State of Iowa v. Kourtney Shontez Hall ( 2022 )

IN THE SUPREME COURT OF IOWA
No.19–1616
Submitted November 17, 2021—Filed January 21, 2022
STATE OF IOWA,
Appellee,
vs.
KOURTNEY SHONTEZ HALL,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
The defendant challenges the sufficiency of the evidence supporting his
convictions for suborning perjury and obstructing prosecution. DECISION OF
COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED
AND REMANDED.
McDonald, J., delivered the opinion of the court, in which all justice joined.
John J. Sullivan (argued) of Sullivan Law Office, P.C., Oelwein (until
withdrawal), and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
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Thomas J. Miller, Attorney General, and Linda J. Hines (argued), Assistant
Attorney General, for appellee.
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McDONALD, Justice.
“Just because you don’t go to church doesn’t mean that you’re gonna go
to jail,” said defendant Kourtney Hall to his former girlfriend Emily Bowers,
during a jail visitation Bowers had with Hall while Hall was being detained on a
parole violation and pending charges. In a second visitation later that same day,
Hall reiterated to Bowers that she should not go to “church” and that she would
not be in trouble if she did not go to church. Bowers understood Hall was making
a coded request that Bowers dishonor a subpoena and not attend a deposition
in which she was expected to give testimony criminating Hall. Despite Hall’s
repeated entreaties and assurances, Bowers attended the deposition and gave
truthful testimony criminating Hall. The State charged Hall with two counts of
suborning perjury and two counts of obstructing prosecution arising out of his
coded requests. The jury found Hall guilty of all charges, and Hall filed this
appeal. Hall contends there was insufficient evidence to sustain the convictions.
I.
In May 2019, Hall was detained in the Polk County Jail on a parole
violation and pending charges. On Friday, May 3, Hall attended the deposition
of Detective Christopher Vesey. During the deposition, Detective Vesey stated
that Emily Bowers had been subpoenaed for a deposition to be held the following
Monday, May 6, in the pending criminal case against Hall. According to Detective
Vesey, Bowers was an important witness in the case and was expected to place
Hall at the scene of a crime.
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Hall and Bowers had dated from May of 2018 until February 2019.
Although they had officially broken up by May of 2019, Hall and Bowers were
still in a “gray area” and involved with each other in some way. On Sunday, May
5, Bowers had two electronic visitations with Hall using the Polk County Jail’s
iWeb visitation system. All visitations over the iWeb visitation system were
recorded. During the two recorded visitations with Bowers, Hall repeatedly
requested that Bowers not attend “church” and repeatedly assured Bowers that
she would not be in trouble for not attending “church.” Hall tried to coax
Bowers’s nonattendance at “church” with vague statements regarding their
future together. For example, Hall said, “Where’s the first place you want to go
when we get out? That’s what I think about. . . . You aren’t going to church
tonight are you?” Bowers interpreted Hall’s statements to be coded requests that
she should “not . . . go to the deposition on May 6 to give [her] testimony.”
Despite Hall’s coded requests and assurances, Bowers attended the
deposition and gave testimony in Hall’s presence. She told the truth and
criminated Hall with respect to the pending criminal case. Bowers testified it was
“very hard.” Hall and Bowers visited on iWeb after the deposition. Hall’s attitude
towards Bowers was very different during this third visitation. He was “very upset
with [Bowers], very upset, very angry, kind of acting like it was [her] fault for
everything.”
The State charged Hall with two counts of suborning perjury, in violation
of Iowa Code section 720.3 (2019), arising out of his conduct during the first two
iWeb visitations with Bowers. Iowa Code section 720.3 provides:
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A person who procures or offers any inducement to another to
make a statement under oath or affirmation in any proceeding or
other matter in which statements under oath or affirmation are
required or authorized, with the intent that such person will make
a false statement, or who procures or offers any inducement to one
who the person reasonably believes will be called upon for a
statement in any such proceeding or matter, to conceal material
facts known to such person, commits a class “D” felony.
The State also charged Hall with two counts of obstructing prosecution, in
violation of Iowa Code section 719.3(2). That statute provides:
A person who, with intent to prevent the apprehension or
obstruct the prosecution or defense of any person, knowingly does
any of the following acts, commits an aggravated misdemeanor:
....
2. Induces a witness having knowledge material to the subject
at issue to leave the state or hide, or to fail to appear when
subpoenaed.
At trial, the State called Detective Vesey and Bowers as witnesses and
introduced into evidence the three recorded iWeb visitations. No one disputed
that Hall’s references to church were coded requests that Bowers not attend her
deposition. At trial, during cross-examination of Bowers, Hall’s lawyer
acknowledged as much:
Q. And let’s cut to the chase on this.
A. Uh-huh.
Q. When Mr. Hall said “church,” he meant the depositions,
didn’t he?
A. Yes.
Q. And there’s no question about that?
A. No.
Q. And he likely didn’t want you to go; isn’t that right?
A. Correct.
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While Bowers testified Hall’s references to church were coded requests that she
not attend the deposition, she also testified Hall never asked her to lie or withhold
information while under oath:
Q. Did Mr. Hall ever tell you to lie about what you had seen?
A. No.
Q. Did Mr. Hall ever tell you to appear at depositions and lie?
A. No, he did not.
Q. Did he ever tell you to withhold statements or information
from the State?
A. No.
Q. Did he ever tell you to lie or withhold information from the
police?
A. No.
Q. Did he ever tell you to, when under oath, not tell the full
truth?
A. No.
Q. Mr. Hall never made any threats or promises to you related
to going to depositions; isn’t that correct?
A. No. He told me not to go to church, which I interpreted as
not going to depositions.
Hall moved for directed verdict and judgment of acquittal. With respect to
the counts of suborning perjury, Hall argued that even if his statements to
Bowers were coded requests that she not attend the deposition, those coded
requests did not constitute suborning perjury as a matter of law:
In Counts I and II for suborning perjury, no witness has testified in
any stretch of the imagination that Mr. Hall told Emily Bowers not
to provide information after being placed under oath.
The only indication that the State has argued in this case is
that he encouraged her not to be present at court, and that does not
meet the definition of suborning perjury.
This code section is written to attack the behavior of people,
to manipulate a witness to appear and then not give truthful
information. That is what perjury is about, and to suborn perjury is
to encourage that.
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There’s simply no evidence that’s indicated that Mr. Hall told
Emily Bowers to be present and then not give full and complete
information. There’s no evidence that she was told to show up at
trial and lie. None of that information has been presented. None of
that information has been indicated.
Now, I believe that the State’s indication of how they want to
proceed with this is by telling somebody not to appear is that they
would then be withholding material information, but that does not
meet all of the elements of suborning perjury. You must be placed
under oath and then not do it, to have all of the factors together and
required.
With respect to the charges of obstructing prosecution, Hall argued there was
insufficient evidence of inducement given that, among other things, Bowers
actually appeared for her deposition. The district court denied Hall’s motions,
and the jury found him guilty as charged.
Hall timely appealed, and we transferred the matter to the court of appeals.
The court of appeals rejected Hall’s challenges to the sufficiency of the evidence.
The court of appeals reasoned that Hall’s coded requests to Bowers that she not
attend the deposition, coupled with Hall’s statements regarding their
relationship, was sufficient evidence to establish criminal liability. The court of
appeals also rejected two additional claims Hall raised on appeal: that the district
court abused its discretion in admitting the recorded video visitations into
evidence and abused its discretion in denying his motion for new trial.
We granted Hall’s application for further review. Because we find Hall’s
challenges to the sufficiency of the evidence dispositive, we need not address his
remaining assignments of error.
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II.
This court reviews sufficiency of evidence claims for the correction of errors
at law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). “We will uphold the
district court’s denial of a motion for judgment of acquittal if there is substantial
evidence in the record to support the defendant’s conviction.” State v. McPhillips,
580 N.W.2d 748, 752 (Iowa 1998). Substantial evidence is evidence sufficient to
convince a rational trier of fact the defendant is guilty beyond a reasonable
doubt. Sanford, 814 N.W.2d at 615. We view the evidence in the light most
favorable to the State, including “all reasonable inferences that may fairly be
drawn from the evidence.” McPhillips, 580 N.W.2d at 753.
III.
We first address Hall’s challenge to his convictions for suborning perjury.
Hall contends that even if his references to church were coded requests that
Bowers not appear for her deposition, those requests do not constitute suborning
perjury within the meaning of Iowa Code section 720.3. Hall contends the statute
criminalizes only a request that the witness provide false testimony while under
oath or affirmation and not a request that the witness not appear. The State
disagrees. The State contends the statute also criminalizes a request that the
witness not appear because the witness’s failure to appear would necessarily
conceal material facts known to the witness.
The parties’ dispute regarding the scope of criminal liability under section
720.3 raises a question of statutory interpretation. “We interpret statutes
consistent with common law unless the language of the statute clearly negates
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the common law.” State v. Pace, 602 N.W.2d 764, 771 (Iowa 1999). “The
assumption is that even the statutory criminal law is to be administered in
accordance with the general principles of right and justice recognized in the
common–law system.” State v. O’Neil, 126 N.W. 454, 456 (Iowa 1910). Of course,
the common law and relevant legal history can serve only to inform—and not
deform—the meaning of statutory text. This is because, generally speaking, our
interpretive inquiry focuses on “the language of the statute at issue.” Doe v. State,
943 N.W.2d 608, 610 (Iowa 2020). We “seek to determine the ordinary and fair
meaning of the statutory language.” Id. In determining the ordinary and fair
meaning of the statute at issue, we do not look at the statutory language in
isolation. Instead, we “take into consideration the language’s relationship to
other provisions of the same statute and other provisions of related statutes.” Id.With these interpretative principles in mind, we begin our analysis with a
discussion of the common law regarding perjury and subornation of perjury. “At
common law, the crime of perjury could only occur in the course of a judicial
proceeding while a person was under oath or affirmation.” State v. Carter, 618
N.W.2d 374, 376 (Iowa 2000) (en banc). As explained in the Commentaries,
perjury extended only to the provision of materially false information in
particular judicial proceedings after the administration of the oath:
The next offence against public justice is when the suit is past its
commencement, and come to trial. And that is, the crime of wilful
and corrupt perjury: which is defined by Sir Edward Coke to be a
crime committed when a lawful oath is administered, in some
judicial proceeding, to a person who swears wilfully, absolutely, and
falsely in a matter material to the issue or point in question. The law
takes no notice of any perjury but such as is committed in some
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court of justice having power to administer an oath; or before some
magistrate or proper officer invested with a similar authority, in
some proceedings relative to a civil suit or a criminal prosecution:
for it esteems all other oaths unnecessary, at least, and therefore
will not punish the breach of them.
4 William Blackstone, Commentaries *137 (emphasis omitted). Subornation of
perjury, meanwhile, was “the offence of procuring another to take such a false
oath as constitutes perjury in the principal.” Id.; see Gary L. McDowell, “High
Crimes and Misdemeanors”: Recovering the Intentions of the Founders, 67 Geo.
Wash. L. Rev. 626, 642 (1999). In sum, at common law, the essence of the crimes
of perjury and subornation of perjury was the violation of the oath in a judicial
proceeding.
Our perjury statute and precedents are in general accord with the common
law. Our legislature expanded the common law definition of perjury to extend
beyond judicial proceedings “to include false statements in ‘any proceeding or
other matter in which statements under oath or affirmation are required or
authorized by law.’ ” Carter, 618 N.W.2d at 376 (quoting Iowa Code § 720.2(1997)). Whatever the nature of the proceeding, however, “the ‘oath or
affirmation’ requirement remains an essential element of the crime” of perjury.
Id. And “it is essential that a person appear before a designated officer to satisfy
the oath or affirmation requirement.” Id. at 377. Thus, in State v. Carter, we
affirmed the district court’s dismissal of a perjury charge where the defendant
filed a false application under oath but did not appear before a designated officer
that administered the oath. Id. We reasoned that the “legislature intended the
‘oath or affirmation’ element of perjury under section 720.2 to be accomplished
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in the presence of an authorized official” and that this was “consistent with our
case law” and “consistent with our common law.” Id.
Because the crime of perjury requires the willful violation of an oath or
affirmation made in the presence of an authorized official, a witness’s failure to
appear at a proceeding in which she was expected to give testimony under oath
is not perjury within the meaning of our statute and precedents. See State v.
Storm, 898 N.W.2d 140, 166 (Iowa 2017) (Hecht, J., dissenting) (citing Carter,
618 N.W.2d at 377) (“[P]hysical presence is required to support perjury
convictions under the Iowa Code”); Carter, 618 N.W.2d at 377; Hicks v. Stigler,
323 N.W.2d 262, 263–64 (Iowa Ct. App. 1982) (“In the case presently before us,
there is no evidence of perjury . . . since plaintiff was not ‘under oath or
affirmation’ when the statements were made.”); see also Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Lambros, 1 F. Supp. 2d 1337, 1345 (M.D. Fla. 1998)
(finding insufficient evidence that civil plaintiff suborned a witness’s perjury
when the witness “never testified, much less committed perjury”); King v. State,
233 S.E.2d 340, 340 (Ga. 1977) (“Of course, one can be convicted of perjury only
for knowingly and wilfully making a materially false statement under oath and
not for a refusal to testify.”); West v. State, 492 S.E.2d 576, 580 (Ga. Ct. App.
1997) (“Perjury can only be committed by knowingly and willfully making a
materially false statement under oath; perjury cannot be committed by silence
or refusal to testify, because perjury is an affirmative act of intentionally violating
the oath.”).
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Our subornation-of-perjury statute and precedents are in general accord
with the common law. The essence of the offense is the suborner’s request that
the witness give materially false testimony after the administration of the oath
by an authorized official. Traditionally, it was not enough to show that the
suborner merely made such a request. Instead, subornation of perjury required
proof that the suborned witness actually provided false testimony under oath. In
State v. Porter, we explained the crime of subornation of perjury inheres “in the
result[]—the procurement” of false testimony. 75 N.W. 519, 519 (Iowa 1898).
“Subornation is in its essence perjury, and the perpetrator of the offense a sort
of an accessory before the fact.” State v. Lomack, 106 N.W. 386, 387 (Iowa 1906).
In the leading case of State v. Wykert, we stated that “[s]ubornation of perjury
consists in procuring or instigating another to commit the crime of perjury.” 199
N.W. 331, 333 (Iowa 1924). The actual provision of false testimony was a
“necessary and material” element of the offense. State v. Hartwick, 290 N.W.
523, 525 (Iowa 1940). Section 720.3 eliminated this traditional requirement and
now criminalizes any request or offer of any inducement to commit perjury
without regard to whether the suborned witness actually committed perjury. See
Iowa Code 720.3. While section 720.3 expanded the scope of liability for
suborning perjury by criminalizing a request or offer of any inducement, the
statute did not eliminate the requirement that the request or offer of any
inducement must still be a request or offer of any inducement for the suborned
witness to give materially false testimony after the administration of the oath by
an authorized official.
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This is evident in the statutory text. Iowa Code section 720.3 criminalizes
two types of conduct. The first type of conduct is subornation of perjury by an
act of commission. This requires proof the defendant procured or offered an
inducement to another “with the intent that such person will make a false
statement” while “under oath or affirmation in any proceeding.” Iowa Code
§ 720.3. The second is subornation of perjury by omission. This requires proof
the defendant procured or offered an inducement to another “to conceal material
facts known to such person” in “any such proceeding.” Id. The statutory
references to “any proceeding” and “any such proceeding” refer to proceedings
“in which statements under oath or affirmation are required or authorized.” Id.In either type of case, an essential element of the offense is the procurement or
inducement to have another provide false testimony or to conceal material facts
while “under oath or affirmation.” Id. (emphasis added); see Storm, 898 N.W.2d
at 166 (Hecht, J., dissenting); Carter, 618 N.W.2d at 377; Hicks, 323 N.W.2d at263–64; see also King, 233 S.E.2d at 340; West, 492 S.E.2d at 580.
This is also evident in the title of the statute. Although the title of a statute
cannot change the plain meaning of the statutory text, it can be considered in
interpreting the text. State v. Ross, 941 N.W.2d 341, 347 (Iowa 2020) (stating the
court can consider the title of a statute to determine legislative intent). This is
particularly true where the title of the statute is merely the word, or in this case
the offense, defined in the statutory text. “[T]he word being defined is the most
significant element of the definition’s context. The normal sense of that word and
its associations bear significantly on the meaning of ambiguous words or phrases
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in the definition.” Id. (quoting Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts 232 (2012)). The title of the statute is “Suborning
perjury.” Iowa Code § 720.3. The plain meaning of “suborning perjury” is to
persuade or induce a person to commit perjury, which is to provide false
testimony after the administration of the oath or affirmation. Suborn, Black’s
Law Dictionary (11th ed. 2019) (“To induce (a person) to commit perjury;
specif[ically], to persuade (someone) to lie under oath . . . .”); Subornation of
Perjury, Black’s Law Dictionary (“The crime of persuading another to commit
perjury; the act of procuring a witness to testify falsely.”). As discussed above, a
witness’s failure to appear does not constitute perjury. It logically follows that a
request or offer of any inducement that a witness fail to appear does not
constitute subornation of perjury.
Hall’s coded request that Bowers simply not appear for her deposition does
not fall within the statutory scope of liability. The District of Columbia Court of
Appeals reached the same conclusion in the materially indistinguishable case of
Riley v. United States. 647 A.2d 1165, 1173–75 (D.C. 1994) (majority opinions of
Ferren and Schwelb, JJ.). In Riley, the defendant was convicted of suborning
perjury when he told a witness to not testify before a grand jury. Id. at 1174.
According to the witness, the defendant told her “don’t be scared, they’re just
trying to scare you. Don’t tell them nothing!” Id. (emphasis omitted). In two
separate opinions, the majority of the court held there was insufficient evidence
to support the conviction. Judge Ferren, in an opinion joined by Judge Schwelb,
stated the defendant’s conduct did not constitute subornation of perjury as a
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matter of law because “[t]he government has proved only that [the defendant]
suborned silence.” Id. at 1173 (Ferren, J., opinion). Because there was no
evidence the defendant requested the witness “relay a specific falsity (or any
falsity) when he told her, ‘Don’t tell them nothing,’ ” Judge Ferren held, “as a
matter of law [the defendant] cannot be convicted for subornation of perjury.” Id.Judge Schwelb, joined by Judge Ferren, reached the same conclusion, stating
the government must prove “that the suborner induced the witness to testify in
a certain way and that the suborner knew or believed that such testimony would
constitute a false oath.” Id. at 1174–75 (Schwelb, J., opinion) (quoting 4 Charles
E. Torcia, Wharton’s Criminal Law § 607 (14th ed. 1981 & Supp. 1993)). “The
directive ‘Don’t tell them nothing’ cannot reasonably be viewed as meeting these
requirements.” Id. at 1175. “The government is expanding the subornation
statute well beyond its terms when it attempts to apply it to a directive to a
witness to tell the grand jury nothing. Accordingly, [the defendant’s] conviction
for subornation of perjury must be reversed.” Id. (emphasis omitted).
Other courts have reached have reached the same conclusion in similar
contexts. More than a century ago, the Supreme Court of Minnesota held a
defendant who bribed a witness to leave the state could not be convicted of
inducing the witness “to withhold true testimony.” State ex rel. Thurston v.
Sargent, 73 N.W. 626, 627 (Minn. 1898). It was “plain” to the court that “bribing
or offering to bribe the witness to stay away from the trial” was a separate act
from bribing a witness “to withhold true testimony.” Id. The court later reaffirmed
this decision in State v. Wurdemann, where the defendant “attempted to induce
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a young woman to absent herself completely and give no testimony whatever.”
120 N.W.2d 317, 318 (Minn. 1963). As in Sargent, the defendant’s actions in
attempting to induce the witness’s complete absence from trial were not
sufficient to prove the defendant attempted to induce the witness to “withhold
true testimony.” Id. The New York Supreme Court, Appellate Division also
reached the same result in People v. Insogna, where an attorney was convicted
of bribing a witness against his client to leave the state rather than testify before
a grand jury. 281 N.Y.S.2d 124, 126 (App. Div. 1967) (per curiam). While the
attorney allegedly knew of the witness’s whereabouts and sent her money during
her absence, the act of inducing the witness to leave the state and withhold her
testimony completely was not the same as inducing the witness to “withhold true
testimony,” as the statute required. Id. at 127.
Hall’s convictions in this case must be reversed for the same reasons.
When the evidence is viewed in the light most favorable to the State, Hall offered
an inducement to Bowers—the hope of a future relationship between them—that
she not attend the deposition. Hall did not request or offer any inducement that
she testify falsely under oath or that she conceal material information while
under oath. Hall’s conduct thus falls outside the scope of statutory liability. We
vacate the defendant’s convictions for subornation of perjury.
IV.
We next address Hall’s challenges to his convictions for obstructing
prosecution. Obstructing prosecution occurs when a defendant knowingly
“induces a witness having knowledge material to the subject at issue . . . to fail
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to appear when subpoenaed” if the defendant does so with the intent to obstruct
the prosecution of any person. Iowa Code § 719.3. Hall’s challenge to his
convictions presents the question of whether the statute requires proof the
witness actually failed to appear when subpoenaed or whether the statute merely
criminalizes an offer of an inducement to the witness to fail to appear when
subpoenaed. Like Hall’s challenge to his perjury convictions, this issue requires
us to interpret a statute. We must determine the “ordinary and fair meaning of
the statutory language” of Iowa Code section 719.3, including “the language’s
relationship to other provisions of the same statute and other provisions of
related statutes.” Doe, 943 N.W.2d at 610. For the reasons expressed below, we
conclude the statute requires proof the witness actually failed to appear when
subpoenaed.
The express language of section 719.3 does not address offers or attempted
inducements but instead addresses only “inducements.” The omission of any
language regarding offers or attempted inducements stands in stark contrast to
the text of the subornation of perjury statute, section 720.3, which criminalizes
“offers” of any inducement to another person to make a false statement or to
conceal material facts under oath or affirmation. Iowa Code § 720.3. The contrast
between the statutes is particularly revealing because both statutes were passed
at the same time in the same piece of legislation. Compare 1976 Iowa Acts ch.
1245, § 1903 (enacting the obstructing prosecution statute), with id. § 2003
(enacting the suborning perjury statute). When interpreting statutes, we have
recognized that meaning “is expressed through selective placement of statutory
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terms.” State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019). Meaning “is expressed
by omission as well as by inclusion, and the express mention of one thing implies
the exclusion of others not so mentioned.” Marcus v. Young, 538 N.W.2d 285,
289 (Iowa 1995). The conscious omission from the obstructing prosecution
statute of language regarding “offers” of an inducement supports the conclusion
that the statute prohibits only conduct that actually results in a witness’s failure
to appear. Iowa Code § 719.3(2).
There are other places in the Code that demonstrate the statutory term
“induce” requires proof that an act be successfully completed or a result be
effectively brought about. In multiple instances, the Code discusses inducements
and attempted inducements in the same statutory provision, from which we can
infer the former does not encompass the latter. See, e.g., Iowa Code
§ 123A.5(1)(a) (2021) (prohibiting brewers from taking actions to “[i]nduce or
coerce, or attempt to induce or coerce, any wholesaler to engage in any illegal act
or course of conduct” (emphasis added)); id. § 216.8A(1) (prohibiting actions by
a person to “induce or attempt to induce another person to sell or rent a dwelling
by representations regarding the entry or prospective entry into a neighborhood
of a person of a particular race, color” or other protected characteristic (emphasis
added)); id. § 502.501A (prohibiting securities dealers from taking actions to
“induce or attempt to induce” the purchase of securities by fraud or deceit
(emphasis added)); id. § 714E.4(7) (prohibiting foreclosure consultants from
taking actions to “[i]nduce or attempt to induce” a property owner to enter into a
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contract that does not comply with the statutory provisions governing such
consultants (emphasis added)).
By its plain language, Iowa Code section 719.3(2) (2019) thus does not
criminalize an offer of an inducement or attempted inducement but only
prohibits conduct that succeeds in actually causing a witness to fail to appear
when subpoenaed. The most that the State proved in this case was that Hall
offered Bowers an inducement to not appear at the deposition. It is undisputed
that Bowers did appear as required by the subpoena. Since the statute does not
criminalize an offer of an inducement not to appear—and since there is no
separate crime of “attempted obstruction of prosecution”—the evidence in this
case was insufficient to convict Hall under Iowa Code section 719.3(2). See State
v. Banks, No. 10–1318, 2011 WL 1818011, at *1 (Iowa Ct. App. May 11, 2011)
(noting that in a prosecution under Iowa Code section 719.3, the state agreed
the statute does not prohibit “attempted inducement”); see also State v. Walker,
856 N.W.2d 179, 187 (Iowa 2014) (stating “Iowa does not have a general attempt
statute,” meaning inchoate offenses must be specifically proscribed in the Code).
The Arizona Court of Appeals, faced with the same question, reached the
same conclusion in State v. Gray. 258 P.3d 242 (Ariz. Ct. App. 2011). Gray sent
two letters to a witness encouraging the witness to not testify against him at
trial. Id. at 243–44. The witness ignored Gray’s request and testified, but Gray
was alleged to have “induce[d]” the witness “to unlawfully withhold testimony”
and was convicted of witness tampering. Id. at 244. This allegedly violated
Arizona’s witness tampering statute as it was then drafted. Id. (citing Ariz. Rev.
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Stat. § 13–2804(A)(1) (2009)). After surveying dictionaries, cases from other
jurisdictions, and the legislative history, the court concluded that to “induce” a
witness not to testify required proof that the defendant “knowingly caused a
witness or a person he believed might be called as a witness to unlawfully
withhold testimony,” meaning the defendant must have succeeded in causing
the witness to not appear. Id. at 247. The court noted that the Arizona legislature
could have drafted the statute “to prohibit both the accomplished act and an
unsuccessful attempt” but that it had not done so and surmised this omission
was intentional. Id. at 246.
We agree with the reasoning in Gray, and it lends strong support to our
conclusion that a defendant cannot violate Iowa Code section 719.3 and “induce”
a witness to fail to testify by unsuccessfully offering or attempting to produce the
witness’s unavailability. Decades of decisions from other courts have reached
similar conclusions in interpreting the term “induce.” See, e.g., Mfrs. Hanover Tr.
Co. v. Kearney Chems., Inc. (In re Kearney Chems., Inc.), 468 F. Supp. 1107, 1111
(D. Del. 1979) (stating, on a claim for inducement of a breach of contract, that
“[t]he word ‘induces’ refers to the situations in which A causes B to choose one
course of conduct rather than another” (quoting Restatement (First) of Torts
§ 766 cmt. d (Am. L. Inst. 1939))); Hautau v. Kearney & Trecker Corp., 179 F.
Supp. 490, 492 (E.D. Mich. 1959) (“Although not entirely unequivocal, these
definitions indicate that the word ‘induce’ commonly denotes an act that is
effective and has specific results rather than a mere unsuccessful attempt to
bring about these results.”); State v. Stratford, 37 P.2d 681, 683 (Idaho 1934)
21 1/21/2022 7:56:56 AM
(applying the dictionary definition of “induce” as meaning “[t]o bring on or about;
to effect; cause”); Young v. Commonwealth, 968 S.W.2d 670, 672 (Ky. 1998) (“The
term induce signifies a successful persuasion; that the act has been effective and
the desired result obtained.” (quoting State v. Miller, 252 A.2d 321, 325 (Me.
1969))), overruled on other grounds by Matthews v. Commonwealth, 163 S.W.3d
11 (Ky. 2005); Miller, 252 A.2d at 324–25 (collecting cases and other sources
regarding the definition of “induce”); State v. Marbury, No. 52848, 1987 WL
19252, at *3 (Ohio Ct. App. Oct. 29, 1987) (“Under the common meaning of the
word, a person has not ‘induced’ another to commit an act unless that act was
in fact committed.”).
Our conclusion today does not deprive the State of tools to prosecute
conduct wherein a defendant unsuccessfully attempts to discourage or prevent
a witness from testifying. For instance, Iowa Code section 720.4, titled
“Tampering with witnesses or jurors,” prohibits defendants from offering bribes
to witnesses or from making “any threats toward” a witness “with the intent to
improperly influence” the witness’s testimony. However, the evidence was
insufficient to find that Hall breached the obstructing prosecution statute under
which he was charged. We are not at liberty to read the statute to prohibit
conduct not plainly encompassed by its terms. See Sallee v. Stewart, 827 N.W.2d
128, 150 (Iowa 2013) (“We do not engage in innovations or improvements of the
statute. Rather, we interpret it as we find it.”). We therefore vacate the
defendant’s convictions for obstructing prosecution.
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V.
For the foregoing reasons, we reverse Hall’s convictions in their entirety
and remand to the district court for entry of judgment of acquittal on all counts.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED AND REMANDED.