Amended July 13, 2015 State of Iowa v. John Robert Hoyman

IN THE SUPREME COURT OF IOWA

No. 14–0262

Filed May 1, 2015

Amended July 13, 2015

STATE OF IOWA,

Appellee,

vs.

JOHN ROBERT HOYMAN,

Appellant.

Appeal from the Iowa District Court for Warren County,

Rebecca Goodgame Ebinger, Judge.

The defendant appeals his conviction and sentence for fraudulent

practice following a jury trial. REVERSED AND REMANDED WITH

DIRECTIONS.

Mark E. Weinhardt and Todd M. Lantz of Weinhardt & Logan, P.C.,

Des Moines, for appellant.

Thomas J. Miller, Attorney General, Kyle P. Hanson and Robert H.

Sand, Assistant Attorneys General, for appellee.

2

MANSFIELD, Justice.

This case involves an individual who knowingly submitted

inaccurate bills to a city while serving as its attorney. The State charged

the individual with felonious misconduct in office, see Iowa Code

§ 721.1(1), (2), (3) (2011), first-degree theft, see id. §§ 714.1(1), .1(3),

.2(1), and first-degree fraudulent practice, see id. §§ 714.8(4), .9. The

State maintained the defendant had inflated his earnings by billing for

trials and prosecutions that did not actually occur. The defendant

conceded his past bills were inaccurate, but argued the city largely

condoned this practice. He further maintained that he did not bill for

more time than he had actually worked overall on city matters.

At trial, the district court dismissed the felonious misconduct

charge, and the jury acquitted the defendant of theft. However, the jury

found the defendant guilty of first-degree fraudulent practice, and he was

sentenced to an indeterminate term of ten years in prison. The

defendant now appeals his conviction and sentence.

On appeal, the defendant challenges certain jury instructions. He

argues the fraudulent practice marshaling instruction was deficient

because it did not require the jury to find an intent to deceive as an

element of the offense. The defendant also faults the instructions

addressing the degree of the fraudulent practice. See Iowa Code

§ 714.14. The defendant insists those instructions failed to clearly

require the jury to determine he had obtained money or property through

each false entry that was being aggregated, as the aggregation statute

requires, not merely that more than ten thousand dollars was involved.

Finally, as an additional ground for appeal, the defendant argues the

district judge hearing his case should have recused herself.

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Upon our review, we agree that the jury instructions were flawed

as contended by the defendant, and therefore, we reverse the judgment

below and remand for a new trial. We need not and do not reach the

question of whether the district judge should have recused herself, but

instead exercise our authority to direct that the new trial take place

before a different judge.

I. Background Facts and Proceedings.

John Hoyman grew up in Indianola and returned there to practice

law beginning in 1984. In 1986, Hoyman began working part time as the

Indianola city attorney in addition to managing his own private practice.

Hoyman’s duties as city attorney included prosecuting simple

misdemeanor and traffic cases, representing the city’s interests in

various civil matters, signing appeal bonds, preparing ordinances,

reviewing contracts, providing legal opinions to the city, attending city

council meetings, and drafting contracts and other documents for the

city. See Indianola, Iowa, Code of Ordinances ch. 20.

For the services performed as city attorney, Hoyman would submit

a monthly bill to the Indianola city clerk. The bills included a line item

for Hoyman’s monthly retainer of $1000, which covered attendance at

city council meetings and short phone calls. Hoyman then billed the city

hourly for additional work not covered by the retainer. For example,

Hoyman’s bills listed hours he spent prosecuting simple misdemeanor

and traffic matters. For each of these matters, he would identify the

individual he had prosecuted. Additionally, Hoyman billed the city for

civil matters not covered by his retainer.

Over time, Hoyman became less methodical in tracking and

reporting his time spent on city legal work. Around 2004, Hoyman

received permission from the then-city manager to divide the entire time

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he spent in trials evenly among all the individuals who went to trial that

day. Also during that time period, the city clerk who processed

Hoyman’s bills informed Hoyman he could disclose the name of only one

of the cases he prosecuted, followed by “et al.,” rather than listing all the

remaining cases by name. At no time was Hoyman given permission to

invent names or bill for trials that did not occur.

In approximately 2006, Hoyman stopped using the names of actual

individuals he had prosecuted and began putting phantom names on his

bills. Hoyman would use names of people he knew or would select

names at random from a phone book or a platting map of Warren

County. Additionally, Hoyman began including more trials on his bills

than had actually taken place on certain days.

In August 2012, the acting city manager suspected that one of

Hoyman’s bills was inaccurate. She reported the problem to the

Indianola police chief. The chief of police attempted to cross-reference

the name Hoyman had listed on the invoice with police records and

discovered the Indianola police department had never issued a citation to

a person by that name. The police chief then requested more of

Hoyman’s past invoices from the city manager and determined they also

contained names of individuals who had not been cited by the police

department. Due to the potential conflict in having a city police

department investigate the city’s own attorney, the chief of police asked

the Iowa Division of Criminal Investigation (DCI) to look into the matter

further.

DCI Special Agent Scott Peasley was assigned to investigate

Hoyman’s billing. Peasley compared Hoyman’s invoices to the

handwritten court calendar maintained by the Warren County judicial

clerk. He determined that most of Hoyman’s bills from 2011 and 2012

5

contained incorrect names and that he had billed for more trials than

had actually taken place. Hoyman had even billed for trials on some

days when no trials had taken place.

On September 13, 2012, Peasley and another agent interviewed

Hoyman about the inaccurate bills. Hoyman admitted making up the

names of individuals shown on his bills. He claimed, though, that the

names mattered to no one. Hoyman also admitted billing hours for

“trials” when in fact no trials had taken place. Hoyman maintained,

however, that any overbilling for trial matters merely compensated for

underbilling in other areas. Hoyman asserted that while his hours were

mislabeled, he never billed on the whole for more time than he actually

spent working on behalf of the city. In fact, he claimed he had

undercharged the city. Hoyman did say in the interview, “I’m f***ed . . . if

we look at the data,” and, “If I go down, I go down.”

On May 15, 2013, the State charged Hoyman with theft in the first

degree, see Iowa Code §§ 714.1(1), .1(3), .2(1), fraudulent practice in the

first degree, see Iowa Code §§ 714.8(4), .9, and felonious misconduct in

office, see Iowa Code § 721.1(1), (2), (3). The State later amended the

trial information to clarify that it was pursuing the fraudulent practice

charge under section 714.14, which permits the aggregation of money

from multiple acts to qualify as a single fraudulent practice. See id.

§ 714.14. First-degree theft and first-degree fraudulent practice are class

“C” felonies. Id. §§ 714.2(1), .9. Felonious misconduct in office is a class

“D” felony. Id. § 721.1. Hoyman pled not guilty to all three charges.

On August 26, Hoyman filed a motion for the case to be assigned

to a judge other than two judges he specifically identified. Hoyman

explained that he had a personal relationship with both judges and that

both had expressed their intention to recuse themselves from the

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matter. 1 In response, the chief judge of the district specially assigned

Hoyman’s case to a designated judge of District 5C, noting the special

assignment was warranted due to possible conflicts with judges in the 5A

and 5B judicial districts.

Following the special assignment, a hearing took place on

September 16 before the newly assigned judge on Hoyman’s motion to

dismiss Count II and the State’s motion for change of venue. The district

judge introduced herself and continued:

Today before the Court we have two issues: the motion

to dismiss Count II and the motion for change of venue.

Before we discuss those, I wanted to make a brief disclosure

to the parties. I know both of the attorneys in this matter,

and I wanted to make sure that the parties are aware of the

fact that my husband is a good friend of [the prosecutor,] Mr.

Sand[,] and my daughter was the flower girl in his wedding.

I did not attend the wedding, but there is that relationship

there.

I’ve consulted the Code and the Rules of Judicial

Conduct. I don’t believe there’s anything that would

preclude me from continuing to preside in this matter, but I

wanted to make that disclosure to the parties.

Hoyman was given time to confer with his attorney, who asked the

judge to provide additional information about her relationship with the

prosecutor:

MR. WEINHARDT: Thank you for the brief delay, Your

Honor. If I may ask, when was the wedding? MR. SAND:

June 2nd, 2010.

MR. WEINHARDT: Okay. And if I may ask of either the

Court or Mr. Sand, notwithstanding the fact that the

relationship is between Your Honor’s spouse and Mr. Sand,

do[] Your Honor and Mr. Sand see each other in social

situations? THE COURT: I have been in Mr. Sand’s home,

and he has been to my home on occasions. I don’t meet with

Mr. Sand outside of the context of my husband ever. I’ve

1One of these judges was from District 5A, the other from District 5B. One of

them later testified on Hoyman’s behalf at trial.

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never had the opportunity to be personally in a personal

relationship with Mr. Sand outside of the context of his

relationship with my spouse.

Based on this information, Hoyman’s attorney requested the

district court to recuse itself from the case:

Your Honor, I’ve conferred with my client[] about this, and

based upon what we expected about the facts -- and this is

sort of consistent with that -- it’s our belief that this does

create an appearance issue, even if it is not a substantive

issue. And it’s difficult, without delving into much more

facts, to get into that. But we do believe that it creates an

appearance issue, and so we would ask that the Court

recuse.

The court denied the motion to recuse:

Thank you for your comments. The Court declines to

recuse. The issues in this case are -- I have no knowledge of

the defendant. I know Mr. Weinhardt as well. I see Mr.

Weinhardt at school events and have known him in my life

prior to the bench.

I don’t believe that the Rules of Judicial Conduct

require me to recuse. I was just refreshing my recollection,

and I did research prior to today’s events. In this instance,

there is a -- particularly referencing Iowa Court Rule

51:2.11, which requires recusal in cases where any

appearance would suggest that the Court would [not] be

impartial.

In this instance, the Court believes that my obligation

to hear cases that come before me would require me to

continue to preside over this case. 51:2.7 requires, “A judge

shall hear and decide matters assigned to the judge . . . .”

This case has been specifically assigned to me. I don’t know

either of the two other judges who were previously recused. I

have no knowledge of the defendant, and I am [uniquely]

situated to be able to preside over this in a fair and impartial

matter. The motion to recuse is denied.

Trial took place from December 16 to December 19. The crux of

Hoyman’s defense was that while his record-keeping and billing

processes were inaccurate, he never intended to collect money he had

not earned from the city. Hoyman asserted he had never submitted a

monthly bill totaling more hours than he had actually worked. At the

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close of the defense case, the court granted Hoyman’s motion for

judgment of acquittal on the felonious misconduct in office charge and

thereby dismissed Count III. The court also limited the time period

covered by the remaining charges to 2011 and 2012, finding the State

had presented insufficient evidence on earlier time periods.

The court gave the following marshaling instruction on Count II,

the fraudulent practice charge:

JURY INSTRUCTION NO. 23

FRAUDULENT PRACTICES: MARSHALING INSTRUCTION

In Count II of the Trial Information, defendant John

Robert Hoyman is charged with Fraudulent Practices. The

State [must] prove all of the following elements:

1. From 2011 through 2012, defendant Hoyman made

any entry in a public record or records of a business; and

2. Mr. Hoyman knew the entry to be false.

If the State has proved all of these elements, the

defendant is guilty. You must then determine the degree of

Fraudulent Practice, as explained to you in Instruction

Number 26. If the State has failed to prove any of the

elements, defendant Hoyman is not guilty.

In addition, the court instructed the jury as follows relating to

degrees of fraudulent practice:

JURY INSTRUCTION NO. 25

FRAUDULENT PRACTICES -- DEFINITION -- SINGLE

If money is obtained by two or more acts from the

same person or location so that the fraudulent practices are

attributable to a single scheme, plan, or conspiracy, these

acts may be considered a single fraudulent practice and the

value may be the total value of all the money involved.

JURY INSTRUCTION NO. 26

DEGREES OF FRAUDULENT PRACTICES

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If you find defendant Hoyman guilty of Fraudulent

Practices, you should then determine the degree of

Fraudulent Practices. Attached to the verdict form is a

question which must be answered, and by so doing, you will

determine the degree of Fraudulent Practices.

In answering the question, the State must prove the

value of the property involved. You will check the blank next

to the appropriate value on the verdict form.

The following are the different degrees of Fraudulent

Practices:

1. Property valued $200 or less is Fifth Degree

Fraudulent Practices.

2. Property valued more than $200 but not more than

$500 is Fourth Degree Fraudulent Practices.

3. Property valued more than $500 but not more than

$1,000 is Third Degree Fraudulent Practices.

4. Property valued more than $1,000 but not more

than $10,000 is Second Degree Fraudulent Practices.

5. Property valued more than $10,000 is First Degree

Fraudulent Practices.

Hoyman had objected to Instruction No. 23 on the ground it did

not include “specific intent to deceive” as an element. Hoyman also had

objected to Instruction No. 26, asserting that the use of the word

“involved” diluted the State’s burden of proof when a case was being tried

on an aggregation theory. Hoyman elaborated that Instruction No. 26

needed to tell the jury that if they were using the aggregation theory from

Instruction No. 25, he had to have obtained property from each entry

that was being aggregated. Hoyman further argued that the instructions

needed to make clear that if the jury was not relying on an aggregation

theory, then the more serious degrees of fraudulent practice were not

available because the largest single entry was only $558. The court

overruled these objections.

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The jury found Hoyman not guilty of theft and guilty of first-degree

fraudulent practice. Hoyman moved for a new trial. He claimed, among

other things, that the jury instructions were incorrect as a matter of law

for failing to include intent to deceive as an element and for not requiring

proof that Hoyman “obtained” anything through his alleged false entries

when those entries were being aggregated to determine the degree of

fraudulent practice.

The court denied the motion in a written decision on February 17,

2014. It stated that it did not view intent to deceive as an element of this

fraudulent practice:

The Court reaffirms its previous ruling that the offense

of Fraudulent Practices does not require proof of specific

intent. . . . Categorization of an offense as a fraudulent

practice does not, in and of itself, make an offense a specific

intent crime. And, the use of the word “false” in the statute

should not be interpreted to require proof of an evil motive or

intent. (Citation omitted.)

The court went on to note that the statute only required the act to be

done “knowingly” and not with any specific intent. See Iowa Code

§ 714.8(4).

The court also held that Hoyman was not prejudiced by the

absence of “obtaining funds” language from Instruction No. 26. It said,

“The instructions tracked the statutory language and gave independent

meaning to the words ‘involved’ and ‘obtained.’ ”

On February 20, the district court sentenced Hoyman to an

indeterminate term of ten years’ imprisonment, following the State’s

recommendation rather than Hoyman’s request for a deferred judgment.

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The court also ordered Hoyman to pay a $1000 fine and entered an order

of restitution. 2

Hoyman appealed, claiming the district court erred in not

including intent to deceive as an element in the fraudulent practice

marshaling instruction, in using the term “involved” rather than

“obtained” in the degrees-of-fraudulent-practice instruction, and in

declining to disqualify itself. We retained the appeal.

II. Standard of Review.

“We review challenges to jury instructions for correction of errors

at law.” State v. Cordero, 861 N.W.2d 253, 257–58 (Iowa 2015) (internal

quotation marks omitted). “Error in giving or refusing to give a jury

instruction does not warrant reversal unless it results in prejudice to the

complaining party.” Id. (internal quotation marks omitted). “[P]rejudice

will be found . . . where the instruction could reasonably have misled or

misdirected the jury.” State v. Becker, 818 N.W.2d 135, 141 (Iowa 2012).

We review a judge’s recusal decision for an abuse of

discretion. The court abuses its discretion when its decision

is based on untenable grounds or it has acted unreasonably.

A ground or reason is untenable when it is not supported by

substantial evidence or when it is based on an erroneous

application of the law.

State v. Millsap, 704 N.W.2d 426, 432 (Iowa 2005) (citations

omitted) (internal quotation marks omitted).

III. Jury Instructions.

Hoyman contends the trial court erred in its instructions

concerning the elements of fraudulent practice and the degrees of

fraudulent practice. We will take up these two arguments in turn.

22The restitution matter is currently the subject of a separate appeal.

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A. Intent to Deceive. Hoyman was charged with a fraudulent

practice pertaining to public records. The statute provides, in relevant

part:

A person who does any of the following acts is guilty of

a fraudulent practice:

....

4. Makes any entry in or alteration of any public

records, or any records of any corporation, partnership, or

other business enterprise or nonprofit enterprise, knowing

the same to be false.

Iowa Code § 714.8(4).

The marshaling instruction (Instruction No. 23) required the State

to prove two elements: that Hoyman made an entry in a public record or

the records of a business and that he knew the entry to be false.

Hoyman claims the trial court should have included a third element in

the instruction—namely, that Hoyman had an intent to deceive when he

made the entry. Hoyman urges this element is implicit in the word

“false.” He further maintains that without an instruction expressly

requiring the jury to find intent to deceive, one could be convicted for

making a trivial but knowing misstatement in a billing record even when

the actual facts were known to or did not matter to the recipient of the

bill. Indeed, Hoyman insists that is what happened in this case:

Although Hoyman admittedly submitted inaccurate billing records, he

contends the city knew his records were inaccurate and accepted the

practice because of the administrative burden associated with submitting

accurate records and because Hoyman, in toto, was not overbilling the

city.

The State responds that Iowa Code section 714.8(4)—unlike certain

other subsections of 714.8—does not mention intent to defraud.

13

Compare id. § 714.8(4), with id. § 714.8(9) (stating a person is guilty of a

fraudulent practice if he or she “[a]lters or renders inoperative or

inaccurate any meter or measuring device . . . with the intent to defraud

any person”), and id. § 714.8(18)(a) (making it a fraudulent practice

when a person “[m]anufactures, creates, reproduces, alters, possesses,

uses, transfers, or otherwise knowingly contributes to the production or

use of a fraudulent retail sales receipt or universal product code label

with intent to defraud another person engaged in the business of

retailing”). The State also notes that several other subsections of section

714.8 expressly require proof of other forms of specific intent. See, e.g.,

id. § 714.8(6) (“[f]or the purpose of soliciting assistance, contributions, or

other things of value”); id. § 714.8(7) (“with the intent that [a] token or

[coin-operated] device may be so used”); id. § 714.8(9) (“with the intent to

defraud any person”); id. § 714.8(11) (“for the purpose of concealing or

misrepresenting”); id. § 714.8(12) (“with the intent to obtain public

assistance”); id. § 714.8(13)(a)(1) (“for the purpose of obtaining benefits

under targeted small business programs if the transferor would

otherwise not be qualified for such programs”); id. § 714.8(13)(a)(2) (“for

the purpose of transferring the contract to another for a percentage”); id.

§ 714.8(13)(a)(3) (“for the purpose of obtaining benefits”). In the State’s

view, the principle of expressio unius est exclusio alterius compels the

conclusion that an intent to deceive is not a required element of the

section 714.8(4) offense.

The State further relies on our decisions in State v. Osborn, 368

N.W.2d 68 (Iowa 1985), and State v. McSorley, 549 N.W.2d 807 (Iowa

1996) (per curiam). In Osborn, we rejected the defendant’s contention

that willful failure to file a required income tax return or pay required

taxes, a fraudulent practice prohibited by Iowa Code sections 422.25(5)

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and 714.8(10) (1979), 3 required proof of an intent to defraud. See 368

N.W.2d at 69–70. We stated that the legislature did not require such

proof “merely by designating the offenses as fraudulent practices.” Id. at

70. We added that “[o]ne basic flaw in [the defendant’s] argument is that

even the offenses specified as fraudulent practices in section 714.8 do

not all require proof of intent to defraud.” Id.

In McSorley, we held the defendant’s conviction for making false

entries in corporate records in violation of Iowa Code section 714.8(4)

(1995) did not require proof that he had actually obtained any money,

services, or property as a result of the false entries. 549 N.W.2d at 808,

810. In dicta, we added,

With the exception of subparts 6 and 9 of the statute,

which involve an intent to defraud, the other provisions in

the first nine subparts of section 714.8 require an act, the

normal consequence of which is to accomplish some

improper result apart from the prohibited act itself.

Id. at 810. In a footnote, we elaborated,

The Iowa Uniform Jury Instructions for these nine

crimes suggest that the offenses described in subparts 6

through 9 of the act require a showing of intent to defraud

and that those described in subparts 1 through 5 do not.

With respect to subparts 6 and 9, this distinction appears to

follow the language of the statute. With respect to subparts

7 and 8, the distinction appears to be debatable and, indeed,

subpart 8 appears to be only a slightly different version of

the same situation embraced in subpart 2.

Id. n.3.

In the State’s view, Osborn and McSorley make it clear that the

district court’s Instruction No. 23 was correct. Intent to defraud is not

3Iowa Code section 714.8(10) is a catchall making it a fraudulent practice to do

“any act expressly declared to be a fraudulent practice by any other section of the

Code,” and Iowa Code section 422.25(5) expressly makes it a fraudulent practice for a

taxpayer to “willfully fail[] to pay [the] tax . . . or file [the] return, at the time or times

required by law.”

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an element of the section 714.8(4) offense, and the State only has to

prove the defendant made an entry or alteration covered by that section,

“knowing the same to be false.” See Iowa Code § 714.8(4) (2011).

Hoyman counters, however, that an intent to deceive is a lower

threshold than an intent to defraud and is not addressed by Osborn or

McSorley. In Hoyman’s view, to deceive means to mislead, whereas to

defraud means to mislead with the further purpose of obtaining some

gain from the victim of deceit. As he puts it, “Deceit can occur without

intent to defraud, but defrauding someone requires deceit.”

We agree with this distinction. Indeed, this distinction drove the

United States Supreme Court’s famous decision in McNally v. United

States, 483 U.S. 350, 107 S. Ct. 2875, 97 L. Ed. 2d 292 (1987),

superseded by statute, 18 U.S.C. § 1346 (1994). In that case, the Court

held that the federal mail fraud statute, 18 U.S.C. § 1341, which applied

to “any scheme or artifice to defraud,” did not criminalize dishonest

conduct such as taking secret kickbacks that merely deprived citizens of

their right to honest government. Id. at 356, 359–60, 107 S. Ct. at 2879,

2881–82, 97 L. Ed. 2d at 299–300, 302 (internal quotation marks

omitted). The Court explained, “[T]he words ‘to defraud’ commonly refer

‘to wronging one in his property rights by dishonest methods or

schemes,’ and ‘usually signify the deprivation of something of value by

trick, deceit, chicane, or overreaching.’ ” Id. at 358, 107 S. Ct. at 2881,

97 L. Ed. 2d at 301 (quoting Hammerschmidt v. United States, 265 U.S.

182, 188, 44 S. Ct. 511, 512, 68 L. Ed. 968, 970 (1924)). Although

Congress later overruled McNally by statute, redefining the term “scheme

or artifice to defraud” to include a “scheme or artifice to deprive another

of the intangible right of honest services,” see Pub. L. 100-690, Title VII,

§ 7603(a), 120 Stat. 4508 (codified at 18 U.S.C. § 1346), we think the

16

Supreme Court correctly recognized that defrauding another is generally

viewed as a narrower concept than merely deceiving another. See also

United States v. Godwin, 566 F.2d 975, 976 (5th Cir. 1978) (“Intent to

deceive and intent to defraud are not synonymous. Deceive is to cause

to believe the false or to mislead. Defraud is to deprive of some right,

interest or property by deceit.”); accord United States v. Yermian, 468

U.S. 63, 73 n.12, 104 S. Ct. 2936, 2942 n.12, 82 L. Ed. 2d 53, 61 n.12

(1984). 4

4A number of other courts have also viewed the intent to defraud as narrower

than the intent to deceive. See, e.g., United States v. Umawa Oke Imo, 739 F.3d 226,

236 (5th Cir. 2014) (“A defendant acts with the intent to defraud when he acts

knowingly with the specific intent to deceive for the purpose of causing pecuniary loss to

another or bringing about some financial gain to himself.” (Emphasis added.) (Internal

quotation marks omitted.)); Singh v. Att’y Gen. of the U.S., 677 F.3d 503, 516 n.18 (3d

Cir. 2012) (“It bears noting that Singh was only convicted of having an intent to deceive,

not an intent to defraud.”); Ahmed v. Holder, 324 F. App’x 82, 84 (2d Cir. 2009) (“There

are many situations in which a person may have the intent to deceive without having

the intent to defraud. For instance, a homeowner who, for the purpose of deterring

burglaries, intentionally deceives passersby regarding the presence of an alarm system

is not acting with the intent to defraud.”); State v. McFall, 439 P.2d 805, 808 (Ariz.

1968) (en banc) (“The mens rea [for the crime of forgery] must include the intent to

defraud. An intent to deceive is not alone sufficient to constitute the crime.”); People v.

Pugh, 127 Cal. Rptr. 2d 770, 774 (Ct. App. 2002) (“An intent to defraud is an intent to

deceive another person for the purpose of gaining a material advantage over that person

or to induce that person to part with property or alter that person’s position by some

false statement or false representation of fact, wrongful concealment or suppression of

the truth or by any artifice or act designed to deceive.”); State v. Yurch, 654 A.2d 1246,

1251 (Conn. App. Ct. 1995) (rejecting the argument that “an intent to deceive . . . is the

equivalent of an intent to defraud” because “[t]o defraud . . . means to deceive in order

to cheat or to deceive in a manner calculated to cause injury”); Hill v. State, 483 N.W.2d

57, 63 (Minn. 1992) (Tomljanovich, J., dissenting) (“As the majority points out, welfare

fraud and theft both require a specific intent to defraud whereas the federal statute

requires something less—a specific intent to deceive.”); People v. Hankin, 667 N.Y.S.2d

890, 895 (Crim. Ct. 1997) (“It is apparent from the nature of this transaction . . . that

while there may well have been an intent to deceive, there was absolutely no intent to

defraud . . . .”); State v. Medina, 324 P.3d 526, 530 (Or. Ct. App. 2014) (noting Oregon’s

legislature amended the state’s identity theft statute “to criminalize conduct undertaken

not only with the intent to defraud, but also with the intent to deceive” (internal

quotation marks omitted)); Wassom v. State Farm Mut. Auto. Ins. Co., 173 S.W.3d 775,

783 (Tenn. Ct. App. 2005) (“We believe this argument misinterprets an intent to deceive

versus an intent to defraud.”).

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While prior caselaw does not foreclose us from holding that an

intent to deceive—as opposed to an intent to defraud—is an element of

the Iowa Code section 714.8(4) offense, we must apply the statute as

written. Thus, we now get to the question whether the phrase “knowing

the same to be false,” as it appears in section 714.8(4), embodies the

intent to deceive requirement we have just discussed. Significantly, the

general assembly did not say “knowing the same to be incorrect,” or even

“knowing the same to be untrue.” Instead, it requires proof that the

defendant knew the entry to be “false.” Hoyman urges that the word

“false” is meant to distinguish between an entry that the defendant

merely knew was inaccurate and an entry that the defendant knew was

deceitful because he or she made it with the intent to mislead. Hoyman

argues, in other words, that section 714.8(4) does not criminalize mere

knowingly incorrect entries that were not “false” because the defendant

believed the reviewer of the entry was aware of the inaccuracy or would

not care whether it was accurate or not (perhaps because the inaccuracy

was trivial).

The idea that “false” carries with it the notion of deception finds

support in our caselaw. On the subject of affidavits in applications for

search warrants, we have stated “[a] ‘false’ affidavit statement is one

which misleads the magistrate,” not merely a “negligible” untruth. See

State v. Groff, 323 N.W.2d 204, 210 (Iowa 1982). In Groff, the affidavit

misstated that the defendants “owned” the land on which marijuana was

being grown. Id. Although the defendants only farmed the land on

which the drugs were being cultivated, we nevertheless determined that

this technical inaccuracy did not rise to the level of a false statement

undermining the veracity of the affidavit. Id. at 210; see also Hatcher v.

Dunn, 102 Iowa 411, 415, 71 N.W. 343, 344 (1897) (stating that the word

18

false “means something more than untrue; it means something

designedly untrue, deceitful, and implies an intention to perpetrate some

treachery or fraud” (internal quotation marks omitted)).

Such a reading of section 714.8(4) also appears to be consistent

with the general understanding of the crime of falsifying a record.

Black’s Law Dictionary 720 (10th ed. 2014) (defining “falsifying a record”

as “[t]he crime of making false entries or otherwise tampering with a

public record with the intent to deceive or injure, or to conceal

wrongdoing”).

At various times, courts in other jurisdictions have held that “false”

has a legal meaning that connotes deception rather than signifying mere

untruth. The Connecticut Supreme Court concluded that a statute

barring falsely certifying as to the administration of an oath required a

jury instruction including the intent to deceive. State v. Tedesco, 397

A.2d 1352, 1354, 1359 (Conn. 1978). The court explained that while the

word “false” had a broad meaning in everyday usage, it had a specialized

meaning in the law:

The use of the word “falsely” in the statute is of significance.

In the vernacular it may mean untrue or designedly untrue,

implying an intent to deceive. In jurisprudence, however,

the word “false” implies something more than mere untruth:

it imports knowledge and a specific intent to deceive. Thus,

the use of the word “false” in [the statute] imports a

requirement of a specific intent to deceive.

Id. at 1358 (citations omitted).

Additionally, a New York court considering a criminal statute

similar to Iowa Code section 714.8(4) found that the crime included an

intent to deceive element. People v. Altman, 372 N.Y.S.2d 926, 929–30

(Nassau Cnty. Ct. 1975). Like section 714.8(4), the New York statute

19

involved public records, required the act to be done “knowingly,” and

used the term “false”:

A person is guilty of offering a false instrument for

filing in the second degree when, Knowing that a Written

instrument contains a False statement or False information,

he offers or presents it to a public office or public servant

with the knowledge or belief that it will be filed with,

registered or recorded in or otherwise become a part of the

records of such public office or public servant.

Id. at 929 (internal quotation marks omitted). The court dismissed the

count of the indictment alleging a violation of this law because proof of

intent to deceive was missing. See id. at 930. The court explained that

the legislature’s use of the word “false” had to be interpreted as

incorporating intent to deceive in order to avoid criminalizing otherwise

harmless conduct:

Where, as in the present case, a criminal statute

employs the word “false”, it requires proof of something more

than the untrue. Its use imports an intention to deceive. It

implies an evil intent, a corrupt motive, or an intent to

perpetrate some treachery or fraud. The law does not intend

prosecutions for words written in vanity, boast, feign,

silliness or the like, nor should citizens be compelled to

defend their written answers to non-essential questions

propounded by [bureaucratic] busybodies. The use of the

words “knowingly” and “falsely” imply otherwise.

Id. at 929 (citations omitted).

The Texas Court of Appeals likewise interpreted a statute

employing the word “false” to require an intent to deceive. Smith v. State,

363 S.W.3d 761, 775–76 (Tex. App. 2012). The defendant was charged

with failing to identify herself while a fugitive from justice. See id. at

773. The statute made it a crime “if the person intentionally gives a

‘false’ or ‘fictitious’ name to a peace officer who has lawfully detained or

arrested the person and the person is a ‘fugitive from justice’ at the time

of the offense.” Id. The statute did not provide a definition for either

20

“false” or “fictitious” so the court looked to the terms’ ordinary and

common meanings. Id. at 775. It noted, “A review of [the] authorities

consistently reflects that ‘false’ commonly means ‘not true’ and may

encompass an intent to deceive.” Id. The court went on to construe the

statute so as to require deceptive intent for both the “false” and

“fictitious” elements: “[T]here must be sufficient evidence that it was

Smith’s conscious objective or desire to give [the officer] a ‘false’ name

(i.e., one that is not ‘true’ to deceive him) or a ‘fictitious’ name (one that is

‘imaginary’ or ‘not real’ to deceive him).” Id. at 776.

Another court interpreted a statute criminalizing an alien’s false

statement of citizenship to require an intent to deceive, basing this

conclusion largely on the law’s use of the word “false.” See United States

v. Martinez, 73 F. Supp. 403, 404, 407 (M.D. Pa. 1947). The court

stated, “In law this word [(false)] usually means something more than

untrue; it means something designedly untrue and deceitful and implies

an intention to perpetuate some treachery or fraud.” Id. at 407

(emphasis added); see also United States v. Anguiano–Morfin, 713 F.3d

1208, 1210 (9th Cir. 2013) (not requiring the government to prove intent

to deceive, but requiring it to prove that the defendant made the false

claim of U.S. citizenship to “someone with good reason to inquire into his

citizenship status” even though this element was not set forth in the

statute (internal quotation marks omitted)).

In United States v. Snider, a federal court of appeals held that for a

taxpayer to be convicted of supplying “false or fraudulent” information on

a withholding certificate, the information had to be either “supplied with

an intent to deceive” or “false in the sense of deceptive.” 502 F.2d 645,

655 (4th Cir. 1974). The court explained that this interpretation was

21

“reasonable and consistent with past interpretations that ‘false’ means

more than merely ‘untrue’ or ‘incorrect.’ ” Id.

Along the same lines, at least one United States Court of Appeals

has interpreted the federal statute prohibiting the making of a materially

false statement to a governmental agency as incorporating an intent to

deceive element based on the statute’s use of the word “false.” See

United States v. Boffil-Rivera, 607 F.3d 736, 741 (11th Cir. 2010) (stating

that for purposes of 18 U.S.C. § 1001, “the word ‘false’ requires an intent

to deceive or mislead”); see also United States v. Geisen, 612 F.3d 471,

487 (6th Cir. 2010) (indicating that an “intent to deceive” must be proved

to establish a violation of 18 U.S.C. § 1001). Other federal appellate

courts disagree. See United States v. Natale, 719 F.3d 719, 739–40 &

n.12 (7th Cir. 2013) (holding that “[n]either the text nor context of the

statute suggests [18 U.S.C. § 1035—worded similarly to 18 U.S.C.

§ 1001] requires a specific intent to deceive”); United States v. Riccio, 529

F.3d 40, 46–47 (1st Cir. 2008) (rejecting the argument that 18 U.S.C.

§ 1001 requires an intent to deceive). But this disagreement supports

the proposition that the word “false” as used in Iowa Code section

714.8(4) is at least ambiguous on the question whether an intent to

deceive must be proved. See Gordon v. Virtumundo, Inc., 575 F.3d 1040,

1062 (9th Cir. 2009) (noting “the word ‘falsity’ is susceptible to differing

dictionary meanings” and concluding a statute using the word “falsity”

was therefore ambiguous and the court should resort to canons of

statutory construction in order to interpret it); Dean v. State, 849 N.W.2d

138, 146 (Neb. 2014) (“Because the word ‘false’ is susceptible to more

than one reasonable interpretation, we conclude that it is ambiguous

and therefore subject to judicial interpretation.”); see also Merriam-

Webster’s Collegiate Dictionary 451 (11th ed. 2003) (providing alternative

22

definitions of “false,” including “intentionally untrue,” “adjusted or made

so as to deceive,” and “intended or tending to mislead”).

Other instances exist where courts have interpreted false

statement laws as not requiring proof of intent to deceive. For example,

a federal district court in Pennsylvania declined to find an intent-to-

deceive element in a federal law proscribing making false statements on

forms required to be kept by firearms dealers. United States v. Mongiello,

442 F. Supp. 835, 838 (E.D. Pa. 1977). The court noted that a separate

section of the same law expressly required proof of an intent to deceive (a

circumstance not present here). See id. Again, this divergence of

interpretations of the word “false” simply highlights the ambiguity

inherent in the term and necessitates our resort to other interpretive

aids. See State v. Meyers, 799 N.W.2d 132, 141 (Iowa 2011) (“When a

statute is ambiguous, we employ our familiar rules of statutory

interpretation to aid us in ascertaining the intent of the legislature.”).

One such aid is the principle that we interpret statutes when

possible to avoid untoward results. As was discussed at the oral

argument in this case, Iowa Code section 714.8(4), unlike many false

statement laws, does not require that the false entry be material. If

intent to deceive did not need to be shown, this would have the effect of

greatly expanding the statute’s scope. For example, by way of contrast,

the federal false statement statute discussed above makes it a crime for a

person to “make[] any materially false, fictitious, or fraudulent statement

or representation.” 18 U.S.C. § 1001(a)(2) (2012) (emphasis added).

Materiality means “a natural tendency to influence, or [be] capable of

influencing, the decision of the decisionmaking body to which it was

addressed,” and is a question for the jury. United States v. Gaudin, 515

U.S. 506, 509, 522–23, 115 S. Ct. 2310, 2313, 2320, 132 L. Ed. 2d 444,

23

449, 458 (1995) (alteration in original) (internal quotation marks

omitted).

Accordingly, if we interpreted section 714.8(4) as criminalizing any

knowingly incorrect entry in a public record, regardless of its significance

or insignificance and regardless of whether the maker of the entry

intended to deceive anyone, its scope would be breathtakingly broad.

Any trivial misstatement in a record would become a crime, so long as

the person making the entry knew it was incorrect. For example, under

the State’s interpretive theory, Hoyman could be prosecuted for using old

stationery for his billing that had an incorrect address. Potentially, the

governor could be prosecuted for signing an official decree that he or she

knew contained an untrue statement, even if that statement were

entirely immaterial. Or, because the statute also criminalizes false

entries made in “any records of any corporation,” see Iowa Code

§ 714.8(4), a small business owner who backdated corporate minutes for

entirely benign reasons could become a class “C” felon. See Iowa Code

§ 714.9 (stating that fraudulent practice in the first degree is a class “C”

felony).

Normally we read statutory language so it makes sense. See Iowa

Code § 4.4(3) (“In enacting a statute it is presumed that . . . [a] just and

reasonable result is intended.”); State v. Adams, 810 N.W.2d 365, 377

(Iowa 2012) (noting among other things that statutes are interpreted “in a

manner to avoid absurd results” (internal quotation marks omitted));

Andover Volunteer Fire Dep’t v. Grinnell Mut. Reins. Co., 787 N.W.2d 75,

86 (Iowa 2010) (indicating that we “avoid creating impractical or absurd

results” when interpreting a criminal statute); Altman, 372 N.Y.S.2d at

929 (implying an intent to deceive requirement in a false records statute

because “[t]he law does not intend prosecutions for words written in

24

vanity, boast, feign, silliness or the like”); see also Iowa Code § 4.6(5)

(providing the court may consider “[t]he consequences of a particular

construction” when a statute is ambiguous). A more sensible and

practical interpretation of section 714.8(4) would make it a crime only if

the incorrect entry was intended to fool someone.

Additionally, criminalizing any entry in a public record that

amounted to an intentional untruth could raise serious constitutional

problems. What if an executive, legislative, or judicial branch official in

Iowa said in his or her website biography, knowing the statement to be

untrue, that he or she had received a military honor? Such conduct

would be worthy of condemnation, and under the State’s interpretation

of the statute it would amount to a fraudulent practice. But under a

recent United States Supreme Court decision, it could not be prosecuted

as a crime without the presence of some additional element. See United

States v. Alvarez, 567 U.S. ___, ___, 132 S. Ct. 2537, 2547–48, 183 L. Ed.

2d 574, 590–91 (2012) (plurality opinion). A majority of the Court

concluded the Stolen Valor Act violated the First Amendment because it

criminalized mere falsity. See id. at ___, 132 S. Ct. at 2547–48, 183

L. Ed. 2d at 590–91 (plurality opinion) (reasoning the statute “has no

clear limiting principle”); id. at ___, 132 S. Ct. at 2552–53, 183 L. Ed. 2d

at 596 (Breyer, J., concurring) (opining the statute should be read “as

criminalizing only false factual statements made with knowledge of their

falsity and with the intent that they be taken as true”). The Court stated

that in the context of defamation and fraud, it had always “been careful

to instruct that falsity alone may not suffice to bring the speech outside

the First Amendment.” Id. at ___, 132 S. Ct. at 2545, 183 L. Ed. 2d at

588 (plurality opinion); see also Sult v. State, 906 So. 2d 1013, 1021–22

(Fla. 2005) (holding that a statute criminalizing the unauthorized use of

25

police badges or other indicia of authority was overbroad and reached a

substantial amount of constitutionally protected conduct unless it

included an intent to deceive element).

The State would have us interpret section 714.8(4) as criminalizing

the same conduct that Alvarez said could not constitutionally be

prosecuted. See id. at ___, 132 S. Ct. at 2547–48, 183 L. Ed. 2d at 590–

91 (plurality opinion); id. at ___, 132 S. Ct. at 2552–53, 183 L. Ed. 2d at

596 (Breyer, J., concurring). In construing a statute, we presume the

legislature intended it to comply with both the United States and Iowa

Constitutions. See Iowa Code § 4.4(1). This brings into play the

principle of constitutional avoidance, which encourages us to “steer clear

of ‘constitutional shoals’ when possible.” State v. Iowa Dist. Ct., 843

N.W.2d 76, 85 (Iowa 2014); see also In re Guardianship of Kennedy, 845

N.W.2d 707, 714–15 (Iowa 2014) (applying the principle of constitutional

avoidance to interpret a statute to require advance court approval of a

guardian’s decision to sterilize an intellectually disabled person because

any other approach “would raise serious due process concerns”).

Another interpretive tool to which we may revert is the law’s

legislative history and the circumstances of its enactment. See Iowa

Code §§ 4.6(1)–(3); State v. McIver, 858 N.W.2d 699, 704 (Iowa 2015).

Iowa Code section 714.8(4) became law as part of the comprehensive

criminal code that was adopted in 1976 and took effect in 1978. See

1976 Iowa Acts ch. 1245, ch. 1, § 1408(4) (codified at Iowa Code

§ 714.8(4) (Supp. 1977)). A new crime of “fraudulent practices” was

created by bringing together some old offenses and adding some new

ones. Compare 1976 Iowa Acts ch. 1245, ch. 1, § 1408, with Iowa Code

§§ 713.13–.16, .26, .35–.38 (1975) (repealed 1978); id. § 714.12. There

was no counterpart to the “public records” portion of section 714.8(4) in

26

prior law. A contemporary observer—while conceding that intent to

make an unauthorized gain was not a stated element of this particular

fraudulent practice—wrote, “[A] practical reading of this statute in both

its historical and contemporary contexts compels the conclusion that

this crime is limited.” Kermit L. Dunahoo, The New Iowa Criminal Code,

29 Drake L. Rev. 237, 383 (1980). Interpreting the word “false” as

meaning “deceptive” is, we believe, such a practical reading. We do not

believe the legislature intended to plow new ground by criminalizing

every knowingly untrue statement in a public record.

For these reasons, we hold that intent to deceive is an element of

the Iowa Code section 714.8(4) crime. A jury instruction that omits an

element of a criminal offense is erroneous and not a correct statement of

the law. See State v. Pearson, 804 N.W.2d 260, 265 n.1 (Iowa 2011)

(holding the omission of one element of the offense from a jury

instruction necessitated a new trial); State v. Schuler, 774 N.W.2d 294,

298–99 (Iowa 2009) (finding an instruction that allowed the jury to

convict the defendant without finding all elements of the offense was

erroneous and ordering a new trial). Although Instruction No. 23

mirrored the language of the statute in requiring the State to prove that

“Mr. Hoyman knew the entry to be false,” as the district court correctly

observed, it did not explain that false means deceitful in this context.

And the problem, as we have already discussed, is that false has been

given two interpretations: (1) knowingly untrue and (2) knowingly untrue

and intended to deceive. We cannot assume that the jury gave it the

latter interpretation. This is especially true in light of the State’s rebuttal

closing argument:

Plus, if you need any more certainty that there isn’t

some intent to deceive that’s required for fraudulent

practices, I’ll ask you to turn to the marshaling instruction

27

for theft and for fraudulent practices. If I remember

correctly, I think it’s 19 for theft, and I think it is 22 for

fraudulent practices. Nineteen and twenty-three.

If you’ll look at -- if you’ll look at that theft instruction,

it has the word “deceived” in it; right? He has to have

intentionally deceived someone. That’s theft. Did he do

that? You bet he did.

But now look at fraudulent practices. That word

“deceived” isn’t in there. It’s just the word “false.” And I

submit to you this: The word “false” means false. Use your

common sense. That’s what it is. It’s false.

In short, the State suggested that false as used in the fraudulent practice

instruction did not necessitate proof Hoyman had intended to deceive

anyone. 5

This difference between a deceit and a mere sentient inaccuracy

may have affected the outcome in this case. Despite the State’s best

efforts to prove that Hoyman concocted phony trials and borrowed names

in order to bilk the city out of money, he was acquitted of the theft

charge. This then leaves two possibilities, each of which is supported by

substantial evidence in the record. One is that Hoyman was trying to

dupe the city but the State failed to prove beyond a reasonable doubt

that Hoyman’s scheme netted him anything. The other is Hoyman’s

version of events: While his bills were “false” in the sense of being untrue

(listing incorrect names and mislabeling hours as “trial work”), Hoyman

lacked the intent to deceive the city because he actually worked at least

as much time as he billed and the city was aware that his bills were not

reliable indicators of the work he actually performed on specific days

(and didn’t care). We need not decide whether omission of the intent-to-

5In a similar but less explicit manner, the State equated “false” with “knowingly

untrue” in its initial closing argument. Regarding the fraudulent practices count, the

prosecutor said, “[T]his could not be more straightforward. Yeah, there’s entries in

public records and in business records, and, yeah, they’re false.”

28

deceive element from the fraudulent practice instruction is subject to a

harmless error analysis. See Schuler, 774 N.W.2d at 299–300 (also

declining to decide this issue). The State does not argue harmless error,

and it appears clear from the record that Hoyman may have been

prejudiced by failure to instruct on intent to deceive.

Therefore, we hold that in a fraudulent practice case arising under

Iowa Code section 714.8(4), the jury should be instructed that “false”

means the defendant made the entry or alteration with intent to deceive.

Because the jury was not so instructed here, and the error was not

harmless, we reverse and remand for a new trial.

While “an instruction need not contain or mirror the precise

language of the applicable statute” to be legally proper, see id. at 298, it

also bears emphasis that the converse is true: An instruction is not

necessarily adequate just because it repeats what the statute says. For

example, in State v. Soboroff, we reversed the conviction of a defendant

who was found guilty of making threats in violation of Iowa Code section

712.8. See 798 N.W.2d 1, 2, 10 (Iowa 2011). Although section 712.8

does not define the term “threats” or “threatens,” we held the jury

instructions needed to define the term and their failure to do so

necessitated a new trial. See id. at 9–10. In our view, the jury had to

receive a definition of threats so they were aware of the “limited, proper

scope” of the term. Id. at 10. As in Soboroff, we are dealing here with a

crime whose potential breadth has constitutional implications. We

believe the term “false” should have been defined for the jury.

B. Amount “Involved” Versus Amount “Obtained.” Because

this case must be retried, we will consider Hoyman’s other challenge to

the jury instructions. See State v. Dudley, 766 N.W.2d 606, 615 (Iowa

2009) (addressing “the other issues in this appeal that are likely to arise

29

upon remand”). Hoyman also claims that Instruction Nos. 25 and 26

erroneously allowed the jury to find him guilty of first-degree fraudulent

practice on an aggregation theory, without actually determining he had

obtained any property through the separate acts that were being

aggregated. The nub of Hoyman’s complaint is that the aggregation

statute requires proof that Hoyman “obtained” money or property on

each occasion being aggregated, but the jury instructions read as a

whole did not impose this requirement.

The aggregation statute provided for the following at the time of

Hoyman’s alleged offense:

714.14 Value for purposes of fraudulent practices.

....

If money or property or service is obtained by two or

more acts from the same person or location, or from different

persons by two or more acts which occur in approximately

the same location or time period so that the fraudulent

practices are attributable to a single scheme, plan, or

conspiracy, these acts may be considered as a single

fraudulent practice and the value may be the total value of

all money, property, and service involved.

Iowa Code § 714.14 (2011). 6 It is true that the court’s Instruction No. 25

essentially paraphrased this language. However, Hoyman complains that

Instruction No. 26, which told the jury how to determine the degree of

fraudulent practice, merely said the State “must prove the value of the

property involved.” In Hoyman’s view, the omission of the word

“obtained” from Instruction No. 26 could easily have given the jury the

impression that Hoyman could be found guilty of a fraudulent practice

based on a combination of false entries that totaled more than $10,000,

regardless of whether he obtained money or property by means of those

6As we discuss below, that statute has since been changed.

30

entries. This danger is especially acute here, according to Hoyman, given

that the jury acquitted him of the theft charge.

The State responds with two arguments that seemingly contradict

each other. First, the State maintains that “the State was not required to

prove Hoyman obtained anything of value.” The State points out that

both Instruction No. 25 and Instruction No. 26 merely tracked the

wording of the relevant statutes. According to the State, McSorley makes

clear that the degree of fraudulent practices under Iowa Code sections

714.9 through 714.13 depends only on the amount of property

“involved,” which does not require that the defendant have obtained

anything. See 549 N.W.2d at 808–10; see also State v. Messer, 822

N.W.2d 116, 120 (Iowa 2012) (finding that the degree of fraudulent

practice was based on the property “involved”—i.e., the value of the

untaxed cigarettes—rather than the amount of unpaid tax).

The problem with the State’s first argument is that the State relied

on an aggregation theory, and the aggregation law at the time required

that the defendant “obtained” property through each act that was part of

the aggregation. See Iowa Code § 714.14. In McSorley, we did not

discuss the aggregation statute, other than to observe in a brief footnote

that “[t]he concept of money, property, or service ‘obtained’ is also

suggested in § 714.14, which defines value for purposes of fraudulent

practices.” 549 N.W.2d at 809 n.1. This brief comment, if anything,

supports Hoyman’s position. Hence, in order to combine various entries

and treat them as a single fraudulent practice for purposes of

determining the degree of the offense, the State had to prove Hoyman

obtained property on these various occasions. And the degrees-of-

fraudulent-practice instruction arguably undercut that requirement by

using only the word “involved.”

31

Further supporting Hoyman’s side of the argument is the fact that

the general assembly amended the aggregation statute in 2014. See

2014 Iowa Acts ch. 1055, § 3 (codified at Iowa Code § 714.14 (2015)). At

that time, it replaced the word “obtained” in section 714.14 with the

word “involved”:

2. If money, or property, or a service is obtained by

involved in two or more acts of fraudulent practice is from

the same person or location, or from different persons by two

or more acts which occur in approximately the same location

or time period so that the fraudulent practices are

attributable to a single scheme, plan, or conspiracy, these

acts may be considered as a single fraudulent practice and

the value may be the total value of all money, property, and

service involved.

Id. The State maintains that replacing “involved” with “obtained” merely

clarified the law. However, we had drawn a clear contrast between the

two terms in McSorley. See 549 N.W.2d at 810. At a minimum, the

amendment indicates the legislature thought there was an ambiguity in

the prior law. See Davis v. State, 682 N.W.2d 58, 61 (Iowa 2004) (“When

interpreting amendments, we will assume the amendment sought to

accomplish some purpose and was not a futile exercise.”). If so, the

principle that we construe criminal statutes narrowly, otherwise known

as the rule of lenity, should be taken into account. See State v.

Halverson, 857 N.W.2d 632, 637–38 (Iowa 2015); State v. Hagen, 840

N.W.2d 140, 146 (Iowa 2013). We believe the pre-2014 law required that

the defendant have obtained money, property, or service by each act

being aggregated.

The State’s second argument, contrary to its first, is that the State

did prove and the jury did find Hoyman obtained property through each

of his inaccurate bills. The State asserts, “[R]ead as a whole, the jury

instructions in Hoyman’s case embraced the concept of obtaining

32

something of value.” The State emphasizes the jury was told to read all

the instructions and would not have relied on Instruction No. 26 to the

exclusion of Instruction No. 25.

Notwithstanding the State’s contentions, on our review, we agree

with Hoyman that the instructions taken together were potentially

confusing and contradictory. In this case, Instruction No. 25 correctly

advised the jury that Hoyman had to have obtained money from each act

being aggregated. However, Instruction No. 26—without cross-

referencing Instruction No. 25—simply said “the State must prove the

value of the property involved.” Furthermore, Instruction No. 23, the

marshaling instruction, directed the jury to Instruction No. 26 if it found

the defendant guilty of fraudulent practice, and Instruction No. 26

began, “If you find defendant Hoyman guilty of Fraudulent Practices, you

should then determine the degree of Fraudulent Practices.” Instruction

No. 26, again, told the jury to do this based on “the value of the property

involved.” Thus, while the two instructions cited to each other, neither

Instruction No. 23 nor Instruction No. 26 indicated that Hoyman ever

had to have obtained anything. In our view, there is a real risk the jury

could have read past Instruction No. 25 (and its single use of the word

“obtained”), focusing only on the word “involved” in Instruction Nos. 23

and 26.

This risk is heightened by some specific facts of this trial. Hoyman

asserts, and the State does not dispute, that the largest single entry in

dispute was $558. This would have supported, at most, a conviction for

third-degree fraudulent practice. See Iowa Code § 714.11(1) (2011). To

find Hoyman guilty of first-degree fraudulent practice, the jury had to

have aggregated a number of entries. And, in order to utilize an

aggregation theory, the jury should have found that Hoyman obtained

33

something by each entry. See Iowa Code § 714.14. But again,

Instruction No. 26 omitted any reference to the obtaining requirement or

to the instruction that imposed this requirement. And, as already noted,

the jury acquitted Hoyman of having committed theft in any amount. To

more clearly delineate the jury’s duties, we believe Instruction No. 26

should have advised the jury that the requirements of Instruction No. 25

had to be met if multiple entries were being combined to determine the

value involved for the degree of fraudulent practice.

Our law is well-established that contradictory and confusing

instructions will necessitate a new trial. See Burkhalter v. Burkhalter,

841 N.W.2d 93, 97 (Iowa 2013) (“When the challenged instruction is

conflicting and confusing, error is presumed prejudicial and reversal is

required.” (Internal quotation marks omitted.)). In State v. Watts, the

trial court included one instruction that placed the burden of proving

insanity upon the defendant and another instruction that placed the

burden of proving sanity upon the state. 244 N.W.2d 586, 588 (Iowa

1976). We required reversal, stating the “[i]nstructions . . . were

contradictory and therefore confusing. There is no way to tell which of

the contradictory instructions the jury followed.” Id.; see also State v.

Hanes, 790 N.W.2d 545, 552 (Iowa 2010) (stating that “[a]n erroneous

jury instruction cannot necessarily be overcome by part of the same

instruction which correctly states the law” and reversing for a new trial

where the jury may have been misled by improper language in the jury

instructions regarding the penalties the defendant faced); State v.

McCormack, 293 N.W.2d 209, 211–12 (Iowa 1980) (requiring reversal

when the jury instructions, when read together, were confusing because

they “[l]ack[ed] a clear explanation” of the applicable law); State v.

Osmundson, 241 N.W.2d 892, 893 (Iowa 1976) (reversing the defendant’s

34

conviction for delivery of a controlled substance when one instruction

omitted the scienter requirement of the crime while another instruction

stated it, noting this “created a conflict between the two instructions, and

[the court was] at a loss to know which instruction the jury followed”);

State v. Leins, 234 N.W.2d 645, 648–49 (Iowa 1975) (requiring reversal

when the court instructed the jury with both the correct test for

entrapment and an improper test for entrapment because the court was

“unable to discern which rule the jury applied”); State v. Hansen, 203

N.W.2d 216, 218, 222 (Iowa 1972) (requiring reversal when one

instruction improperly conveyed to the jury that an unrebutted statutory

presumption “required, rather than permitted, a finding defendant was”

guilty, despite the fact another instruction properly stated the

presumption of innocence).

We need not decide whether any instructional error with respect to

Instruction Nos. 25 and 26, by itself, would have necessitated a new

trial. Since this case must be retried in any event, we hold that

appropriate instructions under the pre-2014 fraudulent practices law

should make clear that if the jury is determining the degree of fraudulent

practice based on an aggregation theory, the State must prove beyond a

reasonable doubt that the defendant obtained some money, property, or

service through each act being aggregated.

IV. Conclusion.

For the foregoing reasons, we reverse Hoyman’s conviction and

sentence and remand for a new trial. Because we find that instructional

error occurred, we need not and do not reach the question whether the

district judge hearing the case should have recused herself. Instead, we

simply exercise our authority to order the case to be heard by a different

judge on remand. See, e.g., State v. Robinson, 389 N.W.2d 401, 404

35

(Iowa 1986) (directing that the trial on remand be before a different trial

judge even though the record did not disclose the trial judge was

prejudiced against defense counsel as claimed); see also Iowa Const. art.

V, § 4 (“The supreme court . . . shall have power to issue all writs and

process necessary to secure justice to parties, and shall exercise a

supervisory and administrative control over all inferior judicial tribunals

throughout the state”).

REVERSED AND REMANDED WITH DIRECTIONS.