State of Iowa v. Betty Ann Nall
2017 Iowa Sup. LEXIS 46
| Iowa | 2017Background
- Betty Ann Nall deposited counterfeit checks and a fake U.S. postal money order into a bank account, withdrew funds, and later endorsed a counterfeit money order to a veterinary clinic to cover boarding fees. The bank and clinic honored transactions before instruments were discovered counterfeit.
- Nall was charged and convicted of multiple forgery counts and two theft-by-taking convictions under Iowa Code § 714.1(1): second-degree theft (bank-related) and third-degree theft (veterinary clinic). She pled guilty to the clinic-related theft and was tried on the bank-related theft.
- On appeal the court of appeals affirmed both theft convictions; Nall sought further review arguing her conduct involved deception (theft by deception/check) rather than a nonconsensual taking under § 714.1(1).
- The Iowa Supreme Court considered whether "takes possession or control" in § 714.1(1) includes obtaining property by presenting knowingly bad checks or money orders (i.e., via deception) or is limited to nonconsensual takings (lack of consent/authority).
- The court held § 714.1(1) is ambiguous but, considering statutory structure, legislative history, Model Penal Code guidance, and rule of lenity, interpreted "takes possession or control" to require acquisition without the owner’s consent or authority.
- Applying that rule: the bank transactions were consensual (bank released funds believing deposits valid) — overturning the second-degree theft conviction; the clinic transaction lacked a factual basis for a § 714.1(1) plea (clinic consented to release animals), so the third-degree theft guilty plea was vacated and dismissed. Forgery convictions remain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether theft-by-taking (§ 714.1(1)) covers obtaining property/services by presenting counterfeit checks/money orders | State: Nall knowingly presented phony instruments to obtain cash/services; that is a taking under § 714.1(1) | Nall: obtaining property by fraud/deception is theft by deception/check (§ 714.1(3) or (6)), not a nonconsensual taking under § 714.1(1) | § 714.1(1) requires acquisition without consent/authority; it does not reach voluntary transfers induced by deception |
| Whether evidence supports bank-related theft-by-taking conviction | State: bank funds were appropriated after Nall’s deposits and withdrawals; she intended to deprive | Nall: bank consented to withdrawals based on deposits; no nonconsensual taking occurred | Reversed — insufficient evidence; conviction dismissed |
| Whether factual basis existed for guilty plea to clinic-related theft-by-taking | State: endorsement of phony money order to clinic and retrieval of animals shows taking | Nall: clinic consented to release animals; her conduct fits theft by check, not theft-by-taking | Vacated guilty plea and dismissed third-degree theft charge for lack of factual basis |
| Whether remaining forgery convictions and concurrent sentences should stand | State: forgery convictions unaffected by theft holdings | Nall: asked to vacate theft convictions and sentences | Court severed and allowed forgery convictions and sentences to remain intact; theft convictions vacated as above |
Key Cases Cited
- State v. Donaldson, 663 N.W.2d 882 (Iowa 2003) (defines when defendant exerts unauthorized control for theft-by-taking)
- State v. Williams, 328 N.W.2d 504 (Iowa 1983) (distinguishes theft-by-taking from other theft theories and evidentiary expectations)
- Kiet Hoang Nguyen v. State, 299 P.3d 683 (Wyo. 2013) (reversed larceny conviction where bank consented to withdrawals based on bad checks)
- State v. Jonusas, 694 N.W.2d 651 (Neb. 2005) (discusses effect of statutory consolidation of theft offenses on charging and conviction)
- State v. Meeks, 176 P.3d 1073 (Mont. 2008) (upheld theft-by-taking convictions for retail-return and price-switch schemes where unauthorized control was shown)