IN THE COURT OF APPEALS OF IOWA
No. 21-0457 Filed July 20, 2022
STATE OF IOWA, Plaintiff-Appellee,
vs.
ADAM SLADE ROE, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark R. Fowler,
Judge.
Adam Roe appeals from his convictions and sentences for criminal mischief
and assault. CONVICTIONS AFFIRMED, SENTENCES VACATED, AND
REMANDED FOR RESENTENCING.
Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., Greer, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022). 2
VOGEL, Senior Judge.
A dispute between familial neighbors resulted in Adam Roe being convicted
of criminal mischief in the second degree, assault with intent to inflict serious injury,
and two counts of assault. He appeals his convictions and sentences, arguing
(1) the district court erred by instructing the jury to consider the “highest value of
the property” for the criminal-mischief charge; (2) the evidence was insufficient to
support his conviction for criminal mischief in the second degree; (3) the evidence
of identity was insufficient to support his conviction for the three assault charges;
(4) he did not effectively waive his right to in-person sentencing; (5) the written
sentencing order does not reflect the court’s intention to suspend his fines; and
(6) the court illegally imposed various inapplicable surcharges. We reject his
challenges to the jury instructions and the sufficiency of the evidence, and we
affirm his convictions. However, we agree the record does not contain his waiver
as required for remote sentencing. We also agree the court was without authority
to impose certain surcharges. Therefore, we remand for resentencing, do not
address the suspension of fines, and direct the court to not impose certain
surcharges on resentencing.
I. Background Facts and Proceedings.
Adam Roe lives in a house in Blue Grass, which is next-door to the home
of his cousin, Dale, and his cousin’s wife, Darla. This dispute involves a well
located near the property line between the two houses. Dale and Darla testified
the well belongs to them and is on their property and they maintain it to supply
water to their house. They further testified that, a couple years earlier, the well 3
also supplied water to Roe’s house; however, because Roe refused to help pay
for the power supply and maintenance of the well, Roe’s connection was shut off.
Darla testified that on June 8, 2019, she discovered several bags of
concrete mix and rocks had been thrown into the well. She reviewed video from
their security camera and saw Roe throwing bags of concrete mix and rocks into
the well hours earlier. She called the police to report the damage and then began
cleaning the well with help from Dale and his brother. While cleaning the well,
Darla testified she heard a noise from Roe’s garage and then saw a football-sized
rock coming from Roe’s property that narrowly missed hitting her. Surveillance
video shows the rock coming from the roof of Roe’s garage. Dale testified that,
after they cleaned the well, they replaced the sump pump, valves, and
connections.
Later that day, a sheriff’s deputy conducted a traffic stop of Roe based on
the earlier events. The deputy testified—and video from his body camera
confirms—Roe “seemed very agitated,” “he was making a lot of furtive
movements,” and “his tone was very loud” during the stop. The deputy told Roe
they had video of him throwing objects into the well, and Roe responded, “I know.
I was gonna plug and fill it.” The deputy also said they had video of a rock coming
from his property and almost hitting Darla. Roe denied throwing a rock and claimed
the video must be flipped to look like the rock came from his property and other
people—including an unnamed “kid”—were throwing rocks at his house instead.
The deputy searched Roe’s vehicle and found a bag of concrete mix with a receipt
and picking list for ten bags of similar concrete mix dated the prior day. The deputy
also found a bottle of ammonia and a bottle of toilet cleaner with a receipt for both 4
dated earlier that day. When asked about the ammonia and toilet cleaner, Roe
said he was going to pour the substances in the well to kill Dale and Darla. Roe
made many other statements during the stop about his intentions to kill Dale and
Darla.
Roe was charged and proceeded to a jury trial.1 During trial, the owner of
a well-service business, who replaced a well pump for Dale and Darla in 2017,
testified about an estimate he provided to clean and repair the well; however, he
acknowledged the business did not perform any of the listed work. The written
estimate, admitted without objection, showed the business would have charged
$977.00 to clean and chlorinate the well, up to an additional $3357.10 to repair
and replace equipment depending on the work needed, and the entire estimate,
except for $30.00 of the cleaning charge, was subject to 7% state sales tax.
The jury found Roe guilty of criminal mischief in the second degree, assault
with intent to inflict serious injury against Darla, and assault against Dale and his
brother. During a remote sentencing hearing, the district court sentenced Roe to
an indeterminate term of incarceration not to exceed five years for criminal
mischief, 365 days for assault with intent to cause serious injury, and thirty days
for each assault charge, run consecutively. The court suspended all but ninety
days for the assault-with-intent-to-cause-serious-injury charge, placed Roe on
probation for three years, waived category “B” restitution, and imposed various
fees, fines, and surcharges. Roe appeals.
1 Prior to trial, Roe filed a written guilty plea for possession of marijuana as part of this proceeding. He does not appeal the conviction or sentence for this possession charge. 5
II. Jury Instructions.
Roe begins by challenging a jury instruction for the criminal-mischief
charge. “[W]e review challenges to jury instructions for correction of errors at law.”
State v. Benson, 919 N.W.2d 237, 241 (Iowa 2018) (alteration in original) (quoting
Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016)). “In doing so, we
consider the jury instructions as a whole rather than in isolation to determine
whether they correctly state the law.” Id. at 242. “An incorrect or improper
instruction can be cured ‘if the other instructions properly advise the jury as to the
legal principles involved.’” State v. Kraai, 969 N.W.2d 487, 490 (Iowa 2022)
(quoting Thavenet v. Davis, 589 N.W.2d 233, 237 (Iowa 1999)). An erroneous
instruction does not warrant reversal unless prejudice resulted. Benson, 919
N.W.2d at 241. “Prejudice results when jury instructions mislead the jury or
materially misstate the law.” Id. at 241–42. “[W]e presume prejudice and reverse
unless the record affirmatively establishes there was no prejudice.” State v.
Hanes, 790 N.W.2d 545, 551 (Iowa 2010).
Criminal mischief is “[a]ny damage, defacing, alteration, or destruction of
property . . . when done intentionally by one who has no right to so act.” Iowa
Code § 716.1 (2019). At the time of the events here, criminal mischief in the
second degree occurred when “the cost of replacing, repairing, or restoring the
property . . . exceeds one thousand dollars but does not exceed ten thousand
dollars.”2 Id. § 716.4(2). Accordingly, the criminal-mischief-degree instruction told
2 The legislature subsequently amended section 716.4(2) to define criminal mischief in the second degree as occurring when the affected property “exceeds one thousand five hundred dollars but does not exceed ten thousand dollars.” 6
jurors, “Criminal Mischief in the Second Degree occurs when the cost of replacing
or repairing the property is more than $1000 but not more than $10,000.” This
instruction on the verdict form also told jurors to “check the blank next to the
appropriate value,” and the verdict form allowed the jury to check a blank for finding
“the cost of repair, replacement, restoration of the property damaged, destroyed,
defaced, altered by the defendant, Adam S. Roe . . . [i]s more than $1000 but not
more than $10,000.”
The jury instructions also included an instruction on value:
The value of property is its highest value by any reasonable standard at the time that it is damaged. Reasonable standard includes but is not limited to market value within the community, actual value, or repair, or replacement value.
Roe notes this instruction largely follows the definition of “value” for purposes of
theft. See Iowa Code § 714.3(1) (“The value of property is its highest value by any
reasonable standard at the time that it is stolen. Reasonable standard includes
but is not limited to market value within the community, actual value, or
replacement value.”). Because the degree of criminal mischief is determined by
“the cost of replacing, repairing, or restoring the property” rather than the value of
the property, see id. § 716.4(2), Roe argues the court erred by instructing the jury
on value.
Even if we assume the court erred by including an instruction on value, we
are satisfied no prejudice resulted.3 Both the criminal-mischief-degree instruction
2019 Iowa Acts ch. 140, § 19. Roe does not argue the 2019 amendment applies here. 3 To support his position, Roe cites to our unpublished case State v. Smith, No. 13-
1439, 2014 WL 3748295, at *2–5 (Iowa Ct. App. July 30, 2014), wherein we reversed a criminal-mischief conviction due to a similar instruction defining “value.” 7
and the verdict form correctly focused on the cost to repair or replace the damaged
property, not the value of the well. Additionally, the evidence in the record related
to the cost to repair the well and not the value of the well. Specifically, the well-
service business provided a detailed estimate to repair the well that was itemized
to allow the jury to calculate the cost of repair based on the work the jury found
needed to be performed. Therefore, reading the instructions as a whole, we find
no resulting prejudice and reject Roe’s challenge to the jury instruction on value.
III. Sufficiency of the Evidence.
Roe also challenges the sufficiency of the evidence supporting his criminal-
mischief conviction and his three assault convictions. “We review the sufficiency
of the evidence for correction of errors at law.” State v. Crawford, 972 N.W.2d 189,
202 (Iowa 2022) (quoting State v. Buman, 955 N.W.2d 215, 219 (Iowa 2021)).
“The jury’s verdict binds this court if the verdict is supported by substantial
evidence.” Id. “Substantial evidence is evidence sufficient to convince a rational
trier of fact the defendant is guilty beyond a reasonable doubt.” Id. “In determining
whether the jury's verdict is supported by substantial evidence, we view the
evidence in the light most favorable to the State, including all ‘legitimate inferences
However, Roe’s position differs from Smith in two key ways. First, the verdict form in Smith directed the jury to consider the property’s “value”; Roe’s verdict form does not mention “value” but rather “the cost of repair, replacement, restoration of the property damaged, destroyed, defaced, altered.” See Smith, 2014 WL 3748295, at *3. Second, the record in Smith contained conflicting evidence on the cost to repair or replace the damaged property, as the victim testified to obtaining an estimate for an amount much higher than what she actually paid for labor and materials. See id. at *4–5. Here, there was no conflict as to the cost to repair the well, as Dale and Darla immediately performed all labor themselves before the concrete mix could firmly set and then obtained a single estimate after the fact for materials to clean, repair, and replace necessary parts along with labor and their lost wages. 8
and presumptions that may fairly and reasonably be deduced from the record
evidence.’” Id. (quoting State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017)).
A. Criminal mischief in the second degree
Roe argues the evidence is insufficient to support finding he committed
criminal mischief in the second degree. Specifically, he argues the evidence does
not support finding the cost to repair the well was more than $1000.00 but less
than $10,000.00. See Iowa Code § 716.4(2).
As stated above, the well-service business provided an estimate for the cost
to repair the well. Roe notes the business’s owner testified he never performed
the listed repairs and he does not know what—if any—equipment was actually
damaged. Darla testified the family began doing the repair work themselves as
soon as they saw the damage because they “didn’t want the cement to dry up.”
Dale testified as to the work the three of them did to repair the well, including
needing a “[f]ew hours” to clean the well and replace the sump pump, valves, and
connections. He also testified the well was in good working condition before these
events.
At a minimum, the record is sufficient to find cleaning and chlorinating the
well was part of the cost of repair. The estimate shows cleaning and chlorinating
the well cost $977.00. Of this amount, $947.00 was subject to 7% sales tax,
totaling an additional $66.29. Thus, the cost of cleaning and chlorinating the well
with sales tax was $1043.29, exceeding the $1000.00 minimum for criminal
mischief in the second degree.
Furthermore, Dale testified he replaced the damaged sump pump and other
equipment. While the cost of this equipment was not in the record, the business 9
owner, who was familiar with this well, testified a sump pump for the well would
cost at least $90.00 to $100.00. Roe notes Dale testified he already had all the
needed equipment on hand. However, nothing in the statute requires the factfinder
to find equipment used in a repair cost nothing simply because the equipment was
already on hand. See id. § 716.4(2). To the extent Roe challenges the credibility
of the witnesses and other evidence establishing the extent and cost of the repairs,
such matters are for the jury to decide. See State v. Thornton, 498 N.W.2d 670,
673 (Iowa 1993) (“The jury is free to believe or disbelieve any testimony as it
chooses and to give weight to the evidence as in its judgment such evidence
should receive.”). Therefore, the evidence is sufficient to support finding the cost
to repair the well was more than $1000.00 but less than $10,000.00, thus
supporting Roe’s conviction for criminal mischief in the second degree.
B. Assault
Roe next challenges the sufficiency of the evidence supporting his
conviction for the three assault charges. Specifically, Roe argues the evidence is
insufficient to prove he threw the rock at Dale, Darla, and Dale’s brother while they
were working on the well. See State v. Jensen, 216 N.W.2d 369, 374 (Iowa 1974)
(“Identity is an element of a criminal offense which the State must prove beyond a
reasonable doubt.”). He notes no one saw who threw the rock and he told the
deputy he did not throw the rock.
The video confirms the rock was thrown from the roof of Roe’s garage.
Dale’s brother testified, “I heard something come over my right shoulder, I looked
up and here’s this big piece of concrete coming out and my sister-in-law was
standing there and I couldn’t get to her but I hollered at her to look out.” He claimed 10
the direction the rock was coming from was Roe’s house, “across the roof.” To
place Roe at the scene, Dale testified he saw Roe at his house around the time
the rock was thrown, both before and after the throw. Roe had previously thrown
rocks at Dale and Darla’s property hours before the assault, having been caught
on video throwing rocks into the well. When the deputy stopped Roe hours after
the assault, Roe verbalized hostility toward Dale and Darla and repeatedly
threatened to kill them. The jury could legitimately infer from this evidence that
Roe threw the rock, and there is substantial evidence to support all three assault
convictions. See State v. Jones, 967 N.W.2d 336, 342 (Iowa 2021) (“[T]he relevant
inquiry is whether a fact finding is a legitimate inference that may fairly and
reasonably be deduced from the record evidence.” (quoting State v. Ernst, 954
N.W.2d 50, 59 (Iowa 2021))).
IV. Sentencing.
Finally, Roe challenges his sentence. When a sentence is within the
statutory limits, we review the sentence for an abuse of discretion. State v. Seats,
865 N.W.2d 545, 552 (Iowa 2015). When a defendant challenges the legality of a
sentence on nonconstitutional grounds, we review for correction of errors at law.
Id. When a defendant challenges the legality of a sentence on constitutional
grounds, we apply de novo review. Id.
Roe argues the court violated his rights by sentencing him in a remote
proceeding without obtaining a written or on-the-record waiver from him. “A
criminal defendant has a constitutional and statutory right to be personally present
at every stage of trial.” State v. Wise, 472 N.W.2d 278, 279 (Iowa 1991); see also
Iowa R. Crim. P. 2.27(1) (“In felony cases the defendant . . . shall be personally 11
present at every stage of the trial including . . . the imposition of sentence . . . .”).
A criminal defendant has the right to personally appear for sentencing because,
“[No] modern innovation[ ] lessens the need for the defendant, personally, to have
the opportunity to present to the court his plea in mitigation.” State v. Craig, 562
N.W.2d 633, 636 (Iowa 1997) (alterations in original) (quoting Green v. United
States, 361 U.S. 301, 304 (1961)). Nevertheless, the defendant may waive this
right to appear for sentencing by executing a knowing, intentional, and
unambiguous waiver. See State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2011).
Additionally, our supreme court issued a series of supervisory orders in response
to the COVID-19 pandemic that, in part, allowed a district court to hold sentencing
via videoconference or telephone if the defendant “(a) execute[s] a written waiver
or (b) make[s] a waiver on the record.” Iowa Supreme Ct. Supervisory Order, In
the Matter of Ongoing Provisions for Coronavirus/COVID-19 Impact on Court
Services ¶ 16 (Nov. 24, 2020).
The district court’s written sentencing order states:
All parties, as well as the Court and the court reporter, appeared via teleconference or by telephone. After being engaged in colloquy with the Court, the defendant waived his right to a hearing in open court and agreed to proceeding via teleconference and/or telephone due to the COVID-19 pandemic. The Court finds that defendant understands his rights and that this waiver is knowingly, voluntarily, and intelligently made.
(Emphasis added.) Despite this pronouncement, the sentencing transcript does
not show Roe waived his right to be present for sentencing. In fact, the sentencing
transcript does not make any reference to a remote proceeding, save for the title
page that notes, “Hearing was held via teleconference pursuant to Iowa Supreme 12
Court supervisory orders regarding the COVID-19 pandemic.” The record also
does not contain a written waiver of Roe’s right to be present for sentencing.
This court recently considered a similar argument where the district court
“explained the [sentencing] hearing was being conducted remotely as a result of
the supervisory orders” and noted it “separately asked [the defendant] and all
counsel if they were agreeable to participating remotely, and each answered in the
affirmative.” State v. Emanuel, 967 N.W.2d 63, 69 (Iowa Ct. App. 2021). We
vacated the sentence and remanded for resentencing because the record did not
show the defendant “knew of his continuing right to in-person sentencing,” and
thus his waiver of in-person sentencing was invalid. Id. The State distinguishes
Roe’s claim by arguing the sentencing order shows substantial compliance with
the requirement that Roe’s waiver was knowing, intentional, and unambiguous.
See State v. Feregrino, 756 N.W.2d 700, 706 (Iowa 2008) (finding an “on the
record” waiver requires “some in-court colloquy or personal contact between the
court and the defendant, to ensure the defendant’s waiver is knowing, voluntary,
and intelligent,” and “substantial compliance” is “acceptable” (quoting State v.
Liddell, 672 N.W.2d 805, 812, 814 (Iowa 2003))). However, we have no colloquy
in the record to evaluate substantial compliance. The COVID-19 pandemic
imposed a tremendous burden on our district courts, and Roe may very well have
attempted to waive his right to in-person sentencing outside the record. But the
absence of a written or on-the-record waiver violates the supreme court’s
supervisory order. Our supreme court has advised “that trial judges leave no room
for doubt that a defendant has been given the opportunity to speak regarding
punishment.” Craig, 562 N.W.2d at 637. Thus, the record does not contain a 13
required waiver of in-person sentencing, and we cannot find a lack of prejudice
from this omission. See Emanuel, 967 N.W.2d at 69 (“We reject the State’s
harmless-error argument, as there is no way to tell what the outcome would have
been had the sentencing judge and [the defendant] been face to face.”).
Therefore, we vacate Roe’s sentences and remand for resentencing.
Roe notes a discrepancy between the oral pronouncement of judgment and
the written judgment entry in the record as to whether the district court suspended
his fines. Because we are vacating the sentences and remanding for
resentencing, we do not address the suspended fines and leave the issue to the
court to consider at resentencing.
Roe also argues the court illegally imposed the law enforcement initiative
surcharge, which was repealed prior to his sentencing, and the domestic and
sexual abuse surcharge, which was not applicable to any of his convicted offenses.
The State agrees the court lacked authority to impose these surcharges, and we
find the same. Therefore, in resentencing the district court shall not impose any
law enforcement initiative surcharge or domestic and sexual abuse surcharge.
V. Conclusion.
Any error in the jury instructions did not result in prejudice, and the evidence
is sufficient to support Roe’s convictions for criminal mischief in the second degree
and all three assault charges, so we affirm his convictions. However, the record
does not contain a required waiver of in-person sentencing. Therefore, we vacate
Roe’s sentences and remand for resentencing, do not address the suspension of 14
fines, and direct the court to not impose any law enforcement initiative surcharge
or domestic and sexual abuse surcharge on resentencing.
CONVICTIONS AFFIRMED, SENTENCES VACATED, AND REMANDED
FOR RESENTENCING.