State of Iowa v. Kamie Jo Schiebout ( 2020 )

IN THE SUPREME COURT OF IOWA
No. 18–0081
Filed June 5, 2020
STATE OF IOWA,
Appellee,
vs.
KAMIE JO SCHIEBOUT,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Sioux County, Patrick H.
Tott (trial and sentencing) and Jeffrey A. Neary (restitution order), Judges.
The defendant requests further review of a court of appeals decision
affirming her conviction for theft. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT REVERSED AND
REMANDED FOR DISMISSAL.
Mark C. Smith (until withdrawal) and Martha J. Lucey, State
Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for
appellant.
Thomas J. Miller, Attorney General, Thomas J. Ogden, Assistant
Attorney General, and Thomas Kunstle, County Attorney, for appellee.
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McDERMOTT, Justice.
Kamie Jo Schiebout wrote checks without authorization from a bank
account that was not hers. The State charged her with violating Iowa Code
section 714.1(6) (2015), which provides a person commits theft “if the
person knows that such check . . . will not be paid when presented.” All
seven checks the State charged Schiebout with writing were paid when
presented. The jury nonetheless found Schiebout guilty.
This appeal requires us to address the types of conduct Iowa Code
section 714.1(6) forbids. Schiebout contends the State’s evidence
presented at trial was insufficient to show she knew the checks would not
be paid when presented. Schiebout argues presenting a check without
authorization, which was the substance of the State’s evidence, is different
than providing a check one knows will not be paid when presented, which
is the subject of section 714.1(6). As a result, Schiebout asserts the
district court committed reversible error in denying her motion for
acquittal at trial.
We agree. The text of section 714.1(6) forbids knowingly presenting
a check that will not be paid when presented. Evidence that she presented
checks without authorization is, without more, insufficient to establish
this particular crime. Because the State failed to present sufficient
evidence supporting a conviction under section 714.1(6) and, specifically,
that Schiebout knew the checks would not be paid when presented, we
vacate the decision of the court of appeals, reverse the judgment of the
district court, and remand for dismissal.
I. Background Facts and Proceedings.
Schiebout’s former husband, Matthew, served as treasurer of Sandy
Hollow Ducks Unlimited, the local chapter of the national Ducks Unlimited
organization. The chapter had a checking account at American State
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Bank. Only two people had signature authority on the checking account:
Matthew, as the chapter’s treasurer, and the chapter’s president. Matthew
kept the chapter’s checkbooks in the basement of the house he had shared
with Schiebout before their separation.
Schiebout had never been a member of the chapter and never had
check-writing authority on the chapter account. Nonetheless, months
after Matthew and Schiebout separated and Matthew moved out,
Schiebout wrote a series of unauthorized checks on the chapter’s account,
signing her own name on each check.
Over a two-month period, twelve checks were drawn on the account.
Only one was written by the chapter president or treasurer. Despite this,
the bank honored all twelve checks, even those presented after the account
ultimately became overdrawn. The bank mailed several overdraft notices
to Matthew, but he didn’t open any of them. Matthew first learned
someone had been writing unauthorized checks on the chapter’s account
when the bank eventually reached him by phone. Upon examining the
check images at the bank, Matthew recognized the signatures as
Schiebout’s. He reported the matter to the Orange City Police Department.
Around this time, but before the police had contacted her, Schiebout
wrote two more checks on the chapter’s account at Schweser’s, a clothing
store. Schiebout knew the store clerk and told her the checks were “her
husband’s.” Unlike with the other checks, the bank did not honor either
check to Schweser’s because the account was overdrawn. No evidence
suggests Schiebout thereafter attempted to pass any more checks.
Schiebout told an employee at the bank she had “grabbed the wrong
checkbook.”
The State charged Schiebout with second-degree theft under Iowa
Code sections 714.1(6) and 714.2(2), and as a habitual offender under
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Iowa Code sections 902.8 and 902.9(1)(c) based on prior criminal
convictions. At trial, the State presented evidence on eleven checks, but
the jury was instructed to consider only seven checks as instances of
alleged theft. The two checks Schiebout unsuccessfully passed at
Schweser’s were presented but not charged as part of the theft.
At trial, the State provided images of five of the seven checks that
were charged. The State could not present images of two of the checks
because the merchant, Wal-Mart, processed them as “automated
clearinghouse” (or ACH) withdrawals in which Wal-Mart converted the
paper checks into an electronic transfer that pulled funds from the
checking account. With the funds electronically transferred, Wal-Mart
handed the checks back to Schiebout without submitting the checks to
the bank. For the two Wal-Mart checks, the State instead presented
receipts showing the check numbers and store photos and video
surveillance of Schiebout at both the register and leaving with a cart of
items, all of which coincided with the dates and locations of the ACH
transfers.
The State asked the jury to consider Schiebout’s actions as part of
a single scheme and, thus, to aggregate the seven checks in calculating
the total value of property to determine the degree of theft. The seven
checks totaled $1256.93.
The four other checks that came into evidence, including the two
Schweser’s checks, were not made part of the charged theft but instead
were offered to help prove elements of the charged crime. Matthew
identified the signature on every check admitted into evidence as
Schiebout’s. Two checks contained Schiebout’s personal information,
such as her driver’s license number or date of birth, handwritten across
the top.
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At the close of the State’s evidence, Schiebout moved for judgment
of acquittal, arguing the State failed to prove the knowledge element of
section 714.1(6). The district court took the motion under advisement.
Schiebout made a renewed motion for acquittal after the defense
concluded its case, which the district court again took under advisement.
The district court ultimately denied the motion for acquittal in an
oral order in which the court noted its reliance on State v. James
concerning the knowledge element. 310 N.W.2d 197 (Iowa 1981),
overruled by State v. Hogrefe, 557 N.W.2d 871 (Iowa 1996). The district
court found the State had provided sufficient evidence on the knowledge
element because Schiebout “was aware that she was not an authorized
signer on this account” and “not being an authorized signer . . . she should
have known that they would not be accepted and could not have been
accepted in a legal fashion by the bank.”
The district court instructed the jury on the knowledge element,
Jury Instruction No. 13, as follows:
For the defendant to know something means she had a
conscious awareness that at the time she gave the checks to
the various businesses they would not be paid by the bank
because the defendant was not an authorized signer on the
account on which the checks were drawn.
The jury found Schiebout guilty of second-degree theft. At a second
trial focused on Schiebout’s habitual offender status, the jury found
Schiebout to be a habitual offender under Iowa Code section 902.8. The
district court sentenced her to an indeterminate prison term of fifteen
years, with a mandatory minimum of three years based on her habitual
offender status. The district court found Schiebout lacked the ability to
pay certain items of restitution and waived other costs.
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Shortly thereafter, the district court ordered Schiebout to pay the
Sioux County Sheriff’s Office $28,136.31 for medical services provided
while she was a detainee there. At the hearing, Schiebout did not receive
and did not have counsel representing her. Distinguishing other types of
restitution, the district court held Iowa law does not require an ability-to-
pay determination before ordering a convicted person to pay for medical
aid.
Schiebout appealed. She asserted the district court erred in denying
the motion for judgment of acquittal because there was insufficient
evidence both that Schiebout knew the checks would not be paid when
presented and that she obtained property or services in exchange for the
checks. Schiebout alternatively sought a new trial asserting the jury was
not properly instructed on the checks it was allowed to aggregate to meet
the dollar amount threshold for second-degree theft. Schiebout also
asserted the district court’s ruling imposing the sheriff’s claim for
reimbursement of the medical aid costs was improper and that she was
entitled to counsel at the hearing.
We transferred the appeal to the court of appeals. The court of
appeals affirmed Schiebout’s conviction on the sufficiency of evidence,
accepting the contention that knowledge of her lack of authorization in
presenting the checks satisfied the knowledge element under
section 714.1(6). The court of appeals further found no error in the jury
instruction on aggregating the dollar amounts of the checks. On the
district court’s order concerning payment for medical aid, the State, on
appeal, conceded medical aid is subject to the reasonable-ability-to-pay
requirement if treated as restitution under section 910.2 and further
conceded Schiebout was entitled to counsel at the restitution hearing. The
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court of appeals vacated the order requiring payment for medical aid and
remanded for further proceedings.
We granted Schiebout’s application for further review.
II. Standard of Review.
Issues of statutory interpretation are reviewed for correction of legal
error. State v. Nall, 894 N.W.2d 514, 517 (Iowa 2017). We likewise review
claims of insufficient evidence for correction of legal error. Id. We will
uphold the verdict on a sufficiency-of-evidence claim if substantial
evidence supports it. State v. Trane, 934 N.W.2d 447, 455 (Iowa 2019). In
reviewing a challenge to the sufficiency of evidence supporting a guilty
verdict, we consider “all of the record evidence viewed in the light most
favorable to the State, including all reasonable inferences that may be
fairly drawn from the evidence.” State v. Thomas, 847 N.W.2d 438, 442
(Iowa 2014) (quoting State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012)).
Evidence is substantial “if, when viewed in the light most favorable to the
State, it can convince a rational jury that the defendant is guilty beyond a
reasonable doubt.” Trane, 934 N.W.2d at 455 (quoting State v. Ramirez,
895 N.W.2d 884, 890 (Iowa 2017)).
III. Analysis.
Iowa Code section 714.1(6) states,
A person commits theft when the person . . . [m]akes,
utters, draws, delivers, or gives any check, share draft, draft,
or written order on any bank . . . and obtains property, the
use of property, including rental property, or service in
exchange for such instrument, if the person knows that such
check, share draft, draft, or written order will not be paid
when presented.
a. Whenever the drawee of such instrument has
refused payment because of insufficient funds, and the maker
has not paid the holder of the instrument the amount due
thereon within ten days of the maker’s receipt of notice from
the holder that payment has been refused by the drawee, the
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court or jury may infer from such facts that the maker knew
that the instrument would not be paid on presentation. . . .
b. Whenever the drawee of such instrument has
refused payment because the maker has no account with the
drawee, the court or jury may infer from such fact that the
maker knew that the instrument would not be paid on
presentation.
Interpreting the key words of this statute, to support a conviction
the State must thus prove “when the person . . . gives any check” the
person “knows” the check “will not be paid when presented.” Id.
Unless otherwise defined by the legislature, we give words their
ordinary meaning. State v. Damme, ___ N.W.2d ___, ___ (Iowa 2020).
“Interpreting a statute requires us to assess it in its entirety to ensure our
interpretation is harmonious with the statute as a whole rather than
assessing isolated words or phrases.” State v. Pettijohn, 899 N.W.2d 1, 16
(Iowa 2017).
On the knowledge element, the State’s evidence focused almost
completely on Schiebout’s lack of authorization to write checks on the
chapter’s checking account. The State succinctly states its argument in
its appeal brief: “A reasonable juror could conclude that because
Schiebout knew she was not authorized to sign the checks, she knew the
bank would not pay them.” But the State’s argument, without more,
invites a logical fallacy because the premise doesn’t require the conclusion.
The State presented evidence of Schiebout’s lack of authority to write
checks from the account, but the record contains no other evidence on the
determinative issue: whether Schiebout knew the bank would fail to pay
the checks when she presented them.
The district court instructed the jury the State must prove Schiebout
possessed a “conscious awareness” that the checks would not be paid
when presented because she was not an authorized signer on the account.
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Jury Instruction No. 13; see also Jury Instruction No. 14 (knowledge
element requiring State to prove Schiebout “knew at the time she gave the
checks to local organizations or businesses that they would not be paid by
the bank because [she] was not an authorized signer on the account”);
Sahu v. Iowa Bd. of Med. Exam’rs, 537 N.W.2d 674, 678 (Iowa 1995)
(defining “knowledge” to mean the defendant had a “conscious awareness”
of the element requiring knowledge). Jury instructions, when not objected
to, become the law of the case for purposes of appellate review for
sufficiency-of-evidence claims. State v. Canal, 773 N.W.2d 528, 530 (Iowa
2009). The evidence in this case was insufficient to support a finding that
Schiebout, simply because she was not an authorized signer on the
account, possessed a conscious awareness that the checks would not be
paid when presented.
Any such claimed knowledge by Schiebout clashes with the reality
that the bank did in fact pay each of the checks. That the bank paid the
checks when presented is not determinative on the issue of Schiebout’s
knowledge. But there was no other sufficient evidence presented from
which to conclude Schiebout knew—in this case, contrary to fact—that
the bank would refuse payment when she presented the checks. The
statements Schiebout made that the checks were “her husband’s” or that
she “grabbed the wrong checkbook” at best show knowledge she lacked
authorization on the account, not that she knew the bank wouldn’t pay
the checks when she presented them.
Indeed, her experience would have provided her with knowledge
going the other direction—that the bank always paid the checks when she
presented them. In particular, her two experiences at Wal-Mart, in which
the check was electronically submitted through the ACH payment process
as she stood by the cashier’s stand, reasonably would have confirmed for
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her the bank’s practice of paying each check when presented. Businesses
that accepted two other checks presented at trial (but that were not among
the seven checks considered by the jury as charged) likewise processed
the checks as ACH transfers.
Section 714.1(6) includes two presumptions establishing a
defendant’s knowledge, but neither applies in this case. Subsections
714.1(6)(a) and (b) apply only when “the drawee of such instrument has
refused payment.” Iowa Code § 714.1(6)(a)–(b). The drawee, American
State Bank, did not refuse payment on any of the seven checks. By the
plain language of these subsections, as applied to the facts of this case,
these presumptions are not triggered.
The State correctly cites our prior observation that the Iowa theft
statute is “modeled after the Model Penal Code, with slight variation.”
State v. Donaldson, 663 N.W.2d 882, 885 (Iowa 2003). But Iowa Code
section 714.1(6) and the associated Model Penal Code section 224.5
addressing theft by bad checks differ in a manner significant in this case.
Unlike Iowa’s theft statute, the Model Penal Code states a person is
presumed to know that the check would not be paid “if . . . the issuer had
no account with the drawee at the time the check or order was issued.”
Model Penal Code § 224.5 (Am. Law Inst. 1980). But the absence of this
language in Iowa Code section 714.1(6) means the district court couldn’t
presume Schiebout knew the checks wouldn’t be paid merely because the
bank account didn’t belong to her. We’re bound by the language of the
statute as enacted, not by the unenacted language of the Model Penal
Code. See, e.g., State v. Isaac, 756 N.W.2d 817, 821 (Iowa 2008) (finding
Iowa Code section 709.9 (2005) narrower than its associated Model Penal
Code provision). We interpret and apply statutes using “the legislature’s
chosen statutory language, ‘not what it should or might have said.’ ” State
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v. Ross, 941 N.W.2d 341, 346 (Iowa 2020) (quoting Auen v. Alcoholic
Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004)). We can’t exercise
legislative power to amend the Iowa Code “in the guise of interpretation.”
In re Det. of Geltz, 840 N.W.2d 273, 280 (Iowa 2013).
As we’ve noted previously, Iowa Code section 714.1 prescribes ten
different ways a person can commit theft. Nall, 894 N.W.2d at 518–19
(providing historical background on Iowa’s theft statutes). That there
might be another subsection of Iowa’s theft statute arguably better suited
to the facts of this case isn’t before us. We’ve previously noted Iowa’s theft-
by-check statute (section 714.1(6)) deals with “a common means of theft
(bad checks) with potentially difficult questions of proof,” while the theft-
by-deception statute (section 714.1(3)) “is meant as a catch-all crime to
encompass the full and ever changing varieties of deception.” Hogrefe, 557
N.W.2d at 878. As to these two statutes, “[f]actual scenarios may overlap,
but the legal schemes in which they are situated are complementary rather
than redundant.” Id.
We hold the district court erred in denying Schiebout’s motion for
acquittal and, therefore, vacate the court of appeals decision and reverse
the district court’s judgment of conviction with instructions that the
charges be dismissed. See Nall, 894 N.W.2d at 524–25; Isaac, 756 N.W.2d
at 821.
Concerning the district court’s restitution order charging Schiebout
for medical aid pursuant to Iowa Code section 356.7, a prisoner may be
charged for such costs only if “convicted of a criminal offense or sentenced
for contempt of court for violation of a domestic abuse order.” Iowa Code
section 356.7(1) (2015). With Schiebout’s conviction vacated, she cannot
be held liable under section 356.7 for these charges. See id.; see also Iowa
Code § 910.2(1) (requiring “judgment of conviction” for a restitution order
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to issue); State v. Dudley, 766 N.W.2d 606, 614 (Iowa 2009) (restitution
procedures and standards of chapter 910 do not apply to an acquitted
defendant). The district court’s restitution order is thus similarly vacated.
IV. Conclusion.
For these reasons, we vacate the decision of the court of appeals,
reverse the judgment of the district court, and remand for an order
dismissing the case.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED AND REMANDED FOR DISMISSAL.
All justices concur except Oxley and McDonald, JJ., who dissent.
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#18–0081, State v. Schiebout
OXLEY, Justice (dissenting).
I respectfully dissent from the majority’s opinion.
This case reaches us on appeal from the district court’s denial of
Schiebout’s motion for judgment of acquittal, which is the means by which
we consider a challenge to the sufficiency of the evidence. “The principles
governing our review of a district court’s denial of a criminal defendant’s
motion for judgment of acquittal are well-established.” State v. Serrato,
787 N.W.2d 462, 465 (Iowa 2010). Where the defendant does not challenge
the jury instructions, those instructions become law of the case and define
the law against which the evidence is measured. See State v. Canal, 773
N.W.2d 528, 530–31 (Iowa 2009). The majority gives lip service to this
standard, but only after first providing its interpretation of Iowa Code
section 714.1(6) (2015), an issue not before us since Schiebout did not
challenge the jury instructions below.
Element 4 of Jury Instruction No. 14, the marshalling instruction,
required the state to prove “[t]he Defendant knew at the time she gave the
checks to local organizations or businesses that they would not be paid by
the bank because the Defendant was not an authorized signer on the
account.” (Emphasis added.) Jury Instruction No. 13 added a “conscious
awareness” definition to the knowledge element, explaining,
For the defendant to know something means she had a
conscious awareness that at the time she gave the checks to
the various businesses they would not be paid by the bank
because the defendant was not an authorized signer on the
account on which the checks were drawn.
(Emphasis added.)
In considering a sufficiency challenge, we “consider all of the record
evidence viewed in the light most favorable to the State, including all
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reasonable inferences that may be fairly drawn from the evidence.” State
v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014) (quoting State v. Sanford,
814 N.W.2d 611, 615 (Iowa 2012)). “[T]he evidence must raise a fair
inference of guilt and do more than create speculation, suspicion, or
conjecture.” State v. Kern, 831 N.W.2d 149, 158 (Iowa 2013) (quoting State
v. Webb, 648 N.W.2d 72, 76 (Iowa 2002)).
“Importantly, ‘[j]urors are not expected to lay aside matters of
common knowledge or their own observation and experience of the affairs
of life, but may give effect to such inferences as common knowledge or
their personal observation and experience may reasonably draw from the
facts directly proved.’ ” State v. Stevens, 719 N.W.2d 547, 552 (Iowa 2006)
(quoting State v. Manning, 224 N.W.2d 232, 236 (Iowa 1974) (affirming
conviction against challenge to sufficiency of evidence to establish intent
element of crime)). “Knowledge . . . may be proved by circumstantial
evidence, and in a case like this that is usually necessary.” State v.
Coburn, 244 N.W.2d 560, 563 (Iowa 1976) (quoting People v. Adams,
340 P.2d 677, 679 (Cal. Dist. Ct. App. 1959)) (addressing “[k]nowledge of
lack of sufficient funds and intent to defraud” under predecessor statute
to section 714.1(6) and concluding “[t]he combined effect of the checks
placed in evidence and the other testimony was to show inferentially the
existence of such knowledge and intent” (quoting Adams, 340 P.2d at
679)).
Using these standards to measure the evidence against the
instructions provided to the jury, the evidence was sufficient to allow the
jury to make the fair inference that Schiebout knew she was not an
authorized signer on the Ducks Unlimited account and that she had a
conscious awareness when she wrote the checks that the bank would not
cover the checks because of that fact. Kamie and Matthew Schiebout
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separated in April 2015, and Kamie moved out of their shared home
around July. Their divorce was final on November 29. Matthew closed
their joint checking account in April, which upset Kamie when she learned
the account was closed because Matthew was not keeping up on his
support obligations. After Matthew opened an individual account, and
while they were still married, Kamie snuck checks out of the back of his
checkbook and wrote one or two checks. Although Matthew did not
challenge her actions, he was careful not to allow her access to his
checkbook again.
Kamie did not begin using the Ducks Unlimited checks until at or
around the time their divorce was final in late November. She wrote at
least two checks prior to presenting the first check to Wal-Mart that was
processed as an ACH transaction. Unlike the individual account Matthew
opened following their separation, the Ducks Unlimited checking account
was owned by a nonprofit entity with which Kamie had no relationship.
As the treasurer, Matthew never used the Ducks Unlimited checkbook for
personal expenses, only to cover expenses related to an auction the
organization hosted each year. The Ducks Unlimited checkbook was not
on Matthew’s dresser or in his pants pocket; Kamie had to sneak the
checks out of storage in the basement of the house she no longer lived in.
Based on the evidence that the checks she wrote were numbered at least
150 checks from the last properly authorized check, the jury could have
found she went to lengths to avoid getting caught taking a book of checks
out of the bottom of the box.
Kamie’s knowledge that the bank would not pay checks she wrote
as an unauthorized signer on the Ducks Unlimited account is also
evidenced by the stories she told about her use of the checks. When
questioned by the clerk at Schweser’s clothing store about using a Ducks
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Unlimited check, Kamie told the clerk it was her husband’s check—clearly
not true both because she was no longer married to Matthew and the
account was not “his” account but owned by a nonprofit for which Matthew
previously served as the treasurer. She told a different story to the bank’s
vice president when she said she mistakenly “grabbed the wrong
checkbook”—a checkbook that she had to sneak out of storage in the
basement.
From these “direct facts,” the jury was well within its province to rely
on its common knowledge and experience and reasonably infer that Kamie
knew she was not authorized to write the Ducks Unlimited checks and she
was consciously aware that would cause the bank not to pay them when
presented to the bank. See Stevens, 719 N.W.2d at 552; see also Delay-
Wilson v. State, 264 P.3d 375, 377 (Alaska Ct. App. 2011) (concluding the
“evidence supported a reasonable conclusion by a jury that Delay-Wilson
had not merely made a mistake when she issued the two checks . . . , but
knew that there were insufficient funds in her accounts to pay the checks”
to support conviction under statute criminalizing issuance of “a check
knowing that it will not be honored by the drawee” (second quote Alaska
Stat. § 11.46.280(a) (2008)). That there is other evidence from which the
jury could have found differently does not mean the jury’s verdict was
unsupported by sufficient evidence.
The majority’s opinion effectively requires nonpayment of the check
by the bank as an element of the offense of theft by check under
section 714.1(6). Whether or not nonpayment is required by the statute is
not properly before us on a sufficiency review where the instructions were
unchallenged and did not require nonpayment as an element.
Nonetheless, the majority defines the statute as requiring the State to
prove: “ ‘when the person . . . gives any check’ the person ‘knows’ the check
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‘will not be paid when presented.’ ” The majority then concludes that
standard is not met here, explaining “there was no other sufficient
evidence presented from which to conclude Schiebout knew—in this case,
contrary to fact—that the bank would refuse payment when she presented
the checks.” By starting with the language of the statute and its
interpretation of that language to focus on the “person ‘know[ing]’ the
check ‘will not be paid when presented,’ ” the majority sets up an
impossible evidentiary standard requiring the State to prove knowledge of
a future event. Yet our cases consistently measure knowledge from the
defendant’s perspective at the time the check is issued, not what will
happen in the future. See State v. Hogrefe, 557 N.W.2d 871, 879
(Iowa 1996) (reconciling discrepancies between theft by deception and
theft by check in prior cases and holding “criminal liability should attach
if at the time the defendant issued the check, the defendant (1) never had
the intention to pay the check or (2) knew he or she would not be able to
pay it”); see also State v. Rojas-Cardona, 503 N.W.2d 591, 595 (Iowa 1993)
(affirming conviction based on evidence from which “a jury could find that
at the time he tendered the check . . . , [defendant] knew his account was
closed[; h]e therefore knew the check was worthless and would never be
paid by the bank” (emphasis added)), overruled on other grounds by
Hogrefe, 557 N.W.2d 871.
The majority also goes astray relying on the statutory inferences
allowed when a bank in fact refuses payment of a check in certain
circumstances, see Iowa Code § 714.1(6)(a)–(b), where no such inferences
were addressed in the jury instructions. The statutory inferences are
evidentiary standards, not elements of the crime. See Coburn, 244 N.W.2d
at 562 (discussing the predecessor to section 714.1(6) and explaining that
“the 10 day ‘make good’ notice provision in [Iowa] Code [section] 713.4 is
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merely a rule of evidence, not an element of a [section] 713.3 offense”). The
fact that section 714.1(6) includes statutory inferences does not preclude
use of the theft by check statute when the checks are ultimately cashed
by the bank, as the majority effectively holds. It just means the state must
prove the requisite criminal intent without the benefit of the statutory
inferences. When the statutory inferences of section 714.1(6) are
unavailable, “[k]nowledge . . . , like any other fact, may [still] be proved by
circumstantial evidence . . . .” Id. at 563 (quoting Adams, 340 P.2d at
679).
Finally, the majority’s reliance on the statutory language discounts
the language used in the instructions. Jury Instruction No. 13 and No. 14
follow the phrase “would not be paid by the bank” with the dependent
clause “because the defendant was not an authorized signer on the
account,” putting the focus on the reason the checks would not be paid.
Commentators have described the knowledge element as satisfied “where
the party [issuing the check] knows that the check will be dishonored or
does not have any reasonable grounds for believing that the check will be
paid.” 35 C.J.S. False Pretenses § 42 (2020) (emphasis added). This is
consistent with our prior cases measuring knowledge from the defendant’s
perspective at the time the check is issued. See Hogrefe, 557 N.W.2d at
879; Rojas-Cardona, 503 N.W.2d at 595; State v. James, 310 N.W.2d 197,
200–01 (Iowa 1981) (describing the “guilty knowledge,” or mens rea,
required to violate section 714.1(6) as “obtaining . . . something of value
through the use of a check which the perpetrator knows is worthless”
(quoting State v. Smith, 300 N.W.2d 90, 92–93 (Iowa 1981))), overruled on
other grounds by Hogrefe, 557 N.W.2d 871. It is also how the jury
apparently understood the instructions, an understanding that was
supported by the evidence.
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I do not disagree with the majority’s struggle with the ambiguous
language of the statute. But I do disagree with the majority’s efforts to
interpret the statute where that issue is not before us.
I respectfully dissent.
McDonald, J., joins this dissent.