from the Iowa District Court for Sioux County, Patrick H.
Tott (trial and sentencing) and Jeffrey A. Neary (restitution
defendant appeals her conviction and sentence for theft in
the second degree.
C. Smith, State Appellate Defender, (until withdrawal) and
Mary K. Conroy, Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
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.
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.
Facts and Prior Proceedings
theft charges against Kamie Schiebout relate to the end of
her marriage. Kamie and Matthew Schiebout separated in the
spring of 2015. 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
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.
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.
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) and 714.2(2) (2015), as an habitual offender.
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.
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.
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.
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.
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
those deletions, the State built its case on these seven
Nearly New Town
Kum & Go
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.
of check numbers 1386 and 1391, both written to Walmart, were
unavailable as exhibits because Walmart processed them as ACH
withdrawals.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. 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
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.
the close of evidence, the jury found Kamie guilty of theft
in the second degree. The jury filled in the verdict form, as
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 ...