STATE of Iowa, Appellee, v. Betty Ann NALL, Appellant.
No. 14-0969
Supreme Court of Iowa.
Filed May 5, 2017
For all these reasons, I would affirm Huser‘s conviction and sentence.
Waterman and Zager, JJ., join this concurrence in part and dissent in part.
Thomas J. Miller, Attorney General, Kevin Cmelik and Thomas E. Bakke, Assistant Attorneys General, John Sarcone, Polk County Attorney, and Brendan Greiner, Assistant Polk County Attorney, for appellee.
MANSFIELD, Justice.
This case requires us to answer the following question: Does a person commit theft by taking within the meaning of
For the reasons discussed below, we conclude that Iowa‘s theft-by-taking prohibition in
I. Background Facts and Proceedings.
The following facts are drawn from the minutes of testimony and the defendant‘s in-court admissions. FECR268551. On August 2, 2012, Betty Ann Nall visited Earlham Bank in Des Moines and opened an account with a counterfeit U.S. postal money order in the amount of $890. Nall had received the money order from an internet secret shopper program that she suspected was a scam. On August 3, Nall deposited a check, purportedly issued by an Illinois company, in the amount of $1890. Nall withdrew $750 from the account that same day. On August 7, Nall deposited another counterfeit check and a duplicate of the U.S. postal money order she had previously deposited and then withdrew $1500 from the account. Earlham Bank was later notified that all the deposited instruments were counterfeit. Meanwhile, Nall continued to draw from the account and write checks. As of June 17, 2013, the account was overdrawn $2736.20.
FECR268329. Nall boarded animals at Hubbell Animal Hospital, a veterinary clinic. On July 8, 2013, she visited the clinic to pick up the animals. Nall owed a total of $1265 for the services. Nall presented a fraudulent U.S. postal money order in the amount of $890 from the same secret shopper program. Nall told the clinic it was her only form of payment and endorsed the money order over to the clinic. Nall admitted she had a feeling the money order would not go through when she gave it to the clinic.
The clinic agreed to accept this partial payment and release the animals so long as Nall returned within a week to pay the balance. Nall never paid the balance or replaced the money order when it was declined.
In FECR268551, the State charged Nall with four counts of forgery, all class “D” felonies, see
In FECR268329, the State charged Nall with forgery, a class “D” felony, see
In FECR268329, Nall was sentenced on the forgery count to an indeterminate term not to exceed fifteen years with a mandatory minimum three-year term of imprisonment. Nall received a concurrent two-year indeterminate sentence on the third-degree theft. In FECR268551, Nall was sentenced on each of the five counts to an indeterminate term of fifteen years with a mandatory three-year minimum. All five sentences were ordered concurrent. The court ordered, however, that the sentences in FECR268329 and FECR268551 run consecutive to each other.
On appeal, Nall has challenged only her two theft convictions. She argues her conduct did not constitute “theft by taking” within the meaning of
We transferred the case to the court of appeals, which affirmed both convictions. The panel rejected Nall‘s arguments, reasoning that the factual record in both cases could sustain her convictions so long as she knew the money orders were fraudulent at the time she exchanged them for her animals in FECR268329 or cash in FECR268551.
We granted Nall‘s application for further review.
II. Standard of Review.
Nall argues a person cannot take unlawful possession or control of property within the meaning of
“We ordinarily review challenges to guilty pleas for correction of errors at law.” State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016). However, to the extent a defendant claims her guilty plea was the result of trial counsel‘s ineffective assistance, our review is de novo. State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011); accord State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010).
III. Analysis.
A. Interpretation of the Statute.
The elements of theft by taking, therefore, are: (1) the defendant took possession or control of property; (2) the defendant did so with the intent to deprive another of that property; and (3) the property belonged to, or was in the possession of, another at the time of the taking. See State v. Thornton, 506 N.W.2d 777, 780 (Iowa 1993); State v. Garr, 461 N.W.2d 171, 173 (Iowa 1990).
Nall does not dispute the presence of the second and third elements here. The fighting issue in this case is whether Nall took possession or control of property, within the meaning of
When we are asked to interpret a statute, we first consider the plain meaning of its language. State v. McIver, 858 N.W.2d 699, 703 (Iowa 2015). If the statute is unambiguous, we will apply it as written. See State v. Howse, 875 N.W.2d 684, 691 (Iowa 2016). A statute is ambiguous “if reasonable minds can disagree on the meaning of particular words or the statute as a whole.” McIver, 858 N.W.2d at 703. For purposes of this initial review for ambiguity, “we assess the statute in its entirety, not just isolated words or phrases.” Howse, 875 N.W.2d at 691 (quoting Schaefer v. Putnam, 841 N.W.2d 68, 75 (Iowa 2013)).
We conclude that reasonable minds can differ as to the proper interpretation of the statute, and therefore it is ambiguous. The phrase “[t]akes possession or control” conceivably could refer to any situation where the defendant wrongfully obtains possession of another person‘s property. Alternatively, it may refer only to situations where the defendant deprives another person involuntarily of his or her property.
Notably,
Once we have considered the statute in its entirety and determined that it is ambiguous, we may resort to other interpretive tools. See State v. Hoyman, 863 N.W.2d 1, 13 (Iowa 2015). We have said that “ambiguities in statutes can be clarified by looking at the background and history of the statute.” McIver, 858 N.W.2d at 704; see also
The offense of theft by taking derives from the former crime of larceny. See State v. Berger, 438 N.W.2d 29, 31 (Iowa Ct. App. 1989); see also State v. Jackson, 251 Iowa 537, 542, 101 N.W.2d 731, 734 (1960) (“[L]arceny is committed by a wrongful taking from one who has rightful possession.“). Until 1978, Iowa‘s larceny offenses were contained in chapter 709 of the Code. See
Then, effective 1978, the legislature revised the Iowa Criminal Code and consolidated many of Iowa‘s theft offenses into one Code chapter, broadly titled “Theft.” See
The legislature did eliminate the old larceny requirement of asportation, or carrying away, for what became theft by taking in the Iowa Criminal Code. See Dunahoo, 29 Drake L. Rev. at 373; see also State v. Donaldson, 663 N.W.2d 882, 885 (Iowa 2003). Thus,
Still, this does not necessarily mean that the legislature intended
“The Iowa theft statute [in
In Donaldson, we were asked to determine whether a person had taken “possession or control” of a vehicle when that person had already gained entrance to the vehicle but had not yet driven it away. See Donaldson, 663 N.W.2d at 884. We affirmed the defendant‘s theft-by-taking conviction, reasoning that “at the moment [the defendant] began to manipulate the electrical wires for the purpose of starting the engine, he exerted complete control over the vehicle.” Id. at 887.
We recognized that “[t]he critical issue, as the statute dictates, is not whether the defendant used or operated the object of the theft,” but instead “whether he exercised wrongful dominion or unauthorized control of the van.” Id. at 886. We continued,
The Model Penal Code contemplates “control” of the object to begin when the defendant “use[s] it in a manner beyond his authority.” The method of exerting control over the object of the theft is important only insofar as it “sheds light on the authority of the actor to behave as he did.” Our statute replaces the common law element of “taking” with “possession.” The Model Penal Code provides a person commits theft if he or she “unlawfully takes, or exercises unlawful control over” the property of another. A taking in this sense concerns whether the offender exerted control over the object “adverse to or usurpatory of the owner‘s dominion.” That is, one possesses an object if he or she secures dominion over it. To summarize the above concepts, “possession or control” begins and a theft is completed when the actor secures dominion over the object or uses it in a manner beyond his authority.
Id. at 885-86 (alteration in original) (citation omitted) (quoting Model Penal Code § 223.2, cmt. 2, at 166, then id. at 162, then quoting State v. Victor, 368 So. 2d 711, 714 (La. 1979)). Donaldson focused on when a change of possession and control occurs for purposes of theft by taking. In this case, though, the key question is how a change of possession and control must
More to the point than Donaldson, we believe, is our earlier decision in State v. Williams, 328 N.W.2d 504 (Iowa 1983). In that case, the defendant was charged with theft by taking under
On appeal, we reversed the defendant‘s conviction on the ground that the last-minute amendment was prejudicial and should not have been allowed. Id. at 505-06. We noted the defendant had testified that he purchased the silver from an unknown individual on the assumption he was being charged only with theft by taking. Id. at 506. We added that he “probably would not have testified if he had gone to trial knowing that he also would be charged with committing theft by exercising control over stolen property.” Id. at 506. Although we acknowledged that the amendment did not change the offense charged, we did not suggest that the amendment was unnecessary or that a
Courts in other jurisdictions have explored the distinction between theft by taking and theft by deception. For example, in State v. Jonusas, the Nebraska Supreme Court upheld the defendant‘s conviction for theft by taking even though the defendant had been charged only with theft by deception. See 269 Neb. 644, 694 N.W.2d 651, 655 (2005). As in Iowa, the two theft alternatives are separately defined, and the issue was therefore “whether a defendant may be charged with theft by one manner and subsequently convicted of theft by another manner.” Id.; see also
However, in Nebraska, a separate statute entitled “Consolidation of theft offenses” provides that all variants of theft constitute a single offense. See
As noted in Jonusas, the Nebraska consolidation statute mirrors language set forth in Model Penal Code section 223.1(1). Id. at 655.1 However, the Iowa legislature
Wyoming‘s theft statutes, like Iowa‘s, do not contain a consolidation provision. See
Similarly, the Ohio Court of Appeals has held that evidence of a theft by deception cannot sustain an indictment and conviction on a theft-by-taking theory. See State v. McGhee, 113 Ohio App. 3d 208, 680 N.E.2d 710, 712 (1996). In McGhee, the defendant had convinced a friend, Richardson, to open a bank account and deposit a
The defendant appealed his conviction, and the court reversed judgment. Id. at 712. The court reasoned that there was no evidence of a nonconsensual taking, which the court deemed an “essential element[ ]” of the offense McGhee was convicted of. Id. at 711.
The bank clearly allowed Richardson and McGhee to make numerous withdrawals from the Richardson account before the $4700 check had cleared. While the evidence may have established that McGhee violated R.C. 2913.02(A)(3) (theft by deception), our decision must be based upon the offense for which McGhee was indicted, tried, and convicted. McGhee obtained or exerted control over the bank‘s property with the bank‘s consent. He was indicted incorrectly. Id.
Still other courts have recognized and enforced distinctions among the various theft offenses. See Sheffield v. State, 706 So. 2d 1282, 1286 (Ala. Crim. App. 1996) (determining that a person cannot take “unauthorized control over the property of another” when the person is the sole shareholder of a corporation); People v. Beaver, 186 Cal. App. 4th 107, 111 Cal. Rptr. 3d 726, 738, 742 (2010) (reversing a grand larceny conviction after concluding the offense “was theft by false pretenses, not larceny“); People v. Warner, 801 P.2d 1187, 1192 (Colo. 1990) (en banc) (upholding the reversal of a conviction for “theft from the person” even when the evidence “suffice[d] to show that [the defendant] committed the crime of theft by deception“); State v. Rios, 246 Kan. 517, 792 P.2d 1065, 1073 (1990) (reversing convictions for theft by deception when theft by embezzlement should have been charged); Allen v. Commonwealth, 395 S.W.3d 451, 459 (Ky. 2013) (“Inducing a voluntary transfer is the essence of fraud and is what differentiates it from simple theft.“); cf. People v. Graves, 207 Ill. 2d 478, 279 Ill. Dec. 502, 800 N.E.2d 790, 793 (2003) (“That the single offense of theft may be performed in a number of ways necessarily requires that [it] be defined in a number of ways. Otherwise, theft could be committed in only one way, which is plainly not the case.“).
In our research, we have found only one jurisdiction, Montana, that arguably allows theft by taking to cover theft by deception without a statutory consolidation provision. See State v. Meeks, 341 Mont. 341, 176 P.3d 1073 (2008). In Meeks, the defendant had stolen property from several “big box” stores using three different methods:
In the first method, Meeks would walk into a store, load a shopping cart with merchandise, and then take it to the return counter and “return” the items without a receipt, usually in exchange for a store gift card. The second method involved price-switching by Meeks—taking bar code stickers from less expensive items and putting them onto more expensive items, then purchasing the more expensive items at the lesser price. In the third method, Meeks would bring a receipt into a store, pick up the items listed on that receipt from store shelves,
and then take the items to the return counter for a cash refund.
Id. at 1074. Meeks was charged with and convicted of “theft by common scheme,” which required the state to prove the defendant “purposely or knowingly obtain[ed] or exert[ed] unauthorized control over property.” Id. (quoting
On appeal, Meeks challenged the basis for his convictions. The court first concluded that Montana‘s theft-by-taking provision was intended to encompass all forms of theft, and therefore the charge and conviction “reflects the intent behind the statute.” Id. at 1075. The court further determined that although Meeks’ conduct was clearly misleading, the record also contained evidence of “unauthorized control” sufficient to support the theft-by-taking conviction. Id. A store employee had testified that no store customers were authorized to take items off the shelves, walk up to the customer service desk, and ask for a refund for unpaid items. Id. Similarly, store employees explained that no one is authorized to remove price stickers and replace them with lower-priced tags. Id.
Importantly, the facts of Meeks might have supported a conviction for theft by taking even under a narrower definition of that offense. Unlike the situation where a customer, say, removes an item from a store shelf and then writes a bad check at the checkout counter for the full cost of that item, Meeks exercised wrongful dominion and control over store-owned merchandise (either by switching the tags or by bringing it to the return counter) before he actually deceived a store employee. See Simon v. State, 349 P.3d 191, 197 (Alaska Ct. App. 2015) (recognizing the “types of conduct that a person can engage in, within the confines of a retail store, that are inconsistent with a customer‘s scope of authority“).
Weighing all of the foregoing considerations, we are persuaded that Nall‘s interpretation of
B. Disposition.
We must now apply our construction of
In FECR268551, Nall was convicted of theft by taking after a trial on the minutes. We believe there is insufficient evidence to support this guilty verdict. Here, the bank consented to Nall‘s withdrawals because it believed there were good funds in the account based on Nall‘s prior deposits of fraudulent instruments. Such conduct does not constitute theft by taking. Therefore, we reverse Nall‘s conviction on the second-degree theft charge with instructions that it be dismissed. See State v. Isaac, 756 N.W.2d 817, 821 (Iowa 2008); State v. Bash, 670 N.W.2d 135, 139 (Iowa 2003).
Under the interpretation of
Additionally, with respect to Nall‘s theft-by-taking guilty plea, we are not persuaded that a factual basis could be established on remand. See Schminkey, 597 N.W.2d at 792. Thus, we vacate the judgment of conviction and sentence and remand for dismissal of the third-degree theft charge. Id.3
As we have already mentioned, Nall did not challenge the forgery convictions in either FECR268329 or FECR268551. When only one of several convictions is reversed on appeal, an appellate court may remand the entire case for resentencing. See State v. Madsen, 813 N.W.2d 714, 730 (Iowa 2012). Or, when appropriate, “the judgment and sentence for the conviction that was reversed can be severed and the remaining sentence for the convictions that were not reversed can stand.” State v. Hopkins, 860 N.W.2d 550, 554 (Iowa 2015). In her appellate brief, Nall asks only that her theft convictions and sentences be vacated.
We elect to sever the judgment and sentence for each theft conviction and allow the remaining sentences in both cases to stand. In FECR268551, Nall‘s fifteen-year theft sentence was ordered to run concurrent with four forgery sentences, each of which carried the same fifteen-year term. In FECR268329, Nall‘s two-year theft sentence was ordered to run concurrent to her fifteen-year indeterminate sentence for forgery. We do not believe the theft convictions and sentences affected the court‘s sentencing decision on the remaining charges. Cf. Madsen, 813 N.W.2d at 730 (remanding for resentencing on the remaining counts after vacating the conviction on one count and noting that “the district court considered the fact Madsen was convicted on three counts when imposing the consecutive maximum sentences“).
IV. Conclusion.
For these reasons, we vacate the decision of the court of appeals, affirm in part and reverse in part the judgment of the
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Notes
We note that Nall did not plead guilty to the theft charge in FECR268329 as part of a plea bargain. See State v. Allen, 708 N.W.2d 361, 369 (Iowa 2006) (“The proper remedy when counsel fails to perform an essential duty by not challenging a plea for lack of a factual basis when the plea is a result of a plea bargain is to invalidate the entire plea bargain....“).[T]he trouble I‘m having, Mr. Parrish, is then if the defense is allowed to bring in the [statement] of Woolheater saying that he had a motivation, then why would not the [statements] that Woolheater said regarding—associating Vern [Huser] to it, not to be personal—
MR. PARRISH: I understand.
THE COURT: —but Mr. Huser to it, why would that [not] be admissible also?
MR. PARRISH: Well, exactly, Judge, and that‘s one of the discussions we had—and we‘ve talked about it the last two or three evenings—is that what it does open the door, that‘s why I wanted to bring it to the Court‘s attention.