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 by 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 prohibits appeals of most 

convictions following 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 unproven 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 level 

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 used 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 third-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 otherwise established as true.” (quoting State v. Black, 324 

N.W.2d 313, 316 (Iowa 1982))); 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 offenses 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).

Heim 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 Predators”). But even 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, Oxford 
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Learner’s Dictionaries, https://www.oxfordlearnersdictionaries.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 exploits others 

for personal gain or profit”).

1

The same holds true for the court’s use of the word “prey.” See Prey, Collins 

Dictionary, https://www.collinsdictionary.com/us/dictionary/english/prey (last

visited Jan. 27, 2023) (describing the intransitive 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 statement 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 intended 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 that 

his discretion was properly exercised.’ To overcome the presumption ‘there must 

be an affirmative showing that the trial judge relied on the uncharged offenses.’”

(citations 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, the court 

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 confirmation from Heim 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 courts 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, 974 N.W.2d 58, 67 (Iowa 
6

2022) (“[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.