State of Iowa v. Kamie Jo Schiebout

IN THE SUPREME COURT OF IOWA
No. 18–0081

Filed June 5, 2020

STATE OF IOWA,

Appellee,

vs.

KAMIE JO SCHIEBOUT,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Sioux County, Patrick H.

Tott (trial and sentencing) and Jeffrey A. Neary (restitution order), Judges.

The defendant requests further review of a court of appeals decision

affirming her conviction for theft. DECISION OF COURT OF APPEALS

VACATED; DISTRICT COURT JUDGMENT REVERSED AND

REMANDED FOR DISMISSAL.

Mark C. Smith (until withdrawal) and Martha J. Lucey, State

Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for

appellant.

Thomas J. Miller, Attorney General, Thomas J. Ogden, Assistant

Attorney General, and Thomas Kunstle, County Attorney, for appellee.
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McDERMOTT, Justice.

Kamie Jo Schiebout wrote checks without authorization from a bank

account that was not hers. The State charged her with violating Iowa Code

section 714.1(6) (2015), which provides a person commits theft “if the

person knows that such check . . . will not be paid when presented.” All

seven checks the State charged Schiebout with writing were paid when

presented. The jury nonetheless found Schiebout guilty.

This appeal requires us to address the types of conduct Iowa Code

section 714.1(6) forbids. Schiebout contends the State’s evidence

presented at trial was insufficient to show she knew the checks would not

be paid when presented. Schiebout argues presenting a check without

authorization, which was the substance of the State’s evidence, is different

than providing a check one knows will not be paid when presented, which

is the subject of section 714.1(6). As a result, Schiebout asserts the

district court committed reversible error in denying her motion for

acquittal at trial.

We agree. The text of section 714.1(6) forbids knowingly presenting

a check that will not be paid when presented. Evidence that she presented

checks without authorization is, without more, insufficient to establish

this particular crime. Because the State failed to present sufficient

evidence supporting a conviction under section 714.1(6) and, specifically,

that Schiebout knew the checks would not be paid when presented, we

vacate the decision of the court of appeals, reverse the judgment of the

district court, and remand for dismissal.

I. Background Facts and Proceedings.

Schiebout’s former husband, Matthew, served as treasurer of Sandy

Hollow Ducks Unlimited, the local chapter of the national Ducks Unlimited

organization. The chapter had a checking account at American State
 3

Bank. Only two people had signature authority on the checking account:

Matthew, as the chapter’s treasurer, and the chapter’s president. Matthew

kept the chapter’s checkbooks in the basement of the house he had shared

with Schiebout before their separation.

Schiebout had never been a member of the chapter and never had

check-writing authority on the chapter account. Nonetheless, months

after Matthew and Schiebout separated and Matthew moved out,

Schiebout wrote a series of unauthorized checks on the chapter’s account,

signing her own name on each check.

Over a two-month period, twelve checks were drawn on the account.

Only one was written by the chapter president or treasurer. Despite this,

the bank honored all twelve checks, even those presented after the account

ultimately became overdrawn. The bank mailed several overdraft notices

to Matthew, but he didn’t open any of them. Matthew first learned

someone had been writing unauthorized checks on the chapter’s account

when the bank eventually reached him by phone. Upon examining the

check images at the bank, Matthew recognized the signatures as

Schiebout’s. He reported the matter to the Orange City Police Department.

Around this time, but before the police had contacted her, Schiebout

wrote two more checks on the chapter’s account at Schweser’s, a clothing

store. Schiebout knew the store clerk and told her the checks were “her

husband’s.” Unlike with the other checks, the bank did not honor either

check to Schweser’s because the account was overdrawn. No evidence

suggests Schiebout thereafter attempted to pass any more checks.

Schiebout told an employee at the bank she had “grabbed the wrong

checkbook.”

The State charged Schiebout with second-degree theft under Iowa

Code sections 714.1(6) and 714.2(2), and as a habitual offender under
 4

Iowa Code sections 902.8 and 902.9(1)(c) based on prior criminal

convictions. At trial, the State presented evidence on eleven checks, but

the jury was instructed to consider only seven checks as instances of

alleged theft. The two checks Schiebout unsuccessfully passed at

Schweser’s were presented but not charged as part of the theft.

At trial, the State provided images of five of the seven checks that

were charged. The State could not present images of two of the checks

because the merchant, Wal-Mart, processed them as “automated

clearinghouse” (or ACH) withdrawals in which Wal-Mart converted the

paper checks into an electronic transfer that pulled funds from the

checking account. With the funds electronically transferred, Wal-Mart

handed the checks back to Schiebout without submitting the checks to

the bank. For the two Wal-Mart checks, the State instead presented

receipts showing the check numbers and store photos and video

surveillance of Schiebout at both the register and leaving with a cart of

items, all of which coincided with the dates and locations of the ACH

transfers.

The State asked the jury to consider Schiebout’s actions as part of

a single scheme and, thus, to aggregate the seven checks in calculating

the total value of property to determine the degree of theft. The seven

checks totaled $1256.93.

The four other checks that came into evidence, including the two

Schweser’s checks, were not made part of the charged theft but instead

were offered to help prove elements of the charged crime. Matthew

identified the signature on every check admitted into evidence as

Schiebout’s. Two checks contained Schiebout’s personal information,

such as her driver’s license number or date of birth, handwritten across

the top.
 5

At the close of the State’s evidence, Schiebout moved for judgment

of acquittal, arguing the State failed to prove the knowledge element of

section 714.1(6). The district court took the motion under advisement.

Schiebout made a renewed motion for acquittal after the defense

concluded its case, which the district court again took under advisement.

The district court ultimately denied the motion for acquittal in an

oral order in which the court noted its reliance on State v. James

concerning the knowledge element. 310 N.W.2d 197 (Iowa 1981),

overruled by State v. Hogrefe, 557 N.W.2d 871 (Iowa 1996). The district

court found the State had provided sufficient evidence on the knowledge

element because Schiebout “was aware that she was not an authorized

signer on this account” and “not being an authorized signer . . . she should

have known that they would not be accepted and could not have been

accepted in a legal fashion by the bank.”

The district court instructed the jury on the knowledge element,

Jury Instruction No. 13, as follows:

For the defendant to know something means she had a
conscious awareness that at the time she gave the checks to
the various businesses they would not be paid by the bank
because the defendant was not an authorized signer on the
account on which the checks were drawn.

The jury found Schiebout guilty of second-degree theft. At a second

trial focused on Schiebout’s habitual offender status, the jury found

Schiebout to be a habitual offender under Iowa Code section 902.8. The

district court sentenced her to an indeterminate prison term of fifteen

years, with a mandatory minimum of three years based on her habitual

offender status. The district court found Schiebout lacked the ability to

pay certain items of restitution and waived other costs.
 6

Shortly thereafter, the district court ordered Schiebout to pay the

Sioux County Sheriff’s Office $28,136.31 for medical services provided

while she was a detainee there. At the hearing, Schiebout did not receive

and did not have counsel representing her. Distinguishing other types of

restitution, the district court held Iowa law does not require an ability-to-

pay determination before ordering a convicted person to pay for medical

aid.

Schiebout appealed. She asserted the district court erred in denying

the motion for judgment of acquittal because there was insufficient

evidence both that Schiebout knew the checks would not be paid when

presented and that she obtained property or services in exchange for the

checks. Schiebout alternatively sought a new trial asserting the jury was

not properly instructed on the checks it was allowed to aggregate to meet

the dollar amount threshold for second-degree theft. Schiebout also

asserted the district court’s ruling imposing the sheriff’s claim for

reimbursement of the medical aid costs was improper and that she was

entitled to counsel at the hearing.

We transferred the appeal to the court of appeals. The court of

appeals affirmed Schiebout’s conviction on the sufficiency of evidence,

accepting the contention that knowledge of her lack of authorization in

presenting the checks satisfied the knowledge element under

section 714.1(6). The court of appeals further found no error in the jury

instruction on aggregating the dollar amounts of the checks. On the

district court’s order concerning payment for medical aid, the State, on

appeal, conceded medical aid is subject to the reasonable-ability-to-pay

requirement if treated as restitution under section 910.2 and further

conceded Schiebout was entitled to counsel at the restitution hearing. The
 7

court of appeals vacated the order requiring payment for medical aid and

remanded for further proceedings.

We granted Schiebout’s application for further review.

II. Standard of Review.

Issues of statutory interpretation are reviewed for correction of legal

error. State v. Nall, 894 N.W.2d 514, 517 (Iowa 2017). We likewise review

claims of insufficient evidence for correction of legal error. Id. We will

uphold the verdict on a sufficiency-of-evidence claim if substantial

evidence supports it. State v. Trane, 934 N.W.2d 447, 455 (Iowa 2019). In

reviewing a challenge to the sufficiency of evidence supporting a guilty

verdict, we consider “all of the record evidence viewed in the light most

favorable to the State, including all reasonable inferences that may be

fairly drawn from the evidence.” State v. Thomas, 847 N.W.2d 438, 442

(Iowa 2014) (quoting State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012)).

Evidence is substantial “if, when viewed in the light most favorable to the

State, it can convince a rational jury that the defendant is guilty beyond a

reasonable doubt.” Trane, 934 N.W.2d at 455 (quoting State v. Ramirez,

895 N.W.2d 884, 890 (Iowa 2017)).

III. Analysis.

Iowa Code section 714.1(6) states,

A person commits theft when the person . . . [m]akes,
utters, draws, delivers, or gives any check, share draft, draft,
or written order on any bank . . . and obtains property, the
use of property, including rental property, or service in
exchange for such instrument, if the person knows that such
check, share draft, draft, or written order will not be paid
when presented.
a. Whenever the drawee of such instrument has
refused payment because of insufficient funds, and the maker
has not paid the holder of the instrument the amount due
thereon within ten days of the maker’s receipt of notice from
the holder that payment has been refused by the drawee, the
 8
court or jury may infer from such facts that the maker knew
that the instrument would not be paid on presentation. . . .
b. Whenever the drawee of such instrument has
refused payment because the maker has no account with the
drawee, the court or jury may infer from such fact that the
maker knew that the instrument would not be paid on
presentation.

Interpreting the key words of this statute, to support a conviction
the State must thus prove “when the person . . . gives any check” the

person “knows” the check “will not be paid when presented.” Id.

Unless otherwise defined by the legislature, we give words their

ordinary meaning. State v. Damme, ___ N.W.2d ___, ___ (Iowa 2020).

“Interpreting a statute requires us to assess it in its entirety to ensure our

interpretation is harmonious with the statute as a whole rather than

assessing isolated words or phrases.” State v. Pettijohn, 899 N.W.2d 1, 16

(Iowa 2017).

On the knowledge element, the State’s evidence focused almost

completely on Schiebout’s lack of authorization to write checks on the

chapter’s checking account. The State succinctly states its argument in

its appeal brief: “A reasonable juror could conclude that because

Schiebout knew she was not authorized to sign the checks, she knew the

bank would not pay them.” But the State’s argument, without more,

invites a logical fallacy because the premise doesn’t require the conclusion.

The State presented evidence of Schiebout’s lack of authority to write

checks from the account, but the record contains no other evidence on the

determinative issue: whether Schiebout knew the bank would fail to pay

the checks when she presented them.

The district court instructed the jury the State must prove Schiebout

possessed a “conscious awareness” that the checks would not be paid

when presented because she was not an authorized signer on the account.
 9

Jury Instruction No. 13; see also Jury Instruction No. 14 (knowledge

element requiring State to prove Schiebout “knew at the time she gave the

checks to local organizations or businesses that they would not be paid by

the bank because [she] was not an authorized signer on the account”);

Sahu v. Iowa Bd. of Med. Exam’rs, 537 N.W.2d 674, 678 (Iowa 1995)

(defining “knowledge” to mean the defendant had a “conscious awareness”

of the element requiring knowledge). Jury instructions, when not objected

to, become the law of the case for purposes of appellate review for

sufficiency-of-evidence claims. State v. Canal, 773 N.W.2d 528, 530 (Iowa

2009). The evidence in this case was insufficient to support a finding that

Schiebout, simply because she was not an authorized signer on the

account, possessed a conscious awareness that the checks would not be

paid when presented.

Any such claimed knowledge by Schiebout clashes with the reality

that the bank did in fact pay each of the checks. That the bank paid the

checks when presented is not determinative on the issue of Schiebout’s

knowledge. But there was no other sufficient evidence presented from

which to conclude Schiebout knew—in this case, contrary to fact—that

the bank would refuse payment when she presented the checks. The

statements Schiebout made that the checks were “her husband’s” or that

she “grabbed the wrong checkbook” at best show knowledge she lacked

authorization on the account, not that she knew the bank wouldn’t pay

the checks when she presented them.

Indeed, her experience would have provided her with knowledge

going the other direction—that the bank always paid the checks when she

presented them. In particular, her two experiences at Wal-Mart, in which

the check was electronically submitted through the ACH payment process

as she stood by the cashier’s stand, reasonably would have confirmed for
 10

her the bank’s practice of paying each check when presented. Businesses

that accepted two other checks presented at trial (but that were not among

the seven checks considered by the jury as charged) likewise processed

the checks as ACH transfers.

Section 714.1(6) includes two presumptions establishing a

defendant’s knowledge, but neither applies in this case. Subsections

714.1(6)(a) and (b) apply only when “the drawee of such instrument has

refused payment.” Iowa Code § 714.1(6)(a)–(b). The drawee, American

State Bank, did not refuse payment on any of the seven checks. By the

plain language of these subsections, as applied to the facts of this case,

these presumptions are not triggered.

The State correctly cites our prior observation that the Iowa theft

statute is “modeled after the Model Penal Code, with slight variation.”

State v. Donaldson, 663 N.W.2d 882, 885 (Iowa 2003). But Iowa Code

section 714.1(6) and the associated Model Penal Code section 224.5

addressing theft by bad checks differ in a manner significant in this case.

Unlike Iowa’s theft statute, the Model Penal Code states a person is

presumed to know that the check would not be paid “if . . . the issuer had

no account with the drawee at the time the check or order was issued.”

Model Penal Code § 224.5 (Am. Law Inst. 1980). But the absence of this

language in Iowa Code section 714.1(6) means the district court couldn’t

presume Schiebout knew the checks wouldn’t be paid merely because the

bank account didn’t belong to her. We’re bound by the language of the

statute as enacted, not by the unenacted language of the Model Penal

Code. See, e.g., State v. Isaac, 756 N.W.2d 817, 821 (Iowa 2008) (finding

Iowa Code section 709.9 (2005) narrower than its associated Model Penal

Code provision). We interpret and apply statutes using “the legislature’s

chosen statutory language, ‘not what it should or might have said.’ ” State
 11

v. Ross, 941 N.W.2d 341, 346 (Iowa 2020) (quoting Auen v. Alcoholic

Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004)). We can’t exercise

legislative power to amend the Iowa Code “in the guise of interpretation.”

In re Det. of Geltz, 840 N.W.2d 273, 280 (Iowa 2013).

As we’ve noted previously, Iowa Code section 714.1 prescribes ten

different ways a person can commit theft. Nall, 894 N.W.2d at 518–19

(providing historical background on Iowa’s theft statutes). That there

might be another subsection of Iowa’s theft statute arguably better suited

to the facts of this case isn’t before us. We’ve previously noted Iowa’s theft-

by-check statute (section 714.1(6)) deals with “a common means of theft

(bad checks) with potentially difficult questions of proof,” while the theft-

by-deception statute (section 714.1(3)) “is meant as a catch-all crime to

encompass the full and ever changing varieties of deception.” Hogrefe, 557

N.W.2d at 878. As to these two statutes, “[f]actual scenarios may overlap,

but the legal schemes in which they are situated are complementary rather

than redundant.” Id.

We hold the district court erred in denying Schiebout’s motion for

acquittal and, therefore, vacate the court of appeals decision and reverse

the district court’s judgment of conviction with instructions that the

charges be dismissed. See Nall, 894 N.W.2d at 524–25; Isaac, 756 N.W.2d

at 821.

Concerning the district court’s restitution order charging Schiebout

for medical aid pursuant to Iowa Code section 356.7, a prisoner may be

charged for such costs only if “convicted of a criminal offense or sentenced

for contempt of court for violation of a domestic abuse order.” Iowa Code

section 356.7(1) (2015). With Schiebout’s conviction vacated, she cannot

be held liable under section 356.7 for these charges. See id.; see also Iowa

Code § 910.2(1) (requiring “judgment of conviction” for a restitution order
 12

to issue); State v. Dudley, 766 N.W.2d 606, 614 (Iowa 2009) (restitution

procedures and standards of chapter 910 do not apply to an acquitted

defendant). The district court’s restitution order is thus similarly vacated.

IV. Conclusion.

For these reasons, we vacate the decision of the court of appeals,

reverse the judgment of the district court, and remand for an order

dismissing the case.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED AND REMANDED FOR DISMISSAL.

All justices concur except Oxley and McDonald, JJ., who dissent.
 13

#18–0081, State v. Schiebout

OXLEY, Justice (dissenting).

I respectfully dissent from the majority’s opinion.

This case reaches us on appeal from the district court’s denial of

Schiebout’s motion for judgment of acquittal, which is the means by which

we consider a challenge to the sufficiency of the evidence. “The principles

governing our review of a district court’s denial of a criminal defendant’s

motion for judgment of acquittal are well-established.” State v. Serrato,

787 N.W.2d 462, 465 (Iowa 2010). Where the defendant does not challenge

the jury instructions, those instructions become law of the case and define

the law against which the evidence is measured. See State v. Canal, 773

N.W.2d 528, 530–31 (Iowa 2009). The majority gives lip service to this

standard, but only after first providing its interpretation of Iowa Code

section 714.1(6) (2015), an issue not before us since Schiebout did not

challenge the jury instructions below.

Element 4 of Jury Instruction No. 14, the marshalling instruction,

required the state to prove “[t]he Defendant knew at the time she gave the

checks to local organizations or businesses that they would not be paid by

the bank because the Defendant was not an authorized signer on the

account.” (Emphasis added.) Jury Instruction No. 13 added a “conscious

awareness” definition to the knowledge element, explaining,

For the defendant to know something means she had a
conscious awareness that at the time she gave the checks to
the various businesses they would not be paid by the bank
because the defendant was not an authorized signer on the
account on which the checks were drawn.

(Emphasis added.)

In considering a sufficiency challenge, we “consider all of the record

evidence viewed in the light most favorable to the State, including all
 14

reasonable inferences that may be fairly drawn from the evidence.” State

v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014) (quoting State v. Sanford,

814 N.W.2d 611, 615 (Iowa 2012)). “[T]he evidence must raise a fair

inference of guilt and do more than create speculation, suspicion, or

conjecture.” State v. Kern, 831 N.W.2d 149, 158 (Iowa 2013) (quoting State

v. Webb, 648 N.W.2d 72, 76 (Iowa 2002)).

“Importantly, ‘[j]urors are not expected to lay aside matters of

common knowledge or their own observation and experience of the affairs

of life, but may give effect to such inferences as common knowledge or

their personal observation and experience may reasonably draw from the

facts directly proved.’ ” State v. Stevens, 719 N.W.2d 547, 552 (Iowa 2006)

(quoting State v. Manning, 224 N.W.2d 232, 236 (Iowa 1974) (affirming

conviction against challenge to sufficiency of evidence to establish intent

element of crime)). “Knowledge . . . may be proved by circumstantial

evidence, and in a case like this that is usually necessary.” State v.

Coburn, 244 N.W.2d 560, 563 (Iowa 1976) (quoting People v. Adams,

340 P.2d 677, 679 (Cal. Dist. Ct. App. 1959)) (addressing “[k]nowledge of

lack of sufficient funds and intent to defraud” under predecessor statute

to section 714.1(6) and concluding “[t]he combined effect of the checks

placed in evidence and the other testimony was to show inferentially the

existence of such knowledge and intent” (quoting Adams, 340 P.2d at

679)).

Using these standards to measure the evidence against the

instructions provided to the jury, the evidence was sufficient to allow the

jury to make the fair inference that Schiebout knew she was not an

authorized signer on the Ducks Unlimited account and that she had a

conscious awareness when she wrote the checks that the bank would not

cover the checks because of that fact. Kamie and Matthew Schiebout
 15

separated in April 2015, and Kamie moved out of their shared home

around July. Their divorce was final on November 29. Matthew closed

their joint checking account in April, which upset Kamie when she learned

the account was closed because Matthew was not keeping up on his

support obligations. After Matthew opened an individual account, and

while they were still married, Kamie snuck checks out of the back of his

checkbook and wrote one or two checks. Although Matthew did not

challenge her actions, he was careful not to allow her access to his

checkbook again.

Kamie did not begin using the Ducks Unlimited checks until at or

around the time their divorce was final in late November. She wrote at

least two checks prior to presenting the first check to Wal-Mart that was

processed as an ACH transaction. Unlike the individual account Matthew

opened following their separation, the Ducks Unlimited checking account

was owned by a nonprofit entity with which Kamie had no relationship.

As the treasurer, Matthew never used the Ducks Unlimited checkbook for

personal expenses, only to cover expenses related to an auction the

organization hosted each year. The Ducks Unlimited checkbook was not

on Matthew’s dresser or in his pants pocket; Kamie had to sneak the

checks out of storage in the basement of the house she no longer lived in.

Based on the evidence that the checks she wrote were numbered at least

150 checks from the last properly authorized check, the jury could have

found she went to lengths to avoid getting caught taking a book of checks

out of the bottom of the box.

Kamie’s knowledge that the bank would not pay checks she wrote

as an unauthorized signer on the Ducks Unlimited account is also

evidenced by the stories she told about her use of the checks. When

questioned by the clerk at Schweser’s clothing store about using a Ducks
 16

Unlimited check, Kamie told the clerk it was her husband’s check—clearly

not true both because she was no longer married to Matthew and the

account was not “his” account but owned by a nonprofit for which Matthew

previously served as the treasurer. She told a different story to the bank’s

vice president when she said she mistakenly “grabbed the wrong

checkbook”—a checkbook that she had to sneak out of storage in the

basement.

From these “direct facts,” the jury was well within its province to rely

on its common knowledge and experience and reasonably infer that Kamie

knew she was not authorized to write the Ducks Unlimited checks and she

was consciously aware that would cause the bank not to pay them when

presented to the bank. See Stevens, 719 N.W.2d at 552; see also Delay-

Wilson v. State, 264 P.3d 375, 377 (Alaska Ct. App. 2011) (concluding the

“evidence supported a reasonable conclusion by a jury that Delay-Wilson

had not merely made a mistake when she issued the two checks . . . , but

knew that there were insufficient funds in her accounts to pay the checks”

to support conviction under statute criminalizing issuance of “a check

knowing that it will not be honored by the drawee” (second quote Alaska

Stat. § 11.46.280(a) (2008)). That there is other evidence from which the

jury could have found differently does not mean the jury’s verdict was

unsupported by sufficient evidence.

The majority’s opinion effectively requires nonpayment of the check

by the bank as an element of the offense of theft by check under

section 714.1(6). Whether or not nonpayment is required by the statute is

not properly before us on a sufficiency review where the instructions were

unchallenged and did not require nonpayment as an element.

Nonetheless, the majority defines the statute as requiring the State to

prove: “ ‘when the person . . . gives any check’ the person ‘knows’ the check
 17

‘will not be paid when presented.’ ” The majority then concludes that

standard is not met here, explaining “there was no other sufficient

evidence presented from which to conclude Schiebout knew—in this case,

contrary to fact—that the bank would refuse payment when she presented

the checks.” By starting with the language of the statute and its

interpretation of that language to focus on the “person ‘know[ing]’ the

check ‘will not be paid when presented,’ ” the majority sets up an

impossible evidentiary standard requiring the State to prove knowledge of

a future event. Yet our cases consistently measure knowledge from the

defendant’s perspective at the time the check is issued, not what will

happen in the future. See State v. Hogrefe, 557 N.W.2d 871, 879

(Iowa 1996) (reconciling discrepancies between theft by deception and

theft by check in prior cases and holding “criminal liability should attach

if at the time the defendant issued the check, the defendant (1) never had

the intention to pay the check or (2) knew he or she would not be able to

pay it”); see also State v. Rojas-Cardona, 503 N.W.2d 591, 595 (Iowa 1993)

(affirming conviction based on evidence from which “a jury could find that

at the time he tendered the check . . . , [defendant] knew his account was

closed[; h]e therefore knew the check was worthless and would never be

paid by the bank” (emphasis added)), overruled on other grounds by

Hogrefe, 557 N.W.2d 871.

The majority also goes astray relying on the statutory inferences

allowed when a bank in fact refuses payment of a check in certain

circumstances, see Iowa Code § 714.1(6)(a)–(b), where no such inferences

were addressed in the jury instructions. The statutory inferences are

evidentiary standards, not elements of the crime. See Coburn, 244 N.W.2d

at 562 (discussing the predecessor to section 714.1(6) and explaining that

“the 10 day ‘make good’ notice provision in [Iowa] Code [section] 713.4 is
 18

merely a rule of evidence, not an element of a [section] 713.3 offense”). The

fact that section 714.1(6) includes statutory inferences does not preclude

use of the theft by check statute when the checks are ultimately cashed

by the bank, as the majority effectively holds. It just means the state must

prove the requisite criminal intent without the benefit of the statutory

inferences. When the statutory inferences of section 714.1(6) are

unavailable, “[k]nowledge . . . , like any other fact, may [still] be proved by

circumstantial evidence . . . .” Id. at 563 (quoting Adams, 340 P.2d at

679).

Finally, the majority’s reliance on the statutory language discounts

the language used in the instructions. Jury Instruction No. 13 and No. 14

follow the phrase “would not be paid by the bank” with the dependent

clause “because the defendant was not an authorized signer on the

account,” putting the focus on the reason the checks would not be paid.

Commentators have described the knowledge element as satisfied “where

the party [issuing the check] knows that the check will be dishonored or

does not have any reasonable grounds for believing that the check will be

paid.” 35 C.J.S. False Pretenses § 42 (2020) (emphasis added). This is

consistent with our prior cases measuring knowledge from the defendant’s

perspective at the time the check is issued. See Hogrefe, 557 N.W.2d at

879; Rojas-Cardona, 503 N.W.2d at 595; State v. James, 310 N.W.2d 197,

200–01 (Iowa 1981) (describing the “guilty knowledge,” or mens rea,

required to violate section 714.1(6) as “obtaining . . . something of value

through the use of a check which the perpetrator knows is worthless”

(quoting State v. Smith, 300 N.W.2d 90, 92–93 (Iowa 1981))), overruled on

other grounds by Hogrefe, 557 N.W.2d 871. It is also how the jury

apparently understood the instructions, an understanding that was

supported by the evidence.
 19

I do not disagree with the majority’s struggle with the ambiguous

language of the statute. But I do disagree with the majority’s efforts to

interpret the statute where that issue is not before us.

I respectfully dissent.

McDonald, J., joins this dissent.