State of Iowa v. Kyle Alan Olson

IN THE COURT OF APPEALS OF IOWA

No. 19-1960
Filed September 23, 2020

STATE OF IOWA,
Plaintiff-Appellee,

vs.

KYLE ALAN OLSON,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Boone County, Stephen A. Owen,

District Associate Judge.

A defendant challenges his forgery conviction and sentence. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.
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TABOR, Judge.

A jury found Kyle Olson guilty of forgery. The district court sentenced him

to an indeterminate five-year prison term. Olson now appeals, challenging the

sufficiency of the evidence to support his conviction and the sentencing decision.

He claims the State failed to establish he had the specific intent to defraud or injure

anyone. Olson also contends the district court abused its discretion in sentencing

“by considering uncharged, unproven offenses” disclosed in the victim impact

statements. He requests resentencing. After viewing the evidence in the light

most favorable to the State, we affirm Olson’s conviction. As for his sentencing

claim, because the record lacks clear evidence that the court considered improper

factors in reaching its determination, we affirm his prison term.

I. Facts and Prior Proceedings

In 2014, Olson moved from California back to Boone, Iowa, to live with his

mother, who was sick. He stayed with her in the family home until she passed

away in October 2015. His mother’s will gave Olson the right to continue living in

the home. Under the will, Olson was responsible for “all expenses of maintaining,

including insurance, taxes, and maintenance” while he lived there. Although his

mother granted Olson the life estate, the will devised ownership of the property

equally to him and his three sisters, Maureen Stoneburner, Andrea Olson-Taylor,

and Janelle Hilsabeck, as tenants in common. Olson’s mother and father had built

the home in 1952, so all four children grew up there.

In December 2017, Olson was living in the family home when the garage

caught on fire. He did not tell his sisters about the damage. They learned about

the fire when the insurance company contacted the eldest sister, Stoneburner,
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asking her to submit contractor bids for repairing the damage because the

company hadn’t received any bids from Olson. Once Stoneburner found a

contractor, and the insurance company approved the bid, the company issued two

checks made out to the four siblings. Stoneburner used the insurance payments

to compensate the contractor for the completed work. Olson got upset when he

found out she had hired a contractor to fix the property. Stoneburner and Hilsabeck

both testified that Olson had wanted to do the repairs himself so the siblings could

have kept some of the money.

In December 2018, a second event caused damage to the family home. A

water leak flooded the entire main floor. Olson did not tell his sisters about this

incident either. In March 2019, the insurance company again contacted

Stoneburner, asking for her authorization to make an estimate for the flood

damage to settle the outstanding claim. The company told Stoneburner that it had

tried contacting Olson numerous times but was unable to reach him. After

Stoneburner authorized the estimate, the insurance company would issue two

checks for the flood damage—a partial check for just under $18,000 to start repairs

and a second check for $10,000 once repairs were completed.

In mid-April 2019, Olson deposited the first insurance check in the amount

of $17,683.17 at a VisionBank ATM. The deposit routed the check into Olson’s

account at the Greater Iowa Credit Union. Stoneburner testified that she didn’t

know the insurance company had sent the first check until she called to ask. When

the company provided her with a copy of the check, she discovered it had been

cashed with all four of the siblings’ signatures listed on the back. The three
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sisters—Stoneburner, Olson-Taylor, and Hilsabeck—all testified they did not sign

the check. The last name of the youngest sister, Hilsabeck, was misspelled.

A few days after Stoneburner’s discovery, the three sisters filed a police

report. Ethan Bailey, an investigator with the Boone Police Department, compared

the sisters’ signatures on the check with the signatures on their driver’s licenses

and found that “they did not match at all.” When questioned, Olson admitted

depositing an insurance check at an ATM but did not comment on the signatures.

The sisters testified that sometime between the end of April and early May, they

went to see the home and noticed extensive damage. The floors on the entire

main floor had been removed, the drywall had been “heavily damaged” from the

water, new holes appeared in the walls and ceiling, and an entire bedroom wall

was gone. They saw no construction materials or tools in the home, which led

them to believe that no repairs were being made.

On May 9, the district court issued a warrant for Olson’s arrest. Later that

month, the State charged him with forgery, in violation of Iowa Code

sections 715A.2(1), 715A.2(2)(a), and 902.8 (2019). The matter went to trial on

August 20; the jury found him guilty as charged. The court sentenced him to a

prison term not to exceed five years. Olson appeals both his conviction and

sentence.

II. Analysis

A. Intent to Defraud or Injure

On appeal, Olson argues the State offered insufficient evidence to support

his conviction of forgery. We review sufficiency challenges for correction of errors

at law. State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017). We will uphold a guilty
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verdict if it is supported by substantial evidence. Id. Substantial evidence exists if

it would convince a rational trier of fact that the defendant is guilty beyond a

reasonable doubt. Id. We view all relevant evidence in the light most favorable to

the State, including all reasonable inferences that may be fairly drawn from the

evidence. State v. Huser, 894 N.W.2d 472, 490 (Iowa 2017). Evidence is not

substantial if it raises only suspicion, speculation, or conjecture. Id. We consider

all evidence in the record, not just the evidence supporting guilt. Tipton, 879

N.W.2d at 692 (citing State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993)).

The district court instructed the jury to find Olson guilty of forgery if the State

proved beyond a reasonable doubt these elements:

1. On or about April 16, 2019, in Boone County, Iowa, the defendant
did one or more of the following acts:
a. Completed a check so that it purported to be the act of
another who did not authorize that act; and/or
b. Uttered a check that the defendant knew had been
completed so that it purported to be the act of another who
did not authorize that act; and/or
c. Possessed a check that the defendant knew had been
completed so that it purported to be the act of another who
did not authorize that act.
2. The defendant specifically intended to defraud or injure Andrea
Olson-Taylor, Maureen Stoneburner, and/or Janelle Hilsabeck.

The jury instructions explained that “specific intent” means not only being aware of

doing an act and doing it voluntarily, but in addition, doing it with a specific purpose

in mind. The court further instructed the jurors that they “may, but are not required

to, conclude a person intends the natural results of his acts.”

Olson does not dispute the State’s satisfaction of the first element. He

focuses on the second element, contending the evidence failed to show he acted

with the specific intent to defraud or injure. Because specific intent is seldom
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capable of direct proof, it “may be shown by circumstantial evidence and the

reasonable inferences drawn from that evidence.” State v. Acevedo, 705 N.W.2d

1, 5 (Iowa 2005). The State was not required to show actual injury or harm resulted

from the act of forgery. See State v. Calhoun, 559 N.W.2d 4, 6 (Iowa 1997). It is

the attempt to defraud or the intention to do so that is crucial. See State v. Bolds,

55 N.W.2d 534, 536 (Iowa 1952).

Olson argues that the State did not prove he had the intent to defraud or

injure his sisters when he deposited the insurance check. He contends the State’s

evidence was insufficient because the same evidence “could also support the

conclusion that Olson was, in fact, beginning to repair the home from the water

damage.” He cites State v. Truesdell, claiming “[e]vidence that allows two or more

inferences to be drawn, without more, is insufficient to support guilt.” 679 N.W.2d

611, 618–19 (Iowa 2004). According to his argument, “the removal of the carpet,

drywall, walls, and hardwood floors likely could have indicated that Olson intended

to use the funds from the insurance company to repair the damaged property.” He

asserts, without evidence he misused the funds, the jury could not find he had the

specific intent to defraud because he was entitled to the insurance proceeds as

“the sole person responsible for the upkeep of the home.” Alternatively, Olson

argues that because the evidence showed repairs were in progress, he could not

have possessed the specific intent to injure the sisters, as there would be no injury.

We begin by examining what it means for a person to have the intent to

defraud or injure another. During deliberations, the jury asked the court to define

the word “defraud.” The court provided this definition: “Defraud means to obtain

something by deception.” Although it is unclear what that “something” is, our
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supreme court has cited cases from other jurisdictions that provide guidance. See

State v. Hoyman, 863 N.W.2d 1, 9–10 n.4 (Iowa 2015) (collecting cases). For

example, the Fifth Circuit has stated that “[a] defendant acts with the intent to

defraud when he acts knowingly with the specific intent to deceive for the purpose

of causing pecuniary loss to another or bringing about some financial gain to

himself.” United States v. Umawa Oke Imo, 739 F.3d 226, 236 (5th Cir. 2014).

Consistent with that definition, the Louisiana Supreme Court highlighted that the

word “defraud” “has commercial or business connotations, which would by its

nature imply a situation involving a pecuniary matter.” State v. Raymo, 419 So. 2d

858, 859 n.1 (La. 1982).

Because an intent to defraud invokes pecuniary matters, an intent to injure

likely encompasses something other than financial loss. See id. (citing Model

Penal Code § 224.1 cmt. 5(a) (Am. Law. Inst.)). As the New Jersey Superior Court

explained in State v. Felsen, “to injure” could “mean to misrepresent, or injuriously

affect the sentiments, opinions, conduct, character, prospects, interests, or rights

of another.” 890 A.2d 1029, 1035 (N.J. Super. Ct. App. Div. 2006).

Here, the State made arguments under both possible interpretations. First,

the State contends Olson had the intent to defraud because he aimed for a

personal financial benefit by depositing the insurance check without telling the

sisters. Second, the State contends Olson also intended to injure the sisters by

leaving their family home in shambles even after depositing the check. As stated

in the State’s closing argument: “And it’s not so much the money for the sisters as

it is the sentimental value knowing that their home that their mother took care of,

that their parents built, is now destroyed.”
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Olson claims the sisters’ testimony about the removed floors and damaged

walls was not enough to show his intent. But the jury had more proof to consider.

The water leak was not the first time Olson failed to promptly make repairs or

inform the sisters of the home’s damaged condition. When a garage fire damaged

the home in 2017, none of the sisters found out about it until the insurance

company contacted Stoneburner requesting contractor bids. Olson wasn’t happy

when his sisters insisted on hiring a contractor. He had wanted to make the repairs

himself and keep some of the insurance money as profit. A year later, he again

did not tell the sisters when the house flooded. Nor did he tell them when he

received the first insurance check. Even after Olson deposited the check, the

sisters saw no evidence Olson had acted to repair the home. Instead, their

testimony reflects that they didn’t recognize the home as the one they grew up in.

In their words: “The home was ruined.”

Based on this pattern, the jury could infer that Olson intended to pocket the

insurance money instead of spending it to fix the house. Although Olson claims

the evidence could show he was in the process of making repairs, another fair

inference is available from the totality of the evidence. Olson’s reliance on

Truesdell is misplaced; in that case, our supreme court held that evidence subject

to two reasonable inferences was insufficient to support guilt when “an element of

the crime was predicated on a single piece of evidence.” State v. Redd, No. 12-

1433, 2013 WL 4504878, at *3 (Iowa Ct. App. Aug. 21, 2013) (emphasis added)

(clarifying Truesdell’s holding is inapplicable when the State provides several

pieces of evidence from which a jury could infer an element of a crime).
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Here, the record contains detailed testimony concerning a prior incident

unrelated to the most recent damage, from which a jury could infer Olson’s motive.

It was reasonable for the jury to conclude that he deposited the check without

telling his sisters because he didn’t want them to use the money to hire a contractor

as they had before. The jury could find that he intended, as the natural result of

his deceptive act of depositing the money without telling the sisters, to deprive

them of access to the insurance funds or to otherwise impair the sentimental value

of their childhood home. Substantial evidence supports the jury’s verdict.

B. Consideration of Unproven Offenses

In his second claim, Olson asserts that the sentence imposed by the district

court should be vacated and the case remanded for resentencing. He contends

the court abused its discretion by considering improper sentencing factors.

Sentencing decisions are “cloaked with a strong presumption in their favor.”

State v. Phillips, 561 N.W.2d 355, 357 (Iowa 1997). We review them for an abuse

of discretion. State v. Guise, 921 N.W.2d 26, 30 (Iowa 2018). “A district court

abuses its discretion when it exercises its discretion on grounds clearly untenable

or to an extent clearly unreasonable.” State v. Hill, 878 N.W.2d 269, 272 (Iowa

2016). We consider a sentencing decision “untenable when it is not supported by

substantial evidence or when it is based on an erroneous application of the law.”

Id. (quoting State v. Putman, 848 N.W.2d 1, 8 (2014)).

Olson argues the district court improperly considered unproven offenses

disclosed in the oral victim impact statements in determining the sentence.

Specifically, he points to three allegations discussed in his sisters’ statements:

(1) his history of drug abuse; (2) his involvement in prostitution; and (3) his prior
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thefts. Olson claims it is “evident” from the sentencing proceeding that the court

relied on these improper factors when imposing the prison term.

A remand for resentencing is appropriate if the record contains “clear

evidence” that the sentencing court relied on unproven or unprosecuted offenses.

State v. Sailer, 587 N.W.2d 756, 762–64 (Iowa 1998). Even if a victim impact

statement discloses unproven offenses, “there must be an affirmative showing the

court relied on . . . improper evidence.” Id. at 762 (quoting State v. Dake, 545

N.W.2d 895, 897 (Iowa Ct. App. 1996)). We look at the court’s reasons for

imposing the sentence to determine whether any of them pertain to the

impermissible statements. See id. at 763 (citing Phillips, 561 N.W.2d at 359).

Olson asserts that the following statement showed the court considered the

three unproven offenses when determining the sentence:

Presentence investigation I think outlines a history of trauma that
again I think has been demonstrated in court today. I don’t believe
that Mr. Olson intended to live the life he lived, but it is I think reflected
accurately in the statements made today and the presentence
investigation. I am sure as he points out he would rather have a
different relationship with his family and different outcome to all of
this, but it is what it is today. And what it is is a history of criminality,
a history of hurting himself, his family, his community, and it has to
stop, as his victims point out today.

Contrary to Olson’s assertion, this statement does not show a reliance on improper

factors sufficient to overcome the strong presumption in favor of the sentencing

decision. The court considered Olson’s allocution, the victim impact statements,

and the presentence investigation (PSI) report. All of which are proper factors for

the court’s consideration. See Iowa Code §§ 901.2, .5. True, the victim impact

statements refer to Olson’s “history of drug abuse” and prior incarceration for theft.

But the PSI report outlines these offenses under his criminal background history,
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so the court could properly consider that information. More concerning is the

allegation of Olson’s prostitution, which the PSI does not mention. But the court’s

statement does not show any reliance on this particular offense when setting the

sentence.

As our supreme court reasoned in Sailer:

[I]t is essential to the purpose of the victim impact statement that the
victim be given an opportunity to fully convey the impact a crime has
had. Although this may at times result in the airing of allegations
which are unproven, we trust that our district courts, when weighing
such statements as part of the sentencing determination, will filter
out improper or irrelevant evidence.

587 N.W.2d at 764.

The sentencing court did that filtering here. Immediately before listing its

reasons, the court stated: “This Court, of course, is bound by the law. It is limited

frankly by the law.” Based on this statement and the court’s emphasis on the PSI

report, we are convinced “the district court knew its sentencing discretion was

limited to charges actually proven or admitted.” Id. Having found no affirmative

showing that the court relied on the prostitution charge, we affirm the sentence.

AFFIRMED.