State of Iowa v. Nathan Ray Tesch

IN THE COURT OF APPEALS OF IOWA

No. 21-1827
Filed February 8, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

NATHAN RAY TESCH,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clay County, Nancy L. Whittenburg,

Judge.

The defendant appeals his conviction for third-degree burglary and the

category “B” restitution he was ordered to pay. CONVICTION AFFIRMED; WRIT

ANNULLED.

Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.

Considered by Bower, C.J., and Greer and Badding, JJ.
2

GREER, Judge.

Nathan Tesch appeals his conviction for third-degree burglary and the

category “B” restitution the district court ordered him to pay. He challenges the

sufficiency of the evidence supporting his conviction, argues the State committed

a Brady violation1 that entitles him to a new trial, and claims the district court

abused its discretion when it determined his reasonable ability to pay category “B”

restitution.

I. Background Facts and Proceedings.

A notification went out from a rented storage unit at approximately 3:00 a.m.

on February 6, 2021, that motion was detected by the surveillance camera in the

unit. Jason, a salesman who keeps products in the unit,2 received the notification

when he woke up later the same morning. After driving to the unit, Jason could

see footprints leading up to it and that the lock was missing; he called the local

police to report a break in. Jason would later testify that, after checking the

products in the unit against his inventory list, he determined a number of things

were missing, including thirty-six bottles of butane, three or four torch lighters, and

one twenty-four-count box of artificial roses in glass tubes (branded as an “I Love

You Rose”).3

1 Brady v. Maryland, 373 U.S. 83, 87 (1963) (“We now hold that the suppression
by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.”).
2 Jason is employed as a route salesman and supplies products to convenience

stores. Those products include things like sunglasses, cell phone accessories,
energy drinks, giftware, and toys.
3 Jason described the “I Love You Rose” as “a glass cylinder . . . with a fake little

flower inside it” and testified he became aware that people often use the glass
cylinders as drug pipes.
3

Officer Matthew Molina responded to the call and, noticing a set of footprints

in the fresh snow, followed tracks from the storage unit to the front door of a home.

When his knocks went unanswered, Officer Molina obtained a search warrant and

then returned with additional officers several hours later to execute the warrant.

After entering, they found Madison, the homeowner; Tesch; and a third person

inside. Believing the shoes Tesch was wearing were consistent with the prints he

followed to the door, Officer Molina arrested him.

Tesch was later charged by trial information with third-degree burglary. He

pled not guilty, and the case was tried to a jury in October 2021. Following two

days of evidence, the jury convicted Tesch as charged.

On November 22, Tesch was sentenced to five years of incarceration. At

the sentencing hearing, he made a verbal request for a determination of his

reasonable ability to pay the category “B” restitution stemming from the case. The

district court concluded Tesch did not have an affidavit of financial status on file in

the case so it could not make the determination at that time; the question of Tesch’s

ability to pay was set for a later date, in combination with his reasonable ability to

pay in sixteen other cases (a separate action that Tesch initiated by application on

June 8, 2021). Following the court’s entry of judgment and sentence, Tesch filed

an appeal.

Then, following the court’s determination that eight of the seventeen cases

did not warrant a hearing on Tesch’s reasonable ability to pay and after a number

of continuances, the court issued a restitution ruling on January 31, 2022. In

reaching its decision, the court set out the category “B” restitution for each of

Tesch’s other eight cases (totaling $1406.59) and the amount for the burglary case
4

($3803.32). The court added all of the category “B” restitution together to get

$5209.91 and then, relying on the financial affidavit Tesch filed on June 8, 2021,

when he applied for the reasonable-ability-to-pay hearing, considered that total

amount when determining Tesch’s reasonable ability to pay. The court ordered

Tesch to pay the full $5209.91, reasoning:

[Tesch] has not shown that he has any dependents. He is
forty-two years of age and holds a post-secondary associate degree.
Although he is presently incarcerated on a term not to exceed five
years in [this burglary case], there is no reason to believe he will not
be able to return to the work force when released from his present
incarceration. He does not present any evidence of disability either
physically or mentally which would prevent or preclude future
employment upon his release from custody. He has, in fact, been
employed in the past when not incarcerated.
The court is directed under the law to consider the reasonable
ability of the defendant over the course of his lifetime to meet his
Category B financial obligations imposed by judgment entry. On the
record before this court that defendant is able-bodied, is not
obligated for the support of dependents, has an employment history,
has education beyond secondary school and has been able, when
allowed a payment plan, to meet his court obligations, the court finds
that the defendant has the reasonable ability to pay the Category B
restitution set forth hereinabove.

Tesch then filed a second appeal.

On its own motion, our supreme court ordered Tesch to file a statement

regarding whether he had the right of appeal from the January 31 restitution order

and if the two appeals—the one following his conviction and sentence and the one

following the restitution order—should be consolidated.

Without waiting for Tesch’s statement, the supreme court consolidated the

two appeals. It ordered, “Instead of filing statements to the court regarding the

jurisdictional issue, the parties shall address the issue of whether the appellant has

a right of appeal from the court’s January 31, 2022 restitution order in their
5

appellate briefs.” The supreme court eventually transferred the consolidated

appeal to our court.

II. Discussion.

Tesch raises three issues on appeal, (A) whether substantial evidence

supports his conviction, (B) whether the State committed a Brady violation that

entitles him to a new trial, and (C) a challenge to the district court’s determination

of his reasonable ability to pay category “B” restitution. We consider each in turn.

A. Sufficiency of the Evidence.

Tesch claims there is insufficient evidence to support his conviction for third-

degree burglary.4 “We review the sufficiency of the evidence for correction of

errors at law.” Crawford, 972 N.W.2d at 202 (citation omitted). In doing so, “we

are highly deferential of the jury’s verdict.” Id. “The jury’s verdict binds this court

if the verdict is supported by substantial evidence,” which “is evidence sufficient to

convince a rational trier of fact the defendant is guilty beyond a reasonable doubt.”

Id. “In determining whether the jury’s verdict is supported by substantial evidence,

we view the evidence in the light most favorable to the State, including all

‘legitimate inferences and presumptions that may fairly and reasonably be

deduced from the record evidence.’” Id. (citation omitted). The State must prove

every element beyond a reasonable doubt. See State v. Williams, 674 N.W.2d 69,

71 (Iowa 2004).

4 Historically, a defendant had to move for judgment of acquittal to preserve error
on a sufficiency claim, but that is no longer necessary. See State v. Crawford, 972
N.W.2d 189, 202 (Iowa 2022) (“A defendant’s trial and the imposition of sentence
following a guilty verdict are sufficient to preserve error with respect to any
challenge to the sufficiency of the evidence raised on direct appeal.”).
6

The State had to prove it was Tesch who entered the storage unit, which

was an occupied structure and not open to the public, and that he did so without

permission or authority and with the specific intent to commit a theft. See Iowa

Code §§ 713.1, .6A (2021). Here, Tesch contends the State failed to establish he

was the perpetrator, asserting evidence that shoe prints in the snow were similar

to the tread on the shoes Tesch was wearing several hours later is insufficient

because there was neither evidence Tesch’s specific shoes made those prints or

that the tread was unique or even uncommon and there was no evidence Tesch’s

specific gait matched the prints. But, contrary to Tesch’s assertion, the shoe prints

are not the only evidence tying him to the crime.

The evidence introduced at trial established that the security camera inside

the storage unit sent a notification that motion was detected at approximately 3:00

a.m. While about twenty to thirty pounds of things were taken, including thirty-six

bottles of butane, a case of “I Love You Roses,” and three or four torch lights, the

unit was not quickly ransacked. All of the thirty-six butane bottles were removed

from their boxes, with the boxes then placed back on the shelf like they were never

disturbed. And, according to Madison, Tesch arrived at her door—about a ten-

minute walk from the storage units—somewhere around 5:00 or 6:00 a.m., carrying

a duffel bag and sweating. Meanwhile, after Jason learned of the early morning

motion, he and Officer Molina were at the unit at about 8:00 a.m. Officer Molina

testified he was able to follow the set of footprints in the fresh snow from the

storage unit up to Madison’s front door.5 He arrived there at approximately noon,

5The shoe prints did not make a perfectly complete trail; some of the prints were
scuffed or disrupted, and there were times the tracks ended when they crossed
7

but no one responded to his knock. When Officer Molina and fellow officers

returned around 6:00 p.m. to execute a search warrant, Madison, Tesch, and a

third person were present. While there, Officer Molina noted that Tesch was

wearing shoes with a tread that appeared consistent with the shoe prints he

followed to the door; when Officer Molina motioned toward the shoes (for the

benefit of one of the other officers), Tesch offered up, “You just touched my shoe.

These aren’t even my shoes, bro. Maddie, did you not just give me these shoes?”

When Madison responded by asking what shoes, Tesch responded, “I don’t know.

That fucking Joe’s shoes. Did you not just give me a pair of Joe’s shoes?” At that

point, the officers had not yet read the warrant; there had been no mention of the

burglary or what they may be looking for and no indication shoe prints may be

important. During the officers’ search, one of the “I Love You Rose” boxes was

found in Madison’s home. Additionally, at trial, Madison, who was there under

subpoena, testified she did not give Tesch the shoes and did not know what he

was talking about when he said that. The State introduced into evidence various

pictures of the shoe prints along the trail Officer Molina followed and the shoes that

were taken from Tesch’s feet, allowing the jury to determine whether the tread was

consistent.

The State’s evidence did not establish Tesch was the only possible actor—

no expert opined the shoe prints followed by Officer Molina were definitively made

by Tesch specifically or even that the shoes Tesch was later found wearing were

cement or other surfaces, causing a break in the trail. Officer Molina testified he
was able to pick the trail back up on the other side of these impediments each time
until he reached Madison’s door.
8

the exact pair that made the prints. But the State is not required to “discredit every

other potential theory to be drawn from circumstantial evidence.” State v. Ernst,

954 N.W.2d 50, 58 (Iowa 2021). And the jury could infer from Tesch’s false claim

that the shoes were not his and had just been given to him by Madison that Tesch

understood the significance of the shoes at the time when likely only the burglar

would have and was attempting to distance himself from the incriminating

evidence—a fact the jury could consider as an indication of his guilt. See State v.

Cox, 500 N.W.2d 23, 25 (Iowa 1993) (“Admissions may be implied by the conduct

of the defendant subsequent to a crime, including fabrication, when such conduct

indicates a consciousness of guilt. A false story told by a defendant to explain or

deny a material fact against him is by itself an indication of guilt and the false story

is relevant to show that the defendant fabricated evidence to aid his defense.”).

Viewing the evidence in the light most favorable to upholding the conviction,

substantial evidence supports Tesch’s conviction for third-degree burglary.

B. Alleged Brady violation.

Tesch alleges that the State committed a Brady violation that entitles him to

a new trial. Tesch first raised this issue to the district court at the start of the second

day of trial, when he asked “to make a record regarding possible Brady violations.”6

Tesch argued:

It appears, based on [Madison’s] deposition testimony, that in mid-
to late February, 2021, she had contacted the county attorney’s office
and possibly the Spencer Police Department with the fact that she
had found a larger 24-pack box of the “I Love You Rose” glass pipes,
that are the only item that was found from this alleged burglary, and
that was found in [Joey’s] suitcase when [Madison] had her items

6 At that time, Tesch also raised other purported Brady violations. He does not re-
raise the other claims on appeal.
9

returned to her from her car that had been involved in a—or an
eluding situation with police several days after February 6th, 2021.
We weren’t provided that information until the depositions, which
occurred September 22nd, 2021.
....
. . . The existence of this larger “I Love You Rose” box was
known to the State in potentially February or March of 2021. I don’t
know what information was completely provided to them, but that fact
was known to them and that fact was never given to the defendant
or, as far as I know, any of his attorneys that have been appointed
on this case until depositions on September 22nd. The existence of
that box and the fact that the police looked into that, I think, makes
that box potentially exculpatory . . . .

The district court did not rule on the alleged Brady violation until the sentencing

hearing, when it overruled Tesch’s motion. In a written ruling filed later, the court

found the State did not have knowledge Joey was connected to the recovered box

until Madison mentioned it in her September deposition and concluded the

prosecutor “cannot be found to have suppressed favorable evidence to [Tesch]

when it did not possess that specific knowledge. . . . On this record, there was no

suppression of evidence as the complete nature of the evidence was unknown to

the State.” Tesch maintains the district court was wrong in its determination.

To succeed in establishing a Brady violation, Tesch “must prove by a

preponderance of the evidence ‘(1) the prosecution suppressed evidence; (2) the

evidence was favorable to the defendant; and (3) the evidence was material to the

issue of guilt.’” DeSimone v. State, 803 N.W.2d 97, 103 (Iowa 2011) (quoting

Harrington v. State, 659 N.W.2d 509, 516 (Iowa 2003)). Our review is de novo.

State v. Cahill, 972 N.W.2d 19, 27 (Iowa 2022) (“Due process claims asserting a

Brady violation are reviewed de novo.”).

The State argues Tesch cannot carry his burden on any of the three prongs.

We conclude he fails on the first and do not consider further. Here, the
10

complained-of evidence was not suppressed because Tesch learned both that

Madison recovered the twenty-four-count “I Love You Rose” box and that she

found it in a suitcase Joey was using before trial. So Tesch was able to, and in

fact did, use the evidence in his defense at trial; he even referenced it in his

opening statement. See State v. Bishop, 387 N.W.2d 554, 559 (Iowa 1986)

(concluding due process was not violated when the defendant learned of the

evidence during trial); see also State v. Veal, 564 N.W.2d 797, 810 (Iowa 1997)

(“Evidence is not considered ‘suppressed’ if the defense is able to take advantage

of it at trial.”), declined to follow on other grounds by State v. Hallum, 585 N.W.2d

249 (Iowa 1998). “A new trial is not mandated because it would involve only

evidence already considered by the jury in this trial.”7 Bishop, 387 N.W.2d at 559.

Therefore, Tesch’s Brady claim fails.

C. January 31, 2022 Restitution Order.

Tesch challenges the merits of the district court’s reasonable-ability-to-pay

determination; he claims the court abused its discretion by considering whether he

had the ability to pay the full amount over his lifetime. But first, we start with the

question of whether Tesch has a right of appeal from the January 31, 2022

restitution order.

7 Tesch does not allege that he had inadequate time to prepare after learning of
the evidence more than ten days before trial. And even if he did, Tesch did not
request a continuance after learning of the information. See Bishop, 387 N.W.2d
at 559 (noting the defendant’s failure to ask for a continuance after the evidence
was produced).
11

1. Right of Appeal.

Tesch argues he has a right of appeal because he requested the ability-to-

pay determination at the time of sentencing. He recognizes the court’s ruling came

out several months later—following a number of continuances—but maintains that

due to the timing of his request, the January 31 ruling should “relate back” to his

sentencing hearing and be considered part of the final judgment. See Iowa Code

§ 910.3(8) (“The court shall enter a permanent restitution order setting out the

amount of restitution including the amount of community service to be performed

as restitution and the persons to whom restitution must be paid. A permanent

restitution order entered at the time of sentencing is part of the final judgment of

sentence as defined in section 814.6 and shall be considered in a properly

perfected appeal.” (emphasis added)). He focuses on the fact that the district court

stated it was continuing his restitution hearing on the date of his sentencing and

that the court never entered a final restitution order until the January 31 order. Cf.

Iowa Code § 910.3(9) (“If the full amount of restitution cannot be determined at the

time of sentencing, the court shall issue a permanent restitution order setting forth

the amount of restitution identified up to that time.”).

In response, the State argues that because the January 31 restitution order

was entered more than two months after judgment and sentence, Tesch does not

have a right of appeal. See id. §§ 910.3(10) (“A permanent restitution order may

be superseded by subsequent orders if additional or different restitution is ordered.

A permanent restitution order entered after the time of sentencing shall only be

challenged pursuant to section 910.7.” (emphasis added)), .7(5) (requiring

appellate review of section 910.7 petitions to be “by writ of certiorari”). The State
12

maintains that section 910.3(10)’s mandate that “permanent restitution order[s]

entered after the time of sentencing shall only be challenged pursuant to section

910.7” forecloses Tesch’s “relation back” argument. See also State v. Hawk, 952

N.W.2d 314, 319 (Iowa 2020) (“Section 910.7 provides the mechanism for

addressing restitution not ordered at the time of sentencing . . . .”). We agree with

the State; while section 910.2A(3)(a) and (b)8 seem to suggest some amount of

leeway to get a ruling on an offender’s reasonable ability to pay before needing to

wade into the waters of section 910.7, we think reading those paragraphs to allow

for the “relate back” approach Tesch propounds would stand in direct contradiction

to the plain language of section 910.3(10) and would result in slow-moving and

piecemeal appeals—as occurred here. See State v. Patterson, ___N.W.2d ___,

___, 2023 WL 175509, at *4 (Iowa 2023) (concluding section 910.3(8) did not

govern when the appeal was not about an order entered at the time of sentencing);

see, e.g., In re T.R., 705 N.W.2d 6, 10 (Iowa 2005) (“We have long followed the

general policy against piecemeal appeals.”); Davis v. State, 443 N.W.2d 707, 710

(Iowa 1989) (“One of the goals of our criminal justice system is to afford both the

8Section 910.2A states, in relevant part:
2. If an offender requests that the court determine the amount
of category “B” restitution payments the offender is reasonably able
to make toward paying the full amount of such restitution, the court
shall hold a hearing and make such a determination . . . .
....
3. a. If an offender does not make a request as provided in
subsection 2 at the time of sentencing or within thirty days after the
court issues a permanent restitution order, the court shall order the
offender to pay the full amount of category “B” restitution.
b. An offender’s failure to request a determination pursuant to
this section waives all future claims regarding the offender’s
reasonable ability to pay, except as provided by section 910.7.
(Emphasis added.)
13

accused and the [S]tate fair and prompt trials, appeals and further proceedings to

correct error. A legitimate concern is that the process also end within reasonable

time limits.”). As the State argues, concluding this type of later-entered restitution

order is part of the judgment and sentence would likely often require the

consolidation of appeals. Cf. Iowa R. App. P. 6.101(1)(b) (requiring a notice of

appeal to “be filed within 30 days after the filing of the final order or judgment”).

Alternatively, if we do not conclude he has a right of appeal, Tesch asks us

to treat his appeal as a petition for writ of certiorari and still reach the merits of his

claim. See Dorsey v. State, 975 N.W.2d 356, 360 (Iowa 2022) (“[W]hen a case is

initiated by a notice of appeal, but another form of review is proper, we need not

dismiss the action and may proceed instead as though the proper form of review

was requested.” (citing Iowa R. App. P. 6.108)). The State also resists this

procedural route, arguing statutory language forbids a review unless Tesch has

exhausted his remedies under section 910.7. See Iowa Code § 910.7(4) (“An

appellate court shall not review or modify an offender’s plan of restitution,

restitution plan of payment, or any other issue related to an offender’s restitution

under this subsection, unless the offender has exhausted the offender’s remedies

under this section and obtained a ruling from the district court prior to the issue

being raised in the appellate courts.”). This is where we part ways with the State.

Tesch requested and received a reasonable-ability-to-pay determination. And in

fact, that determination was made after Tesch applied for a section 910.7 hearing

in June 2021. While Tesch verbally requested the determination on the burglary-

case restitution at his sentencing hearing, the court ultimately combined it with the

eight other cases receiving an ability-to-pay determination. Under these facts,
14

Tesch exhausted his remedies. See Patterson, 2023 WL 175509, at *4 n.5. So,

we treat his appeal as a petition for writ of certiorari and grant the petition. See id.

at *5.

2. Merits.

Tesch challenges the total amount of category “B” restitution ordered,

arguing it was improper for the district court to consider whether he could pay it

over his lifetime. We review for an abuse of discretion. Hawk, 952 N.W.2d at 320

(reviewing district court’s determination of amount offender was reasonably able

to pay for an abuse of discretion). Tesch argues that nothing in section 910.2A

requires the court to consider the restitution debt in reference to the offender’s

possible lifetime earnings. And he points us to his June 2021 financial affidavit

that claimed he already owed $66,274 in existing court debt while earning only

$100 per month.

Here, from the court’s written order, it seems it considered the proper factors

and did not consider any improper facts.9 See State v. Albright, 925 N.W.2d 144,

161 (Iowa 2019) (identifying as factors “the financial resources of the defendant,

including income and net assets, and the defendant’s financial obligations,

including the amount necessary to meet minimum basic human needs such as

food, shelter, and clothing for the defendant and his or her dependents” as well as

“the present and potential future financial needs and earning ability of the

9 The court incorrectly stated Tesch is forty-two years old instead of his true age of
thirty-four at the time. Also, the court and the State both incorrectly stated that
Tesch has an education beyond secondary school. We recognize these errors,
but Tesch does have a high school equivalency certificate (HiSET) and no health
issues that prohibited him from employment once he is no longer incarcerated.
15

defendant and his or her dependents, and other factors as the court deems

appropriate” (citation omitted)), abrogated on other grounds by Crawford, 972

N.W.2d at 198. While Tesch points out that the relevant statutes do not require

the court to take such a long view, he has not provided any case law or statute that

prohibits it. And he has the burden to establish the court abused its discretion.

See Iowa Code § 910.2A(1) (“An offender is presumed to have the reasonable

ability to make restitution payments for the full amount of category ‘B’ restitution.”),

(5) (“A court that makes a determination under this section is presumed to have

properly exercised its discretion. A court is not required to state its reasons for

making a determination.”).

We cannot say the district court abused its discretion in determining Tesch’s

reasonable ability to pay the category “B” restitution; we annul the writ.

III. Conclusion.

Because substantial evidence supports Tesch’s conviction and the State

did not commit a Brady violation, we affirm Tesch’s conviction. We conclude Tesch

does not have the right of appeal from the court’s January 31, 2022 restitution

order, but we treat his appeal as a petition for writ of certiorari and grant the

petition. After reviewing the merits of his restitution claim, we cannot find the

district court abused its discretion, so we annul the writ.

CONVICTION AFFIRMED; WRIT ANNULLED.