IN THE SUPREME COURT OF IOWA

No. 18–0081

Filed June 5, 2020

STATE OF IOWA,

Appellee,

vs.

KAMIE JO SCHIEBOUT,

Appellant.

On review from the Iowa Court of Appeals. 

Appeal from the Iowa District Court for Sioux County, Patrick H. 

Tott (trial and sentencing) and Jeffrey A. Neary (restitution order), Judges.

The defendant requests further review of a court of appeals decision 

affirming her conviction for theft. DECISION OF COURT OF APPEALS 

VACATED; DISTRICT COURT JUDGMENT REVERSED AND 

REMANDED FOR DISMISSAL. 

Mark C. Smith (until withdrawal) and Martha J. Lucey, State 

Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for 

appellant. 

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

Attorney General, and Thomas Kunstle, County Attorney, for appellee. 
2

McDERMOTT, Justice. 

Kamie Jo Schiebout wrote checks without authorization from a bank 

account that was not hers. The State charged her with violating Iowa Code 

section 714.1(6) (2015), which provides a person commits theft “if the 

person knows that such check . . . will not be paid when presented.” All 

seven checks the State charged Schiebout with writing were paid when 

presented. The jury nonetheless found Schiebout guilty. 

This appeal requires us to address the types of conduct Iowa Code 

section 714.1(6) forbids. Schiebout contends the State’s evidence 

presented at trial was insufficient to show she knew the checks would not 

be paid when presented. Schiebout argues presenting a check without 

authorization, which was the substance of the State’s evidence, is different 

than providing a check one knows will not be paid when presented, which 

is the subject of section 714.1(6). As a result, Schiebout asserts the 

district court committed reversible error in denying her motion for 

acquittal at trial. 

We agree. The text of section 714.1(6) forbids knowingly presenting 

a check that will not be paid when presented. Evidence that she presented 

checks without authorization is, without more, insufficient to establish 

this particular crime. Because the State failed to present sufficient 

evidence supporting a conviction under section 714.1(6) and, specifically, 

that Schiebout knew the checks would not be paid when presented, we 

vacate the decision of the court of appeals, reverse the judgment of the 

district court, and remand for dismissal. 

I. Background Facts and Proceedings. 

Schiebout’s former husband, Matthew, served as treasurer of Sandy 

Hollow Ducks Unlimited, the local chapter of the national Ducks Unlimited 

organization. The chapter had a checking account at American State 
3

Bank. Only two people had signature authority on the checking account: 

Matthew, as the chapter’s treasurer, and the chapter’s president. Matthew 

kept the chapter’s checkbooks in the basement of the house he had shared 

with Schiebout before their separation. 

Schiebout had never been a member of the chapter and never had 

check-writing authority on the chapter account. Nonetheless, months 

after Matthew and Schiebout separated and Matthew moved out, 

Schiebout wrote a series of unauthorized checks on the chapter’s account, 

signing her own name on each check. 

Over a two-month period, twelve checks were drawn on the account. 

Only one was written by the chapter president or treasurer. Despite this, 

the bank honored all twelve checks, even those presented after the account 

ultimately became overdrawn. The bank mailed several overdraft notices 

to Matthew, but he didn’t open any of them. Matthew first learned 

someone had been writing unauthorized checks on the chapter’s account 

when the bank eventually reached him by phone. Upon examining the 

check images at the bank, Matthew recognized the signatures as 

Schiebout’s. He reported the matter to the Orange City Police Department. 

Around this time, but before the police had contacted her, Schiebout 

wrote two more checks on the chapter’s account at Schweser’s, a clothing 

store. Schiebout knew the store clerk and told her the checks were “her 

husband’s.” Unlike with the other checks, the bank did not honor either 

check to Schweser’s because the account was overdrawn. No evidence 

suggests Schiebout thereafter attempted to pass any more checks. 

Schiebout told an employee at the bank she had “grabbed the wrong 

checkbook.” 

The State charged Schiebout with second-degree theft under Iowa 

Code sections 714.1(6) and 714.2(2), and as a habitual offender under 
4

Iowa Code sections 902.8 and 902.9(1)(c) based on prior criminal 

convictions. At trial, the State presented evidence on eleven checks, but 

the jury was instructed to consider only seven checks as instances of 

alleged theft. The two checks Schiebout unsuccessfully passed at 

Schweser’s were presented but not charged as part of the theft. 

At trial, the State provided images of five of the seven checks that 

were charged. The State could not present images of two of the checks 

because the merchant, Wal-Mart, processed them as “automated 

clearinghouse” (or ACH) withdrawals in which Wal-Mart converted the 

paper checks into an electronic transfer that pulled funds from the 

checking account. With the funds electronically transferred, Wal-Mart 

handed the checks back to Schiebout without submitting the checks to 

the bank. For the two Wal-Mart checks, the State instead presented 

receipts showing the check numbers and store photos and video 

surveillance of Schiebout at both the register and leaving with a cart of 

items, all of which coincided with the dates and locations of the ACH 

transfers. 

The State asked the jury to consider Schiebout’s actions as part of 

a single scheme and, thus, to aggregate the seven checks in calculating 

the total value of property to determine the degree of theft. The seven 

checks totaled $1256.93. 

The four other checks that came into evidence, including the two 

Schweser’s checks, were not made part of the charged theft but instead 

were offered to help prove elements of the charged crime. Matthew 

identified the signature on every check admitted into evidence as 

Schiebout’s. Two checks contained Schiebout’s personal information, 

such as her driver’s license number or date of birth, handwritten across 

the top. 
5

At the close of the State’s evidence, Schiebout moved for judgment 

of acquittal, arguing the State failed to prove the knowledge element of 

section 714.1(6). The district court took the motion under advisement. 

Schiebout made a renewed motion for acquittal after the defense 

concluded its case, which the district court again took under advisement. 

The district court ultimately denied the motion for acquittal in an 

oral order in which the court noted its reliance on State v. James

concerning the knowledge element. 310 N.W.2d 197 (Iowa 1981),

overruled by State v. Hogrefe, 557 N.W.2d 871 (Iowa 1996). The district 

court found the State had provided sufficient evidence on the knowledge 

element because Schiebout “was aware that she was not an authorized 

signer on this account” and “not being an authorized signer . . . she should 

have known that they would not be accepted and could not have been 

accepted in a legal fashion by the bank.” 

The district court instructed the jury on the knowledge element, 

Jury Instruction No. 13, as follows: 

For the defendant to know something means she had a 

conscious awareness that at the time she gave the checks to 

the various businesses they would not be paid by the bank 

because the defendant was not an authorized signer on the 

account on which the checks were drawn. 

The jury found Schiebout guilty of second-degree theft. At a second 

trial focused on Schiebout’s habitual offender status, the jury found 

Schiebout to be a habitual offender under Iowa Code section 902.8. The 

district court sentenced her to an indeterminate prison term of fifteen 

years, with a mandatory minimum of three years based on her habitual 

offender status. The district court found Schiebout lacked the ability to 

pay certain items of restitution and waived other costs. 
6

Shortly thereafter, the district court ordered Schiebout to pay the 

Sioux County Sheriff’s Office $28,136.31 for medical services provided 

while she was a detainee there. At the hearing, Schiebout did not receive 

and did not have counsel representing her. Distinguishing other types of 

restitution, the district court held Iowa law does not require an ability-topay determination before ordering a convicted person to pay for medical 

aid. 

Schiebout appealed. She asserted the district court erred in denying 

the motion for judgment of acquittal because there was insufficient 

evidence both that Schiebout knew the checks would not be paid when 

presented and that she obtained property or services in exchange for the 

checks. Schiebout alternatively sought a new trial asserting the jury was 

not properly instructed on the checks it was allowed to aggregate to meet 

the dollar amount threshold for second-degree theft. Schiebout also 

asserted the district court’s ruling imposing the sheriff’s claim for 

reimbursement of the medical aid costs was improper and that she was 

entitled to counsel at the hearing. 

We transferred the appeal to the court of appeals. The court of 

appeals affirmed Schiebout’s conviction on the sufficiency of evidence, 

accepting the contention that knowledge of her lack of authorization in 

presenting the checks satisfied the knowledge element under 

section 714.1(6). The court of appeals further found no error in the jury 

instruction on aggregating the dollar amounts of the checks. On the 

district court’s order concerning payment for medical aid, the State, on 

appeal, conceded medical aid is subject to the reasonable-ability-to-pay 

requirement if treated as restitution under section 910.2 and further 

conceded Schiebout was entitled to counsel at the restitution hearing. The 
7

court of appeals vacated the order requiring payment for medical aid and 

remanded for further proceedings. 

We granted Schiebout’s application for further review. 

II. Standard of Review. 

Issues of statutory interpretation are reviewed for correction of legal 

error. State v. Nall, 894 N.W.2d 514, 517 (Iowa 2017). We likewise review 

claims of insufficient evidence for correction of legal error. Id. We will 

uphold the verdict on a sufficiency-of-evidence claim if substantial 

evidence supports it. State v. Trane, 934 N.W.2d 447, 455 (Iowa 2019). In 

reviewing a challenge to the sufficiency of evidence supporting a guilty 

verdict, we consider “all of the record evidence viewed in the light most 

favorable to the State, including all reasonable inferences that may be 

fairly drawn from the evidence.” State v. Thomas, 847 N.W.2d 438, 442 

(Iowa 2014) (quoting State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012)). 

Evidence is substantial “if, when viewed in the light most favorable to the 

State, it can convince a rational jury that the defendant is guilty beyond a 

reasonable doubt.” Trane, 934 N.W.2d at 455 (quoting State v. Ramirez, 

895 N.W.2d 884, 890 (Iowa 2017)). 

III. Analysis. 

Iowa Code section 714.1(6) states, 

A person commits theft when the person . . . [m]akes, 

utters, draws, delivers, or gives any check, share draft, draft, 

or written order on any bank . . . and obtains property, the 

use of property, including rental property, or service in 

exchange for such instrument, if the person knows that such 

check, share draft, draft, or written order will not be paid 

when presented. 

a. Whenever the drawee of such instrument has 

refused payment because of insufficient funds, and the maker 

has not paid the holder of the instrument the amount due 

thereon within ten days of the maker’s receipt of notice from 

the holder that payment has been refused by the drawee, the 
8

court or jury may infer from such facts that the maker knew 

that the instrument would not be paid on presentation. . . . 

b. Whenever the drawee of such instrument has 

refused payment because the maker has no account with the 

drawee, the court or jury may infer from such fact that the 

maker knew that the instrument would not be paid on 

presentation. 

Interpreting the key words of this statute, to support a conviction 

the State must thus prove “when the person . . . gives any check” the

person “knows” the check “will not be paid when presented.” Id.

Unless otherwise defined by the legislature, we give words their 

ordinary meaning. State v. Damme, ___ N.W.2d ___, ___ (Iowa 2020). 

“Interpreting a statute requires us to assess it in its entirety to ensure our 

interpretation is harmonious with the statute as a whole rather than 

assessing isolated words or phrases.” State v. Pettijohn, 899 N.W.2d 1, 16 

(Iowa 2017).

On the knowledge element, the State’s evidence focused almost 

completely on Schiebout’s lack of authorization to write checks on the 

chapter’s checking account. The State succinctly states its argument in 

its appeal brief: “A reasonable juror could conclude that because 

Schiebout knew she was not authorized to sign the checks, she knew the 

bank would not pay them.” But the State’s argument, without more, 

invites a logical fallacy because the premise doesn’t require the conclusion. 

The State presented evidence of Schiebout’s lack of authority to write 

checks from the account, but the record contains no other evidence on the 

determinative issue: whether Schiebout knew the bank would fail to pay 

the checks when she presented them. 

The district court instructed the jury the State must prove Schiebout 

possessed a “conscious awareness” that the checks would not be paid 

when presented because she was not an authorized signer on the account. 
9

Jury Instruction No. 13; see also Jury Instruction No. 14 (knowledge 

element requiring State to prove Schiebout “knew at the time she gave the 

checks to local organizations or businesses that they would not be paid by 

the bank because [she] was not an authorized signer on the account”); 

Sahu v. Iowa Bd. of Med. Exam’rs, 537 N.W.2d 674, 678 (Iowa 1995) 

(defining “knowledge” to mean the defendant had a “conscious awareness” 

of the element requiring knowledge). Jury instructions, when not objected 

to, become the law of the case for purposes of appellate review for 

sufficiency-of-evidence claims. State v. Canal, 773 N.W.2d 528, 530 (Iowa 

2009). The evidence in this case was insufficient to support a finding that 

Schiebout, simply because she was not an authorized signer on the 

account, possessed a conscious awareness that the checks would not be 

paid when presented.

Any such claimed knowledge by Schiebout clashes with the reality 

that the bank did in fact pay each of the checks. That the bank paid the 

checks when presented is not determinative on the issue of Schiebout’s 

knowledge. But there was no other sufficient evidence presented from 

which to conclude Schiebout knew—in this case, contrary to fact—that 

the bank would refuse payment when she presented the checks. The 

statements Schiebout made that the checks were “her husband’s” or that 

she “grabbed the wrong checkbook” at best show knowledge she lacked 

authorization on the account, not that she knew the bank wouldn’t pay 

the checks when she presented them. 

Indeed, her experience would have provided her with knowledge 

going the other direction—that the bank always paid the checks when she 

presented them. In particular, her two experiences at Wal-Mart, in which 

the check was electronically submitted through the ACH payment process 

as she stood by the cashier’s stand, reasonably would have confirmed for 
10

her the bank’s practice of paying each check when presented. Businesses 

that accepted two other checks presented at trial (but that were not among 

the seven checks considered by the jury as charged) likewise processed 

the checks as ACH transfers. 

Section 714.1(6) includes two presumptions establishing a 

defendant’s knowledge, but neither applies in this case. Subsections 

714.1(6)(a) and (b) apply only when “the drawee of such instrument has 

refused payment.” Iowa Code § 714.1(6)(a)–(b). The drawee, American 

State Bank, did not refuse payment on any of the seven checks. By the 

plain language of these subsections, as applied to the facts of this case, 

these presumptions are not triggered. 

The State correctly cites our prior observation that the Iowa theft 

statute is “modeled after the Model Penal Code, with slight variation.” 

State v. Donaldson, 663 N.W.2d 882, 885 (Iowa 2003). But Iowa Code 

section 714.1(6) and the associated Model Penal Code section 224.5 

addressing theft by bad checks differ in a manner significant in this case. 

Unlike Iowa’s theft statute, the Model Penal Code states a person is 

presumed to know that the check would not be paid “if . . . the issuer had 

no account with the drawee at the time the check or order was issued.” 

Model Penal Code § 224.5 (Am. Law Inst. 1980). But the absence of this 

language in Iowa Code section 714.1(6) means the district court couldn’t

presume Schiebout knew the checks wouldn’t be paid merely because the 

bank account didn’t belong to her. We’re bound by the language of the 

statute as enacted, not by the unenacted language of the Model Penal 

Code. See, e.g., State v. Isaac, 756 N.W.2d 817, 821 (Iowa 2008) (finding 

Iowa Code section 709.9 (2005) narrower than its associated Model Penal 

Code provision). We interpret and apply statutes using “the legislature’s 

chosen statutory language, ‘not what it should or might have said.’ ” State 
11

v. Ross, 941 N.W.2d 341, 346 (Iowa 2020) (quoting Auen v. Alcoholic 

Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004)). We can’t exercise 

legislative power to amend the Iowa Code “in the guise of interpretation.” 

In re Det. of Geltz, 840 N.W.2d 273, 280 (Iowa 2013). 

As we’ve noted previously, Iowa Code section 714.1 prescribes ten 

different ways a person can commit theft. Nall, 894 N.W.2d at 518–19 

(providing historical background on Iowa’s theft statutes). That there 

might be another subsection of Iowa’s theft statute arguably better suited

to the facts of this case isn’t before us. We’ve previously noted Iowa’s theftby-check statute (section 714.1(6)) deals with “a common means of theft 

(bad checks) with potentially difficult questions of proof,” while the theftby-deception statute (section 714.1(3)) “is meant as a catch-all crime to 

encompass the full and ever changing varieties of deception.” Hogrefe, 557 

N.W.2d at 878. As to these two statutes, “[f]actual scenarios may overlap, 

but the legal schemes in which they are situated are complementary rather 

than redundant.” Id. 

We hold the district court erred in denying Schiebout’s motion for 

acquittal and, therefore, vacate the court of appeals decision and reverse 

the district court’s judgment of conviction with instructions that the 

charges be dismissed. See Nall, 894 N.W.2d at 524–25; Isaac, 756 N.W.2d 

at 821. 

Concerning the district court’s restitution order charging Schiebout 

for medical aid pursuant to Iowa Code section 356.7, a prisoner may be 

charged for such costs only if “convicted of a criminal offense or sentenced 

for contempt of court for violation of a domestic abuse order.” Iowa Code 

section 356.7(1) (2015). With Schiebout’s conviction vacated, she cannot 

be held liable under section 356.7 for these charges. See id.; see also Iowa 

Code § 910.2(1) (requiring “judgment of conviction” for a restitution order 
12

to issue); State v. Dudley, 766 N.W.2d 606, 614 (Iowa 2009) (restitution 

procedures and standards of chapter 910 do not apply to an acquitted 

defendant). The district court’s restitution order is thus similarly vacated.

IV. Conclusion. 

For these reasons, we vacate the decision of the court of appeals, 

reverse the judgment of the district court, and remand for an order 

dismissing the case. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT 

JUDGMENT REVERSED AND REMANDED FOR DISMISSAL. 

All justices concur except Oxley and McDonald, JJ., who dissent. 
13

#18–0081, State v. Schiebout

OXLEY, Justice (dissenting).

I respectfully dissent from the majority’s opinion. 

This case reaches us on appeal from the district court’s denial of 

Schiebout’s motion for judgment of acquittal, which is the means by which 

we consider a challenge to the sufficiency of the evidence. “The principles 

governing our review of a district court’s denial of a criminal defendant’s 

motion for judgment of acquittal are well-established.” State v. Serrato, 

787 N.W.2d 462, 465 (Iowa 2010). Where the defendant does not challenge 

the jury instructions, those instructions become law of the case and define 

the law against which the evidence is measured. See State v. Canal, 773

N.W.2d 528, 530–31 (Iowa 2009). The majority gives lip service to this 

standard, but only after first providing its interpretation of Iowa Code 

section 714.1(6) (2015), an issue not before us since Schiebout did not 

challenge the jury instructions below. 

Element 4 of Jury Instruction No. 14, the marshalling instruction, 

required the state to prove “[t]he Defendant knew at the time she gave the 

checks to local organizations or businesses that they would not be paid by 

the bank because the Defendant was not an authorized signer on the 

account.” (Emphasis added.) Jury Instruction No. 13 added a “conscious 

awareness” definition to the knowledge element, explaining, 

For the defendant to know something means she had a 

conscious awareness that at the time she gave the checks to 

the various businesses they would not be paid by the bank 

because the defendant was not an authorized signer on the 

account on which the checks were drawn. 

(Emphasis added.)

In considering a sufficiency challenge, we “consider all of the record 

evidence viewed in the light most favorable to the State, including all 
14

reasonable inferences that may be fairly drawn from the evidence.” State 

v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014) (quoting State v. Sanford, 

814 N.W.2d 611, 615 (Iowa 2012)). “[T]he evidence must raise a fair 

inference of guilt and do more than create speculation, suspicion, or 

conjecture.” State v. Kern, 831 N.W.2d 149, 158 (Iowa 2013) (quoting State 

v. Webb, 648 N.W.2d 72, 76 (Iowa 2002)).

“Importantly, ‘[j]urors are not expected to lay aside matters of 

common knowledge or their own observation and experience of the affairs 

of life, but may give effect to such inferences as common knowledge or 

their personal observation and experience may reasonably draw from the 

facts directly proved.’ ” State v. Stevens, 719 N.W.2d 547, 552 (Iowa 2006) 

(quoting State v. Manning, 224 N.W.2d 232, 236 (Iowa 1974) (affirming 

conviction against challenge to sufficiency of evidence to establish intent 

element of crime)). “Knowledge . . . may be proved by circumstantial 

evidence, and in a case like this that is usually necessary.” State v. 

Coburn, 244 N.W.2d 560, 563 (Iowa 1976) (quoting People v. Adams, 

340 P.2d 677, 679 (Cal. Dist. Ct. App. 1959)) (addressing “[k]nowledge of 

lack of sufficient funds and intent to defraud” under predecessor statute 

to section 714.1(6) and concluding “[t]he combined effect of the checks 

placed in evidence and the other testimony was to show inferentially the 

existence of such knowledge and intent” (quoting Adams, 340 P.2d at 

679)).

Using these standards to measure the evidence against the 

instructions provided to the jury, the evidence was sufficient to allow the 

jury to make the fair inference that Schiebout knew she was not an 

authorized signer on the Ducks Unlimited account and that she had a 

conscious awareness when she wrote the checks that the bank would not 

cover the checks because of that fact. Kamie and Matthew Schiebout 
15

separated in April 2015, and Kamie moved out of their shared home 

around July. Their divorce was final on November 29. Matthew closed 

their joint checking account in April, which upset Kamie when she learned 

the account was closed because Matthew was not keeping up on his 

support obligations. After Matthew opened an individual account, and 

while they were still married, Kamie snuck checks out of the back of his 

checkbook and wrote one or two checks. Although Matthew did not 

challenge her actions, he was careful not to allow her access to his 

checkbook again. 

Kamie did not begin using the Ducks Unlimited checks until at or 

around the time their divorce was final in late November. She wrote at 

least two checks prior to presenting the first check to Wal-Mart that was 

processed as an ACH transaction. Unlike the individual account Matthew 

opened following their separation, the Ducks Unlimited checking account 

was owned by a nonprofit entity with which Kamie had no relationship. 

As the treasurer, Matthew never used the Ducks Unlimited checkbook for 

personal expenses, only to cover expenses related to an auction the 

organization hosted each year. The Ducks Unlimited checkbook was not 

on Matthew’s dresser or in his pants pocket; Kamie had to sneak the 

checks out of storage in the basement of the house she no longer lived in. 

Based on the evidence that the checks she wrote were numbered at least 

150 checks from the last properly authorized check, the jury could have 

found she went to lengths to avoid getting caught taking a book of checks 

out of the bottom of the box. 

Kamie’s knowledge that the bank would not pay checks she wrote 

as an unauthorized signer on the Ducks Unlimited account is also 

evidenced by the stories she told about her use of the checks. When 

questioned by the clerk at Schweser’s clothing store about using a Ducks 
16

Unlimited check, Kamie told the clerk it was her husband’s check—clearly 

not true both because she was no longer married to Matthew and the 

account was not “his” account but owned by a nonprofit for which Matthew 

previously served as the treasurer. She told a different story to the bank’s 

vice president when she said she mistakenly “grabbed the wrong 

checkbook”—a checkbook that she had to sneak out of storage in the 

basement. 

From these “direct facts,” the jury was well within its province to rely 

on its common knowledge and experience and reasonably infer that Kamie 

knew she was not authorized to write the Ducks Unlimited checks and she 

was consciously aware that would cause the bank not to pay them when 

presented to the bank. See Stevens, 719 N.W.2d at 552; see also DelayWilson v. State, 264 P.3d 375, 377 (Alaska Ct. App. 2011) (concluding the 

“evidence supported a reasonable conclusion by a jury that Delay-Wilson 

had not merely made a mistake when she issued the two checks . . . , but 

knew that there were insufficient funds in her accounts to pay the checks” 

to support conviction under statute criminalizing issuance of “a check 

knowing that it will not be honored by the drawee” (second quote Alaska 

Stat. § 11.46.280(a) (2008)). That there is other evidence from which the 

jury could have found differently does not mean the jury’s verdict was 

unsupported by sufficient evidence. 

The majority’s opinion effectively requires nonpayment of the check 

by the bank as an element of the offense of theft by check under 

section 714.1(6). Whether or not nonpayment is required by the statute is 

not properly before us on a sufficiency review where the instructions were 

unchallenged and did not require nonpayment as an element. 

Nonetheless, the majority defines the statute as requiring the State to 

prove: “ ‘when the person . . . gives any check’ the person ‘knows’ the check 
17

‘will not be paid when presented.’ ” The majority then concludes that 

standard is not met here, explaining “there was no other sufficient 

evidence presented from which to conclude Schiebout knew—in this case, 

contrary to fact—that the bank would refuse payment when she presented 

the checks.” By starting with the language of the statute and its 

interpretation of that language to focus on the “person ‘know[ing]’ the 

check ‘will not be paid when presented,’ ” the majority sets up an 

impossible evidentiary standard requiring the State to prove knowledge of 

a future event. Yet our cases consistently measure knowledge from the 

defendant’s perspective at the time the check is issued, not what will 

happen in the future. See State v. Hogrefe, 557 N.W.2d 871, 879 

(Iowa 1996) (reconciling discrepancies between theft by deception and 

theft by check in prior cases and holding “criminal liability should attach 

if at the time the defendant issued the check, the defendant (1) never had 

the intention to pay the check or (2) knew he or she would not be able to 

pay it”); see also State v. Rojas-Cardona, 503 N.W.2d 591, 595 (Iowa 1993) 

(affirming conviction based on evidence from which “a jury could find that 

at the time he tendered the check . . . , [defendant] knew his account was 

closed[; h]e therefore knew the check was worthless and would never be 

paid by the bank” (emphasis added)), overruled on other grounds by

Hogrefe, 557 N.W.2d 871. 

The majority also goes astray relying on the statutory inferences 

allowed when a bank in fact refuses payment of a check in certain 

circumstances, see Iowa Code § 714.1(6)(a)–(b), where no such inferences 

were addressed in the jury instructions. The statutory inferences are 

evidentiary standards, not elements of the crime. See Coburn, 244 N.W.2d 

at 562 (discussing the predecessor to section 714.1(6) and explaining that 

“the 10 day ‘make good’ notice provision in [Iowa] Code [section] 713.4 is 
18

merely a rule of evidence, not an element of a [section] 713.3 offense”). The 

fact that section 714.1(6) includes statutory inferences does not preclude 

use of the theft by check statute when the checks are ultimately cashed 

by the bank, as the majority effectively holds. It just means the state must 

prove the requisite criminal intent without the benefit of the statutory 

inferences. When the statutory inferences of section 714.1(6) are 

unavailable, “[k]nowledge . . . , like any other fact, may [still] be proved by 

circumstantial evidence . . . .” Id. at 563 (quoting Adams, 340 P.2d at 

679). 

Finally, the majority’s reliance on the statutory language discounts 

the language used in the instructions. Jury Instruction No. 13 and No. 14 

follow the phrase “would not be paid by the bank” with the dependent 

clause “because the defendant was not an authorized signer on the 

account,” putting the focus on the reason the checks would not be paid. 

Commentators have described the knowledge element as satisfied “where 

the party [issuing the check] knows that the check will be dishonored or 

does not have any reasonable grounds for believing that the check will be 

paid.” 35 C.J.S. False Pretenses § 42 (2020) (emphasis added). This is 

consistent with our prior cases measuring knowledge from the defendant’s 

perspective at the time the check is issued. See Hogrefe, 557 N.W.2d at 

879; Rojas-Cardona, 503 N.W.2d at 595; State v. James, 310 N.W.2d 197, 

200–01 (Iowa 1981) (describing the “guilty knowledge,” or mens rea, 

required to violate section 714.1(6) as “obtaining . . . something of value 

through the use of a check which the perpetrator knows is worthless” 

(quoting State v. Smith, 300 N.W.2d 90, 92–93 (Iowa 1981))), overruled on 

other grounds by Hogrefe, 557 N.W.2d 871. It is also how the jury 

apparently understood the instructions, an understanding that was 

supported by the evidence. 
19

I do not disagree with the majority’s struggle with the ambiguous 

language of the statute. But I do disagree with the majority’s efforts to 

interpret the statute where that issue is not before us. 

I respectfully dissent. 

McDonald, J., joins this dissent.