State of Iowa v. Earnest B. Bynum

IN THE SUPREME COURT OF IOWA

No. 18–0294

Filed January 10, 2020

STATE OF IOWA,

Appellee,

vs.

EARNEST BYNUM,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Linn County, Nicholas Scott,

District Associate Judge.

A defendant appeals his conviction for falsely reporting a criminal

act. DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT

COURT AFFIRMED.

Mark C. Meyer, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant

Attorney General, Jerry Vander Sanden, County Attorney, and Monica C.

Slaughter, Assistant County Attorney, for appellee.

2

CHRISTENSEN, Justice.

We are asked to determine whether the false report of a criminal act

requires definitional instructions for an affirmative defense to the

underlying criminal act. After closing arguments, the defendant requested

the district court provide an instruction on the exceptions to the

underlying criminal act of carrying weapons. The district court denied the

defendant’s request. The defendant was then convicted of making a false

report alleging the occurrence of the criminal act of carrying weapons.

On direct appeal, the defendant raised numerous issues. The court

of appeals affirmed the defendant’s conviction. We granted the defendant’s

application for further review. We exercise our discretion and only address

whether the definitional instructions to the criminal act of carrying

weapons required inclusion of the statutory exceptions. Upon our review,

we conclude substantial evidence did not support the defendant’s

requested instruction on his hypothetical affirmative defense, and we

affirm the decision of the court of appeals and judgment of the district

court.

I. Background Facts and Proceedings.

The Cedar Rapids Police Department received a call on its

nonemergency number from an unidentified caller. It was 10:17 p.m. on

March 10, 2016, when the caller reported he witnessed a gray Chevrolet

Suburban double park across the sidewalk of a Cedar Rapids home. Two

males, one carrying a handgun and one carrying a rifle, then exited the

Suburban and walked up to the house’s front door. According to the

caller, the individuals knocked on the front door and entered the house.

The caller reportedly did not know who lived at the house and had not

previously noticed the Suburban parked there. The unidentified caller did

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not want to reveal his name, but he did provide Cedar Rapids police with

his phone number.

That same evening, prior to this report, Pamela Haskins was at her

Cedar Rapids home. Haskins was with her youngest son, Tamir; her oldest

son, Bilal; her granddaughter; and her friend, Judy. Haskins owned a

Chevrolet Suburban, which Bilal used as his primary vehicle. That

evening, Bilal drove himself and his daughter to Haskins’s home.

Approximately one hour after Bilal and his daughter arrived, Tamir

planned to drive Judy back to her home. When the group stepped out on

the front porch, they faced spotlights, police officers with drawn weapons,

and orders to put their hands up.

Tamir was ordered to step off the porch with hands in the air and to

walk backwards towards the officers. He was placed on his knees and

handcuffed. Each individual was then ordered off the porch. Because

Haskins’s granddaughter remained in Bilal’s arms, he was not ordered to

the ground. The officers entered Haskins’s home, indicating they were

searching for guns. Haskins replied that she did not own any guns, and

no guns were found in her house.

Officer Shannon Aguero of the Cedar Rapids Police Department

explained to Haskins the department was acting on a call reporting two

men with guns at her address. Officer Aguero showed Haskins the number

of the unidentified caller; Haskins immediately recognized the number as

belonging to Earnest Bynum.

Haskins and Bynum knew each other for years. Bynum was

Haskins’s on-again, off-again boyfriend who lived with Haskins and their

son. Haskins also has two older sons, whom Bynum knew. One day prior

to the March 10 unidentified caller report, Haskins and Bynum had a

disagreement that resulted in Bynum shoving Haskins against the wall.

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Haskins called the Cedar Rapids Police Department to report the domestic

assault that day.

Officer Aguero made contact with Bynum on March 24. During the

interview, Bynum initially denied any knowledge of the phone call, but he

later admitted to making the call on the nonemergency line. Bynum

indicated to Officer Aguero that he was near Haskins’s home when he saw

a gray Suburban with a male occupant wave a gun in his direction.

Bynum stated he identified the occupant waiving the gun as Haskins’s

son, Bilal. When Officer Aguero asked Bynum why he did not call in the

report at the location it happened, Bynum said that he knew where the

vehicle was going and that the occupants were associated with Haskins’s

home. Bynum stated he called in the report as if it happened at Haskins’s

home and then proceeded to follow the Suburban to the location he

reported. Bynum did not provide the identity of Haskins’s son during his

call because he did not want to get anyone in trouble and he did not want

to be a snitch.

The State charged Bynum with the crime of false reports. False

reports, as outlined in Iowa Code chapter 718, is an offense against the

government and it states,

A person who reports or causes to be reported false

information to a fire department, a law enforcement authority,

or other public safety entity, knowing that the information is

false, or who reports the alleged occurrence of a criminal act

knowing the act did not occur, commits a simple

misdemeanor, unless the alleged criminal act reported is a

serious or aggravated misdemeanor or felony, in which case

the person commits a serious misdemeanor.

Iowa Code § 718.6(1) (2016). Bynum’s trial information was later

amended, indicating the underlying criminal act Bynum falsely reported

was carrying weapons (Iowa Code section 724.4), burglary (Iowa Code

section 713.1), or going armed with intent (Iowa Code section 708.8).

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This matter proceeded to trial on January 8, 2018. Bynum

presented scant evidence concerning the exceptions to carrying weapons.

After closing arguments, Bynum requested the jury instructions include

the exceptions 1 to the underlying criminal act of carrying weapons. When

asked by the district court to specify which exception, Bynum requested

the court include possession of a legally issued permit. The district court

denied Bynum’s request. It indicated the definition of carrying weapons

was sufficient and that, in the case of a false report, Bynum would not

know whether the exception applied at the time of his report. The district

court then instructed the jury, in part, as follows:

JURY INSTRUCTION NO. 13

The State must prove . . . the following elements of False

Reports:

1. On or about the March 10, 2016, the defendant

reported information to law enforcement authority

concerning the alleged occurrence of a criminal act.

2. When reporting the alleged criminal act the defendant

knew, as defined in Instruction 18,[2] the information was

false.

3. The defendant reported the crime of Carrying Weapons,

Burglary, or Going Armed with Intent.

If the State has proved all of the elements, the defendant is

guilty of False Reports alleging the crime of Carrying Weapons,

Burglary, or Going Armed with Intent. If only the first two

elements are met then the defendant is guilty of False Reports.

If the State has failed to prove either of the first two elements,

the defendant if not guilty.

JURY INSTRUCTION NO. 14

Carrying Weapons is defined as: A person who goes armed

with a firearm concealed on or about the person, or who,

1There are eleven exceptions to the criminal act of carrying weapons enumerated

in subsections (a)–(k) of Iowa Code section 724.4(4).

2Jury Instruction No. 18 stated, “For the defendant to know something means he

or she had a conscious awareness that the information was false.”

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within the limits of any city, goes armed with a pistol or

revolver, or any loaded firearm of any kind, whether concealed

or not, or who knowingly carries or transports in a vehicle a

pistol or revolver.

....

JURY INSTRUCTION NO. 17

It is not necessary for the State to prove all the elements

beyond a reasonable doubt for the crimes of Carrying

Weapons, Burglary, or Going Armed with Intent.

The matter was submitted to the jury for deliberations. The jury

returned a verdict finding Bynum guilty of falsely reporting the alleged

criminal act of carrying weapons. Judgment finding Bynum guilty of this

offense was entered, and the district court sentenced Bynum to 365 days

in jail, with all but fourteen days suspended.

Bynum appealed his judgment and sentence arguing, among other

things, “The jury should have been instructed not to presume that a

person who is seen in public in possession of a firearm is committing a

crime.” 3 We transferred the case to the court of appeals, and the district

court’s judgment was affirmed. Regarding the jury instruction issue, the

court of appeals concluded the district court did not err in failing to give

Bynum’s requested instruction because it addressed a statutory exception

rather than an element of the underlying crime.

We granted Bynum’s application for further review.

II. Error Preservation.

Bynum presents two arguments regarding exceptions to the

underlying criminal act of carrying weapons. First, Bynum argues the

district court erred as a matter of law when it refused to provide his

requested instruction. That argument was preserved when it was raised

3On direct appeal, Bynum also asserted that he was denied an impartial jury of

his peers and that the district court abused its discretion in allowing the admission of

prior-bad-acts evidence and photographs of the firearms used during the police response.

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and decided by the district court. See Lamasters v. State, 821 N.W.2d 856,

862 (Iowa 2012). Second, Bynum argues the failure to provide his

requested instruction “violated his right to a fair trial and due process of

law.” The State argues Bynum did not preserve a due process or other

constitutional claim. We agree. “It is a fundamental doctrine of appellate

review that issues must ordinarily be both raised and decided by the

district court before we decide them on appeal.” Id. (quoting Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)). This doctrine applies with

equal force to constitutional issues. See Taft v. Iowa Dist. Ct., 828 N.W.2d

309, 322 (Iowa 2013) (“Even issues implicating constitutional rights must

be presented to and ruled upon by the district court in order to preserve

error for appeal.”); State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002)

(noting error preservation rule “applies with equal strength to

constitutional issues”); Garwick v. Iowa Dep’t of Transp., 611 N.W.2d 286,

288 (Iowa 2000) (en banc) (“Issues not raised before the district court,

including constitutional issues, cannot be raised for the first time on

appeal.” (quoting State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997))).

Bynum did not raise his constitutional argument during the jury

instruction discussion or by motion, and it does not appear the district

court considered that argument. See Stammeyer v. Div. of Narcotics Enf’t,

721 N.W.2d 541, 548 (Iowa 2006) (“If the court does not rule on an issue

and neither party files a motion requesting the district court to do so, there

is nothing before us to review.”). Because Bynum’s constitutional

arguments were not preserved for our review, we restrict our discussion to

his first argument: whether the district court erroneously refused to

provide his requested instruction.

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III. Standard of Review.

“We have the discretion, when we grant a further review application,

to review any issue raised on appeal.” State v. Lorenzo Baltazar, 935

N.W.2d 862, 868 (Iowa 2019); see State v. Effler, 769 N.W.2d 880, 883

(Iowa 2009) (“[E]fficient use of judicial resources will sometimes prompt

our court to rely on the disposition made by the court of appeals on some

issues and address only those issues that merit additional

consideration.”). We exercise that discretion here and only address the

issue of whether the district court erred by refusing Bynum’s requested

instruction. Thus, the court of appeals decision will stand as the final

decision for the remaining issues. See Lorenzo Baltazar, 935 N.W.2d at

868.

“We review challenges to jury instructions for correction of errors at

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

overruled in part by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707–08,

708 n.3 (Iowa 2016); see also Iowa R. App. P. 6.907 (“Review in equity

cases shall be de novo. In all other cases, the appellate courts shall

constitute courts for correction of errors at law . . . .”). “[W]e generally

review a district court’s refusal to give a requested jury instruction for

errors at law; however, if the jury instruction is not required but

discretionary, we review for an abuse of discretion.” State v. Plain, 898

N.W.2d 801, 811 (Iowa 2017).

IV. Analysis.

Iowa Code section 718.6(1) punishes the conduct of a person “who

take[s] affirmative steps to convey false information to law enforcement

authorities.” State v. Ahitow, 544 N.W.2d 270, 274 (Iowa 1996). If a

person knowingly reports false information to law enforcement authorities,

that person commits a simple misdemeanor. Iowa Code § 718.6(1).

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Likewise, a person who reports the alleged occurrence of a criminal act,

knowing the criminal act did not occur, also commits a simple

misdemeanor. Id. However, if the criminal act falsely reported is a serious

misdemeanor, aggravated misdemeanor, or felony, that person commits a

serious misdemeanor. Id.

The jury convicted Bynum of falsely reporting the alleged criminal

act of carrying weapons. A person convicted of carrying weapons commits

an aggravated misdemeanor. Id. § 724.4(1). Because the jury found

Bynum guilty of falsely reporting a criminal act classified as an aggravated

misdemeanor, his conviction under the false-reports provision was a

serious misdemeanor. See id. § 718.6(1).

The crime of carrying weapons is defined as,

Except as otherwise provided in this section, a person who

goes armed with a dangerous weapon concealed on or about

the person, or who, within the limits of any city, goes armed

with a pistol or revolver, or any loaded firearm of any kind,

whether concealed or not, or who knowingly carries or

transports in a vehicle a pistol or revolver, commits an

aggravated misdemeanor.

Id. § 724.4(1). This section further indicates the prohibition against

carrying weapons does not apply in certain circumstances and lists eleven

exceptions. See id. § 724.4(4)(a)–(k).

Jury Instruction No. 14 set forth the definition for carrying weapons,

but it did not include any of the statutory exceptions. Bynum’s counsel,

noting the omission, raised the issue before the district court:

Instruction Number 14, which is the definitional instruction

for Carrying Weapons, I failed to realize earlier that it does not

include any exceptions basically. That it essentially says that

anyone within city limits that has a firearm is committing

Carrying Weapons. And obviously we all know that is not

accurate in that there are exceptions, primarily there’s an

exception for anyone who possesses a legally-issued permit to

carry such firearms. So I would request the Court amend that

instruction if that’s even possible.

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One of the requested statutory exceptions states the crime of carrying

weapons does not apply if,

A person who has in the person’s possession and who displays

to a peace officer on demand a valid permit to carry weapons

which has been issued to the person, and whose conduct is

within the limits of that permit. A person shall not be

convicted of a violation of this section if the person produces

at the person’s trial a permit to carry weapons which was valid

at the time of the alleged offense and which would have

brought the person’s conduct within this exception if the

permit had been produced at the time of the alleged offense.

Id. § 724.4(4)(i) (emphasis added). The district court declined to add

Bynum’s requested exception to the jury instruction, finding the

instructional definition of carrying weapons sufficient. The issue

presented is whether the district court erred in denying Bynum’s requested

exception.

Bynum contends providing the definition of carrying weapons,

without the statutory exceptions for possessing a permit, deprived the jury

of its ability to evaluate whether he falsely reported the underlying criminal

act of carrying weapons. Essentially, Bynum argues leaving out an

instruction on his theory of defense—that carrying weapons is not

inherently a crime—effectively directed his verdict of guilt.

As a threshold matter, we cannot agree with Bynum that the

existence of one or more possible legal exceptions to the underlying

criminal act means he did not falsely report the alleged occurrence of a

criminal act. Courts in other jurisdictions addressing the same issue have

determined the existence of a potential defense to the underlying criminal

act does not decriminalize the charged offense of falsely reporting a crime.

A Virginia court considered the argument that a defendant,

convicted of making a false accusation of inappropriate touching against

a police officer, did not allege the commission of any crime because there

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could have been potential defenses such as consent to the hypothetical

crime. Dunne v. Commonwealth, 782 S.E.2d 170, 173 (Va. Ct. App. 2016).

Virginia’s false-reporting provision made it “unlawful for any person . . . to

knowingly give a false report as to the commission of any crime to any law-

enforcement official with intent to mislead.” Id. at 172 (quoting Va. Code

Ann. § 18.2-461). The court indicated this provision did not require “that

such false report lead to the filing of a false charge, much less result in a

false conviction.” Id. at 173. It explained Virginia’s provision criminalized

the false report of a crime, not proof of each element of the underlying

crime beyond a reasonable doubt. Id. “That [defendant’s] false report of a

crime might leave open hypothetical defenses to such falsely reported

crime does not excuse or decriminalize her lie.” Id.

In Commonwealth v. Dahdah, the Appeals Court of Massachusetts

reached a similar conclusion about whether the existence of hypothetical

defenses would undermine a conviction for “intentionally and knowingly”

making a “false report of a crime.” No. 12–P–1670, 2014 WL 470358, at

*2 (Mass. App. Ct. Feb. 7, 2014) (unpublished opinion) (quoting Mass. Gen.

Laws ch. 269, § 13A). The defendant there was a customer in a fast-food

restaurant who created a disturbance. Id. at *1. The court considered the

defendant’s argument that his false report—that a restaurant manager

“grabbed him and twisted his arm”—was not a false report of a crime

because the manager had a privilege to remove him and thus “the

statements he made to police, even if false, did not amount to a crime.” Id.

at *1–2. In rejecting the defendant’s argument, the appeals court

explained,

He posits that in the context of this case, the accusation that

the manager grabbed him and twisted his arm does not allege

a criminal act because the manager had a privilege to remove

him by reasonable force.

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This argument is without merit. As a threshold matter,

it ignores that even a legitimate defense does not preclude the

filing of a criminal charge by complaint or indictment. It is

axiomatic that if a victim makes a minimally credible claim

that a criminal act has occurred, the defendant has a right to

assert the defense at trial but no right to preempt the charge.

Id. at *2.

Another court interpreted a false-report statute to apply where one

lies about details concerning a crime. See People v. Chavis, 658 N.W.2d

469, 474 (Mich. 2003). There, the defendant argued his false statement

concerning the commission of an actual crime did not pertain to whether

a crime had occurred. Id. at 472. The court explained, “[T]he plain

language of the statute is not limited to only those situations where no

crime has been committed; it also applies where one reports false details

about the crime.” Id. at 473.

We agree with the authority holding that a potential defense to the

underlying criminal act does not absolve responsibility from the charged

offense of false reports. It is not the jury’s role to decide the law. See

People v. Whitaker, No. 343988, 2019 WL 1746335, at *2 (Mich. Ct. App.

Apr. 18, 2019) (unpublished opinion) (per curiam) (holding that in a false

reporting of a crime case, the jury should not be asked to determine

whether or not the crime reported was a felony). There is sufficient

evidence of guilt if the defendant falsely reports conduct that would

establish the prima facie elements of a crime. However, this is not

dispositive of the issue raised here. We still must address whether Bynum

was entitled to an instruction on his theory of defense—the existence of

statutory exceptions.

The rules governing jury instructions in civil cases apply to trials in

criminal cases. Iowa R. Crim. P. 2.19(5)(f); State v. Marin, 788 N.W.2d 833,

837 (Iowa 2010), overruled on other grounds by Alcala, 880 N.W.2d at 707–

13

08, 708 n.3. “Consequently, the court is required to ‘instruct the jury as

to the law applicable to all material issues in the case . . . .’ ” Marin, 788

N.W.2d at 837 (quoting Iowa R. Civ. P. 1.924). While the instruction given

need not “contain or mirror the precise language of the applicable statute,

[the instruction] must be a correct statement of the law.” State v. Schuler,

774 N.W.2d 294, 298 (Iowa 2009). If a defendant’s theory of defense is

timely requested, is supported by the evidence, and is a correct statement

of the law, the district court must provide the requested instruction. See

Guerrero Cordero, 861 N.W.2d at 260. Evidence in support of an

instruction must be substantial. State v. Ross, 573 N.W.2d 906, 913 (Iowa

1998). “An instruction is supported by the evidence when it ‘could

convince a rational finder of fact that the defendant has established his

affirmative defense.’ ” Guerrero Cordero, 861 N.W.2d at 260 (quoting State

v. Broughton, 425 N.W.2d 48, 52 (Iowa 1988)).

The distinction between an element of a crime and an affirmative

defense is significant. See State v. Delay, 320 N.W.2d 831, 834 (Iowa

1982). For an element of the crime, the state bears the burden of

production and persuasion. State v. Moorhead, 308 N.W.2d 60, 62 (Iowa

1981) (en banc). In contrast, the defendant must go forward “with evidence

of an affirmative defense.” Delay, 320 N.W.2d at 834. Thus, the defendant

must produce sufficient evidence to show the exception is applicable. See

Moorhead, 308 N.W.2d at 62–63.

This court has held the absence of a permit is not an element of the

criminal act of carrying weapons. State v. Bowdry, 337 N.W.2d 216, 218

(Iowa 1983). The question presented in Bowdry was whether the state had

the initial burden of proving Bowdry did not have a permit to carry or

transport a weapon. Id. at 217.

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Bowdry was arrested and tried for carrying a weapon in his car. Id.

At trial, “[t]he State did not introduce evidence that Bowdry did not have a

permit” or that the officer asked Bowdry to produce a permit. Id. The

precise question in Bowdry was “whether the absence of a permit is or is

not an element of the offense itself which the State must initially

prove under In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25

L. Ed.2d 368, 375 (1970).” Id. at 218. We noted prior Iowa law provided,

“No person shall carry a pistol or revolver concealed on or about his person

or whether concealed or otherwise in any vehicle occupied by

him . . . without a permit therefor as herein provided.” Id. at 217 (quoting

Iowa Code § 695.2 (1977) (repealed Jan. 1, 1978)). Under the prior version,

the burden was on the state to prove absence of a permit. Id. at 218.

However, under the modern version applicable in Bowdry’s case, we

concluded the legislature’s structural change to the statute “did not intend

to make the absence of a permit an element of the offense.” Id. We further

explained,

In the initial paragraph of new section 724.4, defining

the crime, the drafters did not include the language, “without

a permit . . . .” Instead, they added a proviso that the section

should not apply in eight situations which they then listed.

One of the situations involves the permit issue. Our first

reaction to the section is that the Assembly probably did not

intend the State must initially negate the several exceptions

in every prosecution under section 724.4. Cf. State v. Delay

at 834 (“It is unreasonable to think that the legislature

intended to place upon the State the burden of laboriously

disproving each of those forms of justification in every

prosecution for assault, no matter how unrelated to the facts

of the case they may be.”).

Id. In Bowdry’s case, where no permit was produced at the scene or at the

trial, the issue of the permit was not in the case unless substantial

evidence appeared in the record, either from the state or from Bowdry, that

he had a valid permit at the time. Id. 218–19.

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Two years later, we made clear the statutory exceptions provided in

section 724.4 “are affirmative defenses,” State v. Erickson, 362 N.W.2d

528, 531 (Iowa 1985) (citing Bowdry, 337 N.W.2d at 218), and “[t]he State

need not negate the exception unless substantial evidence is produced

from some source that the exception applies,” State v. Leisinger, 364

N.W.2d 200, 202 (Iowa 1985) (citing Bowdry, 337 N.W.2d at 218; State v.

Wilt, 333 N.W.2d 457, 461 (Iowa 1983); Delay, 320 N.W.2d at 834; State

v. Boland, 309 N.W.2d 438, 440 (Iowa 1981)).

The rule expressed in Bowdry and then reiterated in Erickson

applies to Bynum’s case. Bynum’s requested exception, a valid permit, is

not an element of the carrying-weapons offense. See Iowa Code § 724.4(1)

(2016) (defining the criminal act of carrying weapons); Erickson, 362

N.W.2d at 531 (stating exceptions to carrying weapons are affirmative

defenses). Therefore, the State is not required to prove the absence of that

exception. See Leisinger, 364 N.W.2d at 202; Delay, 320 N.W.2d at 834.

If Bynum’s theory of defense on the underlying falsely reported crime is

the existence of a valid permit, he must convince a rational finder of fact

that he has established his affirmative defense before the district court will

give the requested jury instruction. See Guerrero Cordero, 861 N.W.2d at

260.

In this case, Bynum did not produce any evidence, let alone

substantial evidence, to support his legal theory concerning the existence

of a permit. Bynum points to nothing in the record suggesting that when

he made his false report he said the two men had or might have permits

to carry their weapons. Bynum does point to the testimony of the

responding officer to support his contention that possession of a firearm

is not inherently illegal. See Bowdry, 337 N.W.2d at 218 (stating a

defendant may rely on the state’s case for substantial evidence of the

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existence of a valid permit). The cross-examination by defense counsel

elicited the following:

Q. And, Officer, would you agree it isn’t necessarily

illegal for someone to possess a handgun or a rifle? A. No,

it’s not.

Q. And, in fact, would you agree that there are probably

hundreds of thousands of Iowans who possess licenses

allowing them to carry firearms? A. Yes.

Based on our review of the entire record, this is the only evidence to

support Bynum’s theory the reported individuals possessed valid

permits—an exception to carrying weapons. However, the officer’s broad

statements do not concern the individuals Bynum reported. We conclude

the evidence is insufficient to support Bynum’s requested jury instruction.

A rational finder of fact could not be convinced the evidence established

Bynum reported individuals carrying weapons who possessed valid

permits. See Guerrero Cordero, 861 N.W.2d at 260. Because the evidence

does not support Bynum’s affirmative-defense exception to carrying

weapons, the district court was not required to instruct the jury on this

theory. See Marin, 788 N.W.2d at 837. Therefore, the district court’s

refusal to give Bynum’s requested instruction was not erroneous.

V. Conclusion.

We affirm the judgment of the district court and the court of appeals

decision addressing Bynum’s requested instruction. The court of appeals

decision for the remaining issues stands as the final decision.

DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

All justices concur except Appel, J., and Wiggins, C.J., who dissent.

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#18–0294, State v. Bynum

APPEL, Justice (dissenting).

The majority expresses its disapproval of the conduct of Earnest

Bynum by affirming his conviction of falsely reporting a criminal act under

Iowa Code section 718.6 (2016). While there is no doubt that Bynum is

guilty of making a false report, the question of whether Bynum is guilty of

the greater offense of false report of a criminal act is another matter. For

the reasons expressed below, I dissent from the majority’s conclusion

affirming Bynum’s conviction of the more serious crime.

I. Historical Context of False-Crime Reports.

A. The Notorious False-Crime-Reporting Case of Rex v. Manley.

The starting point in analysis of modern criminal liability for false reports

is the English case of Rex v. Manley, [1933] 1 KB 529 (C.C.A.). In Manley,

a woman falsely reported that she had been robbed. Id. at 529. Her report

resulted in a futile search for a fictitious robber and innocent persons were

investigated as a result. Id. The English court was offended by Manley’s

action, but there was no statute prohibiting her conduct. Id. at 534.

Nonetheless, the English judges declared that the defendant was guilty of

the offense of “public mischief.” Id. at 534–35.

As noted by Professor Wayne LaFave, the Manley decision “caused

quite an uproar in legal circles in England in the 1930’s.” 1 Wayne R.

LaFave, Substantive Criminal Law § 2.1(b), Westlaw SUBCRL (3d ed.

database updated Oct. 2019). The commentary in England was

unfavorable. See R.M. Jackson, Common Law Misdemeanors, 6

Cambridge L.J. 193, 198–201 (1937); W.T.S. Stallybrass, Public Mischief,

49 L.Q. Rev. 183, 183–87 (1933). Similarly, a contemporaneous American

authority cited Manley as violating the doctrine that a penalty cannot be

imposed without express authorization in law, or nulla poena sine lege, a

18

doctrine that stands as a bulwark against the spread of authoritarianism.

Jerome Hall, Nulla Poena Sine Lege, 47 Yale L.J. 165, 179 (1937).

More recently, Professor John Jeffries canvassed the problems with

Manley. John Calvin Jeffries Jr., Legality, Vagueness, and the

Construction of Penal Statutes, 71 Va. L. Rev. 189, 224–26 (1985).

Professor Jeffries attacked the open-ended nature of common law creation

of criminal offenses, viewing Manley as a continuing invitation to law

enforcement “to vindicate their own notions of appropriate social control

by criminal arrest and prosecution.” Id. at 226.

The Manley case is likely to be the last example of common law

development of criminal law in England. As noted more recently by Lord

Bingham, “There are . . . powerful reasons of political accountability,

regularity and legal certainty for saying that the power to create crimes

should now be regarded as reserved exclusively to Parliament, by statute.”

R. v. Jones, [2006] UKHL 16, [23], [2007] 1 AC 136 (appeal taken from

EWCA).

In Iowa, we long ago abandoned the notion of common law crimes.

Estes v. Carter, 10 Iowa 400, 401 (1860). (“Whilst, therefore, the principles

of the common law do enter into all our criminal adjudications when the

jurisdiction of our courts over criminal offenses has been established by

law, still they do not confer upon the courts in this State the power to try

and punish an offense that is such at common law, but which has not

been ordained as such by the supreme law making power of the State.”).

But the lesson arising from Manley remains powerful today. Courts do not

have the province or authority to extend or create crimes in the name of

public policy.

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B. Legislative Responses to Manley.

1. Introduction. In light of the perceived need to address the issue

of false reporting but the overwhelmingly negative response to Manley, a

number of proposals for legislative action arose. The Model Penal Code,

with drafting beginning in 1951 and promulgation following in 1962, was

the first modern concerted effort to comprehensively address legal issues

like false reporting in Manley. Paul H. Robinson & Markus D. Dubber,

The American Model Penal Code: A Brief Overview, 10 New Crim. L. Rev.

319, 320–25 (2007) (outlining the context of the Model Penal Code and

previous attempts to create cohesive model codes). Indeed, it has been

observed that “[w]hen the Model Penal Code project was launched . . . the

vast majority of American criminal codes were in a sorry state.” Id. at 322.

A number of states followed by enacting a wide variety of state statutes

adopting the Model Penal Code, in whole or in part, including provisions

criminalizing false reports. Id. at 326. An examination of the Model Penal

Code and other state legislation sets the framework for consideration of

Iowa Code section 718.6.

2. Model Penal Code. The Model Penal Code included section 241.5,

a provision related to false reports. Section 241.5 provides,

(1) Falsely Incriminating Another. A person who

knowingly gives false information to any law enforcement

officer with purpose to implicate another commits a

misdemeanor.

(2) Fictitious Reports. A person commits a petty

misdemeanor if he:

(a) reports to law enforcement authorities an

offense or other incident within their concern knowing

that it did not occur; or

(b) pretends to furnish such authorities with

information relating to an offense or incident when he

knows he has no information relating to such offense or

incident.

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Model Penal Code § 241.5, 10A U.L.A. 631 (2001). Notably, under the

Model Penal Code, false incrimination arises when a person knowingly

gives false information “to implicate another.” Id. And, a fictitious report

may arise not only from a false report related to “an offense” but also more

broadly to a false report related to an “incident.” Id. Plainly, under the

Model Penal Code, a crime or criminal act is not required.

3. False-report legislation in other states. A number of states have

enacted false-report statutes. In general, there are two approaches to

false-report statutes. Some false-report statutes, like the Model Penal

Code, do not require false report of a criminal act to establish liability. For

example, Pennsylvania’s statute provides that a misdemeanor in the third

degree arises when a person “pretends to furnish [law enforcement] with

information relating to an offense or incident when he knows he has no

information relating to such offense of incident.” 18 Pa. Stat. & Cons. Stat.

Ann. § 4906(b)(2) (West, Westlaw current through 2019 Reg. Sess. Act 91).

Similarly, Tennessee makes it unlawful to falsely “[i]nitiate a report or

statement to a law enforcement officer concerning an offense or incident.”

Tenn. Code Ann. § 39-16-502(a)(1) (West, Westlaw current through 2019

1st Extraordinary Sess.). Following the pattern, the South Dakota false-

reporting statute provides that a person who falsely reports a crime “or

other incident within [the] official concern [of law enforcement]” is guilty of

the offense. S.D. Codified Laws § 22-11-9 (Westlaw current through 2019

Sess. Laws). The false-reporting statute in Hawai’i provides for criminal

liability for a false report to law enforcement agencies related to “a crime

or other incident within their concern.” Haw. Rev. Stat. Ann. § 710-1015

(West, Westlaw current through Act 286 of the 2019 Reg. Sess.).

These false-reporting statutes, like the Model Penal Code, are

broadly framed and do not require the commission of a crime. Under these

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statutes, it is enough to provide information to authorities that leads

officers to suspect a third party has committed a crime or cause police to

investigate. Commonwealth v. Soto, 650 A.2d 108, 110 (Pa. Super. 1994)

(noting defendant was not guilty of false reporting since statement did not

lead officers to suspect third party had committed crime); State v. Smith,

436 S.W.3d 751, 773 (Tenn. 2014) (finding defendant’s false statements

that wife went shopping with substantial amounts of cash was sufficient

to constitute false reporting under statute).

On the other hand, other false-claim statutes are more narrowly

drawn and require a false report of a crime or criminal act to give rise to

the crime. For example, in Arkansas, the crime of filing a false report

arises when a person files a false report with law enforcement of “any

alleged criminal wrongdoing.” Ark. Code Ann. § 5-54-122(b) (West,

Westlaw current through 2019 Reg. Sess.). Similarly, Michigan law

provides for the crime of false reporting when the person makes “a false

report of the commission of a crime.” Mich. Comp. Laws Ann.

§ 750.411a(1) (West, Westlaw current through P.A.2019, No. 146, of the

2019 Reg. Sess.). Ordinarily, a report of criminal activity means a report

of a crime. See, e.g., Boveia v. State, 228 S.W.3d 550, 554 (Ark. Ct. App.

2006) (“In addition, there are no Arkansas cases clearly defining ‘criminal

activity,’ although the language from several cases suggests that ‘criminal

activity’ is a criminal act as defined by statute.”).

A number of states have enacted false-reporting civil statutes

permitting the government to recover expenses related to official responses

to false reports. By way of example, California law provides that a person

who makes a false report that “proximately causes an appropriate

emergency response by a public agency[] is liable for the expense of the

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emergency response.” Cal. Gov’t Code § 53153.5 (West, Westlaw current

through ch. 870 of 2019 Reg. Sess.).

Similarly, Arizona law provides that a person convicted of the crime

of false reporting and the false report “results in an emergency response

or investigation . . . is liable for the expenses that are incurred incident to

the emergency response or the investigation.” Ariz. Rev. Stat. Ann. § 13-

2907(B) (Westlaw current through 2019 1st Reg. Sess.). In Michigan, if a

person is found guilty of the crime of false reporting,

the court may order the person convicted to reimburse the

state or a local unit of government for expenses incurred in

relation to that incident including, but not limited to,

expenses for an emergency response and expenses for

prosecuting the person.

Mich. Comp. Laws Ann. § 769.1f(1) (West, Westlaw current through

P.A.2019, No. 146, of the 2019 Reg. Sess.). Under false-reporting civil

statutes that permit the government to recover expenses, the government

must show the nature of its response to the false report. Ordinarily,

however, the crime of false reporting, under both statutes that require a

criminal act and those that don’t, do not require the government to make

any showing of the nature of its response.

II. Application of Iowa’s False-Reporting Statute.

A. The Text of the Iowa Statute. Iowa’s false-reporting statute

provides that

[a] person who reports or causes to be reported false

information to a fire department, a law enforcement authority,

or other public safety entity, knowing that the information is

false, or who reports the alleged occurrence of a criminal act

knowing the act did not occur, commits a simple

misdemeanor, unless the alleged criminal act reported is a

serious or aggravated misdemeanor or felony, in which case

the person commits a serious misdemeanor.

Iowa Code § 718.6(1).

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As is apparent, the Iowa statute distinguishes between a report with

“false information” and a report of “the alleged occurrence of a criminal

act.” If the “alleged criminal act reported” is a serious or aggravated

misdemeanor or felony, the crime is a serious misdemeanor; otherwise,

false reporting is a simple misdemeanor. In short, Iowa has incorporated

into its statute two types of false-reporting crimes: one broadly triggered

by “false information” and another narrowly triggered by a false report of

“a criminal act,” which, under certain circumstances, can lead to an

enhanced criminal penalty.

B. Application of Iowa’s False-Reporting Statute to the Facts of

This Case. There is no dispute that Bynum violated Iowa Code section

718.6(1) by providing false information to law enforcement. But the

question in this case is not whether he made a false report to law

enforcement. He obviously did. The question is whether he reported a

“criminal act” that was a serious or aggravated misdemeanor or felony,

thereby leading to an enhanced criminal penalty under the statute.

It seems to me that while Bynum reported that persons were

carrying firearms in public and that such a report implicated the parties

in a potential crime, it was not the report of a “criminal act” but rather the

report of facts that, if investigated, might show a criminal act. Iowa Code

section 724.4(1) outlines the crime of going armed with a dangerous

weapon. The prefatory words are “[e]xcept as otherwise provided in this

section, a person who goes armed with a dangerous weapon” commits a

crime. Id. One of those exceptions is possession of a valid permit. Id.

§ 724.4(4)(i).

The persons who Bynum falsely claimed were at large reportedly

carried guns, but that could be perfectly legal under Iowa law if they had

24

the required permit. Merely reporting that someone is carrying a gun in

public is not the report of a crime, only a potential crime.

Some might say this is hairsplitting, but I think it is the result of

careful and correct interpretation of the words employed in the statute by

the legislature and its two-tiered classification system. It is not our

province to rewrite the statute. The broad approach to false reporting, as

demonstrated by the Model Penal Code and the Pennsylvania, Tennessee,

South Dakota, and Hawai’i statutes is embraced in the first part of Iowa

Code section 718.6. The legislature, however, chose to use different and

narrower language requiring a false report of “a criminal act” for the

enhanced false-reporting crime. In construing the scope of a criminal

statute, words matter. See Marcus v. Young, 538 N.W.2d 285, 289 (Iowa

1995) (finding that judicial interpretation of statutory language is based

upon what the legislature actually said rather than on what it might have

said); State v. Brustkern, 170 N.W.2d 389, 392 (Iowa 1969) (“We do not

inquire what the legislature meant. We ask only what the statute means.”

(quoting In re Wiley’s Guardianship, 239 Iowa 1225, 1232, 34 N.W.2d 593,

596 (1948))).

No doubt there is plenty of reason to disapprove of Bynum’s conduct.

Certainly the false report resulted in a misuse of police resources. But the

nature of the police response has nothing at all to do with whether the

statute has been violated. The enhanced crime is false reporting of a

criminal act not false reporting of an incident with criminal implications.

And the nature of the police response to the false report, which may be

relevant in a statutory framework that authorizes recovery of expenses, is

wholly irrelevant under Iowa Code section 718.6(1).

The overbroad approach to the statute utilized by authorities below

is illustrated by the admission of photographic exhibits of a handgun and

25

AR-15 rifle offered into evidence at trial. These photographs have nothing

to do with the elements of the statute. Instead, their sole purpose was to

inflame the jury. I reject the trial court’s contention that such exhibits

would not be prejudicial “because we see guns all the time on TV and

photographs.” The photographs are indeed prejudicial and should have

been excluded.

In this case, the relief sought by Bynum is reversal on the ground

that his requested jury instruction, which would have informed the jury

that a person does not commit a crime if he or she has a valid permit when

carrying a gun, should have been given. Under the proposed instruction,

the jury would have had to consider whether Bynum made a false report

of a criminal act in a context which included the fact that if the persons

were carrying with a permit, no criminal act would occur. Instead, we have

a case in which the defendant is charged with falsely reporting a “criminal

act” but the full definition of that “criminal act” is not provided to the jury.

No one doubts that the instruction sought by Bynum was a correct

statement of law. And no one doubts that carrying a weapon as reported

by Bynum might, or might not be, a crime. But by limiting the

instructions, the district court in effect ruled that, as a matter of law, a

false report of what might be a criminal act, is “close enough for

government work” under the statute to qualify for enhanced punishment.

This approach is consistent with Manley, perhaps, but not our ordinary

approach to criminal liability.

The majority confuses matters by turning this false-reporting case

into a trial on the merits of the hypothetical person reported by Bynum on

the possession charge. In such a trial, whether the defendant had a permit

might well be an affirmative defense. But that is not the posture of this

case. This is not a trial on the charge of the crime of illegal possession of

26

a weapon. It is a trial on the charge of falsely reporting a criminal act.

Was the hypothetical person reported by Bynum committing the crime of

possession? Maybe, but maybe not. The jury was entitled to an accurate

instruction on exactly what crime Bynum allegedly falsely reported and

may well have decided that the report of a person carrying a weapon,

without more, was too ambiguous to support the enhanced charge. In my

view, it was error not to give the requested instruction.

III. Conclusion.

For the above reasons, I would reverse the conviction and remand

the case to the district court.

Wiggins, C.J., joins this dissent.