State of Iowa v. Eddie Tipton , 897 N.W.2d 653 ( 2017 )

IN THE SUPREME COURT OF IOWA
No. 15–1515
Filed June 23, 2017
STATE OF IOWA,
Appellee,
vs.
EDDIE TIPTON,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Jeffrey
Farrell, Judge.
Defendant seeks further review of his conviction for one count of
attempting to fraudulently pass or redeem a lottery ticket and one count
of tampering with lottery equipment. DECISION OF COURT OF
APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN
PART AND REVERSED IN PART AND CASE REMANDED.
Dean Stowers of Stowers & Sarcone, PLC, West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Louis Sloven, Kevin
Cmelik, and Robert Sand, Assistant Attorneys General, for appellee.
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APPEL, Justice.
In this case, Eddie Tipton challenges his felony convictions on two
lottery-related offenses. The convictions arose out of the drawing of a
Hot Lotto jackpot winner with a prize of $16.5 million on December 29,
2010. The State claimed Tipton engaged in a technologically
sophisticated 21st Century crime, while the defense characterized the
State’s version of events as derived from Mission: Impossible. 1
On January 15, 2015, over four years after the lottery drawing in
question, the State charged Tipton with fraudulently passing or
redeeming, or attempting to pass or redeem, a lottery ticket in violation of
Iowa Code section 99G.36(1) (2011). The State also charged Tipton with
influencing or attempting to influence the winning of the prize through
fraud, deception, or tampering with lottery equipment or materials in
violation of Iowa Code section 99G.36(2).
Tipton moved to dismiss both charges, arguing they were untimely
because the three-year statute of limitations provided in Iowa Code
section 802.3 had expired. The district court denied the motion.
According to the district court, both the fraudulent passing or redeeming
and the tampering charges against Tipton were continuing offenses
under Iowa Code section 802.7. The last act of the offenses, according to
the district court, occurred on January 17, 2012. As a result, the district
court reasoned, the fraudulent passing and redeeming and the tampering
charges were timely brought on January 15, 2015.
In the alternative, the district court concluded the one-year fraud
extension of the statute of limitations provided in Iowa Code section
1Apopular film series of action spy thrillers based on a television series of the
same name. See Mission: Impossible (Paramount 1996, 2000, 2006, 2011, 2015);
Mission: Impossible (CBS 1966–1973) (ABC 1988–1990).
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802.5 applied to the charges. The court concluded both crimes involved
fraud, and as a result, the statute of limitations could be extended for
one year after the State discovered or should have discovered the crimes.
The court further reasoned discovery occurs only when the State knew or
should have known there was probable cause that Tipton committed the
offenses. The court found the State developed probable cause that
Tipton was involved in the crimes only after the State released a video of
the person who purchased the winning ticket online in October 2014,
and Tipton was identified as a suspect by a lottery employee in Maine
who watched the video. The court further found the State exercised
reasonable diligence in its investigation and discovery of Tipton’s
involvement in the crimes. As a result, the court concluded on this
alternate ground that the State timely initiated its prosecution against
Tipton.
A jury convicted Tipton of both the fraudulent passing or
redeeming and the tampering charges. Tipton appealed, claiming his
prosecution on both charges was barred by the three-year statute of
limitations, the jury’s verdict on both charges was not supported by
substantial evidence, the trial court made prejudicial errors in the
admission of evidence, and the jury was improperly instructed on various
issues.
We transferred the case to the court of appeals. The court of
appeals ruled that the fraudulent passing, redeeming, and tampering
charge was not a continuing offense under Iowa Code section 802.7.
With respect to the one-year extension of the statute of limitations for
fraudulent acts under Iowa Code section 802.5, the court held the State
was on notice of fraudulent passing or redeeming as early as November,
and no later than December 29, 2010, when the lottery ticket was
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presented for payment. As a result, even if the one-year extension
applied, the fraudulent passing or redeeming charge was untimely.
With respect to the tampering charge, however, the court of
appeals came to a different conclusion. The court concluded the
tampering was only discovered in October 2014, and as a result, the
tampering charge was timely. Because the evidence regarding discovery
was undisputed, the court concluded no jury issue was present.
Turning to other issues, the court of appeals held there was
substantial evidence to support the jury’s verdict on the tampering
charge. The court also found no reversible error in the evidentiary ruling
and jury instruction issues related to the tampering charge.
Tipton sought further review, which we granted. For the reasons
expressed below, we vacate the decision of the court of appeals and
affirm in part and reverse in part the judgment of the district court.
I. Factual and Procedural Background.
A. Events Leading to Filing of Charges. The Iowa Lottery
(lottery) offers a multistate lottery game called “Hot Lotto.” Winning
numbers are selected by one of two random number generator (RNG)
computers. Prior to each drawing, officials flip a coin to determine which
RNG computer will be used to select the winners for that drawing.
Winning Hot Lotto tickets must be claimed within a year of
purchase or the prize is forfeited. Iowa Code § 99G.31(2)(b), (d); Iowa
Admin. Code r. 531—11.2 (2010); id. § 531—20.13; Iowa Lottery, Iowa
Lottery Game Specific Rules: Hot Lotto r. 531—20.13, at 5 (Dec. 31, 2007),
https://web.archive.org/web/20101206230827/http://www.ialottery.com/
PDF/GameRules/HotLotto_Rules.pdf. The lottery will not pay the prize
on a winning ticket if the ticket was not validly purchased, legally
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presented, or legally possessed or acquired. Iowa Code § 99G.31(2)(e);
Iowa Admin. Code r. 531—11.3.
On December 23, 2010, someone purchased a Hot Lotto ticket
from a Des Moines convenience store and won the jackpot of the Hot
Lotto drawing on December 29. The Hot Lotto jackpot for that drawing
was $16.5 million. The lottery knew where and when the winning ticket
was purchased because of its tracking system. Video and audio
equipment at the convenience store recorded the purchase of the winning
ticket.
No one presented the ticket and attempted to claim the prize until
November 2011. On November 10, Phillip Johnston, a resident of
Quebec, Canada, contacted the lottery and claimed he bought the
winning ticket. While Johnston was able to provide the lottery with the
fifteen-digit security number printed on the back of the ticket, he
provided details of the purchase to the lottery that did not match the
video and audio recording of the purchaser. The lottery did not pay the
prize to Johnston.
On December 6, Johnston admitted he was not the owner of the
ticket and instead represented an anonymous owner. Johnston
discussed with the lottery whether the ticket could be claimed through a
Belizean blind trust, Hexham Investments Trust. The trustee for
Hexham was New York attorney Crawford Shaw. Johnston was
president of Hexham Investments, Ltd., the primary beneficiary of the
trust.
On December 29, Julie McClean, a local attorney representing
Shaw, presented the winning ticket along with a winning claim form to
lottery officials. The ticket and claim were submitted on behalf of the
trust and the ticket was signed by Shaw in his capacity as trustee for the
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trust. The ticket was submitted a little more than one hour before the
lottery’s one-year deadline. From December 29 on, the winning ticket
remained in possession of lottery officials.
Shaw and McClean met with lottery officials on January 17, 2012.
The purpose of the meeting was to find a resolution to get the claim paid.
According to McClean,
Our position was that the trust had presented all of the
information that was available to it to satisfy the
requirements of the Iowa Lottery Authority, and that they
had their own investigative powers and other means to
satisfy their other requirements.
While recognizing the regulatory powers of the lottery, McClean and
Shaw took the position that the lottery could pay out the claim based on
information provided, together with other information which would be
available through the lottery’s security protocols. McClean and Shaw
also suggested the money could be paid to charity.
The lottery declined to pay the prize. On January 26, local counsel
for Shaw sent the lottery a letter unconditionally withdrawing the claim
of ownership of the lottery ticket.
The lottery asked the Iowa Division of Criminal Investigation (DCI)
to help investigate claims for the winning lottery ticket on November 15,
2011. The DCI interviewed Johnston in Quebec City, Canada. After they
interviewed Johnston, DCI agents traveled to Houston, Texas, in an
attempt to interview Robert Sonfield and Robert Rhodes. Over a three-
day period, DCI agents made various attempts to talk with Sonfield and
Rhodes but were unsuccessful.
On October 9, 2014, the DCI released a portion of the video and
audio recording of the purchase of the winning ticket at the Des Moines
convenience store in the hopes of receiving a tip as to the identity of the
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purchaser. On October 15, the DCI received a tip from an employee of
the Maine lottery that Edward Tipton was the purchaser.
Tipton was a security expert employed by the Multi-State Lottery
Association (MUSL), a vendor of the lottery that provides services for the
organization and administration of lottery games in Iowa and other
states. See Iowa Code § 99G.3(18) (defining vendor). Tipton wrote the
RNG program that produced the winning number combinations for a
variety of lottery games, including Hot Lotto.
As an employee of the lottery, Tipton was ineligible to play the
lottery. See id. § 99G.31(2)(h). While it is not a crime for an employee to
play the lottery, employees are told they will not be paid the prize if they
do play and win.
DCI investigators interviewed Tipton on November 7, 2014. Tipton
claimed he did not purchase the winning ticket. He further said he was
visiting family in Houston, Texas, on December 23, 2010, the day the
ticket was purchased. Additional investigation showed Tipton was a
friend and former work colleague of Rhodes.
The DCI also learned Tipton was knowledgeable about “rootkits,”
which could be used to rig the Hot Lotto’s random number generators to
produce predictable numbers. A rootkit is software that can alter the
functioning of a computer. Tipton had told a coworker he knew how to
install a self-destructing rootkit onto a machine. Tipton also had spoken
about rootkits as a security threat to lotteries at a national conference.
Security records showed Tipton accessed the RNG computers on
November 20, 2010, to perform the routine daylight savings time clock
change on the computers. On November 20, the draw-room security
camera was malfunctioning. The camera recorded only about one
second out of every minute. As a result, the video of Tipton’s activities in
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the draw room where the RNG computers were housed was incomplete.
Other employees in the draw room did not observe Tipton do anything
unusual but testified at trial that they relied upon Tipton’s computer
expertise.
The DCI further discovered the two RNG computers in operation in
December 2010 were, in the ordinary course of business, retired and
completely “wiped” at some point prior to the investigation. The 2010
RNG computers were not connected to the Internet and thus the only
way to install a rootkit on one would be to manually do so by connecting
hardware to the computer, such as by a thumb drive.
Tipton was charged with two crimes by information filed on
January 15, 2015. Count I charged Tipton with fraudulent passing or
redeeming a lottery ticket under Iowa Code section 99G.36(1).
Specifically, Count I stated,
During the time period of December 2010 through
January 17, 2012, in Polk County, IA, the defendant did,
with intent to defraud, falsely utter, pass, or redeem a lottery
ticket or attempted to falsely utter, pass, or redeem a lottery
ticket, in violation of Iowa Code § 99G.31(2)(h) and
§ 99G.36(1), a class “D” felony.
In Count II, Tipton was charged with attempting to influence the
winning of a prize through use of fraud or deception, or tampering with
lottery equipment in violation of Iowa Code section 99G.36(2).
Specifically, Count II stated,
During the time period of December 2010 through
January 17, 2012, in Polk County, IA, the defendant
influenced or attempted to influence the winning of a prize
through the use of fraud or deception, or tampering with
lottery equipment or materials, in violation of Iowa Code
§ 99G.31(2)(h) and § 99G.36(2), a class “D” felony.
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B. Pretrial Proceedings Before the District Court.
1. Motion to dismiss on statute of limitations grounds. Tipton filed
a motion to dismiss due to expiration of the three-year statute of
limitations in Iowa Code section 802.3 under Iowa Rule of Criminal
Procedure 2.11(6)(a). Tipton argued that fraudulent passing or
redeeming under Iowa Code section 99G.36(1) and tampering under
section 99G.36(2) are not continuing offenses. Further, Tipton argued,
the State in its minutes of evidence did not allege he had any
involvement with Shaw or local counsel representing Shaw, who met with
lottery officials as late as January 17, 2012, in an attempt to negotiate
payment of the lottery ticket. As a result, Tipton asserted, Iowa Code
section 802.7 relating to the statute of limitations for continuing offenses
had no application.
Tipton further asserted the one-year fraud extension of the statute
of limitation after discovery of the offense under Iowa Code section 802.5
did not apply. According to Tipton, while the charges against him “do
have an element of fraud, they were discovered more than one year prior
to the filing of the indictment.” Tipton argued the one-year statute
commences to run when the State is put on inquiry notice and is aware
of “a problem.” Tipton reasoned the latest anyone could have attempted
to redeem the lottery ticket was one year after the purchase, or December
29, 2011. On that date, Tipton pointed out, the signed ticket and a claim
form were presented to the lottery. Tipton recognized that later, on
January 17, 2012, Shaw again met with lottery officials seeking
payment. But, according to Tipton, the State did not allege in the
minutes of evidence that he had any involvement with Shaw or McClean.
Because the State was on notice of both charges by December 29, 2011,
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Tipton asserted the charges were untimely filed and could not be saved
by a one-year extension under Iowa Code section 802.5.
With respect to Count II, Tipton argued even if there was evidence
of tampering to lottery computers, the tampering would had to have been
made prior to the December 29, 2010 lottery drawing when the winning
ticket was drawn. As a result, Tipton asserted, the three-year statute of
limitations in Iowa Code section 802.3 expired well before the filing of the
tampering charge.
Finally, Tipton argued, the one-year fraud extension expired by the
time of the indictment because the State discovered or should have
discovered the crime more than one year prior to January 15, 2015.
Tipton asserted the State knew, or should have known that a crime
occurred when Johnston claimed to be the owner of the ticket in
November 2011, but could not accurately describe the circumstances of
the ticket’s purchase. Tipton argued authorities also should have known
in January 2012, when Shaw withdrew his claim to the ticket, that a
criminal fraud had been committed. According to Tipton, the fact the
State waited until October 2014 to release the video and audio recording
shows they were not diligent in their efforts to investigate.
The State filed a resistance and a brief in opposition to Tipton’s
motion to dismiss. Citing Iowa Code section 802.7, the State argued
Tipton set in motion “a series of acts” which began with his purchasing of
the winning Hot Lotto ticket and passing the ticket to his friend and
former coworker Rhodes. According to the State’s theory, Rhodes and
Sonfield in turn passed the ticket to Johnston and Shaw with
instructions to claim the proceeds but not identify the purchaser under
any circumstances. The State noted on January 17, 2012, Shaw met
with lottery officials in a last attempt to redeem the ticket. As a result,
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the State asserted the charges were filed “within three years of the last
series of acts on which the offense was based.” The State also argued, in
any event, at least one of the acts alleged occurred within the period of
the statute of limitations, namely, Shaw’s attempt to redeem the ticket
on January 17, 2012.
Alternatively, the State argued the prosecution was timely under
Iowa Code section 802.5. The State notes Iowa Code section 802.5
provided a one-year extension for crimes for “any offense a material
element of which is either fraud or a breach of fiduciary obligation.” The
State argued that under Iowa Code section 802.5 the statute of
limitations was extended for one year after the discovery on October 15
that Tipton may have purchased the winning ticket. As a result, the
State argued its filing of charges approximately three months after
October 15 was timely.
The district court held a hearing on the motion to dismiss. The
State called Matthew Anderson as a witness at the hearing. Anderson
was a DCI agent who was assigned to work on the case on November 15,
2011. Anderson reported the DCI file in this case consisted of over 300
files and hundreds of pages of documents.
Anderson testified about interviewing Johnston in Quebec and
about the difficulty he had working with Canadian authorities on
identifying Johnston. Some communications from Canadian authorities
were in French, and although a Phillip Johnston was identified, it was
the wrong Phillip Johnston. After a couple of months, the United States
Department of Justice advised the DCI to cease contact with Canadian
officials until an application had been completed. Anderson stated he
tried for several weeks to complete the twenty to twenty-five-page
application but was unable to do so. According to Anderson, the
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application required a finding of probable cause, and since Iowa
authorities did not have probable cause, the application was not filed.
Eventually, however, Anderson got approval to fly to Canada to talk with
Johnston. The interview, according to the minutes, occurred in August
2013.
Thereafter, Anderson testified he traveled to Houston to attempt to
interview Sonfield and Rhodes. The minutes reveal this effort occurred in
June 2014, approximately ten months after the interview with Johnston.
Anderson did not explain the reasons for the ten-month delay in seeking
to interview Sonfield and Rhodes.
Anderson was asked why the DCI waited until October 2014 to
release the portion of the video and audio recording. According to
Anderson,
We held onto that for basically being able to vet and
verify our false leads that continued to come in, that still
continue to come in. People would call in and say, Well, I
pulled up in a red vehicle, or, I was wearing this. Mr. Phillip
Johnston claimed to be wearing a suit when he purchased
the ticket. So that piece of evidence was a key—a key,
known fact in our investigation that we were not willing to
compromise.
Anderson further testified the tactic of withholding evidence in order to
sift through later claims or evidence was a common law enforcement
tactic which makes the investigation more efficient because some false
claims can be eliminated out of hand.
On cross-examination, Anderson was asked why the video and
audio recording was not released after the one-year period for redeeming
lottery tickets had expired. The following colloquy occurred:
Q: I’m a little confused about what you’re saying, the
calling to claim it, because the time for filing claims for the
winnings had expired in December of 2011. So what were
you concerned people would call to claim about that video
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after that time? A: Your question is multifaceted there. The
first concern is not that they would claim it. However, we
already started investigation where there’s obviously deceit
in the original claim that there is a lie.
The problem from that is people, society, does not
understand that just because the year expired that they
can’t make the claim or that they won’t win the claim, which,
again, I would suppose is going to be a legal argument if they
can somehow show that they were defrauded of this ticket.
Which during this investigation, until all the pieces came
together, was one of the concerns, that possibly somebody
had become deceased in the transaction of this ticket. We
didn’t know. So that was not obviously off the table. So it—
just to dismiss—I would not dismiss that video as a common
piece of evidence, and that is why it was held.
The district court denied Tipton’s motion to dismiss. The court
ruled both the fraudulent passing and redeeming and the tampering
charges were continuing offenses under Iowa Code section 802.7.
According to the court, the offenses continued at least until January 17,
2012, when Shaw and McLean met with lottery officials, thereby making
the trial information filed on January 15, 2015, timely. The court
reasoned both counts were committed in furtherance of a fraudulent
effort to claim the Hot Lotto prize and the initial acts were only pieces in
the chain of the crime culminating in the final attempt to claim the prize
on January 17, 2012.
In the alternative, the district court ruled the State was entitled to
the one-year fraud extension under Iowa Code section 802.5. The court
noted there was no serious dispute that fraud was an element of each
offense. The court concluded the one-year fraud extension was triggered
only when the State learned Tipton, an employee of MUSL, purchased
the ticket. The court explained there was no probable cause to believe
fraud occurred until the purchaser of the ticket was identified as a MUSL
employee in October 2014. According to the court, prior to October
2014, the State had a suspicion of fraud, but no probable cause. The
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court further concluded the State had been reasonably diligent in its
investigation. The court found the State’s decision to release the video in
October 2014 was based on the legitimate purpose to hold back details
related to the purchase from the public so its investigation would not be
hampered by false claims and tips.
2. Further pretrial motions before the district court. Tipton also filed
a motion in limine to suppress, among other things, the “actions and
silence of Sonfield and Rhodes.” Evidence Sonfield and Rhodes made
themselves unavailable, Tipton argued, was not evidence of anything
against him. There could be multiple possible reasons, Tipton suggested,
Sonfield and Rhodes avoided speaking to investigators. This evidence,
Tipton concluded, was not probative, invited speculation, and was
unfairly prejudicial.
The State responded the evidence simply showed responsive
conduct by law enforcement. The district court overruled the motion and
allowed the evidence into the record at trial.
Shortly before trial, the State filed a motion in limine to prevent
Tipton from offering evidence that lottery computers in operation after
December 2010 showed no signs of tampering or the use of a rootkit.
The State asserted the evidence was irrelevant to the issues at trial.
Tipton noted the State must have thought the evidence relevant since
they had conducted the forensic tests.
The district court sustained the motion in limine. At trial, Tipton
made an offer of proof. The court adhered to its prior position, and the
evidence was not admitted.
3. Challenges to jury instructions. Tipton raised four challenges to
the proposed jury instructions. He sought instructions for the jury to
use in determining statute of limitations issues, sought additional
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language related to concepts of speculation and conjecture, and sought
an instruction that passing and redeeming were two separate offenses
and could not be charged as if they were a continuing offense.
Additionally, Tipton argued the instruction on the meaning of “attempt”
was inadequate.
Tipton proposed instructions to allow the jury to determine factual
issues related to the applicable statutes of limitations, including whether
the State acted with due diligence sufficient to allow for Iowa Code
section 802.5’s one-year fraud extension to provide a basis for late filed
information. The court declined to give Tipton’s proposed instructions.
Tipton’s second challenge related to Instruction No. 5. Instruction
No. 5 was a stock instruction of the Iowa State Bar Association.
Instruction No. 5 provided,
In considering the evidence, make deductions and
reach conclusions according to reason and common sense.
Facts may be proved by direct evidence, circumstantial
evidence, or both. Direct evidence is evidence from a witness
who claims actual knowledge of a fact, such as an
eyewitness. Circumstantial evidence is evidence about a
chain of facts which show a defendant is guilty or not guilty.
The law makes no distinction between direct evidence and
circumstantial evidence. Give all the evidence the weight
and value you think it is entitled to receive.
Tipton sought to add the following language: “Facts are not proven by
evidence that require[s] speculation or conjecture, or merely raises a
suspicion, however.” The State resisted on the ground that Instruction
No. 5 was a standard instruction. The district court declined to give
Tipton’s proposed instruction.
Tipton’s third challenge was to Instruction No. 20. Instruction
No. 20 gave one instruction on the passing or attempting to redeem the
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lottery ticket charge. 2 Tipton argued this instruction permitted each
member of the jury to find the defendant committed a different instance
of passing or attempting to redeem the ticket without agreeing between
them on any one instance and thus deprived Tipton of his right to a
unanimous jury verdict and due process. The State asserted Count I
was a continuing offense, and so the instruction was proper. The court
agreed with the State.
Tipton’s fourth challenge was to Instruction No. 32. In Instruction
No. 32, the district court instructed the jury that the term “attempt”
means “to try to do something.” Tipton objected to the instruction and
proposed a much more elaborate instruction.
C. Trial Proceedings. Fighting issues at trial included whether
Tipton, in fact, was the person purchasing the winning Hot Lotto ticket
and whether Tipton could have possibly tampered with the RNG
computers that selected the December 29, 2010 Hot Lotto jackpot
winner.
A number of the State’s witnesses identified Tipton as the
purchaser of the winning Hot Lotto ticket on December 23, 2010, based
on the video and audio recording of the purchase of the winning ticket.
Michael Boardman, who worked as a marketing manager of the Maine
lottery and who responded to the published video and audio release in
October 2014, testified Tipton was the purchaser. Boardman identified
Tipton as the person in the recording “[p]rimarily because . . . his voice
on the video . . . is very distinct, very recognizable, very characteristic.”
Boardman also found “the way he moved and shuffled around in his
2By the time of trial, the State abandoned any claim Tipton “uttered” a lottery
ticket under Iowa Code section 99G.36(1).
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pockets to get things out” to be characteristic of Tipton. Boardman
admitted, however, he could not visually identify the person in the video
and when he called authorities in response to the video and audio
recording, he stated cautiously that the possibility the person was Tipton
“was something that needs to be investigated.”
Kathleen Farnsworth-Cubit, who worked at the Iowa lottery and
knew Tipton, testified the voice she heard on the recording “beyond any
doubt whatsoever” was Tipton. Tipton, Farnsworth-Cubit testified, had a
“very distinctive way of speaking.” Like Boardman, Farnsworth-Cubit
identified the defendant to authorities after the release of the video and
audio recording of the purchase of the winning Hot Lotto ticket. On
cross-examination, Farnsworth-Cubit stated the words “thank you” and
“hello” led her to identify Tipton. But a transcript of the record suggested
the convenience store clerk had said the “hello” and the customer in fact
said “no thanks,” not “thank you.” Noelle Kruger and Kathy Renaud,
both drawing managers at MUSL, also identified the audio on the
recording as Tipton’s voice. As with Farnsworth-Cubit, however, cross-
examination revealed these witnesses did not remember the exact words
Tipton spoke on the recording.
Ed Stefan, a friend of Tipton’s who co-owned a patent with him,
served as Chief Information and Security Officer for MUSL until April
2014. He testified regarding the video and audio recording,
That’s Eddie. But he’s got like—why is he wearing a
hoodie? I’ve never seen Eddie in a hoodie. Didn’t know he
had a black jacket. So it looks just like Eddie. It sounds
just like Eddie. It acts just like Eddie. The mannerism are
just like Eddie.
At his pretrial deposition, however, Stefan testified everything he knew
about Tipton “screamed” the man in the recording could not be him. Yet,
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witnesses Jason Maher, a network engineer for MUSL, and Chuck Strutt,
a MUSL executive director, also identified Tipton from the recording.
Other witnesses testified as to Tipton’s knowledge of lottery
computer programs, security protocols, and rootkits. Stefan testified it
would be possible for a person to install a rootkit on the RNG computers
with a thumb drive and the rootkit could dictate the numbers chosen for
the lottery in a fashion to evade security and integrity checks. Strutt
testified Tipton had given presentations on rootkits and even kept some
rootkit software on his MUSL computer. Maher testified Tipton
developed the software that “actually picked the numbers for the Hot
Lotto game,” thus giving him knowledge of the software that would assist
in the development of a rootkit to take control of the system. He also
testified that the manner used to verify the RNG program’s hash
output—a digital security signature used to verify the program was not
tampered with—would not check for rootkits.
Finally, the State offered testimony that Tipton had access to the
RNG computers on November 20, 2010. According to the State’s
witnesses, when Tipton engaged in the time-change operation he had
“full access, full control” over the RNG computers. Although there were
ordinarily video recordings of the draw room where the RNG computers
were kept, there was a malfunction in the security cameras, which
resulted in only one second recorded out of every minute.
Tipton offered five witnesses. Mike Kirchner, a DCI employee,
examined Tipton’s cell phone records and came up with photos of Tipton
as clean shaven, unlike the purchaser of the winning Hot Lotto ticket,
who some witnesses believed appeared to be bearded.
Kathy Renaud, a MUSL employee, testified she was in the draw
room on November 20, 2010, along with others and observed nothing
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unusual. She testified that in order to reach the USB port on the RNG
computers to download a program from a thumb drive, a person would
have to extend a forearm down into the case. She also testified Tipton
was clean shaven at the January 16, 2011 Christmas party. She did not
recognize the person in the video purchasing the winning ticket as Tipton
but believed the voice was his.
Three relatives of Tipton—his sister, younger brother, and another
brother—generally testified the person in the video was smaller than
Tipton. They also noted Tipton did not have a beard, with his younger
brother testifying Tipton had bald spots on his cheeks and could not
grow one.
The jury found Tipton guilty on both counts. He was sentenced to
a five-year indeterminate prison sentence, each count to be served
consecutively, for a total of ten years.
D. Issues Raised on Appeal. On appeal, Tipton raises a wide
range of issues. He contends the district court erred in failing to dismiss
the charges as untimely under Iowa Code section 802.3. He asserts the
verdicts were not supported by substantial evidence. He claims the court
erred in admitting testimony regarding the course of the investigation—
evidence that Johnston cooperated and Sonfield and Rhodes declined to
talk to investigators. Tipton also asserts the court erred in failing to
allow him to introduce evidence that the RNG computers after
December 29, 2010, did not appear to have been tampered with. Finally,
Tipton challenges the failure to give his proposed instructions on the
statute of limitations and Instruction Nos. 5, 20, and 24 on the same
bases raised before the district court.
The court of appeals first considered whether fraudulent passing
and redeeming and tampering were continuing offenses under Iowa Code
20
section 802.7. The court concluded they were not. As a result, the court
concluded the State could not escape the three-year statute of limitations
in Iowa Code section 802.3 on the ground that the crimes amounted to
continuing offenses.
The court of appeals next turned to the question of whether the
charges could be saved by operation of the one-year extension of the
statute of limitations under Iowa Code section 802.5. With respect to the
fraudulent passing and redeeming charge, the court concluded the State
was on notice of such crimes by December 29, 2011, and as a result, the
one-year statute did not save the charge from the operation of the three-
year statute of limitations in Iowa Code section 802.3.
For the tampering count, however, the court of appeals came to a
different conclusion. The court first determined the tampering charge
had an element of fraud and thus the provisions of Iowa Code section
803.5 were applicable. The court found the State did not have any
knowledge the crime of tampering had occurred until October 2014 when
Tipton was identified from the video recording as the person purchasing
the winning Hot Lotto ticket. As a result, the court concluded the
tampering charge was timely.
The court of appeals further held there was substantial evidence
supporting the tampering charge. Summarizing the evidence, the court
emphasized a reasonable juror could have found Tipton, an experienced
security employee of the MUSL, had drafted and edited the security
policies associated with lottery ticket claims and developed the software
for the program that actually picked the numbers for the Hot Lotto game.
Further, the court held a jury could have found Tipton had extensive
knowledge of rootkits, which could be used to rig the drawing. In
addition, the court found a reasonable juror could have found that on
21
November 20, 2010, Tipton had access to the lottery computers that
selected the winning numbers of the December 23 drawing. According to
the court of appeals, a reasonable juror could have found that on
November 20 Tipton had the opportunity to insert a thumb drive into the
computer to install a rootkit on the system. Further, the court stressed,
the fact that the purchaser of the winning ticket on December 23
purchased two tickets suggested the purchaser was aware the lottery
had two computers and selected at random which computer would be
used to pick the winning numbers. Based on this evidence, the court
determined a reasonable juror could have concluded that Tipton
tampered with the lottery computers in order to influence the outcome of
the Hot Lotto drawing.
The court of appeals held the district court did not err in
prohibiting the introduction of evidence that there were no instances of
unauthorized or unaccounted for insertions of external drives or devices
in lottery computers after December 2010. The court noted the State
charged Tipton with tampering with the computers on a specific date,
November 20, 2010, and there was no error in refusing to introduce
evidence regarding the state of lottery computers after that date.
On the only instructional challenge related to the tampering
charge, the court of appeals found no reason to reverse the conviction.
The court noted with respect to Tipton’s proposed additional language to
Instruction No. 5 regarding speculation and conjecture, the district court
did not err in its conclusion that the same information was included in
other instructions.
22
II. Statute of Limitations.
A. Introduction. This case raises six statute of limitations issues
related to two crimes and three theories of extension of the statute of
limitations time period.
Generally speaking, the purpose of a statute of limitations is to
“prevent fraudulent and stale actions from arising after a great lapse of
time while still preserving the right to pursue a claim for a reasonable
period of time.” State v. Walden, 870 N.W.2d 842, 845 (Iowa 2015)
(quoting State v. Gansz, 376 N.W.2d 887, 891 (Iowa 1985)). Criminal
statutes of limitations are “designed to protect individuals from having to
defend themselves against charges when the basic facts may have
become obscured by the passage of time and to minimize the danger of
official punishment because of acts in the far-distant past.” Id. (quoting
Toussie v. United States, 397 U.S. 112, 114–15, 90 S. Ct. 858, 860
(1970)). Statutes of limitations also may “have the salutary effect of
encouraging law enforcement officials promptly to investigate suspected
criminal activity.” Id. at n.1 (quoting Toussie, 397 U.S. at 115, 190 S. Ct.
at 860). They provide “predictability by specifying a limit beyond which
there is an irrebuttable presumption that a defendant’s right to a fair
trial would be prejudiced.” United States v. Marion, 404 U.S. 307, 322,
92 S. Ct. 455, 464 (1971). Inherent in a statute of limitations, however,
is that their operation “may permit a rogue to escape.” Toussie, 397 U.S.
at 123, 90 S. Ct. at 865 (quoting Pendergast v. United States, 317 U.S.
412, 418, 63 S. Ct. 268, 271 (1943)).
Statutes of limitations have traditionally been “liberally construed
in favor of criminal defendants.” 5 Wayne R. LaFave, et al., Criminal
Procedure § 18.5(a), at 210 (4th ed. 2015) [hereinafter LaFave]. We follow
the prevailing view by resolving doubts in favor of the accused when
23
construing statutes of limitations. Id.; accord Walden, 870 N.W.2d at
845; State v. Francois, 577 N.W.2d 417, 418 (Iowa 1998). The State
bears the burden of proof of demonstrating the charges are timely
brought. State v. Howard, 610 N.W.2d 535, 537 (Iowa Ct. App. 1999);
see also People v. Zamora, 557 P.2d 75, 92 n.25 (Cal. 1976) (en banc);
City of Cleveland v. Hirsch, 268 N.E.2d 600, 602 (Ohio Ct. App. 1971);
Commonwealth v. Hawkins, 439 A.2d 748, 750 (Pa. Super. Ct. 1982).
B. Standard of Review. We review claims that a charge should
be dismissed because it was barred by the statute of limitations for
correction of errors at law. State v. Burgess, 639 N.W.2d 564, 567 (Iowa
2001); see State v. Wilson, 573 N.W.2d 248, 251 (Iowa 1998) (analyzing a
statute-of-limitations issue for errors at law because “the proper meaning
of a statute is a legal question”).
C. Relevant Statutory Provisions. The general statute of
limitations for serious criminal offenses is provided in Iowa Code section
802.3. It provides that an indictment or information for a felony or
aggravated or serious misdemeanor “shall be found within three years
after its commission.” Iowa Code § 802.3. There are, however, two
potentially applicable exceptions to the general three-year statute of
limitations in Iowa Code section 802.3.
A potentially applicable exception to the generally applicable three-
year statute of limitations is provided in Iowa Code section 802.7. Under
Iowa Code section 802.7, “[w]hen an offense is based on a series of acts
committed at different times, the period of limitations prescribed by this
division shall commence upon the commission of the last of such acts.”
A second potentially applicable exception is Iowa Code section
802.5. This exception to the generally applicable three-year statute of
limitations provides, in pertinent part, “for any offense a material element
24
of which is . . . fraud,” prosecution may be commenced after the
expiration of the three-year statute of limitations if the prosecution
begins “within one year after the discovery of the offense by an aggrieved
party . . . but in no case shall this provision extend the period of
limitation otherwise applicable by more than three years.” Id. § 802.5.
D. Positions of the Parties.
1. Fraudulent passing or redeeming charge. With respect to the
fraudulent passing or redeeming charge, Tipton argues the lottery ticket
in question was fraudulently passed and attempted to be redeemed no
later than December 29, 2011. The three-year statute of limitations,
Tipton argues, thus began to run on the date the crime was completed.
See Pendergast, 317 U.S. at 418, 63 S. Ct. at 271; United States v.
Gonzales, 495 F.3d 577, 580 (8th Cir. 2007); State v. Kay, 349 P.3d 690,
693–94 (Utah 2015). According to Tipton, subsequent acts after the
offense charged may tend to prove the charge but cannot be used to
extend the statute of limitations. See Grunewald v. United States, 353
U.S. 391, 401–02, 77 S. Ct. 963, 972 (1957). As a result, Tipton argues,
the State’s prosecution, which commenced on January 15, 2015, was
untimely under Iowa Code section 802.3 and must be dismissed.
Tipton addresses the two possible statutory exceptions that might
extend the time for bringing charges beyond the generally applicable
three-year statute of limitations of Iowa Code section 802.3. With
respect to the continuing offense exception of section 802.7, Tipton
argues the crime of fraudulent passing or redeeming is not a continuing
offense but is instead a crime based upon discrete acts. Tipton asserts
Iowa Code section 802.7 has no application and cannot rescue the
fraudulently passing or redeeming charge from the three-year limitation
established in section 802.3.
25
With respect to the one-year statutory extension of the statute of
limitations for fraud-type crimes in Iowa Code section 802.5, Tipton
argues the State was on notice of the potential crime when Johnston
attempted to redeem the ticket in November 2011 and the ticket was
presented to the lottery on December 29, 2011. Tipton cites Wilson in
support of his position. According to Tipton, Wilson stands for the
proposition that the one-year fraud extension is triggered when the state
is put on “inquiry notice” of the offense. 573 N.W.2d at 253. Tipton
argues once a party is aware that a “problem” exists, the party has a
duty to investigate. Id. Tipton reasons the pertinent date for triggering
the one-year fraud extension is when the State was placed on notice of
the need to investigate, not the date from which probable cause was
actually developed. Tipton points to language in Wilson stating that
discovery “occurs when the authorities know or should know in the
exercise of reasonable diligence that there is probable cause to believe a
criminal fraud has been committed.” Id. at 254. According to Tipton,
“sitting on, but not using, a critical piece of evidence for almost three
years after suspecting fraud” is not diligent.
The State offers a multilayered response to Tipton’s statute of
limitations arguments. First, the State suggests the statute of limitations
did not begin to run in this case until January 17, 2012. On that date,
Shaw met with lottery officials in another effort to secure payment for the
winning lottery ticket. According to the State, it is from this last act that
the three-year statute of limitations should be measured. Under this
theory, the criminal charge of fraudulent passing or redeeming brought
on January 15, 2015, was within the three-year statute of limitations.
In the alternative, the State asserts the continuing offense
exception in Iowa Code section 802.7 was fully applicable. According to
26
the State, fraudulent passing or redeeming a lottery ticket was a
continuing offense that extended at least through January 17, 2012.
As a second alternative, the State argues the one-year statute of
limitations extension in Iowa Code section 802.5 applies. According to
the State, the crime of fraudulent passing and redeeming is the kind of
crime that qualifies for the one-year extension. Further, according to the
State, the one-year extension runs from October 2014, when Tipton was
identified as a potential purchaser of the ticket. The State argues the
one-year extension of the statute of limitations is triggered when the
State knows, or in the exercise of reasonable diligence should have
known, there is probable cause that a defendant has committed the
crime. According to the State, it did not have probable cause that Tipton
committed the crime of fraudulent passing and redeeming until he was
identified as the purchaser after the release of the video in October 2014.
Prior to that time, according to the State, there were obvious concerns
about the transaction, but the State had no awareness of Tipton’s
involvement.
2. Tampering with intent to influence. Tipton argues the tampering
charge arises from the allegation that on a specific date, namely,
November 20, 2010, Tipton rigged the lottery’s computers. According to
Tipton, the crime was complete on this discrete date, thereby triggering
the general statute of limitations in Iowa Code section 802.3. Because
the prosecution commenced more than three years after the date the
crime was complete, Tipton argues prosecution is barred.
With respect to the continuing offense exception to Iowa Code
section 802.7, Tipton argues the charge of tampering is not a continuing
offense under the statute. As with the fraudulent passing and redeeming
27
charge, Tipton claims the three-year statute of limitations began to run
when the crime was complete.
Turning to the one-year extension for crimes contained in Iowa
Code section 802.5, Tipton asserts the tampering offense does not fall
within the scope of the statute because fraud is not an element of the
offense as charged by the State in Count II of the trial information.
Tipton emphasizes under the jury’s instruction in this case, the State
was not required to prove fraud, fraudulent intent, or deceit. Tipton
notes while Iowa Code section 99G.36(2) contains a “use of fraud”
alternative, this alternative was not submitted to the jury. Tipton asserts
that in order for the one-year extension to apply, fraud must be one of
the elements the State is required to prove.
Tipton further asserts even if the statute applies, the State was on
inquiry notice no later than January 2012. By that time, Johnston had
called the lottery falsely claiming to have purchased the winning ticket,
the ticket had been presented to the lottery by lawyers representing a
trust with the purchaser remaining undisclosed, and the claim was
ultimately withdrawn on January 27. At this point, according to Tipton,
the lottery officials were on inquiry notice that nefarious activity was
involved with the December 23, 2010 Hot Lotto drawing.
In the alternative, even if the State was not on notice of the
potential tampering until October 2014, when Tipton was identified as a
potential purchaser of the winning ticket, Tipton argues the State may
not invoke Iowa Code section 802.5 because its investigation was not
diligent. According to Tipton, the one-year extension begins to run when
the State knew or should have known of the facts indicating the offense
of tampering may have been committed. Tipton asserts the State was
28
not diligent in delaying the release of the video until October 2014,
almost three years after the crime of tampering was committed.
The State primarily argues the tampering charge is timely through
operation of the continuing offense and one-year fraud extensions to the
general statute of limitations. With respect to the continuing offense
exception of the statute of limitations, Iowa Code section 802.7, the State
argues the impact of tampering with the computers continued past
November 20, 2010, until at least January 27, 2012, when Shaw
withdrew the claim related to the lottery ticket.
In the alternative, the State asserts it is entitled to the benefit of
the one-year fraud extension in Iowa Code section 802.5. The State
asserts fraud is a material element of tampering. While the State
concedes the jury instruction related to Count II did not include the word
“fraud,” the State suggests the very essence of the tampering charge is to
influence the lottery and defeat its purpose in a fraudulent manner.
The State next argues, based on Wilson, the one-year fraud
extension has two elements, a probable cause element and a due
diligence element. 573 N.W.2d at 254. With respect to the probable
cause element, the State asserts in order to trigger the statute, the State
must know there is probable cause to believe that an offense has been
committed by a specific defendant. The State argues it had no idea of
Tipton’s potential involvement until October 2014 when the lottery
released the videotape showing the December 23, 2010 ticket purchase.
On the due diligence element, the State argues it was reasonable to
withhold the release of the video until October 2014. According to the
State, keeping the video confidential was important to the investigation
in order to allow the State to properly investigate claims related to the
purchase of the ticket. For example, the State notes it was able to
29
establish Johnston was not the original purchaser of the ticket because
his description of what he was wearing on the day he allegedly purchased
the ticket did not match the details evident in the video. According to the
State, withholding certain facts about a crime in order to be in a position
to better evaluate claims is a standard law enforcement technique. It
was essential to keep the video secret for most of the investigation, the
State asserts, because the information in the video was the only way the
State had of disproving potential claims.
E. Application of Continuing Offense Doctrine in Iowa Code
Section 802.7.
1. Overview of the continuing offense doctrine. Under Iowa Code
section 802.7, “[w]hen an offense is based on a series of acts committed
at different times, the period of limitations prescribed by this division
shall commence upon the commission of the last of such acts.” We have
repeatedly held this provision is an expression of the continuing offense
exception to the statute of limitations. See Francois, 577 N.W.2d at 421
(holding the crime of absence from custody is a continuing offense); State
v. Olson, 249 Iowa 536, 552, 86 N.W.2d 214, 224 (1957) (holding the
statute of limitations on a conspiracy does not begin to run until the last
overt act is committed in furtherance of the conspiracy); State v. Sloan,
55 Iowa 217, 219, 7 N.W. 516, 517 (1880) (holding a bigamous marriage
is a continuing offense so long as the couple continuously cohabitates);
see also 21 Am. Jur. 2d Criminal Law § 248, at 381–82 (2016); 22A
C.J.S. Criminal Procedure and Rights of Accused § 596, at 386–87 (2016);
Jeffrey R. Boles, Easing the Tension Between Statutes of Limitations and
the Continuing Offense Doctrine, 7 Nw. J.L. & Soc. Pol’y 219, 229 (2012)
[hereinafter Boles].
30
The characterization of a crime as a continuous one rather than a
crime based on discrete acts has an important consequence for the
operation of statutes of limitations. When a crime involves discrete acts,
the statute of limitations ordinarily begins to run at the moment when all
the elements of the crime have been satisfied. See Boles, 7 Nw. J.L. &
Soc. Pol’y at 229. With a continuous crime, however, the crime is not
complete until the last related act is committed. See generally Andrew P.
O’Shea, Note, Criminal Law—An Embezzlement Intermezzo: Scheming to
Side-Step Toussie v. United States’s Continuing Offense Test, 35 W. New
Eng. L. Rev. 249, 254–55 (2013) [hereinafter O’Shea].
An influential modern treatment of the continuing offense doctrine
is Toussie, 397 U.S. 112, 90 S. Ct. 858. In Toussie, the defendant was
convicted of failing to register for the draft. Id. at 112, 90 S. Ct. at 859.
The question before the United States Supreme Court was whether the
offense of failure to register for the draft was a continuing offense for
purposes of the applicable statute of limitations. Id. at 114, 90 S. Ct. at
860.
The Toussie Court emphasized the general purposes of the statutes
of limitations, noting that they protect individuals from defending
themselves against charges obscured by the passage of time and may
have a salutary effect by encouraging law enforcement to promptly
investigate crime. Id. at 114–15, 90 S. Ct. at 860. The Court
emphasized the doctrine of continuing offenses should “be applied in
only limited circumstances” because of the tension between the purpose
of the statute of limitations and the continuing offense doctrine. Id. at
115, 90 S. Ct. at 860.
In order to determine whether such limited circumstances were
present, the Toussie Court developed a two-pronged test. Id. To find an
31
offense to be a continuing one, the Court held either “the explicit
language of the substantive criminal statute [must] compel[] such a
conclusion, or the nature of the crime involved is such that Congress
must assuredly have intended that it be treated as a continuing one.” Id.
Although the Court stated the test it adopted should not mean a crime
should never be construed as a continuing one, it is clear the Toussie
test is quite demanding and requires great confidence that the legislature
intended the statute of limitations to be avoided by such crimes. See id.;
see also O’Shea, 35 W. New Eng. L. Rev. at 266.
Applying this test to failure to register for the draft, the Toussie
Court noted there was no language in the underlying statute “clearly
contemplat[ing] a prolonged course of conduct.” 397 U.S. at 120, 90
S. Ct. at 863. Thus, the first prong of the test was not met. Id. at 121,
90 S. Ct. at 863. The Court then turned to the second prong, noting
there is “nothing inherent in the act of registration itself which makes
failure to do so a continuing a crime.” Id. at 122, 90 S. Ct. at 864.
According to the Court, unlike conspiracy, where each day’s act presents
a renewed threat of the substantive evil Congress sought to prevent,
“draft registrations clearly were viewed as instantaneous events.” Id.
The Toussie Court closed by emphasizing the fact that failure to
register for the draft was not a continuing offense did not diminish the
gravity of the underlying offense. Id. at 123, 90 S. Ct. at 864. Yet, the
Court noted while Congress had imposed criminal penalties for failure to
register for the draft, it also enacted a statute of limitations. Id. at 123,
90 S. Ct. at 864–65. The Court recognized “[e]very statute of limitations,
of course, may permit a rogue to escape.” Id. at 123, 90 S. Ct. at 865
(quoting Pendergast, 317 U.S. at 418, 63 S. Ct. at 271). But, the Court
32
emphasized, the congressional will reflected in the statute of limitations
must be honored. Id. at 124, 90 S. Ct. at 865.
We considered the application of the continuing offense doctrine in
State v. Hippler, 545 N.W.2d 568 (Iowa 1996). In Hippler, the defendant
had stolen an automobile a week before being involved in a collision
causing injuries to a driver that terminated her pregnancy. Id. at 569.
Hippler was charged with nonconsensual termination of a pregnancy
under Iowa Code section 707.8(1). Id. at 570. An element of the crime of
nonconsensual termination is the termination occurs “during the
commission of a felony.” Id. (quoting Iowa Code § 707.8(1) (1993)). The
question thus arose whether Hippler, who was driving an automobile
stolen prior to the accident and charged with theft by exercising control
over stolen property, was engaged in a continuous offense at the time of
the accident. Id.
We rejected the application of the continuing offense theory in
Hippler. Id. at 573. The Hippler court cited a number of state and
federal court cases that essentially followed the teaching of Toussie. Id.
at 572. Although not expressly relying on Toussie, we engaged in the
Toussie two-pronged analysis, noting nothing in the theft statute
suggested the crime was a continuous one, nor was the crime of theft
inherently continuing. Id. We noted under a continuing offense theory,
the statute of limitations for theft would be extended indefinitely if the
defendant maintained possession of the stolen property, a result the
legislature could not have intended. Id. at 573.
Shortly after Hippler, we revisited the continuing offenses question
in the context of the statute of limitations in State v. Harrison, 561
N.W.2d 28 (Iowa 1997) (per curiam). In Harrison, the defendant was
charged with theft by exercising control over stolen property. Id. at 28.
33
The property was alleged to have been stolen more than three years prior
to the filing of the criminal charge against Harrison. Id. The state
argued that theft by exercising control over the stolen property was a
continuing offense as long as Harrison possessed the property. Id. As a
result, according to the state, the three-year general statute of limitations
of Iowa Code section 802.3 was inapplicable. Id. The state urged us to
overrule Hippler as wrongly decided. Id.
The Harrison court rejected the state’s position. Id. at 30.
Considering the offense of exercising control over stolen property, we
held, consistent with Hippler, the offense was not a continuing one. Id.
at 29. Harrison directly cited Toussie’s demanding two-pronged test for
determining whether a crime was continuous. Id. Applying Toussie and
citing Hippler, the Harrison court emphasized the statute involved did not
expressly state it was a continuing offense and the nature of the crime
did not compel us to treat the crime as a continuing offense. Id.
Harrison recognized some jurisdictions employed a more generous view of
the continuing offenses doctrine in the context of various crimes
involving theft, but we emphasized “criminal limitations statutes are to
be liberally interpreted in favor of repose and the doctrine of continuing
offenses should be applied only in limited circumstances.” 561 N.W.2d
at 29 (emphasis omitted); see also Toussie, 397 U.S. at 115, 90 S. Ct. at
860. If we were to hold otherwise, the Harrison court observed,
prosecutions could be brought many years after the original taking,
involving stale evidence and putting defendants in the position of not
being able to obtain their own evidence for a proper defense. 561 N.W.2d
at 29.
We again considered the continuing offense extension in Francois,
577 N.W.2d 417. In Francois, the defendant was charged with the crime
34
of absence from custody more than eight years after she had failed to
present herself at the Woodbury County jail. Id. at 417. The question
was whether the charge was barred by the operation of the general
statute of limitations of Iowa Code section 802.3. Id.
The Francois analysis began by reviewing the principles of Harrison
and Toussie. Id. at 418. We emphasized the test of whether a crime is a
continuous one “is strictly applied in order to limit the circumstances
under which the continuing offense doctrine is utilized.” Id. We repeated
the language of Harrison that “criminal limitations statutes are to be
liberally interpreted in favor of repose.” Id. at 418 (quoting Harrison, 561
N.W.2d at 29).
The Francois court next applied the two-pronged Toussie test. Id.
With respect to the language of the statute, we determined the legislature
did not expressly state absence from custody was a continuing offense.
Id. While the legislature had amended the statute to substitute “is
absent” in place of “leaves,” the court concluded this statutory change
did not compel the conclusion the crime was a continuing offense. Id. at
418–19.
The Francois court then turned to the second prong of Toussie. Id.
at 419. We canvassed the law related to escape crimes in general, noting
when a defendant claims necessity as a defense to the charge of escape,
the defendant has a continuing duty to turn themselves in after
escaping—if the defendant fails to do so after having obtained a position
of safety, the defense fails. Id. at 419–20. This, the court explained,
indicated the offense of escape was a continuing offense. Id. at 420. The
court surveyed cases from other jurisdictions and found they supported
the conclusion that escape crimes were continuing offenses. Id. Then,
after holding there was no material difference between an escape crime
35
and the crime of absence from custody, the court concluded the nature
of the offense demonstrated the legislature’s intent to make the crime a
continuing offense. Id. at 421.
In Francois, we distinguished Hippler on the grounds that with
respect to the crime of escape, “there is a continued danger to society
when a person, whom the court has determined should be in custody,
remains at large.” Id. We further noted, unlike in Hippler, the duty of an
escapee to return was a continuous duty. Id. Thus, the crime of escape
was one of the limited circumstances under the Toussie test where a
crime could be considered so inherently continuous that the legislature
must have intended it to avoid the ordinary application of the general
statute of limitations. Id.
In Hippler, 545 N.W.2d at 572, Harrison, 561 N.W.2d at 29, and
Francois, 577 N.W.2d at 419–21, we examined the nature of the crimes
categorically to determine whether the continuing offense exception to
the statute of limitations was applicable. In Hippler, 545 N.W.2d at 572,
and Harrison, 561 N.W.2d at 29, we considered whether the statutory
crime of theft by exercising control over stolen property would amount to
a continuing offense. Similarly, in Francois, 577 N.W.2d at 420, we
considered whether escape crimes as a category were continuing
offenses.
If the categorical test of Hippler, Harrison, and Francois is applied,
we think it clear fraudulent uttering, passing, and redeeming and
tampering with intent to influence are not continuing offenses. There is
nothing in either statute which explicitly provides that they are. Further,
the crimes are complete once the elements of the crime have occurred.
Unlike classic continuing offenses such as kidnapping, bigamy, or
36
possession, the evil sought to be prohibited does not inherently continue
on a daily basis.
The State argues, however, we should adopt a more expansive
approach to the continuing offense doctrine. The State draws our
attention to State v. Diorio, 83 A.3d 831 (N.J. 2014). In Diorio, the issue
was whether a complex, ongoing scheme involving multiple individuals
and businesses occurring over a period of time could be a continuing
offense. Id. at 833. In Diorio, there was evidence the defendant created a
fraudulent business with the intent to defraud others as long as possible.
Id. at 843. In essence, the court found the defendant was acting through
the fraudulent legal entity and its associates throughout the course of
the life of the entity. Id. The court found the last act occurring in the
scheme was the last date the defendant’s fraudulent business harmed
another by refusing to pay for shipped goods. Id. at 845. The State
invites us to engage in a similar type of analysis here.
There is a debate in the courts regarding the proper interpretation
of Toussie and the relationship between ongoing criminal conduct and
applicable statute of limitations. See generally Annotation, Possession of
Stolen Property as Continuing Offense, 24 A.L.R. 5th 132, 142–45 (1994).
Some authorities appear to utilize an ongoing-criminal-conduct theory
where the last criminal act occurs within the statute of limitations to
reach back and save prior related criminal acts from the statute of
limitations bar. See United States v. Bustamante, 45 F.3d 933, 942 (5th
Cir. 1993); United State v. Morales, 11 F.3d 915, 917 (9th Cir. 1993). In
these cases, the focus is not on an elements-of-the-crime test but instead
on the nature of the conduct charged by the prosecutor. See
Bustamante, 45 F.3d at 941–42 (finding defendant’s actions amounted to
a threat of continuing criminal activity during a four-year time period,
37
and thus, the crime of racketeering was not completed until the end of
the time period); Morales, 11 F.3d at 917–18 (applying continuing-
course-of-conduct theory to bribery payments for purposes of applying
later sentencing guidelines to earlier conduct, but distinguishing this
from a “continuing offense” in the Toussie sense).
The ongoing-criminal-conduct theory of continuing offenses was
addressed in United State v. Yashar, 166 F.3d 873 (7th Cir. 1999). In
Yashar, the defendant was charged with embezzlement of property of a
government agency valued at more than $5000 during a qualifying one-
year period. Id. at 875. Yashar was allegedly a “ghost” employee who
over a period of years collected wages and health insurance from the City
of Chicago for little or no work. Id. The defendant argued the $5000
threshold for the crime was not satisfied because many of the payments
received by Yashar were outside the five-year statute of limitations. Id.
The government responded by arguing the payments to Yashar were part
of an ongoing course of conduct and because the last act fell within the
five-year statute of limitations, the defendant was not entitled to
dismissal on statute of limitations grounds. Id. at 876.
The Yashar court rejected the government’s position, noting it
would treat a continuing course of conduct or scheme the same as a
continuing offense under Toussie. Id. at 877. The government’s position,
according to the court, in essence added a third prong to the Toussie
test—namely, a crime would be considered continuous whenever the
charged conduct is continuous in nature. Id. According to the Yashar
court, this new factor would swallow the second factor of Toussie and
depart from an approach that focused on the intent of the legislature in
favor of a test based upon the prosecutor’s charges and the language of
the indictment in a particular case. Id.; see also United States v. Jaynes,
38
75 F.3d 1493, 1506 & n.12 (10th Cir. 1996) (noting “a continuing offense
is not the same as a scheme or pattern of illegal conduct” and “[s]eparate
offenses may be part of a common scheme without being ‘continuing’ for
limitations purposes”); United States v. Silkowski, 32 F.3d 682, 689–90
(2d Cir. 1994) (distinguishing a continuing course of conduct from a
continuing offense).
The approach of Yashar and its insistence on the elements test of
Toussie has found some support among commentators. The Toussie test
has been characterized as “correctly focus[ing] on the intent [of the
legislature], given that the legislature creates and controls the terms of
both statutes of limitations and criminal offense statutes.” Boles, 7 Nw.
J.L. & Soc. Pol’y at 253. By focusing on the conduct as reflected in the
charging document, the charged conduct approach transfers power from
the legislature to the prosecutor. Id. at 246. Further, it has been
observed “[a] narrow approach to the continuing offense doctrine creates
a brighter line between crimes that are continuing offenses and the
crimes that are not.” O’Shea, 35 W. New Eng. L. Rev. at 275.
Consistent with our prior precedent, we reaffirm the elements of
the test for determining what a continuing offense is under Iowa Code
section 802.7. Our caselaw simply points in a different direction than
that advocated by the State in this case. See Francois, 577 N.W.2d at
418; Harrison, 561 N.W.2d at 29; Hippler, 545 N.W.2d at 573. Further, a
charge-based approach has the potential of cutting too deeply into the
generally applicable statute of limitations established by the legislature.
See Yashar, 166 F.3d at 877. Finally, our caselaw teaches us to
narrowly apply exceptions to the statute of limitations. See Walden, 870
N.W.2d at 845. We find no persuasive reason to depart from the
teaching of these authorities.
39
2. Application of continuing offense exception. In examining the
crime of fraudulently uttering, passing, and redeeming a lottery ticket in
Iowa Code section 99G.36(1), we think it clear it is not a continuing
offense. There is nothing in the text of section 99G.36(1) that suggests
fraudulently uttering, passing, or redeeming is a continuing offense. The
crime involves discrete acts that result in injury when the crime is
complete and does not involve ongoing harm such as the classic
continuing offenses of kidnapping, escape, or bigamy. Not surprisingly,
crimes of fraud typically have been found discrete rather than
continuous in nature. See United States v. Barger, 178 F.3d 844, 847
(7th Cir. 1999); United States v. Miro, 29 F.3d 194, 198 (5th Cir. 1994);
United States v. St. Gelais, 952 F.2d 90, 96–97 (5th Cir. 1992); United
States v. Niven, 952 F.2d 289, 293 (9th Cir. 1991), overruled on other
grounds by United States v. Scarano, 76 F.3d 1471, 1477 (9th Cir. 1996).
As a result, we conclude the continuing offense exception of Iowa Code
section 802.7 does not apply to the crime of fraudulently uttering,
passing, and redeeming a lottery ticket.
We come to the same conclusion with respect to the crime of
tampering under Iowa Code section 99G.36(2). The statute provides no
indication that the legislature regarded the offense as a continuing
offense. Like fraudulent uttering, passing, and redeeming, the crime
itself is complete when discrete acts have been completed. While the
effect of the crime may be ongoing, that is true in many common crimes
such as theft or stealing. We therefore conclude the continuing offense
exception is not available to the State on the tampering charge.
F. Applicability of Ongoing Criminal Conduct.
1. Overview of ongoing criminal conduct. Even though we reject
the State’s theory the offenses in this case amount to continuing
40
offenses, that is not the end of the matter. For even if the crimes
involved here are not continuing offense for purposes of Iowa Code
section 802.7, the State asserts because Shaw was attempting to redeem
the winning ticket on January 17, 2012, the charges are timely without
resorting to the continuing offenses exception.
2. Application of ongoing criminal conduct. We begin our
discussion by considering whether a theory of ongoing criminal conduct
has any applicability to Count II. In our view, the crime of tampering
was completed by December 23, 2010. The elements of the offense are
simply tampering with lottery equipment with intent to influence the
results. See Iowa Code § 99G.36(2). There are no further elements to
the crime. Under the State’s theory of the case, when Tipton left the
draw room on December 23, 2010, the offense was complete. He could
have been arrested and charged the instant he left the draw room. The
fact Shaw was seeking to redeem the winning ticket as late as January
17, 2012, has nothing to do with the elements of the crime. While the
redeeming efforts of Shaw might be circumstantial evidence in support of
the State’s claim that Tipton did, in fact, tamper with lottery equipment,
Shaw’s activities do not serve to extend the statute of limitations for the
completed offense.
Count I, however, alleges the defendant engaged in fraudulently
passing or redeeming a lottery ticket between November 10, 2010, and
January 17, 2012. And, on January 17, 2012, Shaw met with lottery
officials in a last effort to convince them to pay the proceeds.
We think any claim that Tipton passed or attempted to redeem the
lottery ticket as alleged in Count I occurring prior to January 15, 2012,
is time barred. For example, any passing of the winning lottery ticket
was clearly completed by December 29, 2011, when the winning ticket
41
was in the hands of lottery officials. To the extent the jury might have
considered the passing alternative in Count I, they considered an
alternative avenue of violating the statute that is time barred. Similarly,
to the extent the jury might have relied on Johnston’s attempt to redeem
on November 10 or regarded the events of December 29, 2011, as an
attempt to redeem, liability arising from these crimes is time barred as
well.
But the redeeming allegation in Count I arising from Shaw’s
conduct on January 17 is not time barred. Thus, while the passing
allegations of Count I fail as a matter of law, at least one of the
alternative methods of finding liability under Iowa Code section
99G.36(1)—namely, fraudulent redeeming—is not time barred. The
question thus arises as to the appropriate remedy where the State
charges an individual under three alternative theories, but where two of
the theories are time barred.
The State suggests that because evidence supports redeeming
based on the actions of Shaw on January 17, 2012, the jury’s guilty
verdict on Count I may be affirmed. The problem with that theory,
however, is in Iowa we have consistently held if a general verdict is
returned in which one theory should not have been submitted and we
cannot determine which theory the jury embraced, the verdict is flawed.
State v. Tyler, 873 N.W.2d 741, 754 (Iowa 2016); State v. Thorndike, 860
N.W.2d 316, 321 (Iowa 2015); State v. Hogrefe, 557 N.W.2d 871, 881
(Iowa 1996). We think this approach applies in the context of a jury
instruction that provides for three alternative methods of establishing an
offense. Here, the jury could easily have found Tipton guilty based on
fraudulently passing the lottery ticket, even though this statutory
alternative was time barred.
42
On the other hand, Tipton suggests because some of the
alternative theories were time barred, the entire charge is flawed. We do
not agree with this proposition, either. We draw analogy to a
multipronged offense where there is insubstantial evidence to support
some but not all of the alternative theories. The appropriate remedy in
these cases is a remand for a new trial on the viable theories remaining.
Hogrefe, 557 N.W.2d at 881. We think the same concept applies here.
In short, we find under the facts of this case, although the alternative
theories of fraudulent passing or redeeming were outside the statute of
limitations and are not continuing offenses, the question of whether
Tipton is guilty of a violation of Iowa Code section 99G.36(1) based upon
the January 17, 2012 redemption effort by Shaw is not time barred. See
United States v. Sunia, 643 F. Supp. 2d 51, 72 (D.D.C. 2009) (holding
dismissal not required “so long as some part of the criminal conduct
alleged occurred within the timeframe of the applicable statute of
limitations”).
G. Application of One-Year Fraud Extension of Iowa Code
Section 802.5.
1. Overview of fraud extension caselaw. We now turn to the
second statute offered by the State to avoid the three-year statute of
limitations in this case, the one-year fraud extension of Iowa Code
section 802.5. In the alternative to the continuing offense and ongoing-
criminal-conduct theories, the State urges this exception to the statute of
limitations applies to Counts I and II in their entirety.
Our key case construing the one-year fraud extension of Iowa Code
section 802.5 is Wilson, 573 N.W.2d 248. In Wilson, the defendants were
charged with theft by taking and theft by deception stemming from filing
a false insurance claim for a fictitious burglary in order to collect the
43
insurance proceeds. Id. at 249–50. The state charged the defendants
more than three years after the defendants cashed the insurance check.
Id. at 250. The district court dismissed the charges for falling outside
the statute of limitations. Id.
On appeal, we considered whether fraud was a material element of
the theft-by-taking charge and when discovery occurs for the purpose of
triggering the fraud extension. Id. at 250–51. We noted Iowa Code
section 802.5 was adapted from the Model Penal Code and a
Pennsylvania statute has an identical provision. So we examined
Pennsylvania caselaw to help us determine the meaning of “material
element” in our statute. Id. at 251–52. We explained a Pennsylvania
Superior Court case, Commonwealth v. Eackles, 428 A.2d 614 (Pa.
Super. 1981), had concluded fraud is not a material element of a theft by
taking. Wilson, 573 N.W.2d at 251. The Eackles court found
if fraud is to be a material element of the offense charged, it
would be necessary that it have some connection with the
harm or evil sought to be prevented. . . . To convict of theft
by unlawful taking, the Commonwealth is not required to
prove that the taking was accompanied by fraud in the legal
sense. Neither is fraud the harm or evil sought to be
prevented by the language making theft by unlawful taking a
crime.
428 A.2d at 619 (citation omitted). We agreed with the reasoning of the
Eackles court, stating, “We think the same reasoning applies to our one-
year extension for fraud crimes, and we adopt it.” Wilson, 573 N.W.2d at
252.
The legal test for when discovery occurs, we explained, includes “a
probable cause element and a due or reasonable diligence requirement.”
Id. We did not elaborate upon the nature of the probable cause element,
though we did cite State v. Bumpus, 459 N.W.2d 619, 624 (Iowa 1990),
for the proposition “probable cause exists if the totality of the
44
circumstances as viewed by a reasonable and prudent person would lead
that person to believe that a crime has been committed and that the
person arrested committed it.” Wilson, 573 N.W.2d at 253. We cited
cases involving discovery in our civil rules, noting “the civil discovery
exception to the statute of limitations incorporates an objective, due or
reasonable diligence investigation requirement.” Id. at 253–54. We
therefore held “discovery” for purposes of section 802.5 occurs “when the
authorities know or should know in the exercise of reasonable diligence
that there is probable cause to believe that a criminal fraud has been
committed.” Id.
A threshold question that arises in this case is whether the term
“fraud” or the elements of fraud must be expressly included in the
statutory definition of the offense in order to fall within Iowa Code section
802.5. We think the two-step Toussie approach to continuing offenses
also has applicability under the one-year fraud exception to the statute of
limitations. First, does fraud or its derivatives expressly appear in the
statute? Second, even if they do not, the second question is whether
fraud is an inherent part of the crime and, as a result, we can confidently
conclude the legislature intended the one-year extension of the statute of
limitations to apply. There is authority for this proposition in other
jurisdictions. See Alvarez v. State, 800 So. 2d 237, 238 (Fla. Ct. App.
2001); State v. Stan’s Contracting, Inc., 137 P.3d 331, 340 (Haw. 2006).
We do not think magic words are required so long as the evil of fraud is
inherent in the crime.
Another question is precisely when the clock starts to run under
the statute. While it is clear under Wilson there is a “should have
discovered” component of discovery under Iowa Code section 802.5, it is
not clear whether the extension begins to run when there is probable
45
cause of a particular crime, or whether it begins to run only when there
is probable cause that a specific offender committed the crime. 573
N.W.2d at 254. The language of the statute refers to discovery of “the
offense,” and not “the offender.” See Iowa Code § 802.5. Yet, in Wilson,
we quoted Bumpus and included a parenthetical on Bumpus indicating
probable cause existed against a particular defendant. Wilson, 573
N.W.2d at 253. The State seizes on the Bumpus citation and zealously
argues the one-year extension does not begin to run until the specific
offender is discovered or, in the exercise of due diligence, should have
been discovered.
There is little caselaw on the subject. Noted criminal procedure
scholar Wayne LaFave, however, declares a statute of limitations
commences upon “actual discovery” of the offense by authorities, which
“starts when the crime is discovered even if the identification of the
perpetrator is unknown.” LaFave § 18.5(a), at 214; see Taylor v.
Cruikshank, 148 P.3d 84, 91 (Ariz. Ct. App. 2006).
One case discussing this issue is Zamora, 557 P.2d 75. In Zamora,
the Supreme Court of California noted if a bank robbery is committed in
broad daylight but the criminals escape without being identified, the
limitation period is not tolled. Id. at 98 n.33; see also People v.
Crossman, 258 Cal. Rptr. 370, 372 (Ct. App. 1989) (“The identity of the
perpetrator of the crime is not an element of the discovery issue.”). Given
the use of the term “the offense” in the statute, we do not think an
individual perpetrator must be identified for the statute to begin to run.
On the other hand, we note the legislature has used the term “the
offense” in Iowa Code section 802.5. (Emphasis added.) As a result,
mere suspicion of general criminal wrongdoing of some kind does not
trigger the statute. Instead, for the discovery element in section 802.5 to
46
be triggered, the State must know or in the exercise of reasonable
diligence should have known there is probable cause to believe that “the
offense” has occurred. By “the offense,” we think it is clear it means the
specific offense charged in the indictment or information.
Another question not answered in Wilson is how the “should have
known” prong of Iowa Code section 802.5 actually operates. There is
language in Wilson, for instance, which draws parallels to the civil rules
of discovery. 573 N.W.2d at 253–54. Tipton seizes on this language and
concludes the civil approach of inquiry notice applies under Iowa Code
section 802.5. Under civil discovery, the statute of limitations begins to
run from the date the putative plaintiff is on inquiry notice of “a
problem.” Sparks v. Metalcraft, Inc., 408 N.W.2d 347, 352 (Iowa 1987).
The civil statute of limitations runs from the date of inquiry notice and
not from the date a reasonably diligent plaintiff would discover the actual
cause of action. Hook v. Lippolt, 755 N.W.2d 514, 521 (Iowa 2008).
Obviously, the Wilson court drew an analogy to the approach to the
statute of limitations in civil cases. 573 N.W.2d at 253–54. But this
analogy was in reference to the larger question of whether there should
be a “due diligence” aspect to discovery at all under Iowa Code section
802.5. See id. We do not believe our analogy to civil statutes of
limitations was designed to extend to all issues related to due diligence,
particularly in light of the statutory language of Iowa Code section 802.5
which provides the statute runs from one year from the date of discovery
of “the offense.” Further, we note the first prong of the Wilson test
requires “probable cause,” and not “reasonable suspicion” the offense
has been committed. 573 N.W.2d at 254; see State v. Jackson, 90 P.3d
793, 801–02 (Ariz. Ct. App. 2004) (rejecting inquiry notice in context of
criminal statute of limitation utilizing “discovery of the offense”
47
language). We think the best view of Iowa Code section 802.5 is the
statute begins to run on the date the State either has actual knowledge,
or in the exercise of reasonable diligence should have discovered, the
offense.
Finally, there is a question of the role of judge and jury in
assessing statute of limitations questions. We have had no occasion to
expressly consider the proper role of judge and jury in a criminal case
involving questions of due diligence under Iowa Code section 802.5. In
the civil context, however, we have held factual questions surrounding
the application of the civil discovery rule raised questions for the jury.
Frideres v. Schiltz, 540 N.W.2d 261, 267 (Iowa 1995). Our approach to
due diligence in statute of limitations questions in civil cases is
consistent with authorities in a number of other jurisdictions. See, e.g.,
Schillner v. H. Vaughan Clarke & Co., 134 F.2d 875, 879 (2d Cir. 1943);
McLendon v. Georgia Kaolin Co., Inc., 837 F. Supp. 1231, 1242 (M.D. Ga.
1993); Jim Walter Corp. v. Ward, 265 S.E.2d 7, 9 (Ga. 1980); Ruebeck v.
Hunt, 176 S.W.2d 738, 740 (Tex. 1943).
In Wilson, however, we noted the question of when the theft was
discovered was a question of fact and because the district court made no
factual determination, a remand to the district court was necessary. 573
N.W.2d at 254. This language arguably implies factual questions related
to discovery under Iowa Code section 802.5 are questions for the court.
LaFave adopts a binary approach to factual issues involving
statute of limitations problems in criminal cases. LaFave § 18.5(a), at
216. He opines while the jury determines whether a crime was
committed within the statute of limitations, “it is for the court to
determine by a preponderance of evidence whether certain facts (e.g.
defendant’s purported ‘fleeing from justice’) have affected what the time
48
limit is.” Id. LaFave’s view draws support from a number of federal
cases. Id. at 216 n.35; see United States v. Florez, 447 F.3d 145, 150 (2d
Cir. 2006); United States v. Greever, 134 F.3d 777, 781 (6th Cir. 1998);
United States v. Marshall, 856 F.2d 896, 901 (7th Cir. 1988); United
States v. Gonsalves, 675 F.2d 1050, 1052 (9th Cir. 1982).
The question has been considered by courts in Pennsylvania. In
Commonwealth v. Dunnick, the commonwealth sought to toll the statute
of limitations by invoking an exception to the statute which extended the
time for prosecuting a defendant who had concealed his whereabouts.
202 A.2d 542, 545 (Pa. 1964). The district court held the commonwealth
had failed to prove the defendant had concealed his whereabouts and
dismissed the claim on statute of limitations grounds. Id. at 546. The
Dunnick court reversed, holding factual issues related to the statute of
limitations were questions for the jury. Id.
Following Dunnick, a Pennsylvania court decided Commonwealth v.
Groff, a case of interest because of its procedural aspects. 548 A.2d
1237 (Pa. Super. Ct. 1988). In Groff, there was a factual question
regarding whether the defendant committed the charged offenses within
the statute of limitations. Id. at 1243. The court noted under
Pennsylvania law, a defendant must first raise the statute of limitations
defense at pretrial, otherwise it is waived. Id. at 1245 n.8. The court
held that “if the statute of limitations defense pose[d] a question of law,”
the district court could decide the question pretrial or at an appropriate
time during trial. Id. If, however, the statute of limitations defense
posed a question of fact, the court declared the judge should not decide
the issue but should present it to the jury. Id. When the evidence that
the statute of limitation had not run was unrebutted, however, the court
49
noted the trial judge may decline to submit the issue to the jury. Id. at
1247 n.10.
Some California courts have followed the approach of Dunnick and
Groff. To these courts, a defendant may raise a statute of limitations
claim in a pretrial motion, but the trial court may decide the issue only if
the facts are undisputed. People v. Le, 98 Cal. Rptr. 2d 874, 880 (Ct.
App. 2000). The pretrial motion raising a statute of limitations defense is
thus “the functional equivalent to a motion for summary judgment in the
civil context.” People v. Lopez, 60 Cal. Rptr. 2d 511, 522 (Ct. App. 1997).
A California court noted disputed questions, including the questions
related to the discovery of the offense, are questions of fact for the jury
and may not be resolved pretrial. Cf. Zamora, 557 P.2d at 93.
The Wisconsin Supreme Court embraced a somewhat different
approach in State v. MacArthur, 750 N.W.2d 910 (Wis. 2008). In
MacArthur, the state asserted the statute of limitations was tolled
because the defendant was not a public resident of the state. Id. at 913.
The defendant argued the district court should only perform a gateway
function. Id. at 923. According to the defendant, if the state presented
sufficient evidence to convince a jury beyond a reasonable doubt the
defendant was no longer a public resident of the state, thereby tolling the
statute, the matter should proceed to the jury. Id. The state urged the
court to adopt an approach consistent with the federal courts. Id.
Citing LaFave, the MacArthur court held the question of whether
there is a preponderance of evidence to support the tolling of the statute
of limitations is a question for the court to decide. Id. at 923; see LaFave
§ 18.5(a), at 216. According to the court, the state must show pretrial by
a preponderance of evidence that the charges are within the statute of
limitations. MacArthur, 750 N.W.2d at 923. The jury, however,
50
determines “the date or date range of the charged offense beyond a
reasonable doubt.” Id. In other words, the court held, the jury
determines if the acts giving rise to the criminal offense fell within the
statute of limitations, but the applicable time period of the statute of
limitations is determined by the court. Id.
The MacArthur court defended its approach by noting, among other
things, the limitations issue is decided prior to trial, which thus prevents
an untimely prosecution. Id. Further, according to the MacArthur court,
because the question of whether a defendant was a public resident was
not an element of the underlying crime, proof beyond a reasonable doubt
was not required. Id. Finally, the court noted compliance with a statute
of limitations is required for the court to have personal jurisdiction over
the defendant, and jurisdictional questions typically pose a question of
law for the court to decide. Id. at 923–24.
We conclude the best view is that offered by LaFave and supporting
authorities, namely that the question of whether certain criminal
conduct fell within the parameters of the statute of limitations is for the
jury, but setting the parameters themselves is a question for the trial
court. The elements required to invoke relief pursuant to the statute of
limitations are not elements of the crime, which must be proved beyond a
reasonable doubt, but preliminary questions regarding the scope of
legislative grace provided by the statutes, which may be decided by a
preponderance of the evidence. A question regarding the scope of a
statute of limitations is akin to a question of jurisdiction in a criminal
case, which ordinarily presents a question to be decided by the trial
court in the first instance, and not by the jury. Our approach is
consistent with Wilson, where we at least implied that factual
51
determinations regarding the scope of the statute of limitations were
matters for the court to decide. 573 N.W.2d at 254.
2. Application of one-year fraud extension to fraudulent passing
and redeeming charge in this case. We begin with the question of
whether the crimes charged qualify as crimes subject to extension under
Iowa Code section 802.5. Under our caselaw, fraud is a material element
of a crime if the State is (1) required to prove fraud as an element of the
crime or (2) the harm or evil sought to be prevented by the statute.
Wilson, 573 N.W.2d at 252; see also Eackles, 428 A.2d at 619. Iowa
Code section 99G.36(1) meets both tests—it contains an element of
fraud, and in any event, fraud is the evil sought to be prevented by the
statute.
Once the crimes are found to qualify for the one-year fraud
extension, the next question is whether the State has met the necessary
substantive requirements. In this case, the test under Wilson is whether
the state had (1) probable cause to believe the crime had been committed
prior to January 15, 2012, or (2) in the exercise of due diligence
reasonably should have known probable cause was present. 573 N.W.2d
at 254.
The district court determined the State did not have actual
probable cause to believe the crime of fraudulent passing or redeeming
had been committed until release of the video and audio recording of the
purchase and subsequent identification of Tipton in October 2014. The
court then considered whether the State had exercised due diligence or
whether the State should have uncovered the crime at an earlier date.
The court found the State had exercised due diligence, noting the
withholding of evidence as an investigative tool was a common and
reasonable practice.
52
We turn first to the question of whether the State actually had
probable cause at an earlier date. Prior to January 15, 2012, the lottery
unquestionably knew Johnston had knowledge of the identification
numbers on the winning ticket, Johnston did not purchase the ticket,
and the winning ticket was physically turned over to the lottery by
lawyers acting on behalf of a Belizean trust whose representatives
steadfastly refused to identify the purchaser. Nondisclosure of the
purchaser was thus more important to the trust than a payment of $16.5
million.
At this point, did the State have probable cause to believe the
fraudulent passing or redeeming provisions of Iowa Code section
99G.36(1) had been violated? There was, of course, actual suspicion,
and the lottery—prudently as it turned out—contacted DCI and did not
pay the proceeds in light of its suspicions. But did the suspicion arise to
probable cause to believe Iowa Code section 99G.36(1) had been violated?
We think the answer to this question is yes. By January 2012, the
State knew it had probable cause to believe someone was attempting to
be paid who was not entitled to the proceeds. That is the most likely
explanation behind why the holders of the ticket refused to disclose the
owner. The likelihood the undisclosed purchaser was not a qualified
purchaser and the attempt to redeem the ticket was a fraudulent attempt
to obtain an illegal payment was very high. While there might
conceivably be innocent explanations, probable cause does not require
certainty. Illinois v. Gates, 462 U.S. 213, 246, 103 S. Ct. 2317, 2336
(1983) (“[P]robable cause does not demand the certainty we associate
with formal trials.”). Instead, “only the probability . . . of criminal
activity” is enough. Spinnelli v. United States, 393 U.S. 410, 419, 89
S. Ct. 584, 590 (1969), abrogated on other grounds by Gates, 462 U.S. at
53
238, 103 S. Ct. at 2332. By January 2012, the State knew someone was
probably seeking to fraudulently redeem the ticket through the artifice of
a Belizean trust and nondisclosure of the purchaser.
3. Application to tampering charge. We begin by considering
whether tampering is the kind of crime subject to the one-year fraud
extension of Iowa Code section 802.5. The State did not specifically have
to prove fraudulent intent as part of the element of the crime, as the jury
instructions show. But the crime of tampering with lottery equipment
with intent to influence the outcome of a game amounts to an attempt to
fraudulently win the prize. While “fraud” is listed as one of the methods
a person may use to influence the winning of the prize and this method
was not submitted to the jury, all of the other methods of violating the
tampering statute involve the goal of obtaining a lottery payout through
what is in essence a misrepresentation or omission of material fact. The
purpose of the lottery is to be random and not give any individual the
ability to influence the outcome in their favor. Influencing the outcome
through “tampering” is to commit a fraud on the State as the operator of
the lottery. We therefore conclude the one-year fraud extension of the
statute of limitations in Iowa Code section 802.7 is available when the
crime charged is tampering under Iowa Code section 99G.36(2).
Because tampering is within the scope of Iowa Code section 802.7,
the next question is whether the prosecution commenced within the
extended period of time afforded by the statute. That question requires a
determination of when the state “discovered” or “should have discovered”
there was probable cause the crime of tampering had been committed
under Iowa Code section 99.36(2). The State did not have actual
knowledge of probable cause of tampering until Tipton was identified in
54
October of 2014. The question remains, however, whether the State
exercised due diligence in investigating the crime.
The district court concluded the State did exercise due diligence in
its investigation. If the district court is correct, the State was entitled to
the one-year extension of the statute of limitations running from October
2014 and the tampering charge would be timely.
On this question, the district court held a hearing on April 3, 2015.
At the hearing, DCI agent Anderson testified that, as the elimination of
Johnston as a real purchaser of the winning ticket demonstrates,
withholding evidence such as the video and audio recording is a
legitimate law enforcement tactic that assists in the culling of leads and
suspects. Once the trail from Johnston ran cold in Houston and the
ordinary three-year statute of limitations approached, Anderson testified
that the State released an edited version of the video and audio
recording.
It is true, as pointed out by Tipton, that the investigation did not
proceed rapidly. According to the minutes of testimony, Johnston was
identified in November 2011. Yet, Johnston was not interviewed in
Quebec until August 2013, a year and nine months later. Anderson
testified that the Royal Canadian Mounted Police first gave the State
information about the wrong Phillip Johnston, that some of the
information obtained from Canadian authorities was in French, and that
the federal government asked for all contact with the Canadian
government cease until an elaborate application form was completed. In
addition, the minutes reveal the State attempted to work out an
immunity agreement with Johnston. Finally, Anderson—the DCI agent
investigating the matter during most of the applicable time period—had
an open caseload of many files, including three homicides, cases
55
involving sexual assault and escape, and dozens of voter fraud cases
assigned to him in 2012.
Once Johnston was interviewed, the minutes of testimony indicate
the State learned Johnston had been contacted by Sonfield and Rhodes
regarding the winning lottery ticket. It took the State an additional eight
months from the time of Johnston’s interview in August 2013 to travel to
Houston in June 2014 in an unsuccessful attempt to interview them.
The record does not explain why it took the State eight months to follow
up on the Johnston lead.
Tipton also suggested that false claims regarding the winning
ticket came in prior to expiration of the one-year period from
December 29, 2010, for purchasers to claim prizes. But Anderson
testified that false claims continued to roll in even after the deadline for
redeeming winning tickets had passed.
We have stated that one of the important purposes of the due or
reasonable diligence requirement in the fraud extension of the statute of
limitations is “to discourage inefficient or dilatory law enforcement.”
Wilson, 573 N.W.2d at 254. Additionally, we have cited with approval an
observation by the United States Supreme Court that statutory deadlines
“have the salutary effect of encouraging law enforcement officials
promptly to investigate suspected criminal activity.” See Walden, 870
N.W.2d at 845 n.1 (quoting Toussie, 397 U.S. at 114–15, 90 S. Ct. at
860).
In determining whether the State has acted with due diligence, we
must consider the nature of the offense. An effort to unlawfully obtain
millions of dollars in lottery winnings is a serious crime. Multistate
lottery funds provide a significant source of revenue for the participating
states. Such revenues are dependent upon the integrity of the lottery
56
program. The importance of maintaining the integrity of the lottery is
emphasized in Iowa Code chapter 99G. Iowa Code section 99G.2(3)
stresses that ensuring that the lottery “is operated with integrity” is one
of the purposes of the statute. Further, the board of directors is directed
to take any and all actions necessary to ensure “the integrity of the
lottery.” Id. § 99G.9(3)(j). Finally, there can be no question of the moral
culpability of an offender attempting to swindle the lottery. In its
investigation, the State must act with due diligence in light of the
seriousness of the crime in order to avail itself of the one-year extension
of the statute of limitations.
The record shows the State encountered some unexpected
obstacles that reasonably delayed its investigation for a brief period of
time. Yet, these obstacles fail to account for the full length of the delay
between the identification of Johnston in November 2011 as the claimant
of the ticket and the release of the convenience store video in October
2014, almost three years later.
There are three time gaps that are not fully explained on the record
before us. The first is the year and nine month gap between when the
State learned that Johnston claimed to have the winning ticket, in
November 2011, and when investigators interviewed Johnston in
Canada, August 2013. The record demonstrates that the Canadian
Royal Mounted Police identified the wrong Phillip Johnston, causing
what Anderson described as a two-month delay. Some documents were
apparently received in French from Canadian authorities, but we do not
know what these documents were or how they caused delay in the
investigation. We know that the United States government asked the
State to complete an elaborate form before continuing discussions with
Canadian officials, but we have no idea what was involved or how long it
57
took to resolve that problem. Finally, it took some time, perhaps, to
negotiate an immunity agreement with Johnston, but that seems like a
fairly simple matter involving days, not weeks. We do not find evidence
in the record to support an assertion that these events reasonably
account for the year and nine month delay in interviewing the key
witness sufficient to show due diligence. Cf. State v. Taylor, 881 N.W.2d
72, 77 (Iowa 2016) (“[O]ur precedents also disfavor using generalities in
establishing good cause.”); State v. Winters, 690 N.W.2d 903, 909 (Iowa
2005) (holding “bare assertion” that need to complete deposition showed
good cause for exceeding speedy trial deadline insufficient).
The record also lacks any explanation at all for a second gap,
namely, why it took investigators eight months after they interviewed
Johnston to travel to Texas to attempt to interview Sonfield and Rhodes
in June 2014. The State made no effort to explain this eight-month
delay.
We also do not find the State showed it was diligent during a third
gap—the State released the convenience store video in October 2014,
approximately four months after reaching a dead end with Sonfield and
Rhodes. At trial, investigators offered that they had technical difficulties
figuring out how to release the video online. A generalized assertion of
technical difficulties, without more, is insufficient to show due diligence
in pursuit of a serious crime.
We note the State offered evidence of the number of cases that
Johnston was assigned to work on between November 2011 and the
release of the video. Anderson testified he was assigned, among other
things, a number of voter fraud cases in October 2012, which delayed his
other investigations. We have repeatedly held that ordinary court
congestion does not establish good cause for a speedy trial violation. See
58
Taylor, 881 N.W.2d at 77; State v. Bond, 340 N.W.2d 276, 279 (Iowa
1983). We think this is analogous to the question of investigatory due
diligence. It is possible for there to be extraordinary situations when
investigators’ other priorities might show that the State proceeded with
due diligence. In those cases, the State must provide evidence that such
a situation rises above the normal demands on an investigator’s time.
Otherwise, the State’s busy workload could operate to significantly
extend the statute of limitations for fraud cases.
Finally, we observe the generalization that law enforcement often
withholds evidence as an aid to the investigation of a case does not
automatically lead to a finding of due diligence. Anderson testified that
he wanted to release the video once the Houston trip was unsuccessful
and the Johnston trail was cold. Thus, for statute of limitations
purposes, the question is whether the State’s effort to develop the case
reflected due diligence.
There were, of course, other generalizations. There were
apparently a number of false claimants, particularly prior to the
expiration of the one-year period to redeem a winning ticket but also
thereafter. But there was no showing that the false claims took much
time after Johnston was identified in November 2011. It took over three
years for the trail to run cold when that point could have been reached
by completing two simple tasks, interviewing Johnston in Quebec and
traveling to Houston to attempt to interview Sonfield and Rhodes.
Certainly the State has the burden of showing why it took three years to
accomplish these simple tasks. The State has managed to throw up
some sand, but not much more.
Because the State did not show that it pursued its investigation of
the lottery ticket with due diligence, the State is not entitled to the one-
59
year fraud extension on the tampering charge. As a result, the
tampering charge in Count II of the information should have been
dismissed.
III. Evidentiary Ruling Related to Exclusion of Evidence
Regarding Tampering After 2010.
A. Introduction. Tipton claims the district court erred in refusing
to allow him to introduce evidence that the RNG lottery equipment was
not tampered with in 2011 and 2012. Although this evidentiary question
has direct relevance to the tampering charge in Count II, it also relates to
the fraudulent redeeming aspect of Count I which we have determined
was timely filed by the State. Because this question may arise on retrial,
we address the issue in this appeal.
B. Standard of Review. Evidentiary rulings are generally
reviewed for abuse of discretion. State v. Buenaventura, 660 N.W.2d 38,
50 (Iowa 2003); State v. Spargo, 364 N.W.2d 203, 209 (Iowa 1985). “An
abuse of discretion occurs when the trial court exercises its discretion
‘on grounds or for reasons clearly untenable or to an extent clearly
unreasonable.’ ” Buenaventura, 660 N.W.2d at 50 (quoting State v.
Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001)); accord State v. Long, 814
N.W.2d 572, 576 (Iowa 2012). If we find an abuse of discretion, we will
only reverse if prejudice is shown. Buenaventura, 660 N.W.2d at 50;
State v. Windsor, 316 N.W.2d 684, 688 (Iowa 1982).
C. Positions of the Parties. With respect to the rejected
evidence, Tipton sought to introduce that no evidence of tampering was
discovered on 2011 and 2012 RNG computers. Tipton argues the State
had sought to prove Tipton’s tampering by investigating these later used
computers. This evidence, Tipton asserts, is just as relevant to
tampering on the 2010 RNG computers as if the State’s investigation had
60
showed the 2011 and 2012 RNG computers did show evidence of
tampering.
The State argues evidence showing that no tampering was
discovered on the 2011 and 2012 RNG computers is wholly irrelevant.
The fact the 2011 and 2012 RNG computers were not tampered with
says nothing on whether it is more or less likely the 2010 RNG
computers were tampered with for the purposes of the December 29,
2010 draw.
D. Discussion. The State alleged, and the other evidence tended
to show, any scheme to rig the Hot Lotto and collect the prize was
focused on the December 29, 2010 draw date. There was no allegation,
nor evidence in the record, anyone intended to or in fact tampered with
the RNG computers used after that date. The State did not allege that
any trace of the method used to tamper with the RNG computers—a self-
destructing rootkit—would have been somehow carried over to the new
computers. Any evidence, therefore, the 2011 and 2012 RNG computers
had or had not been tampered with, would be irrelevant. See Iowa R.
Evid. § 5.401 (2015) (stating relevant evidence is “evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would
be without the evidence”); id. § 5.402 (“Evidence which is not relevant is
not admissible.”); accord Briner v. Hyslop, 337 N.W.2d 858, 869 (Iowa
1983).
Tipton asserts the State would have sought to introduce evidence
of tampering on the 2011 or 2012 RNG computers if evidence of such
tampering existed. Perhaps so. But the lack of evidence of such
tampering in 2011 and 2012 has little probative value on the question of
whether Tipton engaged in the discrete act of tampering on November 10,
61
2010, as the State alleged. We cannot find the district court abused its
discretion by excluding this highly attenuate and remote evidence.
IV. Evidentiary Ruling Related to Houston Investigation.
A. Introduction. Tipton argues the district court erred in
allowing the State to introduce evidence into the record that Johnston
cooperated with law enforcement authorities when interviewed in
Canada. He further cites error in allowing the State to offer evidence that
when DCI agents traveled to Houston to attempt to interview Sonfield
and Rhodes, they avoided the agents and refused to be interviewed.
Tipton’s contemporaneous objections at trial to the introduction of this
evidence were based on relevance and unfair prejudice under Iowa Rule
of Evidence 5.403. Because this evidentiary question may arise again on
retrial of the surviving redeeming charge in Count I, we consider it as
part of this appeal.
B. Standard of Review. The district court rulings on relevance of
evidence are reviewable for abuse of discretion, as are challenges to the
admission of evidence under Iowa Rule of Evidence 5.403. State v.
Sinclair, 582 N.W.2d 762, 764 (Iowa 1998); State v. Sallis, 574 N.W.2d
15, 16 (Iowa 1998). “An abuse of discretion occurs when the court
exercises its discretion ‘on grounds or for reasons clearly untenable or to
an extent clearly unreasonable.’ ” Buenaventura, 660 N.W.2d at 50
(quoting Rodriquez, 636 N.W.2d at 239).
C. Discussion. On the objection raised at trial, we see no
reversible error. Testimony that Johnston cooperated with authorities
tends to suggest he was not a guilty party but was a mere conduit in a
fraudulent scheme. Eliminating Johnston as the mastermind of the
scheme to defraud the lottery was certainly a relevant goal for the State.
We cannot say the district court erred in declining to exclude the
62
evidence on relevance grounds. Nor do we find the prejudicial effect of
this relatively mild evidence clearly outweighed its probative value under
Iowa Rule of Evidence 5.403.
We also think the district court did not abuse its discretion in
declining to exclude testimony that Rhodes and Sonfield did not
cooperate with the investigation on relevance and rule 5.403 grounds.
The evidence showed that shortly after purchasing the winning lottery
ticket, Tipton traveled to Houston. He did not reveal his business and
personal association with Rhodes to DCI investigators. Tipton was in
close phone contact with Rhodes on November 10, 2010, the day Tipton
entered the draw room and had the opportunity to tamper with the RNG
equipment and on December 23, 2010, the day Tipton bought the ticket.
The evidence further showed that investigators tried to contact
Rhodes and Sonfield in connection with the lottery ticket. An
investigator from the lottery testified he tried to contact Rhodes and
Sonfield in Texas. The investigator said he went to Sonfield’s office and
made phone calls, but was not able to reach him. DCI investigator
Anderson testified that he spoke with Sonfield’s secretary and a Texas
Ranger in an effort to reach him. Neither Rhodes nor Sonfield would
return Anderson’s phone calls.
We do note Tipton asserted in a motion in limine that the above
testimony amounted to backdoor hearsay. We recently considered a
claim of backdoor hearsay in State v. Huser, ___ N.W.2d ___ (Iowa 2017).
Once the evidence came in, however, the only objection raised was
relevance and rule 5.403. As a result, we do not address the backdoor
hearsay issue in this appeal.
63
V. Sufficiency of the Evidence of Fraudulent Redeeming.
A. Introduction. No person may be convicted of a crime without
substantial evidence to support the verdict. See Tyler, 873 N.W.2d at
746–47. That means a person may not be convicted based upon mere
suspicion or conjecture. State v. Schlitter, 881 N.W.2d 380, 389 (Iowa
2016); State v. Geier, 484 N.W.2d 167, 171 (Iowa 1992).
Yet, direct evidence of guilt is not required. The law does not
distinguish between direct evidence and circumstantial evidence of a
crime. State v. Vaughan, 859 N.W.2d 492, 497 (Iowa 2015). A defendant
may be convicted solely on circumstantial evidence if it is sufficiently
compelling to convince a judge or jury of the defendant’s guilt beyond a
reasonable doubt.
B. Standard of Review. We review challenges to the sufficiency of
evidence for correction of errors at law. State v. Williams, 695 N.W.2d
23, 27 (Iowa 2005). We will uphold a verdict if it is supported by
substantial evidence. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005).
Evidence is substantial when a rational trier of fact would be convinced
the defendant is guilty beyond a reasonable doubt. State v. Serrato, 787
N.W.2d 462, 465 (Iowa 2010). We view the evidence in the light most
favorable to the State, “including legitimate inferences and presumptions
that may fairly and reasonably be deduced from the record evidence.”
Williams, 695 N.W.2d at 27 (quoting Quinn, 691 N.W.2d at 407); accord
State v. Sutton, 636 N.W.2d 107, 110 (Iowa 2001). In our review,
however, we must consider all the evidence in the record, not just the
evidence supporting guilt. State v. Torres, 495 N.W.2d 678, 681 (Iowa
1993).
C. Discussion. As a starting point, we think there is substantial
evidence to support the State’s position that Tipton purchased the lottery
64
ticket. Tipton’s lawyers cross-examined the identifying witnesses, of
course, and offered testimony from family members that the person in
the convenience store video and audio recording was not Tipton. But,
these forays into the evidence only affect the weight of the evidence. A
jury was entitled to find, based on the evidence presented, that Tipton
was the purchaser.
If a reasonable jury concludes Tipton purchased the lottery ticket,
the rest of the State’s case falls in place. Although Tipton purchased the
winning lottery ticket, he could not personally claim the prize. Indeed,
because he had purchased the ticket, Tipton must have known no lawful
prize could be awarded to its holder. As noted by one of the State’s
witnesses, Tipton had 16.5 million reasons to figure out how the prize
might be claimed without revealing the unlawful nature of the claim. In
order to do so, a reasonable jury could conclude beyond a reasonable
doubt he must have been the wizard behind the curtain of the Belizean
trust that sought to convert the winning ticket into cash without
disclosing the fact that the purchaser was a disqualified individual.
And, although Count II has been dismissed, the evidence relevant
to Count II also supports the redeeming charge in Count I. A reasonable
jury could conclude evidence that Tipton tampered with the lottery
equipment supported the State’s claim that he sought to fraudulently
redeem the winning lottery ticket.
There is no question that substantial evidence Tipton had an
opportunity to install a rootkit means a rational jury could find a rootkit
was in fact installed. Similarly, substantial evidence showing it is
possible to create an impossible to detect rootkit and evidence Tipton had
the knowledge to do so means a rational jury could find Tipton in fact
created such a rootkit.
65
There is also evidence there was a problem with the security video
in the RNG computer room at MUSL. A jury could find this evidence
significant, given the testimony Tipton had access to the security video
system as a security expert for MUSL. Interestingly, video from
November 13, 2010, displays no such problem. The problem with the
video makes it impossible to tell what Tipton did in the RNG computer
room. We also have the testimony from the MUSL employees who were
in the room with Tipton—the employees did not observe Tipton do
anything suspicious, but they also trusted Tipton implicitly with lottery
security and were not watching him closely.
Additionally, we have the evidence that the 2010 RNG computers
were retired and completely wiped prior to some point in 2011. A
reasonable jury could infer Tipton, as the IT security expert for MUSL,
must have known this would occur and planned his tampering to occur
when there would be the least possibility for detection. The so-called
“self-destructing rootkit” would not, therefore, have had to self-destruct
completely. Such a rootkit would simply have had to remove itself well
enough not to be detected by MUSL’s routine security checks—lottery
security experts testified at trial that at the time of a draw MUSL would
check a digital security signature called a “checksum” to ensure the RNG
computers had not been tampered with, but would not conduct more
detailed security checks. This rootkit would thus not need to withstand
the barrage of investigation which would occur if lottery officials
suspected tampering.
All in all, we find there is substantial evidence to submit the
surviving redeeming claim to the jury. There was substantial evidence
Tipton purchased the winning ticket, he had extensive computer
knowledge, he had access to the lottery facility at a key time, he
66
ultimately succeeded in tampering with the machines, and he must have
been behind the effort of Shaw to redeem the ticket as late as January
17, 2012. On this record, there is substantial evidence to allow a
reasonable jury to connect the dots and find Tipton guilty of fraudulent
redeeming in the surviving portion of Count I.
VI. Jury Instructions Related to Statute of Limitations.
Tipton proposed the district court allow the jury to determine
whether the State had brought the charges consistent with the applicable
statutes of limitations. Specifically, Tipton sought to have the jury
determine whether the State proceeded with due diligence sufficient to
trigger the statute of limitations exception of Iowa Code section 802.5.
The district court, however, refused to give the instruction on the ground
that statute of limitations questions were for the court. Because we
agree with the district court on the issue, there was no error in refusing
to give Tipton’s proposed instructions.
VII. Jury Instruction No. 5 Related to Evidence.
A. Introduction. Tipton challenges as inadequate Instruction No.
5 dealing with consideration of evidence. Instruction No. 5 stated,
In considering the evidence, make deductions and
reach conclusions according to reason and common sense.
Facts may be proved by direct evidence from a witness who
claims to have actual knowledge of a fact, such as an
eyewitness. Circumstantial evidence is evidence about a
chain of facts which show a defendant is guilty or not guilty.
The law makes no distinction between direct evidence and
circumstantial evidence. Give all the evidence the weight
and value you think it is entitled to receive.
Tipton proposed additional language: “Facts are not proven by evidence
requiring speculation or conjecture, or merely raising a suspicion.”
B. Standard of Review. Alleged errors in the submission or
refusal to submit jury instructions are reviewed for correction of errors at
67
law. Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 707 (Iowa 2016).
“Errors in jury instructions are presumed prejudicial unless” a lack of
prejudice is shown beyond reasonable doubt. State v. Ambrose, 861
N.W.2d 550, 554 (Iowa 2015). We review jury instructions as a whole to
determine whether the jury instructions correctly state the law. State v.
Hanes, 790 N.W.2d 545, 559 (Iowa 2010).
C. Positions of the Parties. Tipton argues it was an error for the
district court to deny adding the language “facts are not proven by
evidence requiring speculation or conjecture, or merely raising a
suspicion” to Instruction No. 5. Tipton argues his proposed instruction
was a correct statement of the law and the district court only rejected the
addition because it was not contained in the instructions of the Iowa
State Bar Association.
The State argues Instruction No. 5 was legally sufficient because it
was a model jury instruction. Further, the State argues Tipton failed to
show his proposed added language was not communicated through the
jury instructions as a whole. The concept that speculation, conjecture,
and suspicion are not sufficient to support a conviction is abundantly
clear when the jury instructions are read in full.
D. Discussion. Based on our review of the entirety of the jury
instructions, we conclude the concept embraced in Tipton’s proposed
addition to Instruction No. 5 was adequately embraced in other
instructions. See Hanes, 790 N.W.2d at 559 (Iowa 2010) (holding jury
instructions must be read as a whole). Instruction No. 2 instructed the
jury that whenever the State needed to prove something, there must be
“evidence beyond a reasonable doubt.” This is another way of saying
that merely speculative evidence is insufficient. Further, Instruction
No. 3 informed the jury that the presumption of innocence “requires you
68
to put aside all suspicion . . . and remains with the defendant
throughout the trial unless the evidence establishes guilt beyond a
reasonable doubt.” Again, mere suspicion is insufficient.
Finally, Instruction No. 9 told the jury “reasonable doubt is one
that fairly and naturally arises from the evidence or lack of evidence
produced by the state.” Viewing the instructions in their entirety, we see
no error in the district court’s refusal to provide the additional language
suggested by Tipton.
VIII. Jury Instruction No. 20 Related to Continuing Offense.
A. Introduction. Tipton claims the district court erred in
submitting to the jury Instruction No. 20 which related to continuing
offenses. Instruction No. 20 stated that under Count I, the State must
prove, “On or about December 23, 2010 to January 17, 2012, the
defendant passed a lottery ticket or attempted to redeem a lottery ticket.”
B. Position of the Parties. Tipton asserts passing and redeeming
are separate acts and, as a result, they constitute separate acts. Tipton
claims the jury might not have been unanimous under the trial court’s
instruction.
The State maintains there was sufficient evidence to support both
the “passed” and the “attempted to redeem” options. See State v. Corsi,
686 N.W.2d 215, 222 (Iowa 2004); State v. Duncan, 312 N.W.2d 519, 523
(Iowa 1981). The State sees the instruction as simply involving
alternative methods of committing a single crime.
C. Discussion. We have concluded that Count I was not a
continuing offense. Further, we have concluded that any “passing”
alternative must have been completed prior to the expiration of the
statute of limitations. As a result, by including an instruction including
passing, the jury would have been allowed to convict the defendant based
69
on actions barred by the statute of limitations. As a result, the
instruction was erroneous. On retrial, the district court should not use a
similar instruction.
IX. Jury Instruction Related to the Definition of “Attempt” in
Instruction No. 24.
A. Introduction. Tipton objects to the district court’s Instruction
No. 24 defining attempt. Instruction No. 24 provided, “To ‘attempt’
means to try to do something. It makes no difference whether the person
accomplished what was attempted.”
Tipton claims the instruction was inadequate to describe an
attempt. Tipton’s proposed instruction stated,
The alternative charge in Count I of the Trial
Information is an attempt to falsely redeem a lottery ticket
with the specific intent to defraud. In order to commit an
attempt, the defendant must specifically intend to defraud
the Iowa Lottery by falsely redeeming a ticket and he must
commit an act in furtherance of that intent beyond mere
preparation. The act must reach far enough towards the
accomplishment of the desired result to amount to
commencement of the consummation. It must not be merely
preparatory. While it need not be the last proximate act to
the consummation of the offense attempted to be
perpetrated, it must approach sufficiently near it to stand
either as the first or some subsequent step in a direct
movement toward the commission of the offense after the
preparations are made.
B. Positions of the Parties. Tipton maintains the district court’s
instruction on attempt was too cryptic. He notes his more elaborate
instruction closely follows language extracted from State v. Walker, 856
N.W.2d 179, 187 (Iowa 2014). He claims under the district court
instruction, a jury might conclude mere preparation is sufficient.
According to Tipton the mere purchase of a lottery ticket might be
regarded by the jury as “an attempt to redeem.”
70
The State counters that the instruction was based upon the model
instruction 200.18 of the Iowa State Bar Association. The State suggests
the district court’s instruction is consistent with Walker, 856 N.W.2d
179. The State criticizes Tipton’s proposed instruction as far too verbose
to provide the jury with a clear understanding of the issue. Further, the
State notes the jury could not have equated the mere purchase of the
lottery ticket with an attempt, because Instruction No. 19 stated “[i]t is
not a criminal offense for a prohibited player merely to purchase a lottery
ticket.”
C. Discussion. We think the jury instruction on attempt was
adequate. It expressed in plain language an attempt means that one
must “try to do” the prohibited act. “Trial courts have a rather broad
discretion in the language that may be chosen to convey a particular idea
to the jury.” Stringer v. State, 522 N.W.2d 797, 800 (Iowa 1994). The
use of the phrase “to do” means more than mere preparation. We find no
error in the instruction.
X. Conclusion.
For the above reasons, we hold Tipton’s conviction on Count II for
tampering with lottery equipment should be dismissed. With respect to
Count I, we vacate Tipton’s conviction and remand the case to the
district court.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART
AND CASE REMANDED.
All justices concur except Mansfield, J., who concurs in part and
dissents in part.
71
#15–1515, State v. Tipton
MANSFIELD, Justice (concurring in part and dissenting in part).
I dissent in part. In my view, substantial evidence supports the
district court’s finding that the tampering charge was timely.
The majority correctly assigns responsibility to the trial court to
determine the prosecution’s time limit for prosecuting the case. See
State v. Wilson, 573 N.W.2d 248, 254 (Iowa 1998). This determination is
made by a preponderance of evidence, and we review it for correction of
errors at law.
Iowa Code section 802.5 allows the State to commence prosecution
“within one year after discovery of the offense by an aggrieved party.”
Iowa Code § 802.5 (2011) (emphasis added). I agree that as of January
2012, when Crawford Shaw withdrew any claim for payment despite
having submitted the winning ticket, the State was on inquiry notice of a
fraudulent passing or redemption charge. See id. § 99G.36(1). However,
as of January 2012, the State had no inkling of criminal tampering with
lottery equipment. See id. § 99G.36(2). Such suspicion did not arise
until October 2014.
At the dismissal hearing, the State showed that it tried to get in
touch with Phillip Johnston in Canada after the payment claim had been
withdrawn. The State presented evidence that it took “several months” to
hear back from Canadian officials. After an additional “two months” of
work to get to the correct Phillip Johnston, the State was then required
by the United States Department of Justice to fill out an application.
After “several weeks” of further work it was determined that the
application could not be completed. In the meantime, the State spoke to
Johnston several times by phone, although these phone conversations
proved unproductive. Ultimately, the State did visit with Johnston
72
personally in Canada in August 2013 after he agreed to be interviewed,
even though the State had never completed the federally required
application. This meeting produced for the first time information that
the ticket had previously been in the hands of two individuals in Texas.
In April 2014, Shaw confirmed this same information. A trip to Texas
was then made in June 2014, and several days were spent
unsuccessfully trying to talk to the two Texas individuals. Lacking any
further leads, the State decided as a last recourse to post the video. It
took some time to set up an appropriate vehicle for doing that, so the
posting did not occur until October 2014. At that point, the defendant
was identified.
On this record, a reasonable judicial factfinder could decide that
charges were brought within a year after the offense should have been
discovered by the State with reasonable diligence. See Iowa Code
§ 802.5. To put it another way, one could conclude there were no more
than nine months of unjustifiable delay between January 2012 and
October 2014.
It needs to be emphasized that Iowa Code section 802.5 also
protects defendants by limiting any possible fraud extension to three
years. See id.
For the reasons stated, I would affirm the district court’s finding
that the State commenced prosecution of the tampering charge “within
one year after discovery of the offense by an aggrieved party.” Id. In all
other respects, I concur in the court’s well-reasoned opinion.