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State v. Fielder

Court of Appeals of Iowa

March 20, 2019

STATE OF IOWA, Plaintiff-Appellee,
CHAKA KHAN FIELDER, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell (trial) and Robert B. Hanson (suppression), Judges.

         A defendant appeals her convictions for first-degree theft by deception and tampering with a witness.

          Angela Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

          Heard by Tabor, P.J., Bower, J., and Mahan, S.J. [*]

          PER CURIAM.

         Chaka 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.

         I. Facts and Prior Proceedings

         Starting 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 Erickson continued.[1]

         At some 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.

         Erickson 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.

         Eventually, 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.

         Erickson 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 payments.

         In late 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).

         The 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.[2] 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.

         The 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.

         The 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.

         Hoffa, 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.

         Two 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 2017.
[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 paid off.
[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.]

         Erickson 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.

         In 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.

         II. Analysis

         Fielder 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.[3]

         A. Intent to Permanently Deprive

         Before 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.

         We 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)).

         As 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.

         Iowa 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.[4] But, the element of permanent deprivation is nevertheless incorporated in the overall structure of section 714.1(3).

         "Theft 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 temporary basis.

         The 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. Inst. 1980).

         The 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 theft.

Model Penal Code § 223.3 cmt. at 182.

         As the 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 ...

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