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IN THE COURT OF APPEALS OF IOWA No. 2-267 / 11-1309 Filed June 13, 2012 STATE OF IOWA, Plaintiff-Appellee, vs. CALVIN B. BRYANT, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Story County, Lawrence E. Jahn (motion to dismiss) and Steven P. Van Marel (trial and sentencing), District Associate Judges.

Calvin Bryant appeals his conviction for bribery in violation of Iowa Code section 722.1 (2009). AFFIRMED.

Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, Stephen Holmes, County Attorney, and Travis S. Johnson, Assistant County Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

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MULLINS, J. Calvin Bryant appeals his conviction for bribery in violation of Iowa Code section 722.1 (2009). Bryant argues: the district court erred in denying his

motion to dismiss because the person he allegedly bribed does not fall under the terms of the bribery statute, the evidence was insufficient to support his conviction, and his counsel was ineffective for failing to challenge the bribery statute as void for vagueness. For the reasons stated herein, we affirm. I. Background Facts and Proceedings. In January 2010, Bryant received a deferred judgment on a possession of marijuana charge. As a part of his judgment, Bryant was placed on probation to the Center for Creative Justice (CCJ) for a period not to exceed a year. The CCJ is a private, non-profit organization that provides adult probation supervision services in Story County. One of the conditions for his probation was for Bryant to "[c]ompletely abstain from the use of alcohol and controlled substances and shall submit to such testing as may be required to assure compliance with this condition." On December 21, 2010, Bryant met with his probation officer at the CCJ, Michael Gluesing. According to Gluesing, when he asked Bryant about his

continued abstinence from controlled substance, Bryant denied any use. Gluesing then explained that Bryant was subject to testing per his probation terms and conditions. Bryant requested that he come back next week. Gluesing denied the request and maintained that Bryant submit to testing. Bryant

continued to request that he come back next week stating he felt sick. Bryant

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then stated to Gluesing, "I will give you $100 if I don't have to do this today or if you can make it go away." Bryant eventually took the test and left the office. Gluesing reported the incident to the police. On January 28, 2011, the State filed a trial information charging Bryant with bribery in violation of Iowa Code section 722.1, which provides: A person who offers, promises, or gives anything of value or any benefit to a person who is serving or has been elected, selected, appointed, employed, or otherwise engaged to serve in a public capacity, including a public officer or employee, a referee, juror, or jury panel member, or a witness in a judicial or arbitration hearing or any official inquiry, or a member of a board of arbitration, pursuant to an agreement or arrangement or with the understanding that the promise or thing of value or benefit will influence the act, vote, opinion, judgment, decision, or exercise of discretion of the person with respect to the person's services in that capacity commits a class "D" felony. In addition, a pe rson convicted under this section is disqualified from holding public office under the laws of this state. Bryant pled not guilty. On March 31, 2011, Bryant filed a motion to dismiss the charge against him arguing that Gluesing did not fall under the terms of the bribery statute because he was not a "public officer or employee" since he was employed by the CCJ, a private entity. The State resisted the motion arguing the CCJ and

Gluesing were "otherwise engaged to serve in a public capacity" since the court appointed the CCJ to serve as Bryant's probation agency pursuant to Iowa Code section 907.8. The motion came to a hearing on April 4, 2011. On April 8, 2011, the district court denied the motion. After discussing the predecessor bribery statute under Chapter 739 (1975) and some early interpretative cases, the district court

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found the present bribery statutes under chapter 722 "now criminalize the bribery of a much wider class of persons than did the previous Chapter 739." The district court further discussed the statutes regarding probation, and found: [T]he statutory provisions of the 2009 Iowa Code suggest that a person, either individual or corporate, who has been assigned by the court to be a probation officer, is serving as a public officer or is at least engaged to serve in a public capacity, regardless of whether the probation officer is employed by the district department of correctional services or is another suitable person. The act of bribing such a person is indeed a crime. Following the district court's ruling on the motion to dismiss, Bryant waived his right to a jury trial and submitted to a bench trial on the minutes of testimony. The district court found Bryant guilty. Bryant was sentenced to five years

incarceration, but the sentenced was suspended and Bryant was placed on probation for one year. Bryant was also ordered to pay a fine of $750 plus a thirty-five percent surcharge, court costs, and attorney fees. Bryant appeals. III. Motion to Dismiss. Bryant contends the district court erred in denying his motion to dismiss because the bribery statute only applies to public entities, not private entities like the CCJ. Alternatively, Bryant argues that even if the bribery statute is applicable to the CCJ, the CCJ and Gluesing were not "otherwise engaged to serve in a public capacity" as required by the bribery statute. We review the district court's ruling on a motion to dismiss as well as its interpretation of the bribery statute for correction of errors at law. State v. Johnson, 770 N.W.2d 814, 819 (Iowa 2009). A. Iowa Code section 722.1 and Private Entities. Prior to the 1978 criminal code revision, Iowa Code Chapter 739 addressed bribery. Chapter 739

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prohibited bribes to "public officers" including executive officers, judicia l officers, and members of the general assembly, but not public employees. See Iowa Code

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