In the Iowa Supreme Court
No. 23–0819
Submitted September 11, 2024—Filed October 18, 2024
State of Iowa,
Appellee,
vs.
Sarah Rae Berg,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County,
William Patrick Wegman, judge.
A defendant appeals her conviction for unauthorized use of a credit card
as violating the speedy-indictment rule following her arrest for fourth-degree
theft. Decision of Court of Appeals and District Court Judgment Affirmed.
Oxley, J., delivered the opinion of the court, in which all justices joined.
Jessica Maffitt (argued) of Benzoni & Maffitt Law Office, P.L.C., Des
Moines, for appellant.
Brenna Bird, Attorney General, and Joseph D. Ferrentino (argued),
Assistant Attorney General, for appellee. 2
Oxley, Justice.
Sarah Berg used her access as a Casey’s employee to activate Casey’s,
Amazon, and Visa gift cards without paying for them and then used the Casey’s
card to purchase gas the following day. She was arrested for fourth-degree theft
under Iowa Code section 714.2(4) (2022). After the county attorney failed to file
a trial information by the speedy-indictment deadline for that charge, he filed a
trial information for a different charge—unauthorized use of a credit card in
violation of section 715A.6(2). The district court denied Berg’s motion to dismiss
the trial information as a violation of speedy indictment and found her guilty
following a trial on the minutes.
Our speedy-indictment rule bars the state from bringing formal charges
against an accused more than forty-five days after she has been arrested “for the
commission of a public offense.” Iowa R. Crim. P. 2.33(2)(a) (2022).1 But the rule
only applies to the public offense for which the accused was arrested. It does not
preclude filing charges for a different offense. Berg asks us to conclude that
fourth-degree theft and unauthorized use of a credit card as charged here are
the same offense by broadly applying language from State v. Abrahamson, where
we said that whether subsequent charges are for the same offense for speedy-
trial purposes depends on whether they “are in substance the same, or of the
same nature, or same species, so that the evidence which proves one would prove
the other.” 746 N.W.2d 270, 275 (Iowa 2008) (quoting State v. Moritz, 293 N.W.2d
235, 238–39 (Iowa 1980)). As explained below, our precedents—including
Abrahamson—support the district court’s decision denying Berg’s motion to
dismiss.
1The Iowa Supreme Court adopted revised Iowa Rules of Criminal Procedure effective July 1, 2023. All references to the Iowa Rules of Criminal Procedure in this case are to the rules in effect prior to July 1, 2023. 3
I.
Sarah Berg worked at the Casey’s General Store on Lafayette Road in
Evansdale. On July 21, 2022, Berg’s manager, Brandie Dobbs, discovered that
Berg had activated three gift cards without paying for them. She confronted Berg
and called the police to report an employee theft. In a “voluntary team member
statement” Berg wrote after Dobbs confronted her, Berg said:
I took 2 gift cards. I panicked because I needed to buy groceries for my kids and didn’t know what else to do. It was dumb and I shouldn’t have done it, but I did it to feed my kids. After I did it, I tried to void it but it didn’t work. I didn’t tell anyone.
Officer Randy Weber responded to the call. Dobbs told him that she had
video surveillance showing Berg activating the cards and a receipt for gas and
merchandise Berg purchased with one of the cards. Berg was still at the store
when Officer Weber arrived. She admitted to activating a Casey’s card worth $75,
a Visa card worth $200, and an Amazon card worth $425. Berg also admitted
that she did not pay for the cards and that she used the cards to purchase
merchandise. A Casey’s ticket copy dated July 12, 2022, showed a Casey’s card
worth $75 and ending in card number 7247 was approved by a cashier named
“Sarah.” Another ticket copy dated July 13 showed a Casey’s gift card ending in
card number 7247 was used to purchase grocery items and gas in the amount
of $59.67. The July 13 ticket copy showed that Casey’s rewards linked to “Sarah
Berg” were used and that the gift card had a remaining balance of $15.33,
indicating that the previous balance on the Casey’s card was $75. Officer Weber
arrested Berg.
Berg was charged the next day by criminal complaint with fourth-degree
theft in violation of Iowa Code section 714.2(4), which covers thefts between $300
and $750. On August 9, Berg appeared before a magistrate for her initial 4
appearance. On October 3, she moved to dismiss for violation of her right to
speedy indictment pursuant to Iowa Rule of Criminal Procedure 2.33(2)(a),
arguing that the State failed to obtain a grand jury indictment or file a trial
information within forty-five days of her initial appearance. Rather than file a
resistance to the motion, the State filed a trial information on October 12,
charging Berg with a different crime: unauthorized use of a credit card in
violation of Iowa Code section 715A.6(2). The district court held a hearing, denied
Berg’s motion to dismiss for violation of the speedy-indictment rule in light of the
new charge in the trial information, and denied Berg’s motion to reconsider.
On January 11, 2023, Berg waived her right to a jury trial and agreed to a
trial on the minutes of testimony. The district court found that the State proved
beyond a reasonable doubt that Berg committed the criminal act of unauthorized
use of a credit card, and Berg was convicted of the offense. On May 17, Berg was
sentenced to 120 days in jail (suspended), an $855 fine plus a 15% surcharge
(suspended), court costs, one-year informal probation, and restitution (if any).
Berg timely appealed, arguing that (1) the district court erred in denying
her motion to dismiss for lack of speedy indictment and (2) the evidence from the
trial on the minutes was insufficient to support the conviction. We transferred
the appeal to the court of appeals, which affirmed her conviction. We granted
Berg’s application for further review to address whether fourth-degree theft and
unauthorized use of a credit card constitute the “same offense” for
speedy-indictment purposes. We conclude they do not. We therefore affirm the
district court’s denial of Berg’s motion to dismiss.
II.
We agree with the court of appeals’ analysis of the sufficiency of the
evidence to support Berg’s conviction, and we let that opinion stand as the final 5
decision on that issue. See Farnsworth v. State, 982 N.W.2d 128, 135 (Iowa 2022)
(“When we grant further review, we may exercise our discretion to let the court
of appeals decision stand as the final decision on particular issues.” (quoting
State v. Fogg, 936 N.W.2d 664, 667 n.1 (Iowa 2019))).
III.
Berg was arrested for fourth-degree theft. The State agrees that it failed to
file a trial information charging that offense by the speedy-indictment deadline.
Nonetheless, the State urges that unauthorized use of a credit card is not the
same offense as fourth-degree theft, so the speedy-indictment rule has nothing
to say about the trial information that was subsequently charged. Berg, on the
other hand, asserts that fourth-degree theft and unauthorized use of a credit
card are sufficiently similar for purposes of speedy indictment that the State was
precluded from filing a trial information on the new charge after the forty-five-day
period ran. We review Berg’s speedy-indictment challenge for correction of errors
at law. State v. Smith, 957 N.W.2d 669, 675 (Iowa 2021).
Iowa Rule of Criminal Procedure 2.33(2)—our speedy-indictment
rule—states that “[i]t is the public policy of the state of Iowa that criminal
prosecutions be concluded at the earliest possible time consistent with a fair trial
to both parties.” To advance that policy, the rule requires that “[w]hen an adult
is arrested for the commission of a public offense . . . and an indictment is not
found against the defendant within 45 days, the court must order the
prosecution to be dismissed” unless good cause for the delay or waiver is shown.
Id. r. 2.33(2)(a).2 The speedy-indictment rule helps give effect to the broader
2For purposes of the speedy-indictment rule, “[t]he term indictment embraces a trial
information.” State v. Lies, 566 N.W.2d 507, 508 (Iowa 1997) (per curiam), overruled on other grounds by Williams, 895 N.W.2d 856; see also Iowa R. Crim. P. 2.5(5) (“The term ‘indictment’ embraces the trial information, and all provisions of law applying to prosecutions on indictments 6
constitutional right to a speedy trial by “address[ing] the time frame in which
formal charges must be brought against an accused.” State v. Williams,
895 N.W.2d 856, 860 (Iowa 2017); see also Iowa Const. art. I, § 10 (“In all
criminal prosecutions, . . . the accused shall have a right to a speedy and public
trial . . . .”). Yet we have also recognized that the rule is intended, as it expressly
states, “to ensure a fair trial for both parties.” State v. Dennison, 571 N.W.2d 492,
496–97 (Iowa 1997) (per curiam), overruled on other grounds by Williams,
895 N.W.2d 856; see also r. 2.33(2) (“It is the public policy of the state of Iowa
that criminal prosecutions be concluded at the earliest possible time consistent
with a fair trial to both parties.” (emphasis added)). “[I]t is beneficial for both the
State and the defendant for the officer to refrain from making an arrest and
issuing a citation for a violation for which the most crucial evidence is not [yet]
available.” Dennison, 571 N.W.2d at 497.
In addressing motions to dismiss on speedy-indictment grounds, we have
said that “[t[he failure of the State to comply with rule 2.33(2)(a) requires
absolute dismissal of the charge and prohibits the State from reindicting [the
defendant] on the same offense.” State v. Utter, 803 N.W.2d 647, 653 (Iowa 2011),
overruled on other grounds by Schmidt v. State, 909 N.W.2d 778, 784, 790
(Iowa 2018). Thus, whether the State violated Berg’s speedy-indictment rights
here when it filed a trial information charging her with unauthorized use of a
credit card in violation of Iowa Code section 715A.6(2) eighty-three days after her
arrest for fourth-degree theft in violation of Iowa Code section 714.2(4) depends
on how “same offense” is defined.3
apply also to informations, except where otherwise provided for by statute or in these rules, or when the context requires otherwise.”). 3Both parties cite Williams, 895 N.W.2d at 867, for the proposition that an arrest is completed when the defendant is taken before the magistrate for her initial appearance, starting the speedy-indictment clock. As we recently clarified in State v. Harris, ___ N.W.3d ___, 2024 WL 7
Focusing specifically on these offenses, Berg asks us to apply an “evidence
test” based on the statement from State v. Abrahamson that two offenses are the
same if they “are in substance the same, or of the same nature, or same species,
so that the evidence which proves one would prove the other.” 746 N.W.2d at
275 (quoting Moritz, 293 N.W.2d at 238–39). In Abrahamson, the state dismissed
its original charge for conspiracy to manufacture methamphetamine, and it then
filed a new two-count trial information charging Abrahamson with
manufacturing methamphetamine and conspiracy to manufacture
methamphetamine based on the same underlying conduct that supported the
original charge. Id. at 272. Although the district court granted Abrahamson’s
motion to dismiss the new conspiracy charge as a violation of his speedy-trial
rights, it denied the motion with respect to the new manufacturing count, and
he was convicted on that count. Id. On appeal, we held that the manufacturing
charge should also have been dismissed because it was the same offense for
speedy-trial purposes as the original conspiracy charge. Id. at 277. We relied on
State v. Williams, 305 N.W.2d 428, 431 (Iowa 1981), and State v. Maghee,
573 N.W.2d 1, 7 (Iowa 1997), to hold that manufacturing methamphetamine and
conspiracy to manufacture methamphetamine—both charged under Iowa’s drug
trafficking statute in Iowa Code section 124.401(1) (2004)—are alternative means
of committing the same base offense of drug trafficking for speedy-trial purposes.
Id. at 275–77; see also Maghee, 573 N.W.2d at 7 (holding that a conviction for
conspiracy and a conviction for possession of an illegal substance with the intent
to deliver were alternative means of violating Iowa Code section 124.401(1) (1993)
4395277 (Iowa Oct. 4, 2024), under the pre-amendment rule, which applied to Berg’s arrest, the clock started on the date of her arrest, not the date of her initial appearance. Id. at ___, 2024 WL 4395277, at *4. The distinction doesn’t make a difference in Berg’s case, where the State failed to file a trial information within forty-five days of either event. 8
that had to merge for sentencing purposes); Williams, 305 N.W.2d at 431 (holding
that adding a conspiracy to manufacture count to an indictment charging
manufacturing with the intent to distribute merely charged “[an alternative]
means of committing the same offense” of drug trafficking for purposes of
amending a trial information before trial under the predecessor of Iowa Rule of
Criminal Procedure 2.4(6)(c)).
In Abrahamson, we rejected the state’s contention that manufacturing and
conspiracy should be considered the same offense when the state seeks to amend
an information pursuant to rule 2.4(8)(a) (now found at rule 2.4(6)(c)) but be
considered different offenses when a defendant seeks to enforce their speedy-trial
rights under rule 2.33. 746 N.W.2d at 276. In reaching this conclusion, we
discussed State v. Moritz, 293 N.W.2d at 238–40, where we had similarly
addressed “whether charges were the ‘same offense’ for speedy trial purposes.”
746 N.W.2d at 274. After recognizing that “[o]ur decision in Moritz noted the
‘same offense’ test applied in the speedy trial context focuses on whether the ‘two
offenses are in substance the same, or of the same nature, or same species, so
that the evidence which proves one would prove the other,’ ” we then concluded
that “[t]he Moritz analysis [was] neither controlling nor instructive in”
Abrahamson. Id. at 275 (quoting Moritz, 293 N.W.2d at 238–39). Moritz had not
argued that “the two charges (accepting an award for public duty, and engaging
in a conspiracy to do so) based on statutes in different code chapters were
alternative means of committing the same offense,” so we had no occasion in
Moritz to consider the issue. Id. We further noted that “[i]n sharp contrast” to the
situation in Moritz, Abrahamson was charged with two offenses arising from a
common set of facts “under a single statute.” Id. 9
The critical point that made manufacturing and conspiracy the same
offense in Abrahamson was that they were alternative means for violating a single
drug trafficking statute. Id. at 277 (“Abrahamson was charged with alternative
means of violating section 124.401(1): manufacturing methamphetamine and
conspiracy to manufacture the same substance.”). Notably, we distinguished
State v. Lies, 566 N.W.2d 507, 508 (Iowa 1997) (per curiam), overruled on other
grounds by Williams, 895 N.W.2d 856, where we had concluded that burglary
under Iowa Code section 706.1 (1995) and conspiracy to commit burglary under
section 706.4 were not the same offense for speedy-indictment purposes because
“Iowa Code section 706.4 expressly provides ‘[a] conspiracy to commit a public
offense is an offense separate and distinct from any public offense which might
be committed pursuant to such conspiracy.’ ” Abrahamson, 746 N.W.2d at 276
(alteration in original) (quoting Iowa Code § 706.4 (1995)). Thus, we reaffirmed
the importance of how an offense is defined by statute in determining whether
charges allege the same offense for speedy-trial or speedy-indictment purposes.
We have since characterized Abrahamson as “applying a different test where the
two charges were not based on different statutes but, instead, constituted two
alternative ways of committing the same offense under a single statute.” Utter,
803 N.W.2d at 654.
As noted, the language Berg relies on from Abrahamson came from Moritz.
See Moritz, 293 N.W.2d at 239. In Moritz, the state charged the defendant, a Scott
County deputy sheriff, with accepting an award for public duty in violation of
Iowa Code section 739.10 (1977) and conspiracy to commit that offense in
violation of section 719.1. Id. at 237. The original trial information identified
specific conduct on January 7, 1977, as the overt act for the section 739.10
violation. Id. The state dismissed the original information and filed a new trial 10
information, again charging Moritz with violating section 739.10 and conspiracy
to commit that offense in violation of section 719.1 but this time identifying
conduct on April 5 as the overt act for purposes of the section 739.10 offense.
Id. Because the second trial information alleged conduct from a different day to
support the section 739.10 offense, we held that there was no speedy-trial
problem. Id. at 239. “[B]oth charges could not be sustained on the same evidence
and each one constituted a separate offense.” Id.
We conclude that this case is analogous to Moritz because each charge
relied on different underlying events, so there is no speedy-indictment problem.
See id. (concluding that the two charges under the same statutory provision
“could not be sustained on the same evidence” where each was based on actions
taken on different dates); cf. State v. Stewart, 223 N.W.2d 250, 252 (en banc)
(Iowa 1974) (“It is only after the elements of the lesser crime are shown to be
necessarily included in the greater crime that a second inquiry is made. The
second inquiry is a factual one, undertaken on a case by case basis. It is not
involved in this case because we determine the first test is not met.”). The
criminal complaint charged that Berg “commit[ted] theft in the fourth degree by
taking propert[y], gift cards belonging to Casey’s, said property having a value
exceeding $300 but not exceeding $750.” To sustain the fourth-degree theft
charge, the State would have been required to prove that Berg “[took] possession
or control of the property of another, or property in the possession of another,
with the intent to deprive the other thereof,” Iowa Code § 714.1(1) (2022), and
that the property was valued between $300 and $750, id. § 714.2(4). The State
supported that charge with evidence that Berg activated three gift cards she took
from Casey’s without paying for them on July 12, 2022: a Casey’s card worth
$75, a Visa card worth $200, and an Amazon card worth $425, totaling $700. 11
Unauthorized use of a credit card, on the other hand, required the State
to prove that Berg “us[ed] a credit card for the purpose of obtaining property or
services with knowledge” of one of three circumstances: that the credit card
(1) “is stolen or forged,” (2) “has been revoked or canceled,” or (3) “is [otherwise]
unauthorized.” Id. § 715A.6(1)(a). The trial information charged that Berg “use[d]
a credit card to obtain property or services, valued not in excess of $1,500,
knowing that the credit card was stolen, forged, revoked, cancelled or otherwise
used without authorization.” To support that charge, the State relied on the
Casey’s ticket copies revealing that Berg used the Casey’s gift card the following
day to purchase gas and food in the amount of $59.67. Even if the State needed
to rely on Berg’s actions of activating the Casey’s card without paying for it to
prove the knowledge element of the unauthorized use charge, see id., that charge
could not be sustained without the evidence that Berg then used the card the
next day to obtain property. The two charges relied on distinct underlying facts
supporting the distinct charges. See Moritz, 293 N.W.2d at 239; see also Clark v.
State, 981 A.2d 710, 724 (Md. Ct. Spec. App. 2009) (holding that a defendant
who stole a doctor’s wallet out of a hospital locker room and then used a credit
card from the wallet to purchase a PlayStation game system at a nearby Toys “R”
Us committed separate offenses supporting distinct charges for theft when he
took the credit card and assuming another’s identity when he then used it).
Further, considering the facts needed to prove each offense, Berg’s actions
of using the Casey’s card to purchase gas and food on July 13 could not have
supported the fourth-degree theft charge because that charge required a
minimum theft of $300, see Iowa Code § 714.2(4), but she obtained only $59.67
worth of goods. And her activation of the gift cards on July 12 could not support
unauthorized use of a credit card because she did not “use” any of the gift cards 12
for the purpose of obtaining property, as required to prove a violation of Iowa
Code section 715A.6(1)(a). Thus, the fourth-degree theft charge required a fact
not required for unauthorized use of a credit card: taking possession of over $300
worth of property. Likewise, the unauthorized use of a credit card charge
required a fact not required for fourth-degree theft: using one of the stolen gift
cards to obtain property.
The charges were not the same public offense for purposes of rule 2.33(2).
The State was therefore not precluded from filing a trial information charging
Berg with committing unauthorized use of a credit card.
IV.
Berg’s conviction is affirmed.
Decision of Court of Appeals and District Court Judgment Affirmed.