STATE OF IOWA, Plaintiff-Appellant, vs. JUDITH IVERSEN GRANT, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-229 / 08-1030
Filed May 29, 2009
STATE OF IOWA,
Plaintiff-Appellant,
vs.
JUDITH IVERSEN GRANT,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Jeffrey A.
Neary, Judge.
The State of Iowa appeals from the district court’s ruling sustaining Judith
Grant’s motion to dismiss for lack of jurisdiction. AFFIRMED.
Thomas J. Miller, Attorney General, Martha Boesen Trout and Mary
Tabor, Assistant Attorneys General, Patrick Jennings, County Attorney, and Mark
Campbell, Assistant County Attorney, for appellant.
Mark C. Smith, State Appellate Defender, Martha Lucey, Assistant State
Appellate Defender, Erin Grundy, Legal Intern, and Jennifer Solbert of Public
Defender’s Office, Sioux City, for appellee.
Heard by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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POTTERFIELD, J.
I. Background Facts and Proceedings
Wanda Callanan executed a power of attorney in South Dakota on
February 17, 2004, designating Judith Grant as her attorney-in-fact. On January
15, 2005, Grant admitted Callanan to Bickford Cottage Memory Care Residence
in Sioux City, Iowa. Callanan moved out of Bickford on February 14, 2006, and
still owed the facility $13,808 when she left. On August 1, 2006, Grant admitted
Callanan to Sunrise Retirement Center in Sioux City.
Grant told workers at
Sunrise that payment would not be an issue for Callanan, but Sunrise never
received payment for the cost of Callanan’s care, which amounted to $32,729.35.
Though Grant had power of attorney over Callanan, she failed to pay for the cost
of Callanan’s care. However, between August 12, 2005, and November 2, 2006,
Grant wrote checks to herself from Callanan’s account amounting to $146,720.
Both Callanan’s and Grant’s bank accounts are outside of Iowa.
On May 2, 2007, the State charged Grant with dependent adult abuse in
violation of Iowa Code section 235B.20(5) (2005) for the acts allegedly occurring
between August 12, 2005, and November 2, 2006. On April 8, 2008, Grant filed
a motion to dismiss based on Iowa’s lack of jurisdiction. After a hearing on the
matter, the district court sustained Grant’s motion on May 14, 2008, finding no
conduct constituting an element of the offense occurred in Iowa.
The State
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appeals, asserting the district court interpreted the statutes at issue too
narrowly.1
II. Standard of Review
We review issues of statutory interpretation for errors at law. State v.
Wagner, 596 N.W.2d 83, 85 (Iowa 1999). We also review issues of jurisdiction
for errors at law. Id.
III. Territorial Jurisdiction
A. Jurisdiction Pursuant to Iowa Code Section 803.1
Iowa Code section 803.1 prescribes the requirements for Iowa jurisdiction
over a criminal offense. A person is subject to prosecution in this state for an
offense the person commits within or outside this state if the offense is committed
either wholly or partly within this state. Iowa Code § 803.1(1)(a). “An offense
may be committed partly within this state if conduct which is an element of the
offense, or a result which constitutes an element of the offense, occurs within this
state.” Iowa Code § 803.1(2). The State has the burden of proving that it has
territorial jurisdiction. State v. Wedebrand, 602 N.W.2d 186, 189 (Iowa Ct. App.
1999).
The elements of dependent adult abuse with which the State charged
Grant are: (1) Grant was a caretaker of Callanan; (2) Callanan was a dependent
adult; (3) the value of the property taken exceeded $100; and (4) Grant exploited
Callanan by an act or process of taking unfair advantage of Callanan’s financial
resources for Grant’s personal profit, without Callanan’s consent by theft,
1
The State does not argue on appeal that the effects doctrine applies or that the
dependent adult abuse statute is similar to statutes prohibiting non-support of
dependents. Therefore, we decline to address these arguments.
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deception, false representation, or false pretenses.
See Iowa Code
§ 235B.2(5)(c); 235B.20(5).
The State cannot show that conduct constituting an element of the offense
occurred in Iowa. The Iowa Supreme Court has differentiated conduct, as used
in section 803.1, from status. See Wagner, 596 N.W.2d at 86. The supreme
court defined “conduct” as “behavior in a particular situation or relation or on a
specified occasion,” while it defined “status” as “the condition (as arising out of
. . . crime . . . ) of a person that determines the nature of his legal personality, his
legal capacities, and the nature of the legal relations to the state.” Id. (internal
quotations omitted). The court in Wagner determined a statute that required the
State to prove as an element of the crime that defendant had been convicted of a
felony required only proof of defendant’s status as a felon, and did not include
conduct as contemplated by section 803.1. Id. Thus, though the defendant had
been convicted of a felony in Iowa, his status as a felon was not conduct, and the
State lacked territorial jurisdiction under section 803.1. Id. at 86-87.
We agree with the district court that a similar analysis applies to the first
three elements of the offense at issue. The fact that the funds allegedly taken
totaled over $100 does not constitute conduct. The State’s assertions that Grant
was a caretaker of Callanan and that Callanan was a dependent adult, if true, do
not constitute conduct within the scope of section 803.1, but rather fit within the
definition of “status.” No conduct occurred in Iowa that rendered Callanan a
dependent adult or established Grant as Callanan’s caretaker. The mere fact
that such a relationship existed when Callanan moved to Iowa does not
constitute conduct in Iowa. The State’s assertions that Grant was a caretaker of
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Callanan, who was a dependent adult, are elements of status and do not
establish jurisdiction under section 803.1.
While the fourth element involves conduct, no conduct satisfying the fourth
element of the crime occurred in Iowa. The State asserts that Grant exploited
Callanan by taking advantage of her financial resources for Grant’s personal
profit.
Assuming this allegation is true, the State cannot meet its burden of
proving that this exploitation occurred in Iowa. No conduct that would establish
this element occurred in Iowa. Both Callanan and Grant’s bank accounts were
out of state.
The only connections between Iowa and Grant’s actions are Grant’s
placement of Callanan in two Iowa nursing homes and Grant’s failure to pay
Callanan’s nursing home bills. The State does not allege that either of these
actions resulted in mistreatment of Callanan by the nursing homes.
These
actions do not constitute “conduct which is an element of the offense, or a result
which constitutes an element of the offense” as required by section 803.1.
Because the State cannot show that any such conduct occurred in Iowa, it has
failed to establish territorial jurisdiction under section 803.1.
We therefore
determine that the district court’s interpretation of the relevant statutes was not
overly narrow, as the State asserts.
B. Jurisdiction as a Continuing Offense
The State also argues that the language of the statute makes it a
continuing offense allowing Iowa jurisdiction over the offense. The State failed to
raise this issue to the district court and has therefore not preserved error. We do
not consider issues raised for the first time on appeal. Meier v. Senecaut, 641
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N.W.2d 532, 537 (Iowa 2002). Because this issue was not raised or decided by
the district court, we decline to address it.
AFFIRMED.
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