iowa Code section 814.6 , which prohibit s appeal s of most convictions follow ing guilty pleas , to permit challenges to most sentences following the pleas ). He contends the district court (1) considered an unproven offense in imposing sentence and (2) failed to consider mitigating factors.

“ A district court may not consider an un proven or unprosecuted offense when sentencing a defendant unless (1) the facts before the court show the defendant committed the offense, or (2) the defendant admits it. ” State v. Jose , 636 N.W.2d 38, 41 (Iowa 2001 ) (citing State v. Gonzalez , 582 N.W.2d 515, 516 (Iowa 1998) )

. Heim argues the district court “improperly relied upon [the teen’s] unproven allegation that the sexual interaction between [them] was forcible in nature and in so doing misconstrued the nature of the offense and [his] risk l evel to the community.” He relies on the following portion of the court’s statement of

reasons: I am considering the nature of this offense. That goes along with your age as well. Mr. Heim, you are a thirty

- five

- year - old man who preyed on a fifteen

- year - old. You are twenty years older than her. There is no other description other than a predator

. I can ’ t imagine why a thirty

- five

- year - old man is interacting with a fifteen

- year - old, period, other than to prey upon them.3

(Emphasis added). In his view, the district court’s use of the terms “prey” and “predator” and the court’s later repetition of the word “prey” in speaking directly to
the teen impermissibly reference the teen’s “unproven allegation of force.”
The teen u sed the word “predator” in her written victim impact statement , and the sentencing court adopted that term in describing the nature of the offense.
But the court did not mention the “force” alternative of th ird

- degree sexual abuse

. See Iowa Code § 709.4(1)(a) (2022)

. Nor did the court mention those portions of the minutes of testimony that mentiond force. See Gonzalez , 582 N.W.2d at 517 ( “The sentencing court should only consider those facts contained in the minutes
that are admitted to or otherw ise established as true.” ( quoting State v. Black , 324 N.W.2d 313, 316 (Iowa 19 8 2) ) ) ; State v. Phillips , 561 N.W.2d 355, 359 ( Iowa 1997) (finding “no indication that the trial court relied on” oral statements from the victim’s father concerning unproven of fenses of providing alcohol to a minor and a forcible felony sexual abuse offense) ; see also State v. Davis , No. 16

- 0189 , 2016 WL
6396006 , at *4 (Iowa Ct. App. Oct. 26, 2016) (concluding the sentencing court’s use of the word “coerced” did not reflect reliance on an unprosecuted charge where the dismissed charge of third

- degree sexual abuse was not based on the “force” alternative but on an age

- of

- the

- child alternative).
Hei m nonetheless argues “[t]he Iowa Code exclusively uses the word ‘predator’ in the context of ‘ sexually violent predator’” and Heim was not “adjudicated as a sexually violent predator.” See Iowa Code ch

. 229A (titled “Commitment of Sexually Violent Predato rs”). But e ven if the term legally has come to be associated with the “sexually violent predator” statute, the district court used the term in its commonly understood sense. See , e.g ., Predator , Oxford4

Learner’s Dictionaries, https://www.oxfordlearnersd ictionaries.com/us/definition/ american_english/predator (last visited Jan. 27, 2023) (defining predator as “a person or an organization that uses weaker people for their own advantage”);
Predator , Merriam

- Webster, https://www.merriam

- webster.com/dictionary/predator (last visited Jan. 27, 2023) (defining predator as “one who injures or exp loits others for personal gain or profit ” )

. 1
The same holds true for the court’s use of the word “prey.” See Pre y , Collins Dictionary, https://www.collinsdictionary.com/us/dictionary/english/prey (last visited Jan. 27, 2023) (describing the intransitiv e verb form of prey as follows: “If

someone preys on other people, especially people who are unable to protect themselves, they take advantage of them or harm them in some way.”) ; see also State v. McGhee , No. 19

- 0344, 2020 WL 2488191 , at *2 (Iowa Ct. App. May 13,
2020 ) (concluding sentencing court’s statem ent that the child was “repeatedly abused” was not a reference to unproven offenses where all three crimes with which the defendant was convicted involved abuse in the generic sense)

. There was nothing to suggest that , by using the word, the court intende d to harken back
to the use

- of

- force references in the minutes of testimony. See State v. Guise , 921 N.W.2d 26, 30 (Iowa 2018) (“ ‘ The fact that the sentencing judge was merely aware of the uncharged offense is not sufficient to overcome the presumption th at his discretion was properly exercised .’ T o overcome the presumption ‘ there must be an affirmative showing that the trial judge relied on the uncharged offenses. ’” (citation s omitted) ) ; State v. Formaro , 638 N.W.2d 720, 725 (Iowa 2002) ( “ We will

1 The commonly understood definitions referring to animals who kill and eat other animals are clearly inapplicable.5

not draw an inference of improper sentencing considerations which are not apparent from the record. ” )

. We conclude the sentencing court did not rely on uproven offenses in sentencing Heim. Heim next asserts the sentencing court did not consider mitigating circumstances. He argues the court “failed to state that it had reviewed the content of” the presentence investigation report documenting those circumstances “and would consider the report for purposes of sentencing.” To the contrary, t he cou rt noted that “a presentence investigation and report was ordered ” ; asked the prosecutor and defense attorney whether they had any additions or corrections to the report ; asked defense counsel whether he reviewed the report with his client ; obtained confir mation from Hei m that he had no additions or corrections to the report ; and stated the court would “not be considering any past juvenile history” mentioned in the report. The court’s refusal to consider that history , notwithstanding its authority to do so , inured to Heim’s benefit. See Iowa Code § 232.55(2)(a) (permitting consideration of juvenile record following conviction for offenses other than a simple or serious misdemeanor) ; State v. Boldon , 954 N.W.2d 62, 73 (Iowa 2021) (“Iowa Code provides that c ourts may consider juvenile adjudications and dispositions in sentencing for felonies and aggravated misdemeanors.” ) ) , declined to follow on other grounds in State v. Patten , 981 N.W.2d 126 (Iowa 2022)

. While the court did not recount Heim’s troubled family history as Heim now contends it should have , the court had no obligation to

“ specifically acknowledge each claim of mitigation

. ” State v. Boltz , 542 N.W.2d 9, 11 (Iowa Ct. App. 1995) ; see also State v. Wilbourn , 97 4 N.W.2d 58, 67 (Iowa6

202 2) ( “[D] istrict courts are not obligated ‘ to give [ their ] reasons for rejecting particular sentencing options. ’ ” (quoting State v. Russian , 441 N.W.2d 374, 375 (Iowa 1989) ) ). We conclude the district court ’s statement of reasons for imposition of the sentence did not reflect an abuse of its discretion

. We affirm Heim’s sentence.
AFFIRMED.