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State v. Nall

Supreme Court of Iowa

May 5, 2017

STATE OF IOWA, Appellee,
v.
BETTY ANN NALL, Appellant.

         On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Polk County, Terry R. Rickers, Judge.

         The defendant requests further review of a court of appeals decision affirming her convictions for theft.

          Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.

          Thomas 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.

          MANSFIELD, Justice.

         This 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.

         For the 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 further proceedings.

         I. Background Facts and Proceedings.

         The 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.

         FECR268329. 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.

         The 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.

         In 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.

         In 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.

         On 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.

         In 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 each other.

         On 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.

         We 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.

         We granted Nall's application for further review.

         II. Standard of Review.

         Nall 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 2015).

         "We 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).

         III. ...


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