from the Iowa District Court for Polk County, Jeffrey D.
Farrell (trial) and Robert B. Hanson (suppression), Judges.
defendant appeals her convictions for first-degree theft by
deception and tampering with a witness.
Campbell of Dickey & Campbell Law Firm, PLC, Des Moines,
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
by Tabor, P.J., Bower, J., and Mahan, S.J. [*]
Khan Fielder did not commit dependent adult abuse. But
through its evidence and arguments, the prosecution implied
she did. That implication, we think, potentially confused the
jury and unfairly prejudiced Fielder. We find the evidence
sufficient to support the verdicts on the actual
charges-theft by deception and tampering with a witness. But,
because the improper evidence was irrelevant to the actual
charges, and the record did not affirmatively establish
Fielder was not prejudiced by its admission, we reverse and
remand for a new trial.
Facts and Prior Proceedings
in January 2014, Fielder worked as a certified nursing aid at
Spurgeon Manor, a retirement community offering independent
living apartments, rehabilitation, and skilled nursing care.
There she befriended Stanley Erickson. Fielder helped care
for Erickson's wife in the skilled nursing facility
before his wife died in December 2014. Stanley lived in an
independent-living apartment, and Fielder did not at any time
provide nursing services to him. Fielder stopped working at
Spurgeon Manor in January 2016, but her friendship with
point in 2015, Fielder began asking Erickson for money.
Erickson agreed because Fielder "was so kind" to
and did "such a good job taking care" of his wife
of sixty-three years before her passing. "I just felt I
was obligated to return the favor, and so I did, not knowing
I was going to get in this far." Erickson testified
Fielder confided in him about her problems and asked for
money on numerous occasions, offering various reasons:
One of them was her son passed away. She needed money for the
funeral. One time was she needed bail money. One time she-she
was in the process of buying a house, and she needed money
for a down payment for that. And then later on, then, the
furnace went out, and so she needed money to get her furnace
repaired or replaced. And then they-during that process, the
water line froze up, and so she needed assistance to pay for
the-to get that repaired. Needed money to help buy a car. And
she needed money because she was ill. She had been diagnosed
with cancer and was in need of some surgery.
wrote Fielder numerous checks and gave her cash. At trial, he
did not recall specifically how many checks he wrote, or the
amounts of the checks. He also was not sure how much cash he
gave to Fielder. Erickson testified Fielder was "very
convincing," appearing "very upset, happy, tearful.
Just like she was really in dire need, and so I believed
her." He also testified he would occasionally meet her
at Walmart in Grimes or Love's gas station to give her
cash. On several occasions, Fielder came with a woman she
introduced as her sister. Erickson later learned she was
Fielder's wife, Jacqueline.
Erickson grew skeptical Fielder could ever repay all the
money he loaned her. When asked why he kept giving her money,
Erickson replied, "She needed it." He testified he
and Fielder discussed that she was going to pay it back. At
one point, she did repay him $600 after he wrote a check in
an amount greater than she needed.
helped Fielder buy a car when she told him she
"lost" hers. She said she needed a car big enough
to hold her whole family. He went with her to a car
dealership, made a down payment of "several
thousand" dollars on a Dodge Durango, and cosigned the
note. He testified he did not understand he was taking on a
debt and expected her to make the car payments. But he ended
up paying off the car debt when Fielder stopped making the
2016, Melissa Conner, an investigator for the Economic Fraud
Control Unit of the Iowa Department of Inspections and
Appeals (DIA), was investigating Fielder and her wife for
irregularities in the receipt of government benefits. Using
the administrative subpoena power provided under Iowa Code
section 10A (2016), Conner obtained Fielder's bank
records. Conner noticed large deposits into Fielder's
account of checks from Stanley Erickson. She also noticed
Erickson's address was the same as the facility where
Fielder was employed. Because it was a nursing home, Connor
found "cause for concern" and passed her evidence
to the Medicaid Fraud Control Unit (MFCU).
MFCU investigator, Daniel Hoffa, testified at trial. He
reviewed the documents Conner passed along and continued his
own investigation, including obtaining Erickson's bank
records and interviewing Erickson and Fielder. Reviewing the
records and statements, Hoffa observed check and cash
withdrawals from Erickson's bank account matching checks
and cash deposited into Fielder's account. The checks
ranged in amount from $600 to $6200. The cash withdrawals
ranged from $1000 to $6200. Hoffa calculated a total of $104,
500 in withdrawals from Erickson's account in checks and
cash. The corresponding checks deposited into Fielder's
account totaled $54, 800 and $22, 795 in cash, suggesting
Fielder retained $26, 905 in cash without depositing it.
Hoffa also investigated the reasons Fielder gave Erickson for
needing money and could not verify their legitimacy.
State played an edited recording of Hoffa's interview
with Fielder for the jury. In the interview, Fielder denied
basing her pleas for financial help on the reasons recalled
by Erickson, but admitted she took money from him. When asked
whether she paid back any of the money, she said Erickson
would not accept repayment.
State also presented evidence about Fielder's employment
at Spurgeon Manor. Administrator Maureen Cahill testified all
staff members received an employee handbook, had time to read
it, and were required to sign a form acknowledging they
understood the policies. The handbook informed employees they
were prohibited from accepting gifts, tips, or items of any
value from residents. Cahill testified Fielder would have
received the handbook when hired, but Cahill did not produce
Fielder's signed form at trial.
a peace officer, filed a criminal complaint against Fielder
on October 26, 2016, charging her with theft by deception in
the first degree. Fielder was arrested, given a copy of the
complaint, and released on bond. She made an initial
appearance and pleaded not guilty on November 27.
days later, Fielder called Erickson and asked to meet at the
Walmart in Grimes. There, she asked him to sign the following
document she had written out by hand:
I ___ gave Chakakhan Fielder monies (money) and she
didn't deceive me or lie to me to obtain monies (money)
from me. I wanted to help her on my own. I am not demented
and I know exactly what I did for her and she has agree to
make payments to me. I do not want her prosecuted. I do not
want her sent to jail nor prison or placed on probation. We
both have agreed that we will work this out ourselves.
Chakakhan Fielder knows she owes me money in the estimated
amount of 74, 000 dollars. And she has agreed to make payment
I signed this letter with the intentions of having the state
attorney drop the case against Chakakhan Fielder with no
further actions needed. We will handle this between us. I
never wanted Chakakhan Fielder to be charged with a crime I
helped her on my own free will and deception did not play a
part so please to whomever it concerns let me ___ and
Chakakhan Fielder work this matter out on our own. She will
start making payments at the beginning of the year January
[Signatures of Erickson and Fielder.]
I Chakakhan Fielder agree to pay Stanley Erickson payments
every time I get paid until the estimated amount of 74, 000
dollars is paid back. I agree not to miss a payment and
continue to make payments on the Dodge Durango until fully
[Signatures of Erickson and Fielder.]
I signed both of these letters willingly with no threats or
promises of anything besides a promise and agreement to
receive payments from Chakakhan Fielder like stated before I
don't want no criminal charges against her we are
settling this on our own and I don't want her prosecuted
this isn't a legal matter never should have been I'm
in agreement with her on this matter and we worked it out.
[Signatures of Erickson and Fielder.]
testified he signed the document to "[k]eep her from
going to prison." Fielder then gave him $20. After that
initial $20, Erickson did not receive any more payments from
Fielder. Following the Walmart rendezvous, Investigator Hoffa
interviewed Erickson again and filed a criminal complaint
against Fielder for tampering with a witness. The court also
entered a no-contact order.
January 2017, the State filed a trial information charging
Fielder with first-degree theft by deception and witness
tampering. The case proceeded to trial, and the jury found
Fielder guilty on both counts. In a special interrogatory,
the jury found the amount stolen exceeded $10, 000-the
threshold for theft in the first degree. Fielder appeals.
asserts several grounds for reversal. She first contends the
jury instruction on theft by deception should have included
an element of intent to permanently deprive. Second, she
argues the State did not offer substantial evidence to
support the jury verdicts. Third, she contends the district
court erred in denying her motion to suppress evidence
obtained by administrative subpoena. Fourth, Fielder
challenges three evidentiary rulings: (1) admission of the
Spurgeon Manor employee handbook; (2) denial of a mistrial
after Cahill testified about the handbook's reference to
"dependent adult abuse"; and (3) publication of the
recorded interview with Hoffa that contained "hearsay
within hearsay." Fifth, Fielder contends her trial
counsel was ineffective in failing to object to the
prosecutor's "burden-shifting" during closing
argument. And finally, Fielder contends the district court
miscalculated restitution. We address the first four issues
in turn. Because of our resolution of the fourth claim
requires reversal and remand for a new trial, we need not
reach the fifth and sixth issues.
Intent to Permanently Deprive
we decide if the State offered sufficient evidence of theft
by deception, we must address the elements of the crime.
Fielder asserts an intent to permanently deprive another of
property is an element of theft by deception, even though the
phrase does not appear in the statute defining that
alternative. See Iowa Code § 714.1(1)-(10)
(2015). She faults the district court for declining to
include that element in its jury instruction on deception.
review challenges to jury instructions for correction of
errors at law. State v. Tipton, 897 N.W.2d 653, 694
(Iowa 2017). Erroneous jury instructions are presumed
prejudicial absent an affirmative showing of lack of
prejudice beyond a reasonable doubt. Id. (citing
State v. Ambrose, 861 N.W.2d 550, 554 (Iowa 2015)).
Reversal is required when instructions mislead the jury or
materially misstate the law. Haskenhoff v. Homeland
Energy Sols., LLC, 897 N.W.2d 553, 570 (Iowa 2017).
Where the alleged error is a refusal to give a requested
instruction, we "consider the jury instructions as a
whole rather than in isolation to determine whether they
correctly state the law." State v. Benson, 919
N.W.2d 237, 242 (Iowa 2017) (quoting State v.
Harrison, 914 N.W.2d 178, 188 (Iowa 2018)).
bearing on this analysis, a person commits theft when he or
she does either of the following:
1. Takes possession or control of the property of another, or
property in the possession of another, with the intent to
deprive the other thereof. . . . .
3. Obtains the labor or services of another, or a transfer of
possession, control, or ownership of the property of another,
or the beneficial use of property of another, by deception.
Where compensation for goods and services is ordinarily paid
immediately upon the obtaining of such goods or the rendering
of such services, the refusal to pay or leaving the premises
without payment or offer to pay or without having obtained
from the owner or operator the right to pay subsequent to
leaving the premises gives rise to an inference that the
goods or services were obtained by deception.
Code § 714.1. The district court found "theft by
deception" as defined in paragraph three did not include
an element of "intent to permanently deprive,"
unlike theft by taking under paragraph one. It is true the
legislature did not include the phrase "intent to
permanently deprive" in each of the subsequent
definitions of theft. But, the element of permanent deprivation
is nevertheless incorporated in the overall structure of
by deception" is a relatively recent addition to our
criminal code; its precursor is "theft by false
pretenses." See State v. Hogrefe, 557 N.W.2d
871, 876 (Iowa 1996). "In enacting section 714.1(3), . .
. the legislature-for the most part- followed the lead of the
American Law Institute Model Penal Code (1980),"
therefore, the commentaries "are persuasive authority in
our interpretation of our own theft by deception
statute." Id. at 876-77. The change in language
reflected "the legislature's intent to criminalize
every instance of a person obtaining another person's
property by deception." Id. at 877. Our supreme
court has taken a broad view of the offense, rejecting the
position a promise to return the property "with no
intent to perform" did not constitute theft by false
pretenses. State v. West, 252 N.W.2d 457, 461 (Iowa
1977); accord Hogrefe, 557 N.W.2d at 877. We also
note the statute includes theft of the "labor or
services" of another, which cannot be obtained on
current code language provides the accused
"obtain[ed]" something of value "by
deception." The Model Penal Code says
"'obtain' means: (a) in relation to property, to
bring about a transfer or purported transfer of a legal
interest in the property, whether to the obtainer or
another." Model Penal Code § 223.0(5) (Am. Law.
Model Penal Code commentary relates,
Theft by deception is thus a crime designed to regulate the
methods by which the transfer of a legal interest in property
is achieved. It is not an offense designed to safeguard
possession, nor does it protect against the use of deception
to gain temporary possession or control of property or to
continue a possession or control that was lawfully acquired.
It should be noted, however, that the fact that deception is
used to gain possession or control does not foreclose
prosecution under the consolidated theft offense in cases
where a subsequent conversion occurs. Section 223.3 would
cover a person who gained temporary control over property by
misrepresenting the purpose for which he wanted it and who
then "exercises unlawful control" over the property
"with purpose to deprive." . . . .
Importantly, however, transfers of temporary or possessory
interest in property will not be criminal, even though
accomplished by deception, unless they threaten the interests
protected by Section 223.2 [Theft by unlawful taking]. The
actor must unlawfully take or exercise unlawful control with
purpose to deprive or he must obtain a legal interest in the
property by deception. Conduct short of this will not be
Model Penal Code § 223.3 cmt. at 182.
Model Penal Code commentary suggests, the drafters' use
of the word "obtain" encompasses an intent to
deprive permanently, an aim beyond temporary possession or
control. The commentary also clarifies theft by deception
includes cases of "subsequent conversion" where the