                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1332
                               Filed July 18, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL SHAWN BALL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Michael J.

Shubatt, Judge.



      Michael Ball appeals his convictions for conduct with a minor, and he

appeals provisions in his judgment and sentence. CONVICTIONS AFFIRMED,

SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED

FOR ENTRY OF A CORRECTED SENTENCE.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Vogel, P.J., and Doyle and Bower, JJ.
                                              2


VOGEL, Presiding Judge.

         Michael “Wally” Ball appeals his convictions for enticing a minor, supplying

alcohol to a minor, indecent exposure, and invasion of privacy. He argues the

evidence is insufficient to prove he committed enticement. He also argues the

district court abused its discretion in refusing to exclude the testimony of his former

wife, Beth Ball, and it erred in imposing sexual abuse victim surcharges and special

conditions of probation and in ordering appellate attorney fees unless he filed a

request for a hearing on his ability to pay. We find sufficient evidence supports

Ball’s conviction for enticement. We also find the district court did not abuse its

discretion in permitting Beth to testify, and the court did not err in imposing special

conditions or in stating Ball may be assessed appellate attorney fees at a later date

subject to his reasonable ability to pay.         However, the district court erred in

imposing sexual-abuse-victim surcharges under Iowa Code section 911.2B

(2014), and we remand for the limited purpose of entering a corrected sentence

without the surcharges.

         I.     Background Facts and Proceedings

         A.G. was born in October 2000 and the acts she alleged to have occurred

were in and around May 2014.           At the time, A.G. lived in Dubuque near L.B., who

lived with her father, Michael Ball,1 and her mother, Beth Ball. A.G. testified she

and L.B. “were like sisters” and they hung out together almost every day.

         During the time at issue, A.G. had a personal cell phone with over one

hundred contacts, including numbers for her friends and some friends’ parents.



1
    Ball was born on March 15, 1964.
                                          3


One contact was a phone number associated with Ball, and she never received a

call from anyone other than Ball from this number. A.G. testified she saw Ball with

the phone associated with this contact and he always kept it with him or locked in

his bedroom. Beth testified Ball’s phone previously belonged to their son, who no

longer lived with them. Additionally, Beth had a personal cell phone, L.B. had a

personal phone that could make calls using Wi-Fi but did not have cellular service,

and their home had a landline phone. Beth testified they occasionally punished

L.B. by taking her phone, and L.B. had once hid Beth’s phone for a week.

       At trial, A.G. testified Ball began acting inappropriately with her in May 2014.

She related two notable incidents that occurred around May 28.             In the first

incident—the living room incident—A.G. was in Ball’s living room while L.B. was

on the computer a few feet away. She looked in a living room mirror and saw a

reflection of Ball standing down the hall in his bedroom doorway masturbating,

stroking his penis with his hand. A.G. believed his actions were aimed at her

because he was looking at the same mirror, L.B. could not see him from her

position, and no one else was in the home at the time. The incident upset her, but

she did not tell an adult about the living room incident at the time “[b]ecause I was

young and I didn’t know what to do. I thought if I told someone, it would ruin their

family, and I loved [L.B.] too much to create that divide between her family.”

       In the second incident—the bedroom incident—A.G. and L.B. entered Ball’s

home after they had just bought new clothes. While L.B. took a shower, A.G. yelled

to her, “I’m just going to change in your room and try on those clothes.” A.G. then

entered L.B.’s bedroom, locked the bedroom door, and began changing. Soon

after, Ball opened the bedroom door, entered the room when A.G. was not wearing
                                            4


pants or underwear, and masturbated with his penis in his hand while he stared at

her. She screamed for L.B., and Ball pulled up his pants and left the room like

nothing had happened.

          A.G. testified Ball exposed himself to her other times too. For example, he

would lie in his bed and masturbate to pornography with his door open when he

knew she was in the home. She believed these incidents were a way to get her

attention, and there were “[t]oo many” incidents to put a number on.

          A.G. testified Ball also provided alcohol to her and L.B. during summer

2014. Once, she sent him a text message that said “[I]f you don’t buy us alcohol,

[then] I will report you to your wife and tell her everything that you have been

doing.” He “seem[ed] excited” by the request and asked for “[s]exual favors” in

return.

          At trial, the State produced a series of text messages A.G had provided that

came to her from the phone number associated with Ball between 10:42 p.m. on

May 28, 2014, and 7:06 a.m. on May 29.2 One message said, “nice view tonight[

]very exciting dont you think?” She believed this message referred to the living

room incident. Another message said, “it was nice seeing hair on your pussy when

I walked in by accident today.[ ]remember erase these i will do what you want.”

She believed this message referenced the bedroom incident, though she did not

believe the incident was an accident. Other messages requested a nude photo of


2
  At trial, A.G. was unsure when the living room incident and the bedroom incident
occurred in relation to the text messages of May 28 and 29, 2014. She testified the living
room incident occurred before the bedroom incident, and the living room incident
happened the same day she received the text messages. Additionally, she testified the
bedroom incident occurred both before she received the text messages and later that
summer. She further testified she may have confused the bedroom incident with another
incident, and the incidents had continued for a while into the summer.
                                         5


her, asked about her sexual experiences, and said “guess what i am doing right

now,” “what do i get for getting you alcohol? head?” and “[I] wish you would come

down and watch me shoot a load[ ]right now.” She testified the messages made

her feel “[d]isturbed” and “embarrassed,” and she viewed them “as a type of

invitation.” She testified he had sent her more messages than those introduced at

trial and she had responded to some of his messages.

       In February 2015, L.B. called A.G. and asked her to show the text

messages to Beth. A.G.’s mother overheard the call, looked at the messages, and

called the police. Some time before the investigation, A.G. testified she had

deleted all of the original messages Ball had sent and her responses because

“[t]hey were painful to keep.” However, she kept screenshots—digital photographs

of her screen—of Ball’s messages to her on May 28 and 29, 2014, and she emailed

the screenshots to the police. The screenshots do not include the sending phone

number, though they show they came from the contact associated with Ball’s

phone that A.G. had programmed into her phone.

       Ball voluntarily spoke to Dubuque police officer Brendan Welsh during the

investigation. Officer Welsh testified Ball was deflective during the interview. Ball

said he did not recognize the number that sent the messages to A.G., but he also

said the number belonged to a community phone that anyone in his house could

have used. He said he had destroyed the phone he used during the time at issue,

and he would not say where the broken phone was. He said L.B. and her friends

had been extorting him for alcohol. Officer Welsh later subpoenaed records from

Ball’s phone provider. While the records do not include the actual text messages,

the records confirm the phone suspected to have been used by Ball had sent
                                           6


messages to A.G.’s phone at the times indicated on the screenshots A.G.

provided.3

       The State charged Ball with enticing a minor under the age of sixteen, in

violation of Iowa Code section 710.10(2); supplying alcohol to a person under the

legal age, in violation of section 123.47; indecent exposure, in violation of section

709.9; and invasion of privacy, in violation of section 709.21. The parties reached

a plea agreement, resulting in the entry of judgment and sentence on July 22,

2015. Ball appealed, arguing his plea agreement was not voluntary, and this court

vacated the judgment and sentence and remanded for further proceedings. See

State v. Ball, No. 15-1319, 2016 WL 1697071 (Iowa Ct. App. Apr. 27, 2016).

       On remand, the district court reinstated all four counts. On April 25, 2017,

Ball’s trial commenced. Ball objected when the State called Beth as a witness at

trial because the State first filed minutes of evidence for her appearance on April

18—less than ten days before trial. The State responded that they had talked to

Ball on several occasions about their intent to call Beth as a witness, and they had

only recently obtained her address. The district court found her appearance was

not a surprise to Ball, and it noted he did not object to her appearance until the

State called her at trial and he had never asked to depose her. Accordingly, the

court allowed her to testify limited to the matters addressed in the minutes for her

testimony—specifically the family circumstances and the phones used in the




3
  The times shown in the phone records and the screenshots are one hour apart, which
officer Welsh attributed to the fact that Michael’s phone provider and A.G.’s phone were
in different time zones.
                                        7


household. After the State rested at trial, Ball made an oral motion for judgment

of acquittal on all counts, which the court summarily denied.

      On April 27, 2017, the jury convicted Ball of all four counts. On June 8, Ball

filed a “Motion in Arrest of Judgment” and a “Motion for a New Trial,” which raised

several grounds including insufficient evidence of enticement. On August 16, the

court denied Ball’s post-trial motions in a single order. On August 21, the court

entered judgment and sentence for Ball. For Count I (enticement), the court

sentenced him to a term of incarceration of five years, which was fully suspended;

placed him on probation for a period of five years; and imposed fines and

surcharges. For each of Counts II, III, and IV, the court sentenced him to a term

of incarceration of 180 days, of which 100 days were suspended; placed him on

probation for a period of two years; and imposed fines and surcharges. The court

placed special conditions on his probation, including: “Obtain a substance abuse

evaluation and comply with treatment recommendations”; “Abstain from the

consumption of alcohol and illegal substances”; and “Be subject to random drug

testing.” Counts II, III, and IV were concurrent with each other but consecutive to

Count I. Among other provisions, the court imposed “a $100 surcharge on Counts

III and IV pursuant to Iowa Code § 911.2b(1).” The court concluded with a

statement regarding any potential appeal:

             The Defendant is advised that if he appeals this ruling, he may
      be entitled to court-appointed counsel to represent him in an appeal.
      The Defendant is advised that if he qualifies for court-appointed
      appellate counsel, then he can be assessed the cost of the court-
      appointed appellate attorney when a claim for such fees is presented
      to the clerk of court following the appeal. The Defendant is further
      advised that he may request a hearing on his reasonable ability to
      pay court-appointed appellate attorney fees within 30 days of the
      issuance of the procedendo following the appeal. If the Defendant
                                          8


       does not file a request for a hearing on the issue of his reasonable
       ability to pay court-appointed appellate attorney fees, the fees
       approved by the State Public Defender will be assessed in full to the
       Defendant.

       Ball now raises several arguments on appeal: (1) the evidence is insufficient

to prove he committed enticement; (2) the district court abused its discretion in

allowing Beth to testify after the State failed to provide minutes of evidence for her

testimony at least ten days prior to trial; (3) the imposition of sexual abuse victim

surcharges was an illegal sentence; (4) the imposition of special conditions of

probation was an illegal sentence; and (5) the district court erred in ordering the

assessment of appellate attorney fees unless he filed a request for a hearing on

his reasonable ability to pay.

       II.    Standard of Review

       We review claims of insufficient evidence for corrections of errors at law.

State v. Kern, 831 N.W.2d 149, 158 (Iowa 2013). “The essential question before

the court on a challenge to sufficiency of the evidence is whether there was

substantial evidence to support a guilty verdict beyond a reasonable doubt.” Id.

We review evidentiary rulings, including the admissibility of a witness, for abuse of

discretion. State v. Richards, 809 N.W.2d 80, 89 (Iowa 2012). We review claims

of an illegal sentence for correction of legal errors. State v. Lyle, 854 N.W.2d 378,

382 (Iowa 2014). We ordinarily review restitution orders for abuse of discretion,

but we review constitutional issues de novo. State v. Dudley, 766 N.W.2d 606,

626 (Iowa 2009); State v. Van Hoff, 415 N.W.2d 647, 648 (Iowa 1987).
                                           9


       III.   Insufficient Evidence

       Ball claims the evidence is insufficient to prove he enticed a minor under

Iowa Code section 710.10. He notes the State charged him with—and the court

convicted him of—enticement and not attempted enticement.

       As an initial matter, the State argues Ball has not preserved error on his

claim of insufficient evidence. “To preserve error on a claim of insufficient evidence

for appellate review in a criminal case, the defendant must make a motion for

judgment of acquittal at trial that identifies the specific grounds raised on appeal.”

State v. Truesdell, 679 N.W.2d 611, 615 (Iowa 2004). Ball orally moved for

judgment of acquittal during trial, but this motion cannot preserve error because

neither the motion nor the court’s response specified insufficient evidence as an

issue. After trial, he filed a “Motion for a New Trial” that raised an insufficient-

evidence claim. This motion only explicitly requested a new trial and did not

mention acquittal; however, the district court noted Ball filed “a motion in arrest of

judgment and a motion for new trial” following trial, and the court fully responded

to Ball’s insufficient-evidence arguments in a single post-trial order. See Meier v.

Senecaut, 641 N.W.2d 532, 539 (Iowa 2002) (“[W]e treat a motion by its contents,

not its caption.”). Because his post-trial motion was sufficiently detailed to alert the

district court that he requested a judgment of acquittal on the grounds of insufficient

evidence, Ball has preserved error on appeal. See Truesdell, 679 N.W.2d at 615.

       A person is guilty of enticing a minor “when without authority and with the

intent to commit an illegal sex act upon or sexual exploitation of a minor under the

age of sixteen, the person entices or attempts to entice a person reasonably

believed to be under the age of sixteen.” Iowa Code § 710.10(2). The person
                                         10

must commit “an overt act evidencing a purpose to entice.” Id. § 710.10(5).

“‘Entice’ is defined as ‘to draw on by arousing hope or desire’ or ‘to draw into evil

ways.’ Synonymous words include ‘allure,’ ‘attract,’ and ‘tempt.’” State v. Hansen,

750 N.W.2d 111, 114 (Iowa 2008) (quoting State v. Osmundson, 546 N.W.2d 907,

909 (Iowa 1996)).

       Under the previous version of the statute, a person was guilty of enticing a

minor only if “the person entices away a minor.” Iowa Code § 710.10(2) (2008)

(emphasis added). Our supreme court found significance in the former statute’s

use of “away,” distinguishing between enticement—which was criminalized under

former section 710.10(2)—and attempted enticement—which was not criminalized

under former section 710.10(2):

              As we said in Osmundson, the word “‘entice’ focuses on the
       actions of the defendant; it does not matter what the victim thought.”
       [546 N.W.2d at 910.] For example, if a defendant with the intent to
       molest a child asks that child to help him find his puppy, it does not
       matter what the child thought was going to happen if she went with
       the defendant. However, the phrase “entices away” requires the fact
       finder to look not only to the actions and conduct of the defendant
       but also to the impact of those actions upon the victim. A perpetrator
       entices, but it is the victim who is enticed away. Thus, under our
       example, the defendant is guilty of enticement if the child goes with
       the defendant and guilty of attempted enticement if the child runs
       away from the defendant.

Hansen, 750 N.W.2d at 114.

       In 2010, the Iowa legislature amended section 710.10 into the version at

issue here. See 2010 Iowa Acts ch. 1129. Among the changes, the legislature

deleted “away” and added “or attempts to entice” to section 710.10(2). Id. Thus,

the legislature addressed our supreme court’s decision in Hansen while retaining

enticement and attempted enticement as distinct offenses. See id.; see also H.F.
                                           11


2438, 83d G.A., 2d Sess. explanation (Iowa 2010) (“The amendments in the bill

are in response to State v. Hansen, 750 N.W.2d 111 (Iowa 2008) . . . .”).

       Ball argues the difference between enticement and attempted enticement

depends on whether the minor accepts the enticement offer. This is consistent

with the court’s decision in Hansen, 750 N.W.2d at 114 (“[T]he defendant is guilty

of enticement if the child goes with the defendant and guilty of attempted

enticement if the child runs away from the defendant.”). However, Ball’s argument

overlooks the subsequent statutory changes in response to Hansen. See 2010

Iowa Acts ch. 1129. The statute at issue here focuses “enticement” on the actions

of the defendant without regard to whether the minor was enticed “away.” See

Iowa Code § 710.10(2) (2014). Therefore, the minor is not required to accept the

enticement offer in order for the defendant to commit enticement.

       Ball responds that the difference between enticement and attempted

enticement disappears without a requirement that the minor accept the offer.

Attempted enticement is not defined in section 710.10, but generally an attempted

crime requires “(1) intent to commit the crime and (2) slight acts in furtherance of

the crime that render voluntary termination improbable.” State v. Walker, 856

N.W.2d 179, 187 (Iowa 2014). The State and the district court suggest attempted

enticement may occur when a defendant sends enticing messages to a minor with

the needed intent but the messages never reach the minor, possibly because a

police officer was posing as a minor or a parent intercepted the messages. 4


4
  Ball notes the court in State v. Hansen explicitly said they do not believe attempted
enticement includes a situation where a defendant reaches out to a minor with the needed
intent but fails to contact the minor. 750 N.W.2d 111, 113 n.1 (Iowa 2008). However, this
dictum involved the previous version of section 710.10. Therefore, we do not rely on it in
                                        12


However, we find it is neither necessary nor appropriate to speculate on whether

hypothetical situations would qualify as enticement or attempted enticement. See

Hartford-Carlisle Sav. Bank v. Shivers, 566 N.W.2d 877, 884 (Iowa 1997) (“This

court has repeatedly held that it neither has a duty nor the authority to render

advisory opinions.”). Instead, we only conclude that enticement under section

710.10(2) does not require the minor to accept the offer. Attempted enticement

may occur if the defendant performs a slight act in furtherance of enticement with

the needed intent. See Walker, 856 N.W.2d at 187.

      Accordingly, section 710.10(2), as amended at the time, focuses

“enticement” on the actions of the defendant without regard to whether the minor

was enticed “away.” See also Hansen, 750 N.W.2d at 114. Under this standard,

the evidence is sufficient for the jury to conclude Ball committed enticement. A.G.

testified Ball had repeatedly engaged in sexual behavior directed at her. He

watched pornography, exposed himself, and masturbated in her presence. He

walked into a locked room while she was changing clothes. She received text

messages from his phone that explicitly asked about sexual activity, and she

believed these messages were an “invitation” from him. The State presented

phone records corroborating the times of the text messages, and testimony

established Ball kept his phone in his exclusive control. From this evidence, the

jury could conclude Ball sent the text messages to A.G. in order to entice—or

“allure,” “attract,” or “tempt.” See id. Furthermore, the jury could conclude Ball

sent the enticing text messages with the intent to commit an illegal sex act upon



finding such a situation could never qualify as attempted enticement under amended
section 710.10.
                                          13


her and not to simply entice her to engage in a non-sexual activity such as riding

in his car to purchase alcohol. These text messages are the required overt act

showing his purpose to entice. See Iowa Code § 710.10(5). Finally, the other

elements of enticement, including the fact A.G. was under the age of sixteen at the

time, are not in doubt. See id. § 710.10(2). Therefore, the evidence is sufficient

to prove Ball committed enticement.

       IV.    Witness Testimony

       Ball argues the district court abused its discretion by allowing Beth to testify

even though the State first filed minutes of evidence for her appearance less than

ten days prior to trial. The State may offer a witness “if the prosecuting attorney

has given the defendant’s attorney of record . . . a minute of such witness’s

evidence . . . at least ten days before the commencement of the trial.” Iowa R.

Crim. P 2.19(2). If the State does not provide notice of the witness at least ten

days before trial, the court may enter an “order as it deems just under the

circumstances,” such as permitting discovery or granting a continuance. Iowa R.

Crim. P. 2.19(3). The court may exclude the testimony of the witness only “if it

finds that no less severe remedy is adequate to protect the defendant from undue

prejudice.” Id.

       Even though the State provided minutes of evidence for Beth’s testimony

only seven days prior to trial, the court found her appearance and the contents of

her anticipated testimony should not have surprised Ball. The court noted Ball

failed to object to her testimony despite multiple opportunities, and he never

requested to depose her. The court ultimately allowed Beth to testify to the matters

included in the minutes of evidence for her appearance.                 Under these
                                        14


circumstances, the court did not abuse its discretion in allowing her to testify

despite the late minutes for her testimony. See id.

      V.     Sexual Abuse Victim Surcharges

      Ball argues the court imposed an illegal sentence when it imposed sexual

abuse victim surcharges under section 911.2B. Section 911.2B took effect on July

1, 2015, after Ball committed the charged offenses. 2015 Iowa Acts ch. 96, §§ 15,

17. Thus, the State concedes the surcharges are unconstitutional here. See State

v. Lopez, 907 N.W.2d 112, 123 (Iowa 2018) (“[T]he imposition of the section

911.2B surcharge for conduct occurring prior to the July 1, 2015 effective date

violates the Ex Post Facto Clauses of the Iowa and United States Constitutions.”).

Therefore, we vacate the part of his sentence imposing section 911.2B surcharges

and remand for entry of a corrected sentence.

      VI.    Special Conditions of Probation

      Ball argues the district court imposed an illegal sentence when it imposed

special conditions of probation related to illegal drugs and alcohol. When imposing

probation, the district court may impose “any additional reasonable conditions . . .

to promote rehabilitation of the defendant or protection of the community.” Iowa

Code § 907.6. These conditions “must not be unreasonable or arbitrary.” State v.

Lathrop, 781 N.W.2d 288, 299 (Iowa 2010). “A condition is reasonable when it

relates to the defendant’s circumstances in a reasonable manner and is justified

by the defendant’s circumstances.” Id. The “defendant’s background and history

is also relevant when determining the conditions of probation.” State v. Valin, 724

N.W.2d 440, 447 (Iowa 2006).
                                         15


       Ball argues none of the convictions at issue involve drug or alcohol use by

him. However, he was convicted of providing alcohol to a minor, and the text

messages and A.G.’s testimony indicated he wanted to provide the alcohol in

exchange for sex. Furthermore, he was previously convicted in 2010 of operating

a motor vehicle while intoxicated and possession of a controlled substance. For

his presentence investigation report, he also reported drug and alcohol abuse

beginning in his teenage years and continuing on-and-off until 2010. Considering

the involvement of alcohol in the convictions at issue, his prior convictions for drug

and alcohol offenses, and his self-reported history of on-and-off drug and alcohol

abuse, the court did not err in in imposing the special conditions of probation

related to illegal drugs and alcohol. See Lathrop, 781 N.W.2d at 299.

       VII.   Assessment of Appellate Attorney Fees

       Ball argues the district court erred in its judgment and sentence when it

ordered him to pay appellate attorney fees unless he requested a hearing on the

issue of his reasonable ability to pay. Ball correctly notes that, regardless of

whether a defendant requests a hearing, “[a] cost judgment may not be

constitutionally imposed on a defendant unless a determination is first made that

the defendant is or will be reasonably able to pay the judgment.” Dudley, 766

N.W.2d at 615. However, the provision in the judgment and sentence regarding

appellate attorney fees is not an order to pay fees; rather, it merely summarizes

the law and alerts Ball he may be required to pay appellate attorney fees for any

possible appeal. If “the district court assesses any future attorney fees on [Ball’s]

case, it must follow the law and determine the defendant’s reasonable ability to
                                         16


pay the attorney fees without requiring him to affirmatively request a hearing on

his ability to pay.” State v. Coleman, 907 N.W.2d 124, 149 (Iowa 2018).

       VIII.   Conclusion

       Sufficient evidence supports Ball’s conviction for enticement. The district

court did not abuse its discretion in permitting Beth to testify even though the State

first filed minutes of evidence for her appearance less than ten days before trial.

The court did not err in imposing special conditions of probation related to illegal

drugs and alcohol, nor did the court err in stating Ball may be assessed appellate

attorney fees at a later date subject to his reasonable ability to pay. However, the

court erred in imposing sexual abuse victim surcharges under section 911.2B, and

we remand for the limited purpose of entering a corrected sentence without the

surcharges.

       CONVICTIONS AFFIRMED, SENTENCE AFFIRMED IN PART AND

VACATED IN PART, AND REMANDED FOR ENTRY OF A CORRECTED

SENTENCE.
