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State v. Schiebout

Court of Appeals of Iowa

November 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
KAMIE JO SCHIEBOUT, Defendant-Appellant.

          Appeal from the Iowa District Court for Sioux County, Patrick H. Tott (trial and sentencing) and Jeffrey A. Neary (restitution order), Judges.

         The defendant appeals her conviction and sentence for theft in the second degree.

          Mark C. Smith, State Appellate Defender, (until withdrawal) and Mary K. Conroy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Tabor and May, JJ.

          TABOR, JUDGE.

         Kamie Schiebout wrote seven checks from the Sandy Hollow Ducks Unlimited bank account, though she was not authorized to do so. The State charged her with theft in the second degree by aggregating the amounts of those checks. A jury found her guilty, and she now appeals that verdict. She contends the State failed to prove (1) that she knew the checks would not be paid and (2) that she received property, services, or money from the transactions. She also alleges the court improperly instructed the jury on aggregation. Lastly, she challenges the district court's ruling that a sheriff's reimbursement claim for $28, 136 in medical aid under Iowa Code section 356.7 (2018) be listed as a civil judgment against her when she was not represented by counsel at the hearing on the claim.

         Finding sufficient evidence to support her conviction, we affirm the verdict. On the medical aid, we remand for a hearing on the sheriff's claim where the defendant is afforded the right to the assistance of counsel.

         I. Facts and Prior Proceedings

         The theft charges against Kamie Schiebout relate to the end of her marriage. Kamie and Matthew Schiebout separated in the spring of 2015.[1] At first they kept living under the same roof, but Kamie eventually moved into her own apartment. In April or May, Matthew closed their joint checking account. He testified: "I couldn't have her running around spending money frivolously when I can't make the [house] payments." They finalized their divorce at the end of November 2015.

         As it turns out, closing the joint account did not stem Kamie's spending. Instead, she looked to a different source. For the span of a decade-during and after their marriage-Matthew belonged to a local chapter of a conservation nonprofit called Sandy Hollow Ducks Unlimited. The chapter only authorized Matthew, as treasurer, and the local president to sign checks on the organization's account at American State Bank. They used the account to fund their annual banquet, usually held in January or February. Matthew kept the Ducks Unlimited checkbook in a box in the basement of the house he had shared with Kamie.

         In January 2016, Matthew received several notices from the bank of insufficient funds in the Ducks Unlimited account. Matthew explained until then he had not regularly reviewed the statements because he was busy managing a business and caring for their two sons. After learning the account was overdrawn, Matthew went to the bank and examined the check images.

         Based on his examination, Matthew believed Kamie took the Ducks Unlimited checkbook from their house before she moved out and wrote checks from the account without permission. The State charged Kamie with second-degree theft by check under Iowa Code sections 714.1(6)[2] and 714.2(2)[3] (2015), as an habitual offender.

         At the theft trial, Matthew testified the signature on the checks started with a large "K" that looked "exactly how [Kamie] writes her 'K.'" Matthew also testified Kamie was not involved with Ducks Unlimited, never had signing authority on that account, and never before wrote a check from it.

         Also at trial, Crisinda Tooker, vice president at American State Bank, testified about several withdrawals from the Ducks Unlimited account. In all, between November 5, 2015, and January 2016, the Ducks Unlimited account incurred withdrawals by fourteen checks with numbers ranging from 1225 to 1399. Matthew identified check number 1225 as a valid payment from Ducks Unlimited.

         The district court removed four other checks-numbers 1380, 1381, 1389, and 1393-from the jury's consideration because the State presented insufficient evidence to prove Kamie executed them or that they were issued in Sioux County.

         Of the nine remaining checks, the State opted not to pursue charges based on two checks (numbers 1398 and 1399) because the bank declined to pay them. In those instances, Kamie bought items at a local clothing store in January 2016. Kamie explained to an acquaintance who worked at the store that the checks belonged to "her husband." Because the Ducks Unlimited account was overdrawn, the bank realized the checks were unauthorized and did not pay them.

         Following the store clerk's testimony, the court gave this limiting instruction to the jury:

These two checks are not part of the trial information nor are there allegations that these are included in the underlying charges, so you should not consider that evidence for any other purpose other than that it's being offered to prove the identity of Ms. Schiebout as the author of those two checks.[4]

         With those deletions, the State built its case on these seven checks:

Check No.

Date

Payee

Amount

1383

Nov. 29

Southridge

$ 87.37

1384

Dec. 7

Shell

$ 105.21

1386

Dec. 12

Walmart

$ 374.24

1387

Dec. 14

illegible

$ 224.46

1388

Dec. 21

Nearly New Town

$ 59.82

1391

Dec. 24

Walmart

$ 355.33

1392

Dec. 24

Kum & Go

$ 50.50

Total:

$ 1256.93

         As trial exhibits, the State offered scanned images of checks number 1383, 1384, 1387, 1388, and 1392 from the Ducks Unlimited bank statements. Handwritten at the top of two of those checks is Kamie's phone number.

         Images of check numbers 1386 and 1391, both written to Walmart, were unavailable as exhibits because Walmart processed them as ACH withdrawals.[5]Tookers explained some businesses convert paper checks into electronic transfers directly from the check-writer's account. Those businesses typically give the check back to the writer and do not convey it to the bank or retain a copy.[6] Tookers could only tell from the bank statements when, how much, and to whom those checks were written. The bank records did not identify who signed the checks.

         To fill that gap, the State called a Walmart loss-prevention officer, who provided law enforcement with receipts for two transactions with Ducks Unlimited. The receipts showed the buyer wrote Walmart checks with numbers 1386-dated December 14-and 1391-dated December 24. The loss prevention officer found surveillance video and photographs matching the timestamp on those transactions. That video documented Kamie paying for goods when the system generated the receipts. And photographs show Kamie wheeling a loaded shopping cart out of the door on both occasions.

         After the close of evidence, the jury found Kamie guilty of theft in the second degree. The jury filled in the verdict form, as follows:

We, the jury, find the following verdict on the questions submitted to us:
Question No. 1: Did the Defendant make or deliver checks on the account of Sandy Hollow Ducks Unlimited without permission or authorization?
Answer "yes" or "no."
ANSWER: __ yes __
(If your answer is "yes", then answer Question 2. If you answer is "no", then ...

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