                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-2139
                            Filed February 19, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TIFFANI MARIE FINCH,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda,

District Associate Judge.



      A defendant appeals her conviction for operating a motor vehicle without

the owner’s consent. AFFIRMED.



      John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



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

         As framed by the district court, we are asked to decide “the interesting

evidentiary question of whether a ward, subject to a guardianship and

conservatorship, can consent to the use of a vehicle still titled in that ward’s name.”

Finding the ward, Carroll Blankenship, lacked capacity to consent, the court barred

Tiffani Finch from introducing evidence that she had Blackenship’s permission to

operate his truck. See Iowa R. Evid. 5.104(a). The court then found her guilty of

operating a motor vehicle without the owner’s consent. Finch now contends the

pretrial ruling on admissibility was wrong and seeks a new trial. Because the

district court properly analyzed the issue of consent and the State proved Finch

knew she did not have permission from the conservator to operate the truck, we

affirm her conviction.

     I. Facts and Prior Proceedings

         In October 2017, the probate court appointed Kelly Cogley as permanent

guardian and conservator for eighty-nine-year-old Blankenship.             The order

accepted a report of the guardian ad litem that Blankenship did not have the ability

to make decisions regarding his finances without the conservator’s help.1

         A few months later, Cogley informed the Newton police that several people

were “trying to befriend” Blankenship, “to take advantage of him.” They were

spending time in his home, possibly taking his money, and driving his red 1990

Chevy truck without Cogley’s permission. Those people included Finch and her

boyfriend, Brian Wedeking. After officers completed their investigation, the State



1   Blankenship retained his right to vote.
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charged Finch with operating Blankenship’s vehicle without the owner’s consent,

in violation of Iowa Code sections 714.1 and 714.7 (2018).

       The State moved in limine to exclude evidence Blankenship gave Finch

permission to use the truck. The State argued because Blankenship could not

legally consent, that testimony would be irrelevant. The court denied the motion.

       At this point, the court is not willing to make a finding that, as a matter
       of law, Mr. Blankenship was not capable of giving consent nor is the
       court willing to state, as a matter of law, that he was competent to
       give consent. At this point, the court feels that that is a question of
       fact that needs to be more flushed out in the testimony, so the court
       will deny the motion in limine, which in effect would have precluded
       the defendant from saying she received Mr. Blankenship’s
       permission, or had Mr. Blankenship’s permission. The issue of
       consent, the court feels, can be better addressed in the instructions
       to the jury at the close of the case.

       Before the jury started to hear evidence, the parties returned to the court for

guidance on the legal question of whether Blankenship could, as a matter of law,

consent to use of his truck while under a conservatorship.2 The State informed the

court if it ruled the ward could not consent, Finch agreed to a trial on the minutes.

If the court ruled consent was a fact question, the State planned to seek an

interlocutory appeal. The district court agreed to hear evidence on this initial

question—outside the presence of the jury.

       At that hearing, Newton police officer Kyle Lovan testified to fielding

Cogley’s report that people had been driving Blankenship’s truck without her

permission. Officer Lovan went to Blankenship’s house in mid-December 2017.

When he arrived, he found Finch and Wedeking. The officer told them Cogley was


2At the State’s request, the court took judicial notice of the entire file involving the
establishment of a guardianship and conservatorship for Blankenship. But the
court said it would indicate in its ruling what specific information it relied upon.
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Blankenship’s “power of attorney” and they should not be driving his truck without

her permission. During the visit, the officer also spoke to Blankenship, who said

“it was okay” for Finch to drive the truck.

       In early January, Cogley again asked police to go to Blankenship’s home

and speak with the unwanted guests. While there, Officer Lovan noticed the truck

was gone and later saw Finch pull into the driveway. Lovan arrested her for driving

the vehicle without the owner’s consent.

       Cogley testified Blankenship did not have a driver’s license and the truck

was not insured. Cogley did not worry Blankenship would drive, given his limited

mobility. But she told him no one else should operate his truck. He grumbled “it

was none of [her] business.” Despite his retort, Cogley understood it was her duty

as conservator to manage his assets. She was concerned someone operating the

truck without permission would incur liability for accidents.

       Finch also testified.   She said Blankenship had been friends with her

grandfather. And she knew him as a regular customer at the Hy-Vee café where

she worked in 2011. She testified she started visiting Blankenship daily in 2017.

She admitted driving his truck but said she had his permission. She testified she

ran errands for him and took him to a doctor’s appointment. She claimed she paid

for insurance on the truck for December 2017 but it was only liability insurance.

She testified she knew then Blankenship was subject to a conservatorship

because he told her he could not access his finances. She also testified Cogley

told her in mid-December she was not allowed to drive the truck.

       The court concluded as a matter of law that being a ward deprived

Blankenship of the capacity to consent to Finch’s operation of his vehicle. As its
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bottom line, the court concluded neither party could introduce evidence that

Blankenship granted Finch permission to drive his truck. The court noted Finch

“was fully aware for months” that the court had appointed Cogley as guardian and

conservator for Blankenship, that Cogley had control of his finances, and that Finch

could not drive his truck without Cogley’s permission. Given Finch’s awareness,

the court decided she could not reasonably presume Blankenship had authority to

give his implied consent to drive the truck. Following a bench trial on the minutes

of testimony, the court found Finch guilty as charged.

       Finch appeals the district court’s ruling on the admissibility of evidence

under Iowa Rule of Evidence 5.104(a).

   II. Scope and Standards of Review

       We review a ruling on a preliminary question of the admissibility of evidence

under rule 5.104(a) for the correction of legal error. See State v. Veverka, ___

N.W.2d ___, ___, 2020 WL 499728, at *3 (Iowa Jan. 31, 2020). But the State

contends “the substantive issue” before us “is really the sufficiency of the

evidence.” We do not read Finch’s brief as raising a question of substantial

evidence.   If anything, the district court actually ruled on a joint request to

adjudicate a point of law, though the parties did not call it that. See State v. Wilt,

333 N.W.2d 457, 460 (Iowa 1983) (“Iowa courts may look to the substance of a

motion rather than its label.”). That motion lies for the resolution of legal issues,

not factual disputes. Id. As the district court confirmed:

       [T]he general facts pertaining to this evidentiary question are
       undisputed: Mr. Blankenship owned a vehicle, Mr. Blankenship
       became a ward under a full guardianship and conservatorship
       although his vehicle remained titled in his name (633.639), and Mr.
       Blankenship ostensibly allowed [Finch] to use his vehicle.
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We examine the district court’s interpretation of the relevant statutes for correction

of legal error. See State v. Tong, 805 N.W.2d 599, 601 (Iowa 2011).

   III. Discussion

         We start with the criminal statute at issue.       A defendant commits the

aggravated misdemeanor of operating a vehicle without the owner’s consent when

that person takes possession or control of a self-propelled vehicle, which is “the

property of another, without the consent of the owner of such, but without the intent

to permanently deprive the owner thereof.” Iowa Code § 714.7. The legislature

designated a violation of section 714.7 as a lesser included offense of theft. Id.

         General criminal intent is an element of section 714.7. “This is true even

though the section speaks of intent only in terms of a characteristic not required:

permanence of purpose need not be shown.” State v. McCormack, 293 N.W.2d

209, 212 (Iowa 1980). So the State had the burden to prove beyond a reasonable

doubt Finch acted with criminal intent.         If she reasonably believed she had

permission from the owner to drive the truck in January 2018, she would not be

guilty of the offense charged. See State v. Drummer, 117 N.W.2d 505, 509 (Iowa

1962).

         At issue here is Blankenship’s ability to grant that permission. In its pretrial

ruling, the court found Blankenship, as a ward, could not give either express or

implied consent to use the truck under the probate code. At least five probate

provisions are relevant. First, section 633.635 spells out the responsibilities of a

guardian, here Cogley. Those responsibilities include taking reasonable care of
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the ward’s personal effects, including a vehicle. See Iowa Code § 633.635(1)(b).

Second, section 633.637(1) describes the powers of the ward:

       A ward for whom a conservator has been appointed shall not have
       the power to convey, encumber, or dispose of property in any
       manner, other than by will if the ward possesses the requisite
       testamentary capacity, unless the court determines that the ward has
       a limited ability to handle the ward’s own funds.

       Third, the title to the ward’s property remains with the ward, but subject to

the conservator’s possession and the court’s control for certain purposes. Id.

§ 633.639. Fourth, the conservator has “a right to, and shall take, possession of

all of the real and personal property of the ward.” Id. § 633.640. And fifth, the

conservator has a duty “to protect and preserve” the ward’s property.            Id.

§ 633.641(1).

       After reviewing the probate file, the district court noted the probate court

“placed no limitations on the guardianship or the conservatorship and made no

finding or determination that Mr. Blankenship had the limited ability to make any of

his own decisions or handle any of his own affairs.” See id. § 633.637. The district

court also found Finch knew Blankenship’s conservator had full authority over his

affairs.

       On appeal, Finch concedes the probate code permits Cogley to take

possession of Blankenship’s personal property, including his truck, and take

reasonable care of it. But she contends the probate code “does not specifically

say” Cogley’s powers include “restricting access to the use of the [truck] by anyone

other than the conservator and her authorized users.”

       We disagree with Finch’s cramped interpretation of the probate code. As

conservator, Cogley had both the right and the duty to take possession of
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Blankenship’s property and to protect and preserve it in his interests, even if title

remained with Blankenship. See In re Conservatorship of Rininger, 500 N.W.2d

47, 50 (Iowa 1993) (“A conservator has a legal obligation to recognize the

restrictions that the law places on the ward’s authority.”); In re Fahlin’s

Guardianship, 254 N.W. 296, 297 (Iowa 1934) (holding status of guardianship

rendered ward legally incompetent to direct guardian’s decisions as to property

management). The probate court did not determine Blankenship had any limited

ability to make decisions regarding his property. Without that determination, he

did not have the legal ability to consent to Finch’s use of the truck.

       Finch responds if Cogley wanted to take possession of the truck, she could

have removed it from Blankenship’s property or sold it.             But Finch then

acknowledges Cogley did sell the truck shortly after Finch drove it in January 2018.

And we do not find Blankenship’s capacity to manage his property depended on

its physical presence at his residence. Nor can the truck’s physical presence at

the house contribute to a reasonable belief by Finch that she had permission to

drive it. Contrast Drummer, 117 N.W.2d at 509. Critically, Finch knew Blankenship

was subject to a guardianship, and Officer Lovan told her in mid-December 2017

that she could not drive Blankenship’s truck without Cogley’s permission. Yet

Finch was still driving the truck in January 2018.

       The district court correctly decided Blankenship, as a ward, could not legally

give another person permission to drive his truck. We reject Finch’s request for

new trial on the offense of operating a motor vehicle without the owner’s consent.

       AFFIRMED.
