IN THE COURT OF APPEALS OF IOWA

No. 20-0431

Filed May 12, 2021

STATE OF IOWA,

Plaintiff-Appellee,

vs.

TERRY SCHOBY,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Kossuth County, Don E. Courtney, 

Judge.

Terry Schoby challenges his conviction for sexual abuse in the third degree. 

AFFIRMED.

Jack Bjornstad of Jack Bjornstad Law Office, Spirit Lake, for appellant.

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

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.
2

AHLERS, Judge.

Shortly after the death of their father in September 2018, Terry Schoby and 

his brother got together at their father’s house to make funeral arrangements. The 

brother was accompanied by his girlfriend, B.B. The two brothers, their sister, and 

B.B. ran errands related to the funeral arrangements throughout the day. While 

doing so, the two brothers and B.B. consumed alcohol.

That evening, the brothers returned to their father’s house along with B.B. 

Toward the end of the evening, the brother was asleep or passed out on the sofa. 

When B.B. tried to awaken the brother to get him to go to bed, the brother woke 

up enough to say he intended to sleep on the sofa, so he was left to do that. B.B. 

went to the bedroom in which she intended to sleep and fell asleep on the bed. 

She was awakened by Schoby coming into the room and getting in the bed. It was 

undisputed that sex acts occurred in the first bedroom, followed by Schoby pulling

B.B. by her hair1to a second bedroom, and additional sex acts occurred in the 

second bedroom. During the encounter, the brother awoke and came to look for 

B.B. and Schoby. When they heard the brother coming down the hallway, Schoby 

hid in the closet while B.B. stood against the wall in an apparent attempt to stay 

out of sight. The brother turned on the light and saw B.B.

After multiple inquiries by the brother as to what was going on, B.B. told the 

brother Schoby raped her. The brother called the police, and an investigation 

ensued. B.B. consistently asserted Schoby forcibly had sex with her against her 

 

1 B.B. testified Schoby dragged her by the hair from the first bedroom to the second 

bedroom on her hands and knees. Schoby testified he grabbed her hair and 

“walked her like a dog” on her hands and feet from one bedroom to the other.
3

will under threat that Schoby would kill his brother if B.B. made any noise. Schoby 

admitted he and B.B. had sex, including rough sex that involved strangulation, 

gagging, and hair pulling, but he claimed it was consensual and the roughness 

was mutually agreeable role playing.

I. Background of the Charge, Jury Instructions, and Trial

The State charged Schoby with sexual abuse in the second degree, and the 

case went to a jury trial. B.B. and Schoby testified to their conflicting versions of 

events at trial. The jury found Schoby not guilty of sexual abuse in the second 

degree but found him guilty of the lesser-included offense of sexual abuse in the 

third degree based on the “force or against the will” variation of that crime. See

Iowa Code § 709.4(1)(a) (2018) (making it sexual abuse in the third degree to 

perform a sex act “by force or against the will of the other person”).

The marshaling instruction2 given to the jury for the lesser included offense 

of sexual abuse in the third degree stated:

The State must prove both of the following elements of sexual 

abuse in the third degree:

1. On or about the 28th day of September, 2018, the 

defendant performed a sex act with [B.B.].

2. The defendant performed the sex act by force or against 

the will of [B.B.].

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

guilty of sexual abuse in the third degree. If the State has failed to 

prove both of the elements, the defendant is not guilty of sexual 

abuse in the third degree.

 

2

“A marshaling instruction is one that ‘sets out, hopefully in plain language, what 

the State must show in order to convict the defendant of the crime charged.’” State 

v. Kuhn, No. 19-1895, 2021 WL 1017128, at *3 n.6 (Iowa Ct. App. Mar. 17, 2021)

(quoting State v. Kuhse, 937 N.W.2d 622, 633 (Iowa 2020) (Appel, J., concurring

specially)).
4

Schoby objected to the instruction and requested an alternative wording for the 

second element. Schoby proposed adding the modifier “unwelcome” to the second 

element, so the State would be required to prove Schoby performed the sex act 

“by unwelcome force or against the will of B.B.” Schoby claimed adding 

“unwelcome” would make it clear the State was required to prove the force involved 

was without B.B.’s consent. Without the “unwelcome” modifier, Schoby claimed 

the marshaling instruction would mislead the jury and permit the jury to find him 

guilty of the offense even if it found the two had forceful but consensual sex. The 

district court rejected Schoby’s proposed modification and gave the instruction as 

quoted. After being found guilty of the offense, Schoby’s motions in arrest of 

judgment and for new trial were denied, and he was sentenced accordingly.

II. The Issue on Appeal

On appeal, Schoby asserts he is entitled to a new trial based on the claimed 

instructional error. He claims he was entitled to the modified instruction because 

it is a correct statement of the law and was supported by substantial evidence and 

the failure to give the modified instruction was prejudicial and also deprived him of 

his due process right to a fair trial.

III. Standard of Review

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

State v. Bynum, 937 N.W.2d 319, 324 (Iowa 2020) (quoting State v. Guerrero

Cordera, 861 N.W.2d 253, 257-58 (Iowa 2015)). “[W]e generally review a district 

court’s refusal to give a requested instruction for errors at law; however, if the jury 

instruction is not required but discretionary, we review for an abuse of discretion.” 
5

Id. (alteration in original) (quoting State v. Plain, 898 N.W.2d 801, 811 (Iowa 

2017)). 

We review claims of violations of constitutional rights de novo. State v. 

Smith, ___ N.W.2d ___, 2021 WL 1323520, at *3 (Iowa 2021). A jury instruction 

in a criminal case violates due process if it fails to give effect to the requirement 

that the State prove every element of the offense. Middleton v. McNeil, 541 U.S. 

433, 437 (2004). “Nonetheless, not every ambiguity, inconsistency, or deficiency 

in a jury instruction rises to the level of a due process violation.” Id. A faulty 

instruction only rises to that level when it “so infected the entire trial that the 

resulting conviction violates due process.” Id. (quoting Estelle v. McGuire, 502 

U.S. 62, 72 (1991)).

IV. Analysis

Schoby is correct in asserting he is entitled to a requested instruction

provided the instruction correctly states the law, is supported by substantial 

evidence, and is not stated elsewhere in the instructions. See, e.g., Weyerhaeuser 

Co. v. Thermogas Co., 620 N.W.2d 819, 823–24 (Iowa 2000). However, the 

district court was not obligated to instruct in the language requested by Schoby, so 

long as the topic is covered by the instructions as a whole. See State v. BoothHarris, 942 N.W.2d 562, 581 (Iowa 2020); State v. Becker, 818 N.W.2d 135, 141–

42 (Iowa 2012), overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880 

N.W.2d 699, 708 n.3 (Iowa 2016). Further, erroneous jury instructions warrant 

reversal only when prejudice results. State v. Shorter, 945 N.W.2d 1, 9 (Iowa 

2020). “[P]rejudice results when jury instructions mislead the jury or materially 
6

misstate the law.” Id. (quoting State v. Benson, 919 N.W.2d 237, 241–42 (Iowa 

2018)).

Schoby does not claim the challenged marshaling instruction misstates the 

law. Rather, he claims it misled or confused the jury based on the unique facts of 

this case. To determine whether a jury instruction is misleading or confusing, we 

look at “what the language of the instruction would mean to a reasonable jury.” 

Rivera v. Woodward Res. Ctr., 865 N.W.2d 887, 904 (Iowa 2015). Here, the battle 

lines were clearly drawn by the manner in which the case was tried. See State v. 

Davis, 951 N.W.2d 8, 18–19 (Iowa 2020) (considering the evidence presented and 

“how the case was tried” in determining whether prejudicial instructional error 

occurred). The State urged the jury to conclude Schoby forced himself upon B.B. 

and had sex with her without her consent. Schoby urged the jury to conclude the 

sex was consensual and any forcefulness that occurred was part of mutual and 

consensual role-playing. Given these starkly different positions, we do not see the 

marshaling instruction as sowing any seeds of confusion with the jury. To accept 

Schoby’s theory would require a belief the jury may have thought the jury 

instruction required them to find Schoby guilty even though the sex acts in question 

were undertaken by completely consenting adults engaged in rough role-playing. 

We do not take such a dim view of the jury’s collective common sense. The 

marshaling instruction’s reference to “by force or against the will of [B.B.],” coupled 

with the fact the State never presented any evidence or argument suggesting the 

jury could find Schoby guilty on Schoby’s feared interpretation of the instruction, 

made it clear the jury could only find Schoby guilty if it determined the sex acts he 

performed with B.B. were nonconsensual. Finding the challenged instruction not 
7

to be misleading or confusing, we reject Schoby’s contention.3 In doing so, we 

echo the observations of the Illinois Supreme Court addressing a similar challenge:

In common understanding, if it is said that one was forced to perform 

an act, it follows that the person’s act was nonconsensual; and if one 

freely consents to the performance of an act upon oneself, clearly 

that person has not been forced. Thus, although the prosecution is 

not required to prove nonconsent formally, it is obvious that if the 

prosecution shows that there was an act of sexual penetration by 

force, that evidence demonstrates that the act was nonconsensual. 

To prove the element of force is implicitly to show nonconsent.

People v. Haywood, 515 N.E.2d 45, 50 (Ill. 1987).

We find no error in the district court’s instructions to the jury, so we reject 

Schoby’s request for a new trial on that basis. As there was no error in the 

instructions, we likewise reject Schoby’s due process claim based on instructional 

error.

AFFIRMED.

 

3 Our opinion should not be interpreted as a declaration that granting the requested 

modification would have been error. Our appellate rules and standards of review 

require us to rule on the issues presented. In this case, the issues presented do 

not include making a determination of whether the requested modification, if it had 

been granted, would be appropriate, and, therefore, we express no opinion on that 

issue.