IN THE COURT OF APPEALS OF IOWA

No. 17-0561

Filed March 21, 2018

STATE OF IOWA,

Plaintiff-Appellee,

vs.

TOBIAS ISSAC FRY,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, John G. Linn, 

Judge.

Tobias Issac Fry appeals his conviction and sentence for assault with intent 

to commit sexual abuse causing bodily injury. JUDGMENT AFFIRMED,

SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED.

Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney 

General, for appellee.

Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
2

VAITHESWARAN, Judge.

Tobias Issac Fry was charged with assaulting an employee of a care center 

at which he stayed. Following a bench trial, the district court found him guilty of 

assault with intent to commit sexual abuse, in violation of Iowa Code section 

709.11(2) (2015). On appeal, Fry (1) challenges the sufficiency of the evidence 

supporting the district court’s finding of guilt and (2) argues the district court erred 

in ordering him to make restitution of $25 for court-appointed attorney fees and in 

requiring him to pay court costs.

I. Sufficiency of the Evidence

The district court set forth the elements of the crime as follows:

That on or about the 28th day of November of 2015, the defendant 

assaulted the complaining witness here in this case. An assault 

would be an act intending to cause pain or injury to, or which is 

intended to result in physical contact which would be insulting or

offensive to the other, with the apparent ability. That the defendant 

did so with the specific intent to . . . commit a sex act by force or 

against the will of the complaining witness. And, finally, that the 

defendant’s assault caused a bodily injury to the complaining 

witness.

Fry concedes he assaulted the employee but argues the State did not produce 

“sufficient evidence to support a finding that [his] intent was to perform a sex act 

by force [or] against the will of” the employee. The district court defined specific 

intent as follows:

Specific intent means not only being aware of doing an act and doing 

it voluntarily, but, in addition, doing it with a specific purpose in 

mind[.] [B]ecause determining the defendant’s specific intent 

requires the trier of fact to decide what the defendant was thinking 

when the act was done, [i]t is seldom capable of direct proof. The 

trier of fact should consider the facts and circumstances surrounding 

the act to determine the defendant’s specific intent. The trier of fact 

may, but is not required to, conclude a person intends the natural 

results of his acts.
3

The court found the State proved this element: 

In this case, there was a great deal of force, in the Court’s 

opinion, exercised by this defendant, who is quite a bit bigger than 

the complaining witness. He physically grappled, manhandled, 

grabbed, held this complaining witness. At one point, his elbow 

struck the complaining witness, and she sustained a bruise. These

acts, the Court believes, were specifically intended to result in 

physical contact with the complaining witness, which was insulting or 

offensive to her, and the crime of assault is a specific intent crime, 

and the Court concludes that the facts in this case establish beyond 

a reasonable doubt that specific intent.

. . . .

. . . . [T]he defendant intended to commit sexual abuse or, in 

other words, a sex act by force or against the will of the complaining 

witness. Again, the very physical nature of the acts committed by 

the defendant would compel the Court to conclude that he had the 

specific intent to commit a sex act against the will of the complaining 

witness. Clearly, she resisted, struggled to get free, and, yet, the

defendant persisted in holding her, and with his hands,

groped her breasts and her crotch area. This, coupled with the many 

statements the defendant made earlier to the complaining witness 

which were sexual in nature, convinces the Court that the defendant 

did have the specific intent to commit a sex act against the will of the 

complaining witness.

The court’s finding of guilt is binding on us if supported by substantial evidence. 

See State v. Beets, 528 N.W.2d 521, 523 (Iowa 1995). This standard was 

satisfied.

State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992), cited by Fry, does not 

lead us to a different conclusion. Casady listed several circumstances found to 

have satisfied the specific intent element, including “a sexual comment made by 

the defendant to the victim, touching in a sexual way, the removal or request to 

remove clothing, or some other act during the commission of the crime that showed 

a desire to engage in sexual activity.” 491 N.W.2d at 787. Contrary to Fry’s 

suggestion, this was not an exclusive list. But, even if it were, the record contains 
4

evidence of all these circumstances. Fry’s sexual comments before the incident,

and specifically his mention of how lucky the employee’s husband must be to see 

her naked and his request to have a “quickie” with the employee, could not have 

been a clearer expression of his sexual intent. As noted, he also held the 

employee close to his body and touched her in a sexual way.

Fry also points out the assault took place in the facility kitchen rather than 

a private location, a fact he believes undermines a finding of specific intent. We 

are not persuaded. Only Fry and the employee were in the kitchen; the other staff 

person on shift was “in [an]other room.”

Finally, Fry asserts he did not deceive or threaten the employee. But the 

definition of specific intent does not require deception or threats. 

The record contains substantial evidence of specific intent. We affirm Fry’s 

conviction for assault with intent to commit sexual abuse.

II. Restitution of Attorney Fees and Court Costs

The district court entered an order styled “judgment entry.” The court

required Fry to pay “court costs, and the cost of his court-appointed attorney.” The 

court concluded “the defendant is capable of paying $25 towards court-appointed 

attorney fees.” 

Fry “appeals the portion of his sentence requiring him to make restitution 

for court costs and $25 toward his court appointed attorney fees.” He argues the 

district court “failed to properly consider his reasonable ability to pay the costs of 

his legal assistance” and failed to consider his “ability to pay the court-ordered 

court costs.” The State counters that the issue is not ripe for review. In its view, 

“the sentencing court did not have the total amount of court costs available” at the 
5

time of sentencing and, accordingly, the appeal is premature. See State v. 

Jackson, 601 N.W.2d 354, 357 (Iowa 1999); State v. Swartz, 601 N.W.2d 348, 354 

(Iowa 1999). 

This court distinguished Swartz in State v. Campbell, No. 15-1181, 2016 

WL 4543763, at *3 (Iowa Ct. App. Aug. 31, 2016). We said Swartz “contemplates 

a situation in which the court has ordered an amount of restitution without 

determining the defendant’s reasonable ability to pay.” Campbell, 2016 WL 

4543763, at *3. Campbell did “not challenge the amount of his restitution” but the 

evidentiary basis for the court’s finding that he had a reasonable ability to pay. Id.

Because the court made the ability-to-pay finding in its written sentencing order, 

we concluded the issue could be reviewed on direct appeal. Id.

The same holds true here with respect to the district court’s order finding 

Fry had the ability to pay $25 for court-appointed attorney fees. Fry contends the 

district court abused its discretion in “failing to properly consider [his] ability to pay 

the costs of his legal representation.” As in Campbell, he simply challenges the 

sufficiency of the evidence to support this finding. The issue is ripe for review, and 

we proceed to the merits. 

“[S]ection 910.2 authorizes a sentencing court to order restitution for court 

costs and attorney fees only to the extent of the defendant’s reasonable ability to 

pay the amount ordered.” State v. Kaelin, 362 N.W.2d 526, 528 (Iowa 1985). Fry’s 

attorney submitted a statement listing his court-appointed attorney fees as $960. 

The district court found Fry capable of paying $25. Although he was indigent and 

experienced financial hardship in the year preceding the offense, he previously 

earned cash compensation for landscaping work and testified to his desire to 
6

continue performing that type of work. We are not convinced the court abused its 

discretion in holding him responsible for $25 of the $960 bill. 

Fry also takes issue with the court’s statement, “I have to tax some minor 

amount of attorney fees.” He argues, “The court mistakenly believed that it had to 

order [him] to repay something for his court-appointed fees.” We disagree. The 

court used the term “have to” while listing various components of the sentence. 

We are not convinced the two words reflected a belief the court was statutorily 

required to order the payment of some amount of the attorney fee obligation 

whether or not Fry was able to pay the amount. See Iowa Code §§ 910.2 (“When 

the offender is not reasonably able to pay all or a part of the . . . court-appointed 

attorney fees ordered pursuant to section 815.9, including the expense of a public 

defender, . . . the court may require the offender in lieu of that portion of the . . . 

court-appointed attorney fees ordered pursuant to section 815.9, including the 

expense of a public defender . . . restitution for which the offender is not reasonably 

able to pay, to perform a needed public service for a governmental agency or for 

a private nonprofit agency.”); 910.3 (allowing the defendant to raise “any mental or 

physical impairment which would limit or prohibit the performance of a public 

service”); State v. Haines, 360 N.W.2d 791, 794 (Iowa 1985) (concluding restitution 

statute does not violate right to counsel in light of the protections in place to relieve 

the defendant of the restitution obligation). Notably, the court’s written sentencing 

order made no reference to a mandatory attorney-fee obligation but focused

instead on the amount Fry was capable of paying. We conclude the district court’s 

stray use of “have to” in its oral rendition of the sentence does not mandate 
7

reversal. We affirm the district court’s imposition of a $25 attorney-fee restitution 

obligation.

We turn to the district court’s imposition of court costs. A statement filed 

with the court before sentencing identified costs of $677.52.1 This restitution 

obligation, like the court-appointed attorney fee obligation, is subject to a 

defendant’s ability to pay. State v. Kurtz, 878 N.W.2d 469, 473 (Iowa Ct. App. 

2016). The district court ordered Fry to pay “court costs” without determining his 

reasonable ability to pay those costs. We vacate that portion of the sentence and 

remand for a determination of Fry’s reasonable ability to pay those costs. See 

State v. Johnson, 887 N.W.2d 178, 184 (Iowa Ct. App. 2016) (“Although the 

sentencing court did state Johnson was reasonably able to pay $100 of his courtappointed attorney fees, the record is silent as to whether the court considered 

Johnson’s ability to pay the court-ordered court costs. Because we cannot 

determine whether the court reasonably exercised its discretion when it ordered 

restitution for court costs, we vacate that portion of the sentence and remand for a 

determination of Johnson’s reasonable ability to pay.”).

III. Disposition

We affirm Fry’s conviction for assault with intent to commit sexual abuse. 

We also affirm the district court’s determination that Fry was able to pay $25 in 

restitution for court-appointed attorney fees. We vacate that portion of the district 

 

1 The clerk of court later filed a “financial summary” of all court costs. We only consider 

the costs on record at the time judgment was entered. 
8

court’s judgment entry imposing a restitution obligation for court costs and remand 

for a determination of Fry’s reasonable ability to pay those costs. 

JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND 

VACATED IN PART, AND REMANDED.