IN THE COURT OF APPEALS OF IOWA

No. 21-0457

Filed July 20, 2022

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ADAM SLADE ROE,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark R. Fowler, 

Judge.

Adam Roe appeals from his convictions and sentences for criminal mischief 

and assault. CONVICTIONS AFFIRMED, SENTENCES VACATED, AND 

REMANDED FOR RESENTENCING.

Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney 

General, for appellee.

Considered by Tabor, P.J., Greer, J., and Vogel, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2022).
2

VOGEL, Senior Judge.

A dispute between familial neighbors resulted in Adam Roe being convicted 

of criminal mischief in the second degree, assault with intent to inflict serious injury, 

and two counts of assault. He appeals his convictions and sentences, arguing 

(1) the district court erred by instructing the jury to consider the “highest value of 

the property” for the criminal-mischief charge; (2) the evidence was insufficient to 

support his conviction for criminal mischief in the second degree; (3) the evidence 

of identity was insufficient to support his conviction for the three assault charges; 

(4) he did not effectively waive his right to in-person sentencing; (5) the written 

sentencing order does not reflect the court’s intention to suspend his fines; and 

(6) the court illegally imposed various inapplicable surcharges. We reject his 

challenges to the jury instructions and the sufficiency of the evidence, and we 

affirm his convictions. However, we agree the record does not contain his waiver 

as required for remote sentencing. We also agree the court was without authority 

to impose certain surcharges. Therefore, we remand for resentencing, do not 

address the suspension of fines, and direct the court to not impose certain 

surcharges on resentencing.

I. Background Facts and Proceedings.

Adam Roe lives in a house in Blue Grass, which is next-door to the home 

of his cousin, Dale, and his cousin’s wife, Darla. This dispute involves a well 

located near the property line between the two houses. Dale and Darla testified 

the well belongs to them and is on their property and they maintain it to supply 

water to their house. They further testified that, a couple years earlier, the well 
3

also supplied water to Roe’s house; however, because Roe refused to help pay 

for the power supply and maintenance of the well, Roe’s connection was shut off.

Darla testified that on June 8, 2019, she discovered several bags of 

concrete mix and rocks had been thrown into the well. She reviewed video from 

their security camera and saw Roe throwing bags of concrete mix and rocks into 

the well hours earlier. She called the police to report the damage and then began 

cleaning the well with help from Dale and his brother. While cleaning the well, 

Darla testified she heard a noise from Roe’s garage and then saw a football-sized 

rock coming from Roe’s property that narrowly missed hitting her. Surveillance

video shows the rock coming from the roof of Roe’s garage. Dale testified that, 

after they cleaned the well, they replaced the sump pump, valves, and 

connections. 

Later that day, a sheriff’s deputy conducted a traffic stop of Roe based on 

the earlier events. The deputy testified—and video from his body camera 

confirms—Roe “seemed very agitated,” “he was making a lot of furtive 

movements,” and “his tone was very loud” during the stop. The deputy told Roe 

they had video of him throwing objects into the well, and Roe responded, “I know. 

I was gonna plug and fill it.” The deputy also said they had video of a rock coming 

from his property and almost hitting Darla. Roe denied throwing a rock and claimed 

the video must be flipped to look like the rock came from his property and other 

people—including an unnamed “kid”—were throwing rocks at his house instead. 

The deputy searched Roe’s vehicle and found a bag of concrete mix with a receipt 

and picking list for ten bags of similar concrete mix dated the prior day. The deputy 

also found a bottle of ammonia and a bottle of toilet cleaner with a receipt for both 
4

dated earlier that day. When asked about the ammonia and toilet cleaner, Roe 

said he was going to pour the substances in the well to kill Dale and Darla. Roe 

made many other statements during the stop about his intentions to kill Dale and 

Darla. 

Roe was charged and proceeded to a jury trial.1 During trial, the owner of 

a well-service business, who replaced a well pump for Dale and Darla in 2017, 

testified about an estimate he provided to clean and repair the well; however, he 

acknowledged the business did not perform any of the listed work. The written 

estimate, admitted without objection, showed the business would have charged

$977.00 to clean and chlorinate the well, up to an additional $3357.10 to repair 

and replace equipment depending on the work needed, and the entire estimate, 

except for $30.00 of the cleaning charge, was subject to 7% state sales tax. 

The jury found Roe guilty of criminal mischief in the second degree, assault 

with intent to inflict serious injury against Darla, and assault against Dale and his 

brother. During a remote sentencing hearing, the district court sentenced Roe to 

an indeterminate term of incarceration not to exceed five years for criminal 

mischief, 365 days for assault with intent to cause serious injury, and thirty days 

for each assault charge, run consecutively. The court suspended all but ninety 

days for the assault-with-intent-to-cause-serious-injury charge, placed Roe on 

probation for three years, waived category “B” restitution, and imposed various 

fees, fines, and surcharges. Roe appeals. 

1 Prior to trial, Roe filed a written guilty plea for possession of marijuana as part of 

this proceeding. He does not appeal the conviction or sentence for this possession 

charge.
5

II. Jury Instructions.

Roe begins by challenging a jury instruction for the criminal-mischief 

charge. “[W]e review challenges to jury instructions for correction of errors at law.” 

State v. Benson, 919 N.W.2d 237, 241 (Iowa 2018) (alteration in original) (quoting 

Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016)). “In doing so, we 

consider the jury instructions as a whole rather than in isolation to determine 

whether they correctly state the law.” Id. at 242. “An incorrect or improper 

instruction can be cured ‘if the other instructions properly advise the jury as to the 

legal principles involved.’” State v. Kraai, 969 N.W.2d 487, 490 (Iowa 2022) 

(quoting Thavenet v. Davis, 589 N.W.2d 233, 237 (Iowa 1999)). An erroneous 

instruction does not warrant reversal unless prejudice resulted. Benson, 919 

N.W.2d at 241. “Prejudice results when jury instructions mislead the jury or 

materially misstate the law.” Id. at 241–42. “[W]e presume prejudice and reverse 

unless the record affirmatively establishes there was no prejudice.” State v. 

Hanes, 790 N.W.2d 545, 551 (Iowa 2010).

Criminal mischief is “[a]ny damage, defacing, alteration, or destruction of 

property . . . when done intentionally by one who has no right to so act.” Iowa 

Code § 716.1 (2019). At the time of the events here, criminal mischief in the 

second degree occurred when “the cost of replacing, repairing, or restoring the 

property . . . exceeds one thousand dollars but does not exceed ten thousand 

dollars.”2 Id. § 716.4(2). Accordingly, the criminal-mischief-degree instruction told 

2 The legislature subsequently amended section 716.4(2) to define criminal 

mischief in the second degree as occurring when the affected property “exceeds 

one thousand five hundred dollars but does not exceed ten thousand dollars.” 
6

jurors, “Criminal Mischief in the Second Degree occurs when the cost of replacing 

or repairing the property is more than $1000 but not more than $10,000.” This 

instruction on the verdict form also told jurors to “check the blank next to the 

appropriate value,” and the verdict form allowed the jury to check a blank for finding 

“the cost of repair, replacement, restoration of the property damaged, destroyed, 

defaced, altered by the defendant, Adam S. Roe . . . [i]s more than $1000 but not 

more than $10,000.” 

The jury instructions also included an instruction on value: 

The value of property is its highest value by any reasonable 

standard at the time that it is damaged. Reasonable standard 

includes but is not limited to market value within the community, 

actual value, or repair, or replacement value. 

Roe notes this instruction largely follows the definition of “value” for purposes of 

theft. See Iowa Code § 714.3(1) (“The value of property is its highest value by any 

reasonable standard at the time that it is stolen. Reasonable standard includes 

but is not limited to market value within the community, actual value, or 

replacement value.”). Because the degree of criminal mischief is determined by

“the cost of replacing, repairing, or restoring the property” rather than the value of 

the property, see id. § 716.4(2), Roe argues the court erred by instructing the jury 

on value. 

Even if we assume the court erred by including an instruction on value, we 

are satisfied no prejudice resulted.3 Both the criminal-mischief-degree instruction 

2019 Iowa Acts ch. 140, § 19. Roe does not argue the 2019 amendment applies 

here.

3 To support his position, Roe cites to our unpublished case State v. Smith, No. 13-

1439, 2014 WL 3748295, at *2–5 (Iowa Ct. App. July 30, 2014), wherein we 

reversed a criminal-mischief conviction due to a similar instruction defining “value.” 
7

and the verdict form correctly focused on the cost to repair or replace the damaged 

property, not the value of the well. Additionally, the evidence in the record related 

to the cost to repair the well and not the value of the well. Specifically, the wellservice business provided a detailed estimate to repair the well that was itemized 

to allow the jury to calculate the cost of repair based on the work the jury found

needed to be performed. Therefore, reading the instructions as a whole, we find 

no resulting prejudice and reject Roe’s challenge to the jury instruction on value.

III. Sufficiency of the Evidence.

Roe also challenges the sufficiency of the evidence supporting his criminalmischief conviction and his three assault convictions. “We review the sufficiency 

of the evidence for correction of errors at law.” State v. Crawford, 972 N.W.2d 189, 

202 (Iowa 2022) (quoting State v. Buman, 955 N.W.2d 215, 219 (Iowa 2021)). 

“The jury’s verdict binds this court if the verdict is supported by substantial 

evidence.” Id. “Substantial evidence is evidence sufficient to convince a rational 

trier of fact the defendant is guilty beyond a reasonable doubt.” Id. “In determining 

whether the jury's verdict is supported by substantial evidence, we view the 

evidence in the light most favorable to the State, including all ‘legitimate inferences 

However, Roe’s position differs from Smith in two key ways. First, the verdict form 

in Smith directed the jury to consider the property’s “value”; Roe’s verdict form 

does not mention “value” but rather “the cost of repair, replacement, restoration of 

the property damaged, destroyed, defaced, altered.” See Smith, 2014 WL 

3748295, at *3. Second, the record in Smith contained conflicting evidence on the 

cost to repair or replace the damaged property, as the victim testified to obtaining 

an estimate for an amount much higher than what she actually paid for labor and 

materials. See id. at *4–5. Here, there was no conflict as to the cost to repair the 

well, as Dale and Darla immediately performed all labor themselves before the 

concrete mix could firmly set and then obtained a single estimate after the fact for 

materials to clean, repair, and replace necessary parts along with labor and their 

lost wages.
8

and presumptions that may fairly and reasonably be deduced from the record 

evidence.’” Id. (quoting State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017)).

A. Criminal mischief in the second degree

Roe argues the evidence is insufficient to support finding he committed 

criminal mischief in the second degree. Specifically, he argues the evidence does 

not support finding the cost to repair the well was more than $1000.00 but less 

than $10,000.00. See Iowa Code § 716.4(2).

As stated above, the well-service business provided an estimate for the cost 

to repair the well. Roe notes the business’s owner testified he never performed 

the listed repairs and he does not know what—if any—equipment was actually 

damaged. Darla testified the family began doing the repair work themselves as 

soon as they saw the damage because they “didn’t want the cement to dry up.” 

Dale testified as to the work the three of them did to repair the well, including 

needing a “[f]ew hours” to clean the well and replace the sump pump, valves, and 

connections. He also testified the well was in good working condition before these 

events. 

At a minimum, the record is sufficient to find cleaning and chlorinating the 

well was part of the cost of repair. The estimate shows cleaning and chlorinating 

the well cost $977.00. Of this amount, $947.00 was subject to 7% sales tax, 

totaling an additional $66.29. Thus, the cost of cleaning and chlorinating the well 

with sales tax was $1043.29, exceeding the $1000.00 minimum for criminal 

mischief in the second degree.

Furthermore, Dale testified he replaced the damaged sump pump and other 

equipment. While the cost of this equipment was not in the record, the business 
9

owner, who was familiar with this well, testified a sump pump for the well would 

cost at least $90.00 to $100.00. Roe notes Dale testified he already had all the 

needed equipment on hand. However, nothing in the statute requires the factfinder 

to find equipment used in a repair cost nothing simply because the equipment was 

already on hand. See id. § 716.4(2). To the extent Roe challenges the credibility 

of the witnesses and other evidence establishing the extent and cost of the repairs, 

such matters are for the jury to decide. See State v. Thornton, 498 N.W.2d 670, 

673 (Iowa 1993) (“The jury is free to believe or disbelieve any testimony as it 

chooses and to give weight to the evidence as in its judgment such evidence 

should receive.”). Therefore, the evidence is sufficient to support finding the cost 

to repair the well was more than $1000.00 but less than $10,000.00, thus 

supporting Roe’s conviction for criminal mischief in the second degree.

B. Assault

Roe next challenges the sufficiency of the evidence supporting his 

conviction for the three assault charges. Specifically, Roe argues the evidence is 

insufficient to prove he threw the rock at Dale, Darla, and Dale’s brother while they 

were working on the well. See State v. Jensen, 216 N.W.2d 369, 374 (Iowa 1974) 

(“Identity is an element of a criminal offense which the State must prove beyond a 

reasonable doubt.”). He notes no one saw who threw the rock and he told the 

deputy he did not throw the rock.

The video confirms the rock was thrown from the roof of Roe’s garage. 

Dale’s brother testified, “I heard something come over my right shoulder, I looked 

up and here’s this big piece of concrete coming out and my sister-in-law was 

standing there and I couldn’t get to her but I hollered at her to look out.” He claimed 
10

the direction the rock was coming from was Roe’s house, “across the roof.” To 

place Roe at the scene, Dale testified he saw Roe at his house around the time 

the rock was thrown, both before and after the throw. Roe had previously thrown

rocks at Dale and Darla’s property hours before the assault, having been caught 

on video throwing rocks into the well. When the deputy stopped Roe hours after 

the assault, Roe verbalized hostility toward Dale and Darla and repeatedly 

threatened to kill them. The jury could legitimately infer from this evidence that 

Roe threw the rock, and there is substantial evidence to support all three assault 

convictions. See State v. Jones, 967 N.W.2d 336, 342 (Iowa 2021) (“[T]he relevant 

inquiry is whether a fact finding is a legitimate inference that may fairly and 

reasonably be deduced from the record evidence.” (quoting State v. Ernst, 954 

N.W.2d 50, 59 (Iowa 2021))).

IV. Sentencing.

Finally, Roe challenges his sentence. When a sentence is within the 

statutory limits, we review the sentence for an abuse of discretion. State v. Seats, 

865 N.W.2d 545, 552 (Iowa 2015). When a defendant challenges the legality of a 

sentence on nonconstitutional grounds, we review for correction of errors at law. 

Id. When a defendant challenges the legality of a sentence on constitutional 

grounds, we apply de novo review. Id.

Roe argues the court violated his rights by sentencing him in a remote 

proceeding without obtaining a written or on-the-record waiver from him. “A 

criminal defendant has a constitutional and statutory right to be personally present 

at every stage of trial.” State v. Wise, 472 N.W.2d 278, 279 (Iowa 1991); see also 

Iowa R. Crim. P. 2.27(1) (“In felony cases the defendant . . . shall be personally 
11

present at every stage of the trial including . . . the imposition of sentence . . . .”). 

A criminal defendant has the right to personally appear for sentencing because, 

“[No] modern innovation[ ] lessens the need for the defendant, personally, to have 

the opportunity to present to the court his plea in mitigation.” State v. Craig, 562 

N.W.2d 633, 636 (Iowa 1997) (alterations in original) (quoting Green v. United 

States, 361 U.S. 301, 304 (1961)). Nevertheless, the defendant may waive this 

right to appear for sentencing by executing a knowing, intentional, and 

unambiguous waiver. See State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2011). 

Additionally, our supreme court issued a series of supervisory orders in response 

to the COVID-19 pandemic that, in part, allowed a district court to hold sentencing 

via videoconference or telephone if the defendant “(a) execute[s] a written waiver 

or (b) make[s] a waiver on the record.” Iowa Supreme Ct. Supervisory Order, In 

the Matter of Ongoing Provisions for Coronavirus/COVID-19 Impact on Court 

Services ¶ 16 (Nov. 24, 2020).

The district court’s written sentencing order states:

All parties, as well as the Court and the court reporter, appeared via 

teleconference or by telephone. After being engaged in colloquy with 

the Court, the defendant waived his right to a hearing in open court 

and agreed to proceeding via teleconference and/or telephone due 

to the COVID-19 pandemic. The Court finds that defendant 

understands his rights and that this waiver is knowingly, voluntarily, 

and intelligently made. 

(Emphasis added.) Despite this pronouncement, the sentencing transcript does 

not show Roe waived his right to be present for sentencing. In fact, the sentencing 

transcript does not make any reference to a remote proceeding, save for the title 

page that notes, “Hearing was held via teleconference pursuant to Iowa Supreme 
12

Court supervisory orders regarding the COVID-19 pandemic.” The record also

does not contain a written waiver of Roe’s right to be present for sentencing.

This court recently considered a similar argument where the district court 

“explained the [sentencing] hearing was being conducted remotely as a result of 

the supervisory orders” and noted it “separately asked [the defendant] and all 

counsel if they were agreeable to participating remotely, and each answered in the 

affirmative.” State v. Emanuel, 967 N.W.2d 63, 69 (Iowa Ct. App. 2021). We 

vacated the sentence and remanded for resentencing because the record did not 

show the defendant “knew of his continuing right to in-person sentencing,” and 

thus his waiver of in-person sentencing was invalid. Id. The State distinguishes 

Roe’s claim by arguing the sentencing order shows substantial compliance with 

the requirement that Roe’s waiver was knowing, intentional, and unambiguous. 

See State v. Feregrino, 756 N.W.2d 700, 706 (Iowa 2008) (finding an “on the 

record” waiver requires “some in-court colloquy or personal contact between the 

court and the defendant, to ensure the defendant’s waiver is knowing, voluntary, 

and intelligent,” and “substantial compliance” is “acceptable” (quoting State v. 

Liddell, 672 N.W.2d 805, 812, 814 (Iowa 2003))). However, we have no colloquy 

in the record to evaluate substantial compliance. The COVID-19 pandemic 

imposed a tremendous burden on our district courts, and Roe may very well have 

attempted to waive his right to in-person sentencing outside the record. But the 

absence of a written or on-the-record waiver violates the supreme court’s 

supervisory order. Our supreme court has advised “that trial judges leave no room 

for doubt that a defendant has been given the opportunity to speak regarding 

punishment.” Craig, 562 N.W.2d at 637. Thus, the record does not contain a 
13

required waiver of in-person sentencing, and we cannot find a lack of prejudice 

from this omission. See Emanuel, 967 N.W.2d at 69 (“We reject the State’s 

harmless-error argument, as there is no way to tell what the outcome would have 

been had the sentencing judge and [the defendant] been face to face.”). 

Therefore, we vacate Roe’s sentences and remand for resentencing. 

Roe notes a discrepancy between the oral pronouncement of judgment and 

the written judgment entry in the record as to whether the district court suspended 

his fines. Because we are vacating the sentences and remanding for 

resentencing, we do not address the suspended fines and leave the issue to the 

court to consider at resentencing.

Roe also argues the court illegally imposed the law enforcement initiative 

surcharge, which was repealed prior to his sentencing, and the domestic and 

sexual abuse surcharge, which was not applicable to any of his convicted offenses. 

The State agrees the court lacked authority to impose these surcharges, and we 

find the same. Therefore, in resentencing the district court shall not impose any 

law enforcement initiative surcharge or domestic and sexual abuse surcharge.

V. Conclusion.

Any error in the jury instructions did not result in prejudice, and the evidence 

is sufficient to support Roe’s convictions for criminal mischief in the second degree 

and all three assault charges, so we affirm his convictions. However, the record 

does not contain a required waiver of in-person sentencing. Therefore, we vacate 

Roe’s sentences and remand for resentencing, do not address the suspension of 
14

fines, and direct the court to not impose any law enforcement initiative surcharge 

or domestic and sexual abuse surcharge on resentencing.

CONVICTIONS AFFIRMED, SENTENCES VACATED, AND REMANDED 

FOR RESENTENCING.