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 
3

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. 
4

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). 
5

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 exceptions1 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.”
6

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. 
7

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. 
8

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). 
9

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.
10

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 
11

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 lawenforcement 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.
12

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. 
14

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.
15

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 
16

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.
17

#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. 
19

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. 
20

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 falsereporting 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 
21

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 
22

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). 
23

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.