                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0561
                              Filed March 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TOBIAS ISSAC FRY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, John G. Linn,

Judge.



      Tobias Issac Fry appeals his conviction and sentence for assault with intent

to commit sexual abuse causing bodily injury.         JUDGMENT AFFIRMED,

SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
                                           2


VAITHESWARAN, Judge.

       Tobias Issac Fry was charged with assaulting an employee of a care center

at which he stayed. Following a bench trial, the district court found him guilty of

assault with intent to commit sexual abuse, in violation of Iowa Code section

709.11(2) (2015). On appeal, Fry (1) challenges the sufficiency of the evidence

supporting the district court’s finding of guilt and (2) argues the district court erred

in ordering him to make restitution of $25 for court-appointed attorney fees and in

requiring him to pay court costs.

I.     Sufficiency of the Evidence

       The district court set forth the elements of the crime as follows:

       That on or about the 28th day of November of 2015, the defendant
       assaulted the complaining witness here in this case. An assault
       would be an act intending to cause pain or injury to, or which is
       intended to result in physical contact which would be insulting or
       offensive to the other, with the apparent ability. That the defendant
       did so with the specific intent to . . . commit a sex act by force or
       against the will of the complaining witness. And, finally, that the
       defendant’s assault caused a bodily injury to the complaining
       witness.

Fry concedes he assaulted the employee but argues the State did not produce

“sufficient evidence to support a finding that [his] intent was to perform a sex act

by force [or] against the will of” the employee. The district court defined specific

intent as follows:

       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[.] [B]ecause determining the defendant’s specific intent
       requires the trier of fact to decide what the defendant was thinking
       when the act was done, [i]t is seldom capable of direct proof. The
       trier of fact should consider the facts and circumstances surrounding
       the act to determine the defendant’s specific intent. The trier of fact
       may, but is not required to, conclude a person intends the natural
       results of his acts.
                                          3



The court found the State proved this element:

              In this case, there was a great deal of force, in the Court’s
       opinion, exercised by this defendant, who is quite a bit bigger than
       the complaining witness. He physically grappled, manhandled,
       grabbed, held this complaining witness. At one point, his elbow
       struck the complaining witness, and she sustained a bruise. These
       acts, the Court believes, were specifically intended to result in
       physical contact with the complaining witness, which was insulting or
       offensive to her, and the crime of assault is a specific intent crime,
       and the Court concludes that the facts in this case establish beyond
       a reasonable doubt that specific intent.
              ....
              . . . . [T]he defendant intended to commit sexual abuse or, in
       other words, a sex act by force or against the will of the complaining
       witness. Again, the very physical nature of the acts committed by
       the defendant would compel the Court to conclude that he had the
       specific intent to commit a sex act against the will of the complaining
       witness. Clearly, she resisted, struggled to get free, and, yet, the
       defendant persisted in holding her, and with his hands,
       groped her breasts and her crotch area. This, coupled with the many
       statements the defendant made earlier to the complaining witness
       which were sexual in nature, convinces the Court that the defendant
       did have the specific intent to commit a sex act against the will of the
       complaining witness.

The court’s finding of guilt is binding on us if supported by substantial evidence.

See State v. Beets, 528 N.W.2d 521, 523 (Iowa 1995).             This standard was

satisfied.

       State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992), cited by Fry, does not

lead us to a different conclusion. Casady listed several circumstances found to

have satisfied the specific intent element, including “a sexual comment made by

the defendant to the victim, touching in a sexual way, the removal or request to

remove clothing, or some other act during the commission of the crime that showed

a desire to engage in sexual activity.” 491 N.W.2d at 787. Contrary to Fry’s

suggestion, this was not an exclusive list. But, even if it were, the record contains
                                           4


evidence of all these circumstances. Fry’s sexual comments before the incident,

and specifically his mention of how lucky the employee’s husband must be to see

her naked and his request to have a “quickie” with the employee, could not have

been a clearer expression of his sexual intent.        As noted, he also held the

employee close to his body and touched her in a sexual way.

       Fry also points out the assault took place in the facility kitchen rather than

a private location, a fact he believes undermines a finding of specific intent. We

are not persuaded. Only Fry and the employee were in the kitchen; the other staff

person on shift was “in [an]other room.”

       Finally, Fry asserts he did not deceive or threaten the employee. But the

definition of specific intent does not require deception or threats.

       The record contains substantial evidence of specific intent. We affirm Fry’s

conviction for assault with intent to commit sexual abuse.

II.    Restitution of Attorney Fees and Court Costs

       The district court entered an order styled “judgment entry.” The court

required Fry to pay “court costs, and the cost of his court-appointed attorney.” The

court concluded “the defendant is capable of paying $25 towards court-appointed

attorney fees.”

       Fry “appeals the portion of his sentence requiring him to make restitution

for court costs and $25 toward his court appointed attorney fees.” He argues the

district court “failed to properly consider his reasonable ability to pay the costs of

his legal assistance” and failed to consider his “ability to pay the court-ordered

court costs.” The State counters that the issue is not ripe for review. In its view,

“the sentencing court did not have the total amount of court costs available” at the
                                            5

time of sentencing and, accordingly, the appeal is premature.              See State v.

Jackson, 601 N.W.2d 354, 357 (Iowa 1999); State v. Swartz, 601 N.W.2d 348, 354

(Iowa 1999).

       This court distinguished Swartz in State v. Campbell, No. 15-1181, 2016

WL 4543763, at *3 (Iowa Ct. App. Aug. 31, 2016). We said Swartz “contemplates

a situation in which the court has ordered an amount of restitution without

determining the defendant’s reasonable ability to pay.”           Campbell, 2016 WL

4543763, at *3. Campbell did “not challenge the amount of his restitution” but the

evidentiary basis for the court’s finding that he had a reasonable ability to pay. Id.

Because the court made the ability-to-pay finding in its written sentencing order,

we concluded the issue could be reviewed on direct appeal. Id.

       The same holds true here with respect to the district court’s order finding

Fry had the ability to pay $25 for court-appointed attorney fees. Fry contends the

district court abused its discretion in “failing to properly consider [his] ability to pay

the costs of his legal representation.” As in Campbell, he simply challenges the

sufficiency of the evidence to support this finding. The issue is ripe for review, and

we proceed to the merits.

       “[S]ection 910.2 authorizes a sentencing court to order restitution for court

costs and attorney fees only to the extent of the defendant’s reasonable ability to

pay the amount ordered.” State v. Kaelin, 362 N.W.2d 526, 528 (Iowa 1985). Fry’s

attorney submitted a statement listing his court-appointed attorney fees as $960.

The district court found Fry capable of paying $25. Although he was indigent and

experienced financial hardship in the year preceding the offense, he previously

earned cash compensation for landscaping work and testified to his desire to
                                           6


continue performing that type of work. We are not convinced the court abused its

discretion in holding him responsible for $25 of the $960 bill.

       Fry also takes issue with the court’s statement, “I have to tax some minor

amount of attorney fees.” He argues, “The court mistakenly believed that it had to

order [him] to repay something for his court-appointed fees.” We disagree. The

court used the term “have to” while listing various components of the sentence.

We are not convinced the two words reflected a belief the court was statutorily

required to order the payment of some amount of the attorney fee obligation

whether or not Fry was able to pay the amount. See Iowa Code §§ 910.2 (“When

the offender is not reasonably able to pay all or a part of the . . . court-appointed

attorney fees ordered pursuant to section 815.9, including the expense of a public

defender, . . . the court may require the offender in lieu of that portion of the . . .

court-appointed attorney fees ordered pursuant to section 815.9, including the

expense of a public defender . . . restitution for which the offender is not reasonably

able to pay, to perform a needed public service for a governmental agency or for

a private nonprofit agency.”); 910.3 (allowing the defendant to raise “any mental or

physical impairment which would limit or prohibit the performance of a public

service”); State v. Haines, 360 N.W.2d 791, 794 (Iowa 1985) (concluding restitution

statute does not violate right to counsel in light of the protections in place to relieve

the defendant of the restitution obligation). Notably, the court’s written sentencing

order made no reference to a mandatory attorney-fee obligation but focused

instead on the amount Fry was capable of paying. We conclude the district court’s

stray use of “have to” in its oral rendition of the sentence does not mandate
                                            7


reversal. We affirm the district court’s imposition of a $25 attorney-fee restitution

obligation.

       We turn to the district court’s imposition of court costs. A statement filed

with the court before sentencing identified costs of $677.52.1 This restitution

obligation, like the court-appointed attorney fee obligation, is subject to a

defendant’s ability to pay. State v. Kurtz, 878 N.W.2d 469, 473 (Iowa Ct. App.

2016). The district court ordered Fry to pay “court costs” without determining his

reasonable ability to pay those costs. We vacate that portion of the sentence and

remand for a determination of Fry’s reasonable ability to pay those costs. See

State v. Johnson, 887 N.W.2d 178, 184 (Iowa Ct. App. 2016) (“Although the

sentencing court did state Johnson was reasonably able to pay $100 of his court-

appointed attorney fees, the record is silent as to whether the court considered

Johnson’s ability to pay the court-ordered court costs.            Because we cannot

determine whether the court reasonably exercised its discretion when it ordered

restitution for court costs, we vacate that portion of the sentence and remand for a

determination of Johnson’s reasonable ability to pay.”).

III.   Disposition

       We affirm Fry’s conviction for assault with intent to commit sexual abuse.

We also affirm the district court’s determination that Fry was able to pay $25 in

restitution for court-appointed attorney fees. We vacate that portion of the district




1
  The clerk of court later filed a “financial summary” of all court costs. We only consider
the costs on record at the time judgment was entered.
                                         8


court’s judgment entry imposing a restitution obligation for court costs and remand

for a determination of Fry’s reasonable ability to pay those costs.

       JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND

VACATED IN PART, AND REMANDED.
