In the Iowa Supreme Court
No. 23–1375
Submitted April 16, 2025—Filed May 16, 2025
State of Iowa,
Appellee,
vs.
Ronald Eugene Cooley,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Linn County, Ian K. Thornhill,
judge.
A defendant seeks further review of a court of appeals decision affirming
his conviction for failing to fulfill his sex offender registration requirements.
Decision of Court of Appeals Vacated; District Court Judgment Reversed
and Case Remanded.
McDermott, J., delivered the opinion of the court, in which all justices
joined.
Thomas M. McIntee, Williamsburg, for appellant.
Brenna Bird, Attorney General, and Nicholas E. Siefert, Assistant Attorney
General, for appellee. 2
McDermott, Justice.
Iowa law requires sex offenders to register their address with their local
sheriff and, if they move, to “appear in person to notify the sheriff” of a change
in residence within five business days. Iowa Code § 692A.104(1)–(2) (2021). When
the county sheriff learned that sex offender Ronald Cooley had moved but had
not registered his new address, the State charged Cooley with a registration
violation. Cooley claimed that he appeared in person at the sheriff’s office to
change his address but that the sheriff’s office was closed in response to the
COVID-19 pandemic. The State conceded that the office was closed, but it argued
that Cooley was nonetheless required to register his address by calling a phone
number posted on the sheriff’s office door. The district court rejected Cooley’s
request that the jury instructions include the “appear in person” requirement,
and the jury convicted Cooley of a registration violation. In this appeal, we must
decide whether appearing in person is an essential element of the crime of failing
to register a change of address and, if so, whether the sheriff’s office could modify
that definition during the pandemic.
I.
In 1991, Cooley pleaded guilty to the offense of assault with intent to
commit sexual abuse. This conviction later subjected Cooley to Iowa’s sex
offender registration requirements. See Iowa Code §§ 692A.102(1)(b)(6), .103(1).
In early January 2021, Cooley moved to Marion in Linn County. Upon
establishing his residence, Cooley had to register his address with the Linn
County Sheriff’s Office. See id. § 692A.104(1). Section 692A.104 states in
relevant part:
1. A sex offender shall appear in person to register with the sheriff of each county where the offender has a residence, maintains employment, or is in attendance as a student, within five business 3
days of being required to register under section 692A.103 by providing all relevant information to the sheriff. . . .
2. A sex offender shall, within five business days of changing a residence, employment, or attendance as a student, appear in person to notify the sheriff of each county where a change has occurred.
Id. § 692A.104(1)–(2).
But in January, and for many months after, the Linn County Sheriff’s
Office remained closed to the public in response to the COVID-19 pandemic. The
sheriff posted a large sign outside the building stating that the building was
closed and that anyone who needed to contact the sheriff’s office about the sex
offender registry could call during business hours.
In early January, Cooley drove to the sheriff’s office to register his address
and learned that the office was closed. He saw the sign about the building’s
closure and the phone number to call. According to Cooley, his experience with
the phone system was far from smooth. He claims that over the next few days,
he called about twice a day but never reached anyone. He said that the number
required him to navigate a series of prompts, but regardless of the prompt he
chose, he could not get through to a human. The sheriff, for his part, claims to
have had several secretaries within the office answering calls through four
different phone lines and that no other callers reported problems. If someone
called after hours, the phone system would route them to a dispatcher who
would tell the caller to try again during normal business hours.
Despite his claimed difficulties, Cooley ultimately succeeded on January
11 in registering the address for his apartment in Marion by telephone. In late
February, Cooley called the sheriff’s office again and spoke with a representative
to verify his information. 4
On April 14, a sergeant from the sheriff’s office went to the Marion
apartment to verify that Cooley lived there. The apartment was vacant. The
sergeant soon learned that about a month earlier, the tenant with whom Cooley
claimed to be cohabiting received a notice to vacate the apartment by March 30.
The sheriff’s office concluded that Cooley had failed to register his new address
within five business days as required in § 692A.104(2).
According to Cooley, he moved from the Marion apartment to a new
apartment in Cedar Rapids around April 1. Cooley claims that shortly after, he
drove to the sheriff’s office with a friend to register his new address in person but
that the sheriff’s office was still closed. Over the course of about a week,
according to Cooley, he tried calling the sheriff’s office number but again could
not get through. He eventually connected by phone with an assistant who
updated his address. Although the record is unclear what date this occurred, it
is undisputed that it was beyond five business days from when he vacated the
Marion apartment.
The State charged Cooley with two registration violations: falsely claiming
to reside at the Marion apartment (count I), and failing to register his new
address in Cedar Rapids within five business days (count II). The State also
sought a habitual offender enhancement against Cooley under Iowa Code
§ 902.8. The jury ultimately acquitted Cooley of count I (that he did not actually
reside at the Marion apartment), and we discuss it here no further.
Concerning the change-of-address violation, at the close of the State’s
evidence, Cooley moved for a judgment of acquittal, arguing that he complied
with § 692A.104(2)’s requirement to “appear in person” within five business days
of moving to Cedar Rapids to register his new address. The State argued that the
closure of the sheriff’s office in response to the pandemic did not eliminate 5
Cooley’s duty to register his new address because he could accomplish it by
phone.
The district court agreed with the State and denied the motion, concluding
that because Cooley was permitted to register by phone and not in person, he
suffered no prejudice. The court noted that during the office’s closure,
“the requirement to register actually became less onerous, not more.” The district
court similarly declined to grant an acquittal when Cooley renewed his motion
at the close of his case.
Cooley then requested that the district court include language in its
marshaling instruction that tracks § 692A.104(2)’s requirement that he “appear
in person” to register the new address. The district court rejected Cooley’s
request and instead settled on the following instruction (Instruction 15):
1. On or about April 14, 2021, in Linn County, Iowa, the Defendant was required to register as a sex offender with the Linn County Sheriff;
2. The Defendant knew, or reasonably should have known, of his duty to register as a sex offender; and
3. On or about April 14, 2021, the Defendant failed to provide his new address to the Linn County Sheriff as required within five business days of obtaining a new residence.
The jury found Cooley guilty of failing to timely register his new address.
Cooley filed a motion for arrest of judgment and a motion for a new trial, making
the same arguments about satisfying the in-person requirement. The district
court denied both motions. He was sentenced to an indeterminate term of fifteen
years, with a three-year mandatory minimum as a habitual offender.
Cooley appealed. We transferred the case to the court of appeals. The court
of appeals concluded that the district court did not err by omitting the in-person 6
language from the jury instructions and affirmed the conviction. We granted
Cooley’s application for further review.
II.
Cooley argues that the district court erred when it omitted § 692A.104(2)’s
in-person requirement from Instruction 15. The State maintains that the
“in person” language was unnecessary because the instruction, as written,
conveyed the applicable law. That’s because, according to the State, it never
asserted that Cooley’s registration violation was related to a failure to appear
in person. It contends, rather, that the district court properly omitted that
language after concluding that Cooley could have registered by phone. We review
challenges to jury instructions under a correction-of-errors-at-law standard.
State v. Coleman, 907 N.W.2d 124, 134 (Iowa 2018).
Instruction 15 is count II’s marshaling instruction. A marshaling
instruction is one that “sets forth the elements of the crime and requires the
State to prove those elements.” Conner v. State, 362 N.W.2d 449, 453
(Iowa 1985). “When an instruction marshals the elements of a crime and
mandates conviction upon the State’s proof of those elements beyond a
reasonable doubt, all essential elements of the crime must be included in the
instruction.” State v. Billings, 242 N.W.2d 736, 737 (Iowa 1976).
Whether the district court erred in omitting the “in person” language from
the marshaling instruction thus turns on whether the in-person requirement is
an element of this offense. Elements “are those ‘constituent parts of a
crime . . . that the prosecution must prove to sustain a conviction.’ ” State v.
Bailey, 2 N.W.3d 429, 434 (Iowa 2024) (omission in original) (quoting Elements
of Crime, Black’s Law Dictionary 657 (11th ed. 2019)). To determine the elements
of an offense, we look to the statute that defines the crime. State v. White, 7
545 N.W.2d 552, 555 (Iowa 1996) (en banc). When we construe statutory text,
we “consider the overall structure and context of the statute, not just specific
words or phrases in a vacuum.” State v. Lopez, 907 N.W.2d 112, 120 (Iowa 2018).
Grasping the meaning of a statute in its full context requires, as an initial
matter, that we read the whole statute. See Doe v. State, 943 N.W.2d 608, 611
(Iowa 2020). Reading § 692A.104 in its entirety, we note that almost every
subsection includes registration requirements for which “[a] sex offender
shall . . . appear in person.” Subsection (1), for instance, imposes requirements
for making an initial registration “in person.” Id. § 692A.104(1). Subsection (2),
the one at issue in this case, similarly imposes requirements for making changes
in residence, employment, or student status “in person.” Id. § 692A.104(2).
Subsection (5), likewise, imposes requirements to report a move to another
county “in person” in the new county. Id. § 692A.104(5).
Subsection (3), on the other hand, imposes reporting requirements for
changes in an offender’s “relevant information,” which includes, for instance,
things such as internet accounts, telephone numbers, temporary lodging
addresses, and the names of cohabitants. Id. § 692A.104(3). Unlike subsections
(1), (2), and (5), subsection (3) includes no “in person” language but instead
states that the department of public safety may “establish by rule what
constitutes proper notification.” Id. The administrative regulation implementing
subsection (3) permits offenders to update the “relevant information” in any of
three ways: “in person, by telephone, or electronically.” Iowa Admin. Code
r. 661—83.3(4) (2021).
Subsection (7) reiterates the in-person requirements for every subsection
in § 692A.104 except subsection (3), stating that “the initial or subsequent 8
registration and any notifications required in subsections 1, 2, 4, 5, and 6 shall
be by appearance at the sheriff’s office.” Id. § 692A.104(7) (emphasis added).
A related section, § 692A.108, is the only provision in chapter 692A that
confers authority to local sheriffs to waive an in-person requirement, and only
then for a verification of existing information after the offender has previously
appeared in person:
A waiver of the next immediate in-person verification pursuant to this section may be granted at the discretion of the sheriff, if the sex offender appears in person at the sheriff’s office because of changes to relevant information pursuant to section 692A.104 or 692A.105, and if the in-person verification pursuant to this section is within thirty days of such in-person appearance.
Id. § 692A.108(6). But even when a sheriff grants a waiver of in-person
appearance, the sheriff must inform the department of public safety. Id. (“If a
waiver is granted, the sheriff shall notify the department of granting the waiver.”)
None of § 692A.108’s waiver provisions are in play here.
Read in full, the statute shows that the legislature specified particular
methods for particular registration requirements. Some specified personal
appearance; others did not. We read a material variation in terms in a statute to
indicate a variation in meaning. Bribriesco-Ledger v. Klipsch, 957 N.W.2d 646,
650 (Iowa 2021). Because subsection (2) specified in-person registration and not
registration by telephone or other means, we construe the statute to obligate that
method only. Appearance in person is a mandatory part of the registration
process and thus constitutes an element of the offense the State charged under
§ 692A.104(2).
“Although an instruction need not contain or mirror the precise language
of the applicable statute, it must be a correct statement of the law.” State v.
Schuler, 774 N.W.2d 294, 298 (Iowa 2009). Omission of an element of an offense 9
in an instruction misstates the law. See State v. Monk, 514 N.W.2d 448, 451
(Iowa 1994) (en banc). We review instructions as a whole to determine their
accuracy, with an eye toward whether other instructions have cured a mistake
in a different instruction. State v. Donahue, 957 N.W.2d 1, 10 (Iowa 2021).
But in this case, no other instruction cured the omission in Instruction 15.
Cooley’s theory of defense focused on the fact that he appeared in person to
change his registration. He presented evidence to support his claim, and he made
a timely request to include the in-person requirement in the marshaling
instruction. See Monk, 514 N.W.2d at 451. Cooley was thus entitled, in our view,
to a marshaling instruction that required the State to show he failed to appear
in person.
The State does not dispute that § 692A.104(2), as written, requires an
offender in Cooley’s position to appear in person. It argues instead that even
without the “in person” language, the marshaling instruction accurately
conveyed the law such that the jury understood the issues it needed to decide.
In advancing this argument, the State focuses on the fact that the office’s closure
did not absolve Cooley of his duty to register, and that he could (and previously
did) register by phone.
Although we agree that the office’s closure didn’t release Cooley from his
change-of-address registration requirement, the statute makes clear what an
offender must do to fulfill this duty: “appear in person.” Nothing in Instruction 15
alerts the jury that it was the State’s burden to prove that Cooley failed to appear
in person. As a result, contrary to the State’s argument, the marshaling
instruction did not convey all the information that the jury needed to decide the
issue. 10
The State describes Cooley’s argument as setting forth an “impossibility”
defense, but that’s not quite right. Cooley doesn’t argue that it was impossible
for him to comply with the in-person requirement and thus that any failure to
act must be excused. Indeed, Cooley testified that he did in fact appear in person
at the sheriff’s office. Cooley’s argument is more accurately characterized as one
of statutory construction: that he complied with the statutory duty to appear in
person to update his address, and that the sheriff’s office lacked the power to
change the duty from one requiring in-person appearance to telephonic.
We recognize that the COVID-19 pandemic imposed unprecedented
disruptions across society. See, e.g., Rivas v. Brownell, 18 N.W.3d 211, 219
(Iowa 2025) (holding that the Iowa Supreme Court had the constitutional
authority to toll the statute of limitations for civil claims during the pandemic);
State v. Basquin, 970 N.W.2d 643, 657 (Iowa 2022) (holding that the Iowa
Supreme Court had the constitutional authority to temporarily suspend a rule
of criminal procedure governing guilty pleas during the pandemic). But
“[c]riminal statutes are . . . inelastic, and cannot by construction be made to
embrace cases plainly without the letter though within the reason and policy of
the law.” State v. Lovell, 23 Iowa 304, 305 (1867) (emphasis omitted). This is why
“[a]ny recasting of the scope of criminal liability . . . is the province of the
legislature.” State v. Muhlenbruch, 728 N.W.2d 212, 216 (Iowa 2007).
Interpreting criminal statutes rigidly, regardless of the surrounding
circumstances, helps “prevent[] inconsistent and arbitrary enforcement” while
also “promot[es] separation of powers by ensuring that crimes are created by the
legislature, not the courts.” State v. Hearn, 797 N.W.2d 577, 584 (Iowa 2011).
Chapter 692A is no exception: “We strictly construe the penal provisions of
chapter 692A, requiring fair warning of the conduct prohibited, with doubt 11
resolved in favor of the accused.” Maxwell v. Iowa Dep’t of Pub. Safety, 903
N.W.2d 179, 183 (Iowa 2017). We thus conclude that the district court erred in
failing to include language in the marshaling instruction that required the State
to prove Cooley’s noncompliance was based on a failure to appear in person.
But this does not end our analysis. Cooley contends that if we conclude
that the district court erred by omitting this language, then the district court
also erred by denying his motion for acquittal. That’s because, according to
Cooley, both he and his friend testified that he appeared at the sheriff’s office
within five business days, and thus the State cannot prove beyond a reasonable
doubt that he failed to comply with that element. The State, on the other hand,
asserts that any error in the marshaling instruction was harmless because the
State proved beyond a reasonable doubt that in addition to failing to register by
phone, Cooley also failed to appear in person to register.
Whether harmless error even applies when an element is omitted from jury
instructions does not have a clear answer in our caselaw. See, e.g., Schuler,
774 N.W.2d at 299–300 (identifying the ambiguity); see also State v. Shorter,
945 N.W.2d 1, 12 (Iowa 2020) (Appel, J., concurring specially) (noting that the
ambiguity still exists). Because neither party asks us to resolve that question
today, we will assume that harmless error applies. Shorter, 945 N.W.2d at 9 n.2
(majority opinion).
A harmless error analysis asks “whether the guilty verdict actually
rendered in this trial was surely unattributable to the error.” Id. (quoting State v.
Kennedy, 846 N.W.2d 517, 527 (Iowa 2014)). It is the State’s burden to establish
that the district court’s error was harmless. Id. On this record, we cannot
conclude that the instructional error was harmless. 12
Although the jury wasn’t obligated to believe the testimony of Cooley or his
friend, see State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993), that the jury
acquitted Cooley of count I suggests that it perhaps found at least some of his
testimony credible. Whether the jury found Cooley’s testimony about his
purported in-person appearance credible, however, is unknown because the
marshaling instruction omitted that element. “[A] court must be careful not to
usurp the role of a jury by making credibility determinations that are outside the
proper scope of the judicial role.” State v. Paredes, 775 N.W.2d 554, 567
(Iowa 2009). Stated simply, we’re unable to say whether the jury surely would
have found Cooley guilty beyond a reasonable doubt had it been properly
instructed. Schuler, 774 N.W.2d at 301. The parties can present the issue again
on remand, this time with a corrected marshaling instruction.
III.
We reverse Cooley’s conviction, vacate the sentence, and remand for a new
trial.
Decision of Court of Appeals Vacated; District Court Judgment
Reversed and Case Remanded.