IN THE COURT OF APPEALS OF IOWA
No. 13-0836 Filed July 30, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
NADIR TOPIC, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
A defendant challenges his conviction based upon insufficient evidence.
REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Katie A. Fiala, Assistant Attorney
General, John Sarcone, County Attorney, and Olu Salami, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Mullins, JJ. 2
VAITHESWARAN, P.J.
In this appeal, we must decide whether sufficient evidence supports a
jury’s finding of guilt for second-degree theft by a home improvement contractor.
I. Background Facts and Proceedings
Nadir Topic was hired to replace windows in a home owned by Jared and
Melinda Collins. Topic estimated the cost of the work to be $9080. He received
a $6000 down payment but did not purchase or install the windows.
The State charged Topic with second-degree theft under the theft-by-
taking alternative set forth in Iowa Code section 714.1(1) (2011) and the theft-by-
deception alternative set forth in section 714.1(3). Before submission of the
case, the State withdrew the theft-by-deception alternative, leaving only the theft-
by-taking count before the jury. The jury found Topic guilty and this appeal
followed.
II. Analysis
The jury was instructed that the State would have to prove the following
elements:
On or about the 27th of July, 2012, the defendant took possession or control of property belonging to Jared and Melinda Collins; and 1. The defendant did so with the intent to permanently deprive Jared and Melinda of their property; and 2. The property, at the time of the taking, belonged to or was in the possession of Jared and Melinda Collins.
This instruction is premised on Iowa Code section 714.1(1), which states a
person commits theft when the person: “Takes possession or control of the
property of another, or property in the possession of another, with the intent to
deprive the other thereof.” 3
Topic contends the State failed to prove he took “property of another.”
Iowa Code § 714.1(1). In his view, “he could not have taken possession or
control of property” belonging to Jared and Melinda Collins because they
“willingly gave him the $6,000” and, “[a]t that point, the property in question
belonged to [him].” The State counters that this is a clear case of theft by taking
because Topic took the money to order windows, never ordered the windows,
never returned the money, and admitted he spent the money for personal
purposes.
At first blush, it would appear that the State’s rendition of facts should
carry the day. See State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984) (stating
evidence is viewed in the light most favorable to the State and all legitimate
inferences and presumptions that can be adduced from the record must be made
in favor of the State). In this case, those facts are essentially undisputed, lending
further weight to the State’s position.
But the State’s argument runs head-on into State v. Galbreath, 525
N.W.2d 424 (Iowa 1994). That case involved “a roofing contract gone awry.”
Galbreath, 525 N.W.2d at 425. Homeowners contracted with Galbreath to
replace the home’s roof and gave him a fifty-percent down payment. Id.
Galbreath purchased the building materials but did not immediately begin the
project. Id. The homeowners “entertained misgivings” about Galbreath and
called him to terminate the contract. Id. Galbreath subsequently “performed no
roofing work, and returned no money.” Id.
Galbreath pled guilty to theft by misappropriation under section 714.1(2), a
provision that, like section 714.1(1), refers to “property of another.” Compare 4
Iowa Code § 714.1(2) (referring to misappropriation of “property of another”) with
§ 714.1(1) (referring to taking possession or control of “property of another”). On
appeal, Galbreath challenged the factual basis for the plea. The issue facing the
court was identical to the issue raised by Topic: “whether payments advanced
under a contract are ‘property of another.’” Galbreath, 525 N.W.2d at 426. After
canvassing out-of-state opinions, the court adopted the majority rule holding that
“a down payment made pursuant to the terms of a construction contract is not
held by the contractor as ‘property of another.’”1 Id. The court stated: “[I]n the
context of an ordinary construction contract, cash advanced as a down payment
will not qualify as ‘property of another’ because title and possession are
transferred from the owner to the contractor-not in trust-but outright.” Id. at 427.
As noted, this case involves a different code section—714.1(1).2 But, as
also noted, the pertinent language is identical. “Identical statutory language in
1 Other states defining “property of another” have reached similar conclusions. See State v. Guerrero, No. 1 CA-CR 06-0897, 2007 WL 5248861, at *3 (Ariz. Ct. App. Dec. 20, 2007) (reversing conviction of contractor who received down payment for services and failed to perform, holding that down payment “did not constitute ‘property of another’”); State v. Coleman, 33 A.3d 468, 473 (Md. 2011) (holding “when a defendant has a right to receive money or property, he cannot be guilty of stealing it”); State v. Marshall, 541 N.W.2d 330, 332-33 (Minn. Ct. App. 1995) (holding that security company who accepted advance payments could not be guilty of taking “property of another” when company failed to perform). 2 Several opinions under the “theft-by-deception” statute—Iowa Code section 714.1(3)— bear mention. In State v. Rivers, 588 N.W.2d 408, 412 (Iowa 1998), the Iowa Supreme Court affirmed a jury’s finding of guilty for second-degree theft under section 714.1(3) where a home remodeling contractor agreed to perform at least six home remodeling jobs, often began the jobs, took the balance of funds due and owing, and failed to complete the jobs. Although section 714.1(3) also refers to “property of another,” the court did not address this language or its prior holding in Galbreath. Instead, the court focused on whether the defendant intended to perform at the time he accepted the down payments. In State v. Tovar, 580 N.W.2d 768, 771 (Iowa 1998), the court similarly focused on the meaning of deception under section 714.1(3) rather than the meaning of “property of another.” In contrast to Rivers, the court concluded that the evidence did not support a finding that the defendant engaged in deception by failing to disclose the financial circumstances of his carpeting and wall covering business. See also State v. 5
different statutes should be given much the same meaning.” Farmers Co-op.
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IN THE COURT OF APPEALS OF IOWA
No. 13-0836 Filed July 30, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
NADIR TOPIC, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
A defendant challenges his conviction based upon insufficient evidence.
REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Katie A. Fiala, Assistant Attorney
General, John Sarcone, County Attorney, and Olu Salami, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Mullins, JJ. 2
VAITHESWARAN, P.J.
In this appeal, we must decide whether sufficient evidence supports a
jury’s finding of guilt for second-degree theft by a home improvement contractor.
I. Background Facts and Proceedings
Nadir Topic was hired to replace windows in a home owned by Jared and
Melinda Collins. Topic estimated the cost of the work to be $9080. He received
a $6000 down payment but did not purchase or install the windows.
The State charged Topic with second-degree theft under the theft-by-
taking alternative set forth in Iowa Code section 714.1(1) (2011) and the theft-by-
deception alternative set forth in section 714.1(3). Before submission of the
case, the State withdrew the theft-by-deception alternative, leaving only the theft-
by-taking count before the jury. The jury found Topic guilty and this appeal
followed.
II. Analysis
The jury was instructed that the State would have to prove the following
elements:
On or about the 27th of July, 2012, the defendant took possession or control of property belonging to Jared and Melinda Collins; and 1. The defendant did so with the intent to permanently deprive Jared and Melinda of their property; and 2. The property, at the time of the taking, belonged to or was in the possession of Jared and Melinda Collins.
This instruction is premised on Iowa Code section 714.1(1), which states a
person commits theft when the person: “Takes possession or control of the
property of another, or property in the possession of another, with the intent to
deprive the other thereof.” 3
Topic contends the State failed to prove he took “property of another.”
Iowa Code § 714.1(1). In his view, “he could not have taken possession or
control of property” belonging to Jared and Melinda Collins because they
“willingly gave him the $6,000” and, “[a]t that point, the property in question
belonged to [him].” The State counters that this is a clear case of theft by taking
because Topic took the money to order windows, never ordered the windows,
never returned the money, and admitted he spent the money for personal
purposes.
At first blush, it would appear that the State’s rendition of facts should
carry the day. See State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984) (stating
evidence is viewed in the light most favorable to the State and all legitimate
inferences and presumptions that can be adduced from the record must be made
in favor of the State). In this case, those facts are essentially undisputed, lending
further weight to the State’s position.
But the State’s argument runs head-on into State v. Galbreath, 525
N.W.2d 424 (Iowa 1994). That case involved “a roofing contract gone awry.”
Galbreath, 525 N.W.2d at 425. Homeowners contracted with Galbreath to
replace the home’s roof and gave him a fifty-percent down payment. Id.
Galbreath purchased the building materials but did not immediately begin the
project. Id. The homeowners “entertained misgivings” about Galbreath and
called him to terminate the contract. Id. Galbreath subsequently “performed no
roofing work, and returned no money.” Id.
Galbreath pled guilty to theft by misappropriation under section 714.1(2), a
provision that, like section 714.1(1), refers to “property of another.” Compare 4
Iowa Code § 714.1(2) (referring to misappropriation of “property of another”) with
§ 714.1(1) (referring to taking possession or control of “property of another”). On
appeal, Galbreath challenged the factual basis for the plea. The issue facing the
court was identical to the issue raised by Topic: “whether payments advanced
under a contract are ‘property of another.’” Galbreath, 525 N.W.2d at 426. After
canvassing out-of-state opinions, the court adopted the majority rule holding that
“a down payment made pursuant to the terms of a construction contract is not
held by the contractor as ‘property of another.’”1 Id. The court stated: “[I]n the
context of an ordinary construction contract, cash advanced as a down payment
will not qualify as ‘property of another’ because title and possession are
transferred from the owner to the contractor-not in trust-but outright.” Id. at 427.
As noted, this case involves a different code section—714.1(1).2 But, as
also noted, the pertinent language is identical. “Identical statutory language in
1 Other states defining “property of another” have reached similar conclusions. See State v. Guerrero, No. 1 CA-CR 06-0897, 2007 WL 5248861, at *3 (Ariz. Ct. App. Dec. 20, 2007) (reversing conviction of contractor who received down payment for services and failed to perform, holding that down payment “did not constitute ‘property of another’”); State v. Coleman, 33 A.3d 468, 473 (Md. 2011) (holding “when a defendant has a right to receive money or property, he cannot be guilty of stealing it”); State v. Marshall, 541 N.W.2d 330, 332-33 (Minn. Ct. App. 1995) (holding that security company who accepted advance payments could not be guilty of taking “property of another” when company failed to perform). 2 Several opinions under the “theft-by-deception” statute—Iowa Code section 714.1(3)— bear mention. In State v. Rivers, 588 N.W.2d 408, 412 (Iowa 1998), the Iowa Supreme Court affirmed a jury’s finding of guilty for second-degree theft under section 714.1(3) where a home remodeling contractor agreed to perform at least six home remodeling jobs, often began the jobs, took the balance of funds due and owing, and failed to complete the jobs. Although section 714.1(3) also refers to “property of another,” the court did not address this language or its prior holding in Galbreath. Instead, the court focused on whether the defendant intended to perform at the time he accepted the down payments. In State v. Tovar, 580 N.W.2d 768, 771 (Iowa 1998), the court similarly focused on the meaning of deception under section 714.1(3) rather than the meaning of “property of another.” In contrast to Rivers, the court concluded that the evidence did not support a finding that the defendant engaged in deception by failing to disclose the financial circumstances of his carpeting and wall covering business. See also State v. 5
different statutes should be given much the same meaning.” Farmers Co-op. Co.
v. DeCoster, 528 N.W.2d 536, 539 (Iowa 1995). Based on Galbreath, we
conclude the $6000 check to Topic was not “property of another.”
In reaching this conclusion, we have considered the fact that the delays in
this case were far more substantial than the delays in Galbreath. In our view,
this is a distinction without a difference. Galbreath’s delay and ultimate failure to
order and install the windows may support a breach-of-contract action for
damages, but it does not change the fact that the check he received was his
property and not “property of another.”
As for the State’s reliance on Melinda Collins’s testimony that the money
was earmarked for the window purchase, the Iowa Supreme Court explicitly
rejected case law finding a theft under these circumstances. See Galbreath, 525
N.W.2d at 426-27 (stating “the outcome[] in . . . Joy, while perhaps satisfying, can
only be reached through the legal fiction of converting an unconditional transfer
to a transfer in trust”) (citing State v. Joy, 851 P.2d 654, 659 (Wash. 1993)). See
also State v. Caslavka, 531 N.W.2d 102, 105 (Iowa 1995) (noting defendant
agreed to purchase products in his own name rather than as customers’ agent
and transaction gave rise to a contractual relationship rather than a trust
relationship that would permit a finding that he was holding the “property of
another”).
Burkle, No. 01-1371, 2003 WL 22015525 (Iowa Ct. App. Aug. 27, 2003) (relying on Rivers to conclude that the State proved theft by deception where the defendant received two checks for materials and did not use the money to pay for the materials, but not addressing the “property of another” language of the statute). Because these opinions focused exclusively on the term “deception,” we conclude they are inapposite. 6
Because the State failed to establish that the $6000 check belonged to the
Collins, the jury’s finding of guilt is not supported by substantial evidence. See
State v. Hennings, 791 N.W.2d 828, 832 (Iowa 2010) (setting forth standard of
review). We reverse Topic’s judgment and sentence and remand for entry of
judgment of acquittal. See Caslavka, 531 N.W.2d at 108.