review from the Iowa Court of Appeals. Appeal from the Iowa
District Court for Polk County, Terry R. Rickers, Judge.
defendant requests further review of a court of appeals
decision affirming her convictions for theft.
C. Smith, State Appellate Defender, and Nan Jennisch,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, Kevin Cmelik and Thomas E.
Bakke, Assistant Attorneys General, John Sarcone, Polk County
Attorney, and Brendan Greiner, Assistant Polk County
Attorney, for appellee.
case requires us to answer the following question: Does a
person commit theft by taking within the meaning of Iowa Code
section 714.1(1) (2013) when the person obtains property or
services by delivering a phony check or money order? Here,
the defendant removed money from her bank account after
depositing several counterfeit checks and money orders.
Later, she endorsed a counterfeit money order to a veterinary
clinic to pay for boarding services. In both instances, she
was charged with and convicted of "[taking] possession
or control of the property of another, " a violation of
section 714.1(1). She now appeals, arguing that while her
conduct may have been criminal, it did not violate this
particular Code section.
reasons discussed below, we conclude that Iowa's
theft-by-taking prohibition in section 714.1(1) is limited to
situations where a person obtains property without the
consent or authority of another. Accordingly, we vacate the
decision of the court of appeals, affirm in part and reverse
in part the judgment of the district court, and remand for
Background Facts and Proceedings.
following facts are drawn from the minutes of testimony and
the defendant's in-court admissions. FECR268551. On
August 2, 2012, Betty Ann Nall visited Earlham Bank in Des
Moines and opened an account with a counterfeit U.S. postal
money order in the amount of $890. Nall had received the
money order from an internet secret shopper program that she
suspected was a scam. On August 3, Nall deposited a check,
purportedly issued by an Illinois company, in the amount of
$1890. Nall withdrew $750 from the account that same day. On
August 7, Nall deposited another counterfeit check and a
duplicate of the U.S. postal money order she had previously
deposited and then withdrew $1500 from the account. Earlham
Bank was later notified that all the deposited instruments
were counterfeit. Meanwhile, Nall continued to draw from the
account and write checks. As of June 17, 2013, the account
was overdrawn $2736.20.
Nall boarded animals at Hubbell Animal Hospital, a veterinary
clinic. On July 8, 2013, she visited the clinic to pick up
the animals. Nall owed a total of $1265 for the services.
Nall presented a fraudulent U.S. postal money order in the
amount of $890 from the same secret shopper program. Nall
told the clinic it was her only form of payment and endorsed
the money order over to the clinic. Nall admitted she had a
feeling the money order would not go through when she gave it
to the clinic.
clinic agreed to accept this partial payment and release the
animals so long as Nall returned within a week to pay the
balance. Nall never paid the balance or replaced the money
order when it was declined.
FECR268551, the State charged Nall with four counts of
forgery, all class "D" felonies, see Iowa
Code § 715A.2(1), (2)(a)(3), and second-degree
theft, also a class "D" felony, see id.
§ 714.2(2), all related to the account at Earlham Bank.
The theft charge stated that Nall "took possession or
control of the property of another; the property having a
value in excess of $1, 000 but not exceeding, $10, 000, with
the intent to deprive the owner thereof." Because Nall
had previously been convicted of several second-degree theft
offenses, the State also gave notice of the applicable
habitual offender statute. See id. § 902.8.
FECR268329, the State charged Nall with forgery, a class
"D" felony, see id. § 715A.2(1),
(2)(a)(1), and third-degree theft, an aggravated
misdemeanor, see id. § 714.2(3). The trial
information stated that Nall had committed theft "by
taking possession and/or control of the property, to wit:
Services, of Hubbell Animal Hospital with the intent to
deprive Hubbell Animal Hospital thereof." The State
again relied on Nall's previous convictions to invoke the
same habitual offender provision.
February 28, 2014, Nall pled guilty to the forgery and
third-degree theft charges stemming from the Hubbell Animal
Hospital transaction. That same day, she waived her right to
a jury trial and proceeded to a bench trial on the minutes of
testimony in the Earlham Bank case. The court found Nall
guilty of four counts of forgery and one count of
second-degree theft. Nall's convictions in both cases
were subject to the habitual offender enhancement.
FECR268329, Nall was sentenced on the forgery count to an
indeterminate term not to exceed fifteen years with a
mandatory minimum three-year term of imprisonment. Nall
received a concurrent two-year indeterminate sentence on the
third-degree theft. In FECR268551, Nall was sentenced on each
of the five counts to an indeterminate term of fifteen years
with a mandatory three-year minimum. All five sentences were
ordered concurrent. The court ordered, however, that the
sentences in FECR268329 and FECR268551 run consecutive to
appeal, Nall has challenged only her two theft convictions.
She argues her conduct did not constitute "theft by
taking" within the meaning of Iowa Code section 714.1(1)
in either case because she did not take property without the
consent or authority of the veterinary clinic or the bank.
She points out her conduct in these cases more closely
resembles other forms of theft that were not the basis of her
charges or convictions. Accordingly, she maintains that the
record does not establish a factual basis for her guilty plea
to third-degree theft in FECR268329 and her trial counsel was
ineffective in allowing her to plead guilty in that case. She
also urges there was insufficient evidence to sustain the
second-degree theft conviction in FECR268551.
transferred the case to the court of appeals, which affirmed
both convictions. The panel rejected Nall's arguments,
reasoning that the factual record in both cases could sustain
her convictions so long as she knew the money orders were
fraudulent at the time she exchanged them for her animals in
FECR268329 or cash in FECR268551.
granted Nall's application for further review.
Standard of Review.
argues a person cannot take unlawful possession or control of
property within the meaning of Iowa Code section 714.1(1)
when that property was obtained through deception or fraud.
"We review issues of statutory interpretation for
correction of errors at law." Rhoades v. State,
848 N.W.2d 22, 26 (Iowa 2014). We also review
sufficiency-of-the-evidence claims for correction of errors
at law. State v. Rooney, 862 N.W.2d 367, 371 (Iowa
ordinarily review challenges to guilty pleas for correction
of errors at law." State v. Fisher, 877 N.W.2d
676, 680 (Iowa 2016). However, to the extent a defendant
claims her guilty plea was the result of trial counsel's
ineffective assistance, our review is de novo. State v.
Utter, 803 N.W.2d 647, 651 (Iowa 2011); accord State
v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010).