from the Iowa District Court for Dubuque County, Michael J.
Ball appeals his convictions for conduct with a minor, and he
appeals provisions in his judgment and sentence.
CONVICTIONS AFFIRMED, SENTENCE AFFIRMED IN PART AND
VACATED IN PART, AND REMANDED FOR ENTRY OF A CORRECTED
C. Smith, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
"Wally" Ball appeals his convictions for enticing a
minor, supplying alcohol to a minor, indecent exposure, and
invasion of privacy. He argues the evidence is insufficient
to prove he committed enticement. He also argues the district
court abused its discretion in refusing to exclude the
testimony of his former wife, Beth Ball, and it erred in
imposing sexual abuse victim surcharges and special
conditions of probation and in ordering appellate attorney
fees unless he filed a request for a hearing on his ability
to pay. We find sufficient evidence supports Ball's
conviction for enticement. We also find the district court
did not abuse its discretion in permitting Beth to testify,
and the court did not err in imposing special conditions or
in stating Ball may be assessed appellate attorney fees at a
later date subject to his reasonable ability to pay. However,
the district court erred in imposing sexual-abuse-victim
surcharges under Iowa Code section 911.2B (2014), and we
remand for the limited purpose of entering a corrected
sentence without the surcharges.
Background Facts and Proceedings
was born in October 2000 and the acts she alleged to have
occurred were in and around May 2014. At the time, A.G. lived
in Dubuque near L.B., who lived with her father, Michael
Ball,  and her mother, Beth Ball. A.G. testified
she and L.B. "were like sisters" and they hung out
together almost every day.
the time at issue, A.G. had a personal cell phone with over
one hundred contacts, including numbers for her friends and
some friends' parents. One contact was a phone number
associated with Ball, and she never received a call from
anyone other than Ball from this number. A.G. testified she
saw Ball with the phone associated with this contact and he
always kept it with him or locked in his bedroom. Beth
testified Ball's phone previously belonged to their son,
who no longer lived with them. Additionally, Beth had a
personal cell phone, L.B. had a personal phone that could
make calls using Wi-Fi but did not have cellular service, and
their home had a landline phone. Beth testified they
occasionally punished L.B. by taking her phone, and L.B. had
once hid Beth's phone for a week.
trial, A.G. testified Ball began acting inappropriately with
her in May 2014. She related two notable incidents that
occurred around May 28. In the first incident-the living room
incident-A.G. was in Ball's living room while L.B. was on
the computer a few feet away. She looked in a living room
mirror and saw a reflection of Ball standing down the hall in
his bedroom doorway masturbating, stroking his penis with his
hand. A.G. believed his actions were aimed at her because he
was looking at the same mirror, L.B. could not see him from
her position, and no one else was in the home at the time.
The incident upset her, but she did not tell an adult about
the living room incident at the time "[b]ecause I was
young and I didn't know what to do. I thought if I told
someone, it would ruin their family, and I loved [L.B.] too
much to create that divide between her family."
second incident-the bedroom incident-A.G. and L.B. entered
Ball's home after they had just bought new clothes. While
L.B. took a shower, A.G. yelled to her, "I'm just
going to change in your room and try on those clothes."
A.G. then entered L.B.'s bedroom, locked the bedroom
door, and began changing. Soon after, Ball opened the bedroom
door, entered the room when A.G. was not wearing pants or
underwear, and masturbated with his penis in his hand while
he stared at her. She screamed for L.B., and Ball pulled up
his pants and left the room like nothing had happened.
testified Ball exposed himself to her other times too. For
example, he would lie in his bed and masturbate to
pornography with his door open when he knew she was in the
home. She believed these incidents were a way to get her
attention, and there were "[t]oo many" incidents to
put a number on.
testified Ball also provided alcohol to her and L.B. during
summer 2014. Once, she sent him a text message that said
"[I]f you don't buy us alcohol, [then] I will report
you to your wife and tell her everything that you have been
doing." He "seem[ed] excited" by the request
and asked for "[s]exual favors" in return.
trial, the State produced a series of text messages A.G had
provided that came to her from the phone number associated
with Ball between 10:42 p.m. on May 28, 2014, and 7:06 a.m.
on May 29. One message said, "nice view tonight[
]very exciting dont you think?" She believed this
message referred to the living room incident. Another message
said, "it was nice seeing hair on your pussy when I
walked in by accident today.[ ]remember erase these i will do
what you want." She believed this message referenced the
bedroom incident, though she did not believe the incident was
an accident. Other messages requested a nude photo of her,
asked about her sexual experiences, and said "guess what
i am doing right now," "what do i get for getting
you alcohol? head?" and "[I] wish you would come
down and watch me shoot a load[ ]right now." She
testified the messages made her feel "[d]isturbed"
and "embarrassed," and she viewed them "as a
type of invitation." She testified he had sent her more
messages than those introduced at trial and she had responded
to some of his messages.
February 2015, L.B. called A.G. and asked her to show the
text messages to Beth. A.G.'s mother overheard the call,
looked at the messages, and called the police. Some time
before the investigation, A.G. testified she had deleted all
of the original messages Ball had sent and her responses
because "[t]hey were painful to keep." However, she
kept screenshots-digital photographs of her screen-of
Ball's messages to her on May 28 and 29, 2014, and she
emailed the screenshots to the police. The screenshots do not
include the ...