author: SABERS, Justice.

text:
    2006 SD 98
    In the Matter of the DISSOLUTION OF MIDNIGHT STAR ENTERPRISES, L.P., a South Dakota Limited Liability Partnership, by MIDNIGHT STAR ENTERPRISES, LTD., in its capacity as General Partner.
    No. 24091.
    Supreme Court of South Dakota.
    Argued Oct. 3, 2006.
    Decided Nov. 8, 2006.

      Michael P. Reynolds of Barker Reynolds Law Firm, L.L.C., Rapid City, South Dakota, Attorneys for appellant Midnight Star Enterprises, LTD.
    Richard A. Pluimer, Dylan Wilde, Brady & Pluimer, P.C., Spearfish, South Dakota, Attorneys for appellees Canevas.
   SABERS, Justice.

[¶ 1.] Petition for dissolution of a partnership was brought by the general partner. The circuit court found the fair market value of the partnership was $6.2 million and ordered the majority partners to buy the business for that price within ten days or it would be sold on the open market. The general partner sought intermediate appeal raising two issues. Since the circuit court failed to use the hypothetical transaction standard to assess the fair market value of the partnership and ordered a forced sale, we reverse and remand.

FACTS

[¶ 2.] Midnight Star Enterprises, L.P. (Midnight Star) is a limited partnership, which operates a gaming, on-sale liquor and restaurant business in Deadwood, South Dakota. The owners of Midnight Star consist of: Midnight Star Enterprises, Ltd. (MSEL) as the general partner, owning 22 partnership units; Kevin Costner (Costner), owning 71.50 partnership units; and Francis and Carla Caneva (Ca-nevas), owning 3.25 partnership units each. Costner is the sole owner of MSEL and essentially owns 93.5 partnership units.

[¶ 3.] The Canevas managed the operations of Midnight Star, receiving salaries and bonuses for their employment. According to MSEL, it became concerned about the Canevas’ management and voiced concerns. Communications between the Canevas and the other partners broke down and MSEL decided to terminate the Canevas’ employment. MSEL inquired whether the Canevas would participate in an amicable disassociation, but the Canevas declined.

[¶ 4.] MSEL then chose to dissolve Midnight Star pursuant to Article X, Section 10.1 of the Limited Partnership Agreement and brought a Petition for Dissolution. In order to dissolve, the fair market value of Midnight Star had to be assessed. MSEL hired Paul Thorstenson (Thorstenson), an accountant, to determine the fair market value. MSEL alleged the Canevas solicited an “offer” from Ken Kel-lar (Kellar), a Deadwood casino, restaurant, and hotel owner, which MSEL claimed was contrary to the provisions of the partnership agreement.

[¶ 5.] At an evidentiary hearing, Thor-stenson determined the fair market value was $3.1 million based on the hypothetical transaction standard of valuation. Kellar testified he offered $6.2 million for Midnight Star. MSEL argued Thorstenson used the proper valuation standard and Kellar’s offer did not establish the fair market value. The circuit court disagreed and found Kellar’s offer of $6.2 million to be the fair market value of Midnight Star. The circuit court ordered the majority owners to buy the business for $6.2 million within 10 days or the court would order the business to be sold on the open market.

[¶ 6.] MSEL appeals. The issues are:

1. Whether Article 10.4 of the partnership agreement requires the Midnight Star to be sold on the open market.
2. Whether the circuit court erred in finding the fair market value of Midnight Star was the actual offer price and not that of a hypothetical transaction.
3. Whether the circuit court abused its discretion by ordering a forced sale of Midnight Star.

STANDARD OF REVIEW

[¶ 7.] Interpretation of a partnership agreement, including the decision to force a sale of the partnership, is a question of law reviewed de novo. Liechty v. Liechty, 231 N.W.2d 729, 731 (N.D.1975) (noting the agreement is the “law of the partnership”). Our review of a circuit court’s valuation of property is clearly erroneous. Priebe v. Priebe, 1996 SD 136, ¶ 8, 556 N.W.2d 78, 80 (additional citations omitted). Whether the circuit court used the correct method of determining fair market value is a question of law reviewed de novo.

[¶ 8.] 1. Whether Article 10.4 of the partnership agreement requires the Midnight Star to be sold on the open market.

[¶ 9.] Canevas claim the partnership agreement does not allow the general partner to buy out their interest in Midnight Star. Instead, the Canevas argue, the agreement mandates the partnership be sold on the open market upon dissolution. Specifically, Canevas ask this Court to interpret Article 10.4 to require the sale of the partnership. Article 10.4 provides:

After all of the debts of the Partnership have been paid, the General Partner or Liquidating Trustee may distribute in kind any Partnership property provided that a good faith effort is first made to sell or otherwise dispose of such property for cash or readily marketable securities at its estimated fair value to one or more third parties none of whom is an affiliate of any Partner. The General Partner or Liquidating Trustee shall value any such Partnership property at its fair market value and distribution shall then proceed as if the property had been sold for cash at such value with the resulting Net Profits and/or Net Losses allocated to the Partners as provided in Article VI and subsection 10.3.2 of this Agreement.

[¶ 10.] MSEL claims the Canevas interpretation of Article 10.4 renders other provisions of the partnership agreement meaningless. MSEL points to Article 10.3.1 to demonstrate their position. Article 10.3.1 provides in part:

Subject to 10.4 hereof, the assets of the Partnership shall be liquidated as promptly as is consistent with obtaining a fair value therefor, provided that no assets other than cash shall be sold or otherwise transferred for value to the General Partner, Liquidating Trustee, any other Partner, or any Affiliate or Related Person of any of the foregoing unless such assets are valued at their then fair market value in such sale or other transfer and fifteen (15) days prior written notice of such proposed sale or transfer ... is given to all Partners!.]

[¶ 11.] During oral arguments, MSEL claimed we need not interpret whether the partnership agreement provisions required a fair market valuation of Midnight Star or whether the partnership must be sold on the open market. It claimed we could merely decide whether the circuit court erred in determining the fair market value of the business. However, if the Canevas interpretation of the partnership agreement provisions is correct, there would be no need to determine the fair market value. If correct, the value of the partnership would be determined solely by the sale of Midnight Star. Therefore, we reach the question whether the partnership agreement provisions require a fair market analysis or require a forced sale.

[¶ 12.] The partnership agreement is a contract between the partners and effect will be given to the plain meaning of its words. Liechty, 231 N.W.2d at 731; see also Pauley v. Simonson, 2006 SD 73, ¶ 8, 720 N.W.2d 665, 668 (noting the contract is interpreted using its language). “An interpretation which gives a reasonable and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable or of no effect.” Nelson v. Schellpfeffer, 2003 SD 7, ¶ 14, 656 N.W.2d 740, 744 (citing Restatement (Second) Contracts § 203(a) (1981)). We must “give effect to the language of the entire contract and particular words and phrases are not interpreted in isolation.” Jones v. Siouxland Surgery, 2006 SD 97, 724 N.W.2d 340 (quoting Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797-98 (Iowa 1999)) (internal quotations omitted).

[¶ 13.] If we accept the Canevas’ interpretation of the partnership agreement, it would mean that Article 10.4 requires the partnership to be placed on the open market and sold to the highest bidder. The plain meaning of Article 10.4 does not command that interpretation. This provision clearly states the General Partner “may distribute in kind any partnership property” if the property is first offered to a third party for a fair value. (Emphasis added). While the General Partner may offer the property on the open market, Article 10.4 does not require it. Simply, the General Partner has to offer the property for sale if it chooses an in kind distribution of assets. Sale is not mandatory.

[¶ 14.] This interpretation is reinforced when read together with Article 10.3.1. If the Canevas’ interpretation is utilized, it would render Article 10.3.1 meaningless. Article 10.3.1 instructs that “no assets other than cash shall be sold or otherwise transferred to [any partner] unless the assets are valued at their then fair market value in such sale or other transfer” and all partners receive fifteen days prior notice of the proposed sale or transfer. If Article 10.4 requires a forced sale, then there would be no need to have the fair market value provision of Article 10.3.1.

[¶ 15.] We cannot interpret one provision to render another provision meaningless. Instead, we interpret the partnership agreement to require a sale only if a partner elects to distribute in kind. However, read as a whole, the partnership agreement does not require a mandatory sale upon dissolution. Instead, the general partner can opt to liquidate using either a sale or transfer under Article 10.3.1. This gives meaning to Article 10.3.1’s fair market value provision. Because MSEL decided to pursue dissolution under Article 10.3.1, we decide the correct standard for determining the fair market value of the partnership.

[¶ 16.] 2. Whether the circuit court erred in finding the fair market value of Midnight Star was the actual offer price and not that of a hypothetical transaction.

[¶ 17.] MSEL claims the correct standard for appraising a business is the hypothetical transaction analysis, like the analysis employed by MSEL’s expert Thorstenson. Canevas argue that the eir-euit court correctly concluded the offer from Kellar represented the fair market value of Midnight Star.

[¶ 18.] Fair market value is defined as, the price at which the property would change hands between a willing buyer and a willing seller when the former is not under any compulsion to buy and the latter is not under any compulsion to sell, both parties having reasonable knowledge of the relevant facts. Court decisions frequently state in addition that the hypothetical buyer and seller are assumed to be able, as well as willing, to trade and to be well informed about the property and concerning the market for such property.

Internal Revenue Service, Rev Rui 59-60 (1959), 1959 WL 12594. MSEL argues that since the Revenue Ruling was issued in 1959, “hundreds of courts, tribunals, textbooks, and articles have reiterated the mandatory requirement for hypothetical analysis.” In fact, MSEL contends that not “a single whiff of authority” can be found that supports the circuit court’s decision to ignore the hypothetical transaction standard and instead apply an actual offer to determine the fair market value.

[¶ 19.] This Court has not decided a ease involving this issue. However, in Priebe v. Priebe, we noted, “Revenue Ruling 59-60 represents the most substantial body of official guidance for valuing an interest in a closely held corporation.” 1996 SD 136, ¶ 15, 556 N.W.2d 78, 82 n. 7 (quoting Oldfather, et. al, Valuation and Distribution of Marital Property, Vol. 2, Ch. 22.08[2][a] at 22-110 (1996)). Moreover, other jurisdictions have employed the hypothetical transaction to arrive at the fair market value in other situations. In Heck v. Comm’r, the United States Tax Court explained the “fair market value is the standard of determining the value of property for Federal estate tax purposes.” 88 T.C.M. (CCH) 1181, 2002 WL 180879, *5 (2002). The court went on to explain that the fair market value uses hypothetical sellers and buyers, “rather than specific individuals or entities, and their characteristics are not necessarily the same as those of the actual buyer or seller.” Id. (citing Estate of Newhouse v. Comm’r, 94 TC 193, 218, 1990 WL 17251 (additional citations omitted)).

[¶ 20.] Importantly, courts have noted that the fair market analysis does not contemplate actual buyers. In Estate of Jameson v. Comm’r, the court stated it was error for the lower court to “assume[ ] the existence of a strategic buyer[.]” 267 F.3d 366, 371-72 (5th Cir.2001) (additional citations omitted). The court further emphasized that “fair market value analysis depends ... on a hypothetical rather than an actual buyer.” Id. at 372.

[¶ 21.] MSEL goes to great lengths in its brief to demonstrate why the hypothetical transaction valuation standard, rather than an actual buyer, is the proper standard to determine the fair market value. MSEL lists sound policy reasons why an offer cannot be the fair market value. For example, what if a partnership solicited a “strawman” to offer a low price for the business? What if a businessman, for personal reasons, offers 10 times the real value of the business? What if the partnership, for personal reasons, such as sentimental value, refuses to sell for that absurdly high offer? These arbitrary, emotional offers and rejections cannot provide a rational and reasonable basis for determining the fair market value.

[¶ 22.] Conversely, the hypothetical transaction standard does provide a rational and reasonable basis for determining the fair market value. This standard provides the basis by removing the irrationalities, strategies, and emotions from the analysis. Many articles and treatises that discuss fair market value specifically note that removing the irrationalities and biases is one of the rationales for the hypothetical transaction standard. See Z. Christopher Mercer, Valuing Enterprises and Shareholder Cash Flows: The Integrated Theory of Business Valuation, 7 Valuation Strategies 4, 2004 WL 1091507 (noting that the “[u]se of available control premium studies as a basis for inferring minority interest discounts in a fair market value context is not appropriate, except when strategic buyers are the norm”). “[The world of fair market value] is a special world in which the participants are expected (defined) to act in specific and predictable ways. It is a world of hypothetical willing buyers and sellers engaging in hypothetical transactions.” Z. Christopher Mercer & Terry S. Brown, Fair Market Value v. the Real World, 2 Valuation Strategies 6, 1999 WL 33327233.

[¶ 23.] Finally, Section X of the partnership agreement itself requires a “fair market value” of the assets. The partnership agreement is a contract between the partners and effect will be given to the plain meaning of its words. Liechty, 231 N.W.2d at 731 (noting the agreement is the “law of the partnership”); see also Pauley, 2006 SD 73, ¶8, 720 N.W.2d at 668. The partnership agreement does not provide that the value of the business upon dissolution will be the highest and best offer the partnership can obtain.

[¶ 24.] The circuit court should have used the hypothetical transaction standard in determining the fair market value of Midnight Star. This standard is backed by years of testing and numerous positive citations endorsing it. Instead of employing the hypothetical transaction standard, the court used a single offer to determine that the fair market value was $6.2 million. It was error for the circuit court to ignore this established standard.

[¶25.] 3. Whether the circuit court abused its discretion by ordering a forced sale of Midnight Star.

[¶ 26.] Since it was error for the circuit court to value Midnight Star at $6.2 million, it was also error to force the general partners to buy the business for $6.2 million or sell the business. However, because this issue could reappear should there be another appeal of this case after revaluation, we determine whether the circuit court can order a partnership to be sold on the open market when the majority owners want to continue to run the business.

[¶27.] Other jurisdictions have addressed the issue whether the business must be sold in order to liquidate after dissolution. Many of these jurisdictions allow the partnership to be sold to the willing partners even after dissolution. A withdrawing partner can be paid any contributions or profits due, but liquidation does not have to occur after dissolution. Maras v. Stilinovich, 268 N.W.2d 541, 544 (Minn.1978); Wathen v. Brown, 200 Pa.Super. 620, 189 A.2d 900, 903 (1963). These jurisdictions have noted that forced sales typically end up in economic waste and the Revised Uniform Partnership Act’s reforms primarily targeted the economic waste of compelled liquidation. In these jurisdictions’ views, buyouts and other alternatives to forced sales may be utilized to wind up the partnership. Horne v. Aune, 130 Wash.App. 183, 121 P.3d 1227, 1234 (2005), rev. denied, 157 Wash.2d 1015, 139 P.3d 350 (2006). See also Maras, 268 N.W.2d at 544; Wathen, 189 A.2d at 903. In Home, the court noted that the phrase “liquidation of partnership assets” merely guaranteed partners receive the fair value of their property interest upon dissolution, but did not require a forced sale. 121 P.3d at 1234.

[¶ 28.] We have stated that to sell an owner’s “property without [his] consent is an extreme exercise of power warranted only in clear cases.” Eli v. Eli 1997 SD 1, ¶ 15, 557 N.W.2d 405, 409 (citing Delfino v. Vealencis, 181 Conn. 533, 436 A.2d 27, 30 (1980) (additional citations omitted)). That logic is true in this case. The owners of the majority interest, 93.5 partnership units, want to continue the business. Most jurisdictions have allowed the withdrawing partner to be bought out after dissolution and a forced sale is not necessary to liquidate. See Horne, 130 Wash.App. 183, 121 P.3d 1227; Disotell v. Stiltner, 100 P.3d 890 (Alaska 2004); Creel v. Lilly, 354 Md. 77, 729 A.2d 385 (1999); Maras, 268 N.W.2d at 544; Nicholes v. Hunt, 273 Or. 255, 541 P.2d 820 (1975); Wathen, 189 A.2d at 903.

[¶ 29.] We see no reason that rationale should not be applied in this case, especially in view of our construction of the contract provisions in the partnership agreement. Instead of ordering the majority partners to purchase the whole partnership for the appraised value, the majority partners should only be required to pay any interests the withdrawing partner is due. Upon remand, the majority partners should only be required to pay the Cane-vas the value of their 6.5 partnership units, if any value exists after revaluation. However, if the majority owners refuse to pay any amount owed to the Canevas after revaluation, then a forced sale is appropriate. See Fortugno v. Hudson Manure Co., 51 N.J.Super. 482, 144 A.2d 207, 219 (1958); Goergen v. Nebrich, 12 Misc.2d 1011, 174 N.Y.S.2d 366, 370 (1958).

[¶ 30.] Since the circuit court erred in assessing the fair market value for Midnight Star and ordering a forced sale for $6.2 million, we reverse and remand for further proceedings consistent with this opinion.

[¶ 31.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

      . As of October 11, 2006 there were 2109 positive references citing Revenue Ruling 59-60 on Westlaw. The 3 negative references indicate that the ruling has been modified by Revenue Ruling 65-193, but in a way not applicable to this case.

      . MSEL argued that the circuit court erred in accepting Kellar’s offer as the fair market value because Kellar admittedly knew nothing about the Midnight Star besides who owned it. Since we determined the court erred in accepting Kellar's offer as the fair market value on different grounds, we need not discuss this issue.

      . South Dakota adopted the Revised Uniform Limited Partnership Act in SDCL chapter 48-7. These provisions also indicate buyout is an acceptable alternative to liquidation. See SDCL 48-7-604 (noting a withdrawing partner can receive any distribution or interest in the partnership to which he is entitled upon withdrawal).


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2006 SD 97
    Michael F.E. JONES, M.D., Plaintiff and Appellant, v. SIOUXLAND SURGERY CENTER LIMITED PARTNERSHIP, Defendant and Appellee.
    No. 24049.
    Supreme Court of South Dakota.
    Considered on Briefs on Oct. 2, 2006.
    Decided Nov. 8, 2006.

      Sheila S. Woodward of Johnson, Heide-priem, Miner, Marlow and Janklow, Yank-ton, South Dakota, Attorneys, for plaintiff and appellant.
    Patrick L. Sealey, Joel D. Vos of Heid-man, Redmond, Fredregill, Patterson, Plaza, Dykstra & Prahl, L.L.P., Sioux City, Iowa, Attorneys for defendant and appel-lee.
   KONENKAMP, Justice.

[¶ 1.] In this contract dispute, we conclude that the circuit court correctly interpreted a partnership agreement, and thus, we affirm.

Background

[¶ 2.] Siouxland Surgery Center is an Iowa Limited Partnership. The general partner, Siouxland, and certain limited partners entered into a Certificate and Agreement of Limited Partnership dated October 26, 1992. Dr. Michael Jones was an original limited partner. On December 11, 1992, he executed two subscription agreements to purchase eight limited partnership Units: four Units for his individual retirement account and four Units for himself individually. Almost two years later, he executed another subscription agreement. In this agreement, dated October 24, 1994, he purchased two additional limited partnership Units for his individual retirement account.

[¶ 3.] From 1992 until 2003, Dr. Jones was part of Siouxland’s active medical staff. In May 2003, he announced his retirement. At that time, an Amended and Restated Certificate and Agreement of Limited Partnership (Agreement), dated March 6, 2000, was the controlling limited partnership agreement. Under the terms of this Agreement, retirement was considered a “Triggering Event” that gave Siouxland “an irrevocable option to purchase the pertinent Limited Partner’s Interest within sixty (60) days from the date [Siouxland] receives actual notice” of the Triggering Event. However, the Agreement also contained a provision that delayed the Triggering Event “[w]ith respect to a Limited Partner that subscribed to its Limited Partnership Interest on or before December 31, 1992.... ” This delay provision has been termed the “Founding Fathers’ Clause.”

[¶ 4.] After Dr. Jones announced his retirement, Siouxland tendered payment for the two limited partnership Units Dr. Jones purchased in 1994. It did not seek to purchase his first eight Units, as those were obtained by him before December 31, 1992, and were considered protected by the Founding Fathers’ Clause. However, Dr. Jones believed that all ten of his limited partnership Units were protected by the Founding Fathers’ Clause. Therefore, he refused to sell his two Units to Sioux-land. Ultimately, the parties could not reach an agreement, and Dr. Jones brought suit in circuit court seeking declaratory relief to ascertain the meaning of the Founding Fathers’ Clause.

[¶ 5.] After the parties engaged in discovery, Dr. Jones moved for summary judgment asserting that no dispute of material fact existed and the construction and interpretation of the Agreement should be made as a matter of law by the court. The parties concurred that the Agreement was governed by Iowa law. After a hearing, the circuit court issued a letter decision. It held that only the limited partnership Units subscribed to on or before December 31, 1992 were protected by the Founding Fathers’ Clause. Although both parties offered extrinsic evidence, the court declined to consider it, concluding that the Agreement was unambiguous. It denied Dr. Jones’s motion for summary judgment, but it did not dismiss the declaratory action because it only had Dr. Jones’s motion before it. Thereafter, Siouxland moved for summary judgment. On December 29, 2005, in a letter opinion incorporating the July 8 letter opinion, the court granted Siouxland’s motion.

[¶ 6.] Dr. Jones appeals on two issues: (1) Does the Founding Fathers’ Clause delay Siouxland’s right to repurchase any of Dr. Jones’s partnership Units until three years after his retirement; and (2) Is the Founding Fathers’ Clause ambiguous?

Standard of Review

[¶ 7.] Summary judgment can be granted only when “ ‘there is no genuine issue as to any material fact.’ ” St. Paul Fire & Marine Ins. Co. v. Engelmann, 2002 SD 8, ¶ 16, 639 N.W.2d 192, 199 (quoting SDCL 15-6-56(c)). “We will affirm only when the legal questions have been correctly decided and there is no genuine issue of material fact.” Goepfert v. Filler, 1997 SD 56, ¶4, 563 N.W.2d 140, 141-42 (citing Koeniguer v. Eckrich, 422 N.W.2d 600, 601 (S.D.1988); Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987)). In this case, the parties agree that the construction and interpretation of the Agreement is governed by Iowa law. In Iowa, contract interpretation is a question of law. American Family Mut. Ins. Co. v. Petersen, 679 N.W.2d 571, 575 (Iowa 2004) (citation omitted).

Analysis and Decision

[¶ 8.] Dr. Jones claims that he accepted the Agreement with the understanding that the intent of the Founding Fathers’ Clause was to protect his entire interest in the Partnership, not just those Units subscribed to on or before December 31,1992. Evidence of this intent, according to Dr. Jones, is in the terms used in the Founding Fathers’ Clause. It states:

With respect to a Limited Partner that subscribes to its Limited Partnership Interest on or before the [sic] December 31, 1992, the occurrence of any Triggering Event under paragraph (i) hereof shall be deemed not to have occurred until January 1, 2000, or the third anniversary date of such event, whichever is later; but, in no event shall the occurrence of a subsequent Triggering Event under paragraph (i) hereof other than death have the effect of extending or shortening such deemed date of occurrence.

Dr. Jones contends that when interpreting the Founding Fathers’ Clause and certain terms defined by the Agreement, it is clear that a Limited Partner’s entire ownership in the Partnership is protected. “Limited Partnership Interest” is defined as the “Interest of the Partner in the Partnership” and “Interest” is defined as the “entire ownership of a Partner in the Partnership at any particular time.” (Emphasis added). Therefore, Dr. Jones argues that if his “Limited Partnership Interest” is his “Interest,” which is his “entire ownership,” then the only reasonable interpretation is that all ten Units are protected.

[¶ 9.] Also, Dr. Jones relies on a provision that requires the Limited Partners to determine the value of a Unit following the end of a fiscal year. Because each Unit receives a value under Section 6.4, Dr. Jones asserts that the Limited Partner’s Interest, i.e., entire ownership, must therefore be determined by ascertaining the number of Units owned by the Limited Partner and taking that number times the value per Unit assigned pursuant to Section 6.4. He also asserts that a Limited Partner’s Interest in the Partnership is indivisible, because it is made up of the total number of Units owned by the Limited Partner. Therefore, if “Limited Partnership Interest” is, by definition, the Interest of a Limited Partner, then “Limited Partnership Interest” must also be indivisible, according to Dr. Jones. Finally, because his Limited Partnership Interest is indivisible and the Founding Fathers’ Clause implicates his Limited Partnership Interest, he maintains that the parties intended to protect all ten Units and not just those purchased on or before December 31,1992.

[¶ 10.] Siouxland, on the other hand, argues that the language used in the Agreement reveals that the intent of the parties was to protect only those Limited Partnership Interests subscribed to on or before December 31, 1992. Had the Founding Fathers’ Clause been drafted to protect an individual Limited Partner’s entire ownership, Siouxland claims that it would have stated, “with respect to any Limited Partner admitted to the Partnership on or before December 31, 1992.” (Emphasis added). Instead, the availability of the delay, according to Siouxland, depends on when the Limited Partnership Interests were acquired.

[¶ 11.] While Siouxland recognizes that the definition of “Interest” is the “entire ownership of a Partner in the Partnership at any particular time,” it argues that this definition cannot be read in isolation when interpreting the Founding Fathers’ Clause. It acknowledges that a Limited Partner can have multiple Units, but it disputes that this means a Limited Partner can only have one indivisible Limited Partnership Interest. Rather, Siouxland claims that the parties intended for a Limited Partner to have more than one Limited Partnership Interest, evidenced by the definition of a Unit. A “Unit” is defined as “a Limited Partnership Interest attributable, as of November 16, 1992, to a Capital Contribution of $12,500, and thereafter attributable to a Capital Contribution equal to the value thereof as determined pursuant to Section 6.4 hereof.” (Emphasis added). Siouxland argues that if a Limited Partner can have multiple Units — each of which is “a Limited Partnership Interest” — then certainly a Limited Partner can have multiple Limited Partnership Interests.

[¶ 12.] Siouxland further contends that Dr. Jones’s “interpretation is not reasonably possible because it effectively nullifies portions of the Limited Partnership Agreement.” According to Siouxland, it “would make the definition of Unit nonsensical” and would require the Court to rewrite the definition of Unit to be “a fraction of a Limited Partnership Interest.” This interpretation, Siouxland asserts, fails to take into account that terms of the Agreement were intentionally used in their singular form, and that under Section 1.1(B) the singular includes the plural. If the term “Limited Partnership Interest” is read in plural form, then the only reasonable interpretation, Siouxland insists, is that the parties intended only those Limited Partnership Interests subscribed to on or before December 31,1992 to be protected by the Founding Fathers’ Clause.

[¶ 18.] Contract interpretation refers to the process of determining the meaning of the words the parties used in their agreement. Fausel v. JRJ Enter., Inc., 603 N.W.2d 612, 618 (Iowa 1999) (citing Fashion Fabrics of Iowa, Inc. v. Retail Investors Corp., 266 N.W.2d 22, 25 (Iowa 1978)). Contract construction, on the other hand, is the process by which a court determines the legal effect of the language in a contract. Id. (citing Fashion Fabrics, 266 N.W.2d at 25). “A cardinal rule of contract construction or interpretation is [that] the intent of the parties” at the time they executed the contract “must control.” Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa 1999) (citing Whalen v. Connelly, 545 N.W.2d 284, 291 (Iowa 1996)). To determine the parties’ intent, extrinsic evidence may only be considered if “the contract is ambiguous and uncertain[.]” Id. A disagreement between the parties on the meaning of the contract does not render the contract ambiguous. Id. (citation omitted). “Instead, an ambiguity occurs in a contract when a genuine uncertainty exists concerning which of two reasonable interpretations is proper.” Id. (citing Berryhill v. Hatt, 428 N.W.2d 647, 654 (Iowa 1988)).

[¶ 14.] The circuit court found that there was but one reasonable interpretation of the Founding Fathers’ Clause, thereby rendering the provision unambiguous. Dr. Jones’s suggested interpretation, the court held, “is incompatible with a reading of all operable provisions [and] also defeats the clear intention expressed in the language of the Agreement that a Partner purchasing an Interest by December 31, 1992 receive the benefit of the three year delay for that Interest.” Further, the court continued, if the Limited Partnership Interest protected by the Founding Fathers’ Clause is not divisible as Dr. Jones asserted, “then it cannot be said that [he] subscribed to that Interest on or before December 31, 1992” and none of his ten Units would receive the benefit of the delay. Accordingly, because Dr. Jones’s interpretation would nullify the protective intent of the Founding Fathers’ Clause, the court held that the parties intended to benefit only the Units subscribed to on or before December 31,1992.

[¶ 15.] We agree with the circuit court. If the Agreement is interpreted in accord with Dr. Jones’s theory that he has one indivisible Interest, it will negate the applicability of the Founding Fathers’ Clause with respect to all of his Units, since he did not subscribe to his entire Limited Partnership Interest on or before December 31, 1992. Neither party argues that this was their intent. Moreover, when interpreting the Agreement, “it is assumed in the first instance that no part of it is superfluous; an interpretation which gives a reasonable, lawful, and effective meaning to all terms is preferred to an interpretation which leaves a part unreasonable, unlawful, or of no effect.” See American Soil Processing, Inc. v. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd., 586 N.W.2d 325, 334 (Iowa 1998) (quoting Fashion Fabrics, 266 N.W.2d at 26 (quotation marks omitted)). We are required to “give effect to the language of the entire contract,” and “particular words and phrases are not interpreted in isolation. Instead, they are interpreted in a context in which they are used.” Hartig Drug Co., 602 N.W.2d at 797-98 (internal citations omitted).

[¶ 16.] The only dispute in this case is whether the parties intended to protect a Limited Partner’s entire ownership interest or only those Units purchased on or before December 31, 1992. It is conceivable that the drafters did not anticipate a situation where an original limited partner, who subscribed to some Units before December 31, 1992, would thereafter obtain additional Units. However, simply because the situation was unforeseen does not make the Agreement ambiguous. Rather, an ambiguity will be found when conflicting provisions cannot be reconciled to give meaning to all provisions and when they are susceptible to more than one fair, honest, and reasonable interpretation. Id. at 797 (citing Berryhill, 428 N.W.2d at 654). Because we must give effect to the Agreement as a whole, our review of the parties’ intent at the time the Agreement was executed is limited to what they said in the Agreement itself. See id.; Harvey Const. Co. v. Parmele, 253 Iowa 731, 113 N.W.2d 760, 768 (1962).

[¶ 17.] The language of the Founding Fathers’ Clause delays the Triggering Event “with respect to a Limited Partner who subscribed to its Limited Partnership Interest on or before the [sic] December 31, 1992.” Dr. Jones asserts that because the definition of “Limited Partnership Interest” is the “Interest of the Limited Partner in the Partnership” and “Interest ” is the “entire ownership ” of a Limited Partner, then his entire ownership — all ten Units — should be protected by the Founding Fathers’ Clause. While this interpretation appears reasonable when examining the Founding Fathers’ Clause in isolation, it is not a fair, honest, and reasonable interpretation in context with the Agreement as a whole.

[¶ 18.] The term “Limited Partnership Interest” is not solely used in the Founding Fathers’ Clause. It is also used in the definition of Unit. A “Unit” is defined as “a Limited Partnership Interest” and the parties agree that a Limited Partner can have multiple Units. Therefore, if a Limited Partner can have more than one Unit, then under the terms of the Agreement, such partner certainly can have one or more Limited Partnership Interests. Consequently, if a Limited Partner can have more than one Limited Partnership Interest, it is reasonable to conclude that only those Limited Partnership Interests subscribed to on or before December 31, 1992 are protected by the Founding Fathers’ Clause.

[¶ 19.] This interpretation is further supported by our review of other provisions in the Agreement. Even though a term is used in the singular, when the context requires, the Agreement provides that it be read in the plural. It is improper to interpret the terms “Interest” and “Limited Partnership Interest” in the singular and accept that the parties intended a Limited Partner to have only one indivisible interest in the Partnership. As stated before, if a Limited Partner has an indivisible Limited Partnership Interest, that partner would have to have subscribed to that entire Interest on or before December 31, 1992 to be protected by the Founding Fathers’ Clause. Such an interpretation would be unreasonable because it would negate the protective intent of the Founding Fathers’ Clause.

[¶ 20.] Therefore, we conclude that the language of the Agreement is not ambiguous and the only reasonable interpretation is that the parties intended the Founding Fathers’ Clause to protect only those Units subscribed to on or before December 31, 1992. This interpretation gives effect to and is in harmony with not only the protective intent of the Founding Fathers’ Clause, but also the Agreement as a whole.

[¶ 21.] Affirmed.

[¶ 22.] GILBERTSON, Chief Justice, and SABERS, ZINTER and MEIERHENRY, Justices, concur.


author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Christopher Lawrence VALIN, Appellant.
    No. 05-0781.
    Supreme Court of Iowa.
    Dec. 1, 2006.

      Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John P. Sarcone, County Attorney, and Ramonda Belcher Ford, Assistant County Attorney, for appellee.
   CADY, Justice.

In this appeal we must decide if special conditions of probation not directly related to the crime of conviction, but related to a prior conviction, may be imposed as a part of a sentence. We reverse the decision of the district court.

I. Background Facts and Proceedings.

Christopher Valin was convicted of operating while intoxicated (OWI), second offense, following his arrest in September of 2004. In April 2005, the district court sentenced Valin to a term of imprisonment not to exceed two years and suspended all but seven days of the term. The court imposed a fine of $1500, and placed Valin on probation for two years. He was also required to undergo a substance abuse evaluation and treatment program, and attend a weekend class offered by the Des Moines Area Community College for OWI offenders. Valin was placed under the supervision of the department of correctional services (DCS). The sentencing order specifically required Valin to “submit to the supervision of DCS during probation and ... comply with all terms imposed by the assigned probation officer, including any additional programs and classes not set forth herein.” Valin filed a notice of appeal on May 10, 2005.

Valin signed a DCS probation agreement on May 19, 2005. It contained several standard rules and conditions, but also contained the following “special conditions”:

401. I shall participate in a sex offender or mental health counseling program as directed by my supervising officer.
403. I shall successfully complete the Fifth Judicial District Department of Correctional Services Sex Offender Treatment Program and comply with any treatment recommended as a result of the program.
404. I shall not initiate, establish, or maintain contact with victim(s) unless approved by my supervising officer.
405. I shall not initiate, establish, or maintain contact with any minor child (under the age of 18) unless approved by my supervising officer.
406. I shall not initiate, establish, or maintain contact with my children unless approved by my supervising officer.
408. I shall not reside with my children unless approved by my supervising officer.
409. I shall avoid any verbal or physical contact with any child or groups of children. I shall avoid contact with establishments, groups or organizations whose primary purpose is the care of minor children unless I have the prior written approval of my supervising officer.
411. I shall not be in possession of any sexually explicit materials, videos, books, magazines, pictures, posters, letters, etc., without express written approval from my supervising officer and a sex offender treatment team.
412. I will not subscribe, nor will I attempt to access, to the internet without prior approval from my supervising officer. I also will not engage in or visit computer-generated chat rooms under any circumstances. [Handwritten:] internet banking, check email-ONLY
801. I shall participate in the Fifth Judicial District Department of Correctional Services Sex Offender Treatment Program unless my supervising officer determines otherwise.

Valin objected to the special terms of probation and filed a motion in the district court for the court to “determine” the terms of his probation. Valin primarily objected to the requirement that he undergo sex offender treatment. At a hearing on the motion, the DCS justified the special conditions based on Valin’s conviction in 1999 for assault with intent to commit sexual abuse. The offense arose from an incident when Valin was in college during a night of excessive consumption of alcohol. Specifically, Valin fondled and groped the breasts and vaginal area of an adult female student without her consent after the two ended up at an apartment. Valin was placed on probation following the conviction and was required to complete sex offender treatment. Valin successfully completed the treatment, and was discharged from probation in 2001. Notwithstanding, the DCS recommended Valin complete sex offender treatment again because the DCS had a policy that required such treatment and special terms of probation when persons have previously been convicted of a sex offense. The policy is based on the proposition that a person who has committed a sex offense always has the potential to commit a sex offense again in the future. The treatment begins with a relapse assessment, which allows the DCS to “assess how much [the defendant has] learned in previous treatment.” The relapse assessment is followed by aftercare treatment or more aggressive treatment, depending upon the results of the relapse assessment.

After the hearing to determine the terms of Valin’s probation, the court entered an order requiring Valin to comply with all terms except one. Because there did not “appear to be any ‘evidence’ that would require a limitation of [Valin’s] contact with minor children,” the court permitted Valin “to have contact with minor children unless a psychological evaluation or other testing” indicated otherwise. However, the court held Valin must complete his sex offender treatment. It found the sentencing order clearly stated Valin must submit to the supervision of the DCS, it was in the best interests of the community for Valin to undergo treatment, and there was a strong nexus between Valin’s substance abuse and his criminal activity. Valin then filed a second notice of appeal on July 19, 2005.

Following the hearing, the DCS required Valin to submit to a penile plethys-mograph (PPG) test as part of his relapse assessment. This test measures deviant sexual arousal. It requires the subject to place a gauge on his penis while he is shown images and told sexual stories. The gauge then records computerized results based on the subject’s responses to the visual and audio stimuli. It takes anywhere between ninety minutes and two hours to complete, and the defendant must contribute $250 for the procedure. Typically, the DCS requires a PPG the first time a defendant receives sex offender treatment in order to determine if the offender has any other paraphilias, or areas of sexually deviant arousal. Such a test is then usually relied upon by the DCS during the probationer’s participation in relapse assessment. Valin, however, was not given this procedure during his first treatment because the DCS did not have a sufficient budget at the time to perform the test. As a result, the DCS wanted to perform it now, during his relapse assessment, to help evaluate other possible areas of sexual deviancy and to specifically determine whether Valin should be allowed contact with minor children, including his own newly born child.

Valin refused to submit to the PPG test and requested a hearing before the district court. The hearing revealed that Valin successfully completed the prior treatment program. Furthermore, there was no evidence presented that Valin had engaged in any sexually deviant behavior following his prior conviction, or had ever engaged in any inappropriate contact with children, although the use of alcohol was identified during his prior sex abuse treatment as a potential relapse factor. Nevertheless, the court required Valin to submit to the PPG test as a part of his treatment program. Although the court found no evidence that he was a threat to his child, it required that visitation with the child be supervised pending the outcome of the sex offender treatment.

All three of his appeals have been consolidated. The issue on appeal is whether Valin is subject to his special conditions of probation, including the PPG test.

II. Standard of Review.

We have articulated two different standards of review when a defendant challenges his or her sentence on appeal. Depending upon the nature of the challenge, the standard of review is for the correction of errors at law or for an abuse of discretion. Compare State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005) (“We review the district court’s sentence for correction of errors at law.” (citing State v. Kapell, 510 N.W.2d 878, 879 (Iowa 1994); Iowa R.App. P. 6.4)), and State v. Shearon, 660 N.W.2d 52, 57 (Iowa 2003) (noting that the appellant challenged “the legality of his sentencing,” and that “[o]ur review is for the correction of errors at law”), with State v. Alloway, 707 N.W.2d 582, 584 (Iowa 2006) (“We normally review sentencing decisions for abuse of discretion.” (citing State v. Evans, 671 N.W.2d 720, 727 (Iowa 2003))), and State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001) (stating we review a sentence that does not fall outside the statutory limits for an abuse of discretion (citing State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998))), and State v. Neary, 470 N.W.2d 27, 29 (Iowa 1991) (‘When a sentence is imposed within statutory limits, it will be set aside only for an abuse of discretion.”). Ultimately, however, we review a defendant’s sentence for the correction of errors at law. See State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996); Iowa R.App. P. 6.4. Nevertheless, in some circumstances it is necessary to determine whether legal error occurred because the district court abused its discretion. Such a circumstance occurs when the sentence imposed is within the statutory limits or the defendant’s challenge to his or her sentence does not suggest it is outside the statutory limits. See Neary, 470 N.W.2d at 29 (noting that when the sentence imposed is within the statutory limits it is reviewed for an abuse of discretion); Thomas, 547 N.W.2d at 225 (noting that when “a defendant does not assert that the imposed sentence is outside the statutory limits, the sentence will be set aside only for an abuse of discretion”).

In this case, Valin challenges his sentence as illegal. However, he is not challenging the district court’s authority to sentence him to, inter alia, two years of formal probation whereby he “shall submit to the supervision of DCS during probation and shall comply with all terms imposed by the assigned probation officer, including any additional programs and classes not set forth herein.” Iowa law clearly allows the district court to do so. See Iowa Code § 907.3(3) (2005) (empowering the sentencing court in circumstances such as these to “place the defendant on probation upon such terms as it may require including ... commitment of the defendant to the judicial district department of correctional services for supervision or services under section 901B.1 at the level of sanctions which the district department determines to be appropriate”). Instead, Valin is challenging the specific probation conditions imposed by the DCS, and approved by the district court, as unreasonable.

When a defendant challenges the terms of probation, “[i]t has long been a well-settled rule that trial courts have a broad discretion in probation matters which will be interfered with only upon a finding of abuse of that discretion.” State v. Rogers, 251 N.W.2d 239, 243 (Iowa 1977) (citing United States v. Alarik, 439 F.2d 1349, 1351 (8th Cir.1971) (“The granting of probation, and the conditions upon which it is granted as well as its revocation are matters purely within the discretion of the trial court and are reviewable only upon abuse of discretion.”)). Thus, we review Valin’s sentence for an abuse of discretion, and note that any abuse of discretion necessarily results in a legal error. State v. Ogle, 430 N.W.2d 382, 383 (Iowa 1988) (per curiam) (reviewing the probation condition that the appellant reside at a certain residential facility for an abuse of discretion); accord United States v. Jalilian, 896 F.2d 447, 449 (10th Cir.1990) (“If the sentence is legal, we review probation determinations for abuse of discretion.”).

Regarding an abuse of discretion standard, we have said:

In applying the abuse of discretion standard to sentencing decisions, it is important to consider the societal goals of sentencing criminal offenders, which focus on rehabilitation of the offender and the protection of the community from further offenses. It is equally important to consider the host of factors that weigh in on the often arduous task of sentencing a criminal offender, including the nature of the offense, the attending circumstances, the age, character and propensity of the offender, and the chances of reform. The application of these goals and factors to an individual case, of course, will not always lead to the same sentence.... Yet, this does not mean the choice of one particular sentencing option over another constitutes error. Instead, it explains the discretionary nature of judging and the source of the respect afforded by the appellate process.
Judicial discretion imparts the power to act within legal parameters according to the dictates of a judge’s own conscience, uncontrolled by the judgment of others. It is essential to judging because judicial decisions frequently are not colored in black and white. Instead, they deal in differing shades of gray, and discretion is needed to give the necessary latitude to the decision-making process. This inherent latitude in the process properly limits our review. Thus, our task on appeal is not to second guess the decision made by the district court, but to determine if it was unreasonable or based on untenable grounds.

State v. Formaro, 638 N.W.2d 720, 724-25 (Iowa 2002) (citations omitted). In short, there is an abuse of discretion when “there is no support for the decision in the ... evidence.” Rath v. Sholty, 199 N.W.2d 333, 336 (Iowa 1972).

III. Applicable Law.

We have noted that “[t]he legislature has given the courts broad, but not unlimited, authority in establishing the conditions of probation.” State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998) (per cu-riam) (citations omitted). Our courts derive this authority from Iowa Code section 907.6, which states:

Probationers are subject to the conditions established by the judicial district department of correctional services subject to the approval of the court, and any additional reasonable conditions which the court or district department may impose to promote rehabilitation of the defendant or protection of the community-

Iowa Code § 907.6. Thus, our district courts are authorized to impose “any reasonable conditions” that either “promote rehabilitation of the defendant or the protection of the community.” Jorgensen, 588 N.W.2d at 687 (citing Iowa Code § 907.6; State v. Akers, 435 N.W.2d 382, 335 (Iowa 1989)); Ogle, 430 N.W.2d at 383 (per curiam) (stating probation conditions “shall promote the rehabilitation of the defendant and the protection of the community” and “must not be unreasonable or arbitrary”); Rogers, 251 N.W.2d at 243 (stating “conditions of probation cannot be unreasonable or arbitrary” and “should relate to the rehabilitation of the convicted criminal or the protection of the community, or both”); see also 5 Wayne R. LaFave et al., Criminal Procedure § 26.9(a), at 833 (2d ed. 1999) (“In order to be valid, probation conditions must be reasonably related to the offense involved, the rehabilitation of the defendant, the protection of the public, or another legitimate punitive purpose.”).

A condition of probation promotes the rehabilitation of the defendant or the protection of the community when it addresses some problem or need identified with the defendant, see Rogers, 251 N.W.2d at 244 (“The sentencing court’s probation conditions might well be tailored to deter defendant from further offenses and thus contribute towards his rehabilitation.”), or some threat posed to the community by the defendant, see Ogle, 430 N.W.2d at 383 (per curiam) (“As the defendant posed a threat to the community because of his willingness to drive while under the influence, the court was well within its discretion to reject the Antabuse option and to order the defendant to reside in the residential facility [as a condition of probation].”). A condition is reasonable when it relates to the defendant’s circumstances in a reasonable manner, see United States v. Friedberg, 78 F.3d 94, 96 (2d Cir.1996) (“A condition of probation is not reasonable if it is found to be ‘unnecessarily harsh or excessive in achieving these goals [of rehabilitating the defendant and protecting the public].’ ” (quoting United States v. Tolla, 781 F.2d 29, 34 (2d Cir.1986))), and is justified by the defendant’s circumstances, see Jorgensen, 588 N.W.2d at 687 (finding the imposition of a batterer’s education program condition unreasonable because the defendant was acquitted of domestic abuse and had no history of such conduct). Thus, the inquiry into the reasonableness of a condition of probation boils down to whether the statutory goals of probation are reasonably addressed. See, e.g., Sobota v. Williard, 247 Or. 151, 427 P.2d 758, 759 (1967) (“In testing the reasonableness of conditions imposed as part of a probation plan, it is necessary to bear in mind the various purposes sought to be served by probation .... ”); 21A Am.Jur.2d Criminal Law § 907, at 171-73 (1998) (“[C]onditions that are found to be vindictive, vague, or overbroad, or unreasonable, will be stricken from the probation order. Moreover, conditions of probation which have no relationship to the crime of which the offender was convicted, relate to conduct which is not in itself criminal, and require or forbid conduct which is not reasonably related to future criminality, do not serve the statutory ends of probation and are invalid”)- As a result, whether a condition meets the statutory goals of probation and whether it is reasonable are questions that are best addressed together.

IV. Discussion.

Although this case involves three appeals, there is essentially one issue presented. The question is whether special conditions of probation relating to the treatment and prevention of sexual abuse can be imposed as terms of probation for a person convicted of OWI with Valin’s history. In particular, Valin objects to the requirement that he participate in a sex abuse treatment program and submit to a PPG test as a part of an evaluation to determine the level of treatment and his ability to maintain contact with children.

Normally, the crime of conviction serves as the circumstance to support the conditions of probation. However, we have previously recognized that a defendant’s background and history is also relevant when determining the conditions of probation. See Jorgensen, 588 N.W.2d at 687, 687 n. 1 (striking a condition of probation because, inter alia, “there was no indication she had a prior history” associated with such conditions, and no evidence in the record suggested such conditions were appropriate). Other states have also recognized that a defendant’s history, as opposed to the defendant’s present conviction, may form the basis for conditions of probation. See, e.g., State v. Solomon, 107 Hawai'i 117, 111 P.3d 12, 26 (Haw.2005) (holding sex-offender treatment was a valid probation condition, even though the conviction was not for a sex offense, because the defendant had a history of sex-offending); State v. Cyr, 57 Conn.App. 743, 751 A.2d 420, 424 (2000) (conviction need not be for enumerated sex offense in order to warrant sex-offender treatment as a probation condition); Miyasato v. State, 892 P.2d 200, 201-02 (Alaska Ct.App.1995) (“[A] condition of probation need not directly relate to the offense for which the defendant stands convicted.”). Thus, a prior conviction can provide the needed history to justify a special condition of probation. Yet, it is axiomatic that such history is insufficient unless it reveals a problem currently suffered by the defendant relating to the need to rehabilitate the defendant or protect the community from the defendant.

In this case, there is an insufficient nexus between Valin’s present conviction and his special conditions of probation to advance the goals of probation. The State suggests a sufficient nexus exists for two primary reasons. First, the DCS maintains a policy that requires all probationers with a prior sex abuse conviction to participate in sex abuse treatment. The policy is based on the proposition that sex offenders always have the potential to reoffend. See McKune v. Lile, 536 U.S. 24, 32-33, 122 S.Ct. 2017, 2024, 153 L.Ed.2d 47, 56-57 (2002) (observing that sex offenders who have re-entered society are “much more likely than any other type of offender to be rearrested for a new rape or sexual assault”). Second, the use of alcohol was recognized as a component of Valin’s relapse cycle during his prior sex abuse treatment, which means the current conviction gives rise to a current potential for relapse. We address each reason separately.

The DCS policy and its rationale are too broad to establish the necessary relationship between the conditions of probation in this case and either the current needs of rehabilitation of the defendant or the current protection of the public from the defendant. ' The policy gives rise to the need for the DCS to normally consider and inquire into the potential need for sex abuse treatment for a probationer, but the policy does not make treatment reasonable in each case. The reasonableness of sex abuse treatment as a condition of probation for an unrelated crime of conviction must be supplied by the individual facts or evidence in each case. The DCS policy paints with a brush that is too broad, and covers all defendants with a prior record of conviction for sex abuse, without individually considering the actual or current need for rehabilitation or public protection. See United States v. Scott, 270 F.3d 632, 636 (8th Cir.2001) (“The government presented no evidence that [the defendant] has a propensity to commit any future sexual offenses, or that [the defendant] has repeated this behavior in any way since his [previous] conviction.”).

The problem with using the policy to establish a relationship between the conditions of probation and the goals of probation is best revealed by the other special conditions of probation imposed by the DCS in this case, such as the no-contact-with-children provision. This condition of probation restricts Valin’s contact with children, including his own child, even though he has no history of sexual assault involving children and there are no facts that give rise to a reasonable fear that such behavior could occur. Consequently, the effect of the policy is to treat Valin as a current sex offender solely because of his prior offense. In turn, the policy has the effect of imposing greater restrictions on an offender than reasonably needed to achieve the goals of probation. This is a consequence that probation must avoid. See Iowa Code § 907.9(4) (“[A] person who has been discharged from probation shall no longer be held to answer for the person’s offense.”). Accordingly, we turn to the second reason offered by the State.

Alcohol abuse is a common factual connection between the prior and current convictions that could support the current need for sex abuse treatment. However, the common factor of alcohol relied on by the district court in this case to justify the need for sex abuse treatment as a condition of probation is simply too tenuous. There is no evidence in the record to show the degree to which the use of alcohol is a factor of relapse into sexual abuse, or even the degree to which alcohol abuse is a current part of Valin’s life. The record only establishes a conviction that shows Valin used alcohol five years after his conviction for sexual assault, which, without additional evidence, does not reasonably support the imposition of sex abuse treatment. The imposition of a treatment program based on this one common circumstance between two unrelated convictions is premature.

The record in this case shows that the sexual abuse treatment program was to begin with an evaluation to determine the level of treatment. Yet, the evaluation was not imposed to determine if treatment should be required as a condition of probation, but what level of treatment should be imposed. Thus, the condition of probation imposed on Valin was a treatment program, not an evaluation. Regardless, any condition of probation — whether a treatment term or an evaluation term — must satisfy the critical inquiry that a reasonable relationship exists between the condition of probation and the statutory goals as related to the current situation of the probationer. The inquiry must reveal specific evidence that such a reasonable relationship exists.

We conclude there is no reasonable relationship between Valin’s required participation in the sex offender treatment program, the imposition of the other special terms of probation, and the goals of probation for Valin’s current OWI conviction. Thus, the trial court abused its discretion by imposing unreasonable special conditions of probation, and this abuse of discretion resulted in legal error.

V. Conclusion.

We conclude the district court abused its discretion by ordering the special conditions of probation, as well as the requirement that Valin submit to the PPG. Therefore, we reverse the decision of the district court that imposed the special conditions of probation, including the PPG test, without prejudice to the State to impose additional terms and conditions of probation in the future.

REVERSED.

All justices concur except HECHT, J., who takes no part.

      . Even though Valin had already filed his original notice of appeal for his conviction, the district court did not lose jurisdiction to determine the terms of his probation. See State v. Mallett, 677 N.W.2d 775, 776-77 (Iowa 2004) (“Generally, an appeal divests a district court of jurisdiction. Restoration of district court jurisdiction may be accomplished by only two means: the litigants' stipulation for an order of dismissal or an appellate court's order for limited remand. Neither means applies here. Moreover, a district court maintains jurisdiction over disputes between the parties that are merely collateral to the issues on appeal. An example of a collateral matter as to which a trial court retains jurisdiction is the modification of an order for restitution in a criminal case.” (citing State v. Jose, 636 N.W.2d 38, 46 (Iowa 2001); Shedlock v. Iowa Dist. Ct., 534 N.W.2d 656, 658 (Iowa 1995))). However, a statute "may authorize the trial court to enter further orders notwithstanding the taking of an appeal.” 5 Am.Jur.2d Appellate Review § 421, at 171 (1995); accord United States v. D'Amario, 412 F.3d 253, 255 (1st Cir.2005) ("[T]he district court has plenary jurisdiction to supervise a convicted defendant's release, including the jurisdiction to modify the conditions of supervised release, even though an appeal from a revocation of supervised release may be pending.”); see Iowa Code § 907.8 (2005) (stating jurisdiction over persons on probation “shall remain with the sentencing court”).

      . At the hearing, the probation officer stated, "Our philosophy is that once they've committed a sex crime, they always have the potential to commit another one.” In addition, the district court noted it was the DCS's policy to require sex offender treatment "when a person has committed a sex offense in the past and is later convicted of another offense— whether or not the later offense is a sex crime.”

      . We recognize section 907.6 does not qualify what conditions the DCS may originally impose. Instead, it states "[probationers are subject to the conditions established," and qualifies "any additional” conditions imposed by requiring them to be "reasonable” and either "promote the rehabilitation of the defendant or protection of the community.” Iowa Code § 907.6. It would be illogical, however, to read from this provision that the DCS may impose any conditions it wants— reasonable or not' — the first time around. After all, those conditions are "subject to the approval of the court.” Id. The proper construction is that any condition of probation must be reasonable and either rehabilitate the defendant or protect the community. We have always required conditions of probation to meet this test. See, e.g., Jorgensen, 588 N.W.2d at 687.

      . We also recognize Iowa Code section 907.7 states that the purposes of probation are "to provide maximum opportunity for the rehabilitation of the defendant and to protect the community from further offenses by the defendant and others." Notably, this provision uses the conjunctive "and,” whereas section 907.6 uses the disjunctive "or.” Compare Iowa Code § 907.7 (stating "for the rehabilitation of the defendant and to protect the community” (emphasis added)), with id. § 907.6 (stating "to promote rehabilitation of the defendant or protection of the community” (emphasis added)). Section 907.7, however, is simply recognizing the purposes of probation, and not the authority of the court to impose conditions of probation. Thus, to be valid, conditions need not (in addition to being reasonable) promote the defendant's rehabilitation and the protection of the community, but simply one or the other, or both. See Rogers, 251 N.W.2d at 243.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Arif HAJTIC, Appellant.
    No. 03-1481.
    Supreme Court of Iowa.
    Dec. 1, 2006.

      James A. Benzoni of Benzoni Law Firm, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.
   LARSON, Justice.

Arif Hajtic was convicted of three counts of third-degree burglary under Iowa Code section 713.6A (2001) and one count of first-degree robbery under Iowa Code section 711.2. On appeal, Hajtic claims his statements to the police were improperly admitted, the trial court abused its discretion in consolidating his robbery and burglary trials, and the court erred in denying his motion for judgment of acquittal. We reject all of these arguments, but preserve Hajtic’s separate ineffective-assistance-of-counsel claim for possible postconviction relief proceedings.

I. Facts and Prior Proceedings.

Arif Hajtic was arrested in the early morning hours of December 19, 2002, and taken to the Waterloo Police Department for questioning on a series of burglaries and a robbery. Because Hajtic was only seventeen at the time, the police contacted his mother to inform her that he was in custody, in accordance with Iowa Code section 232.11(2). Hajtic and his family were from Bosnia and had been in the United States only about six years. His mother spoke little English, so the police used Hajtic’s fourteen-year-old sister, Ev-lijana, to translate the discussions between the police and Hajtic’s mother concerning the mother’s consent to Hajtic’s waiver of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Hajtic’s mother signed a consent form, and Hajtic signed a waiver form. Hajtic confessed to his participation in the burglaries and robbery. According to him, the crimes had been planned and carried out in conjunction with other similar crimes orchestrated by Eric Miller, who testified against Hajtic. On appeal, Hajtic argues that his mother’s consent to his Miranda waiver was invalid because his sister, as interpreter, lacked an understanding of the concepts of the Miranda warning and was therefore unable to convey the information necessary to validate the mother’s consent to Hajtic’s waiver. Also, according to Hajtic, his own Miranda waiver was invalid. The State counters that the mother’s consent to Hajtic’s Miranda waiver was not required because he was over sixteen. Further, the State argues, Hajtic’s own waiver was valid because it was knowingly, voluntarily, and intelligently made. We first address the issue of the mother’s consent.

II. The Mother’s Consent

Because Hajtic was a juvenile (seventeen years and eleven months old), he was entitled to the protection of our juvenile laws regarding his right to counsel in the burglary cases. (The robbery charge is a forcible felony and, therefore, not subject to the juvenile code. See Iowa Code §§ 232.8(1)(c), 702.11; State v. Harris, 589 N.W.2d 239, 244 (Iowa 1999).) One of the protections accorded most juveniles is the requirement that a parent consent to a juvenile’s waiver of Miranda rights. See Iowa Code § 232.11(2). The State argues that the mother’s consent to Hajtic’s waiver was not required because he was over sixteen. Iowa Code section 232.11(1) provides:

A child shall have the right to be represented by counsel at the following stages of the proceedings within the jurisdiction of the juvenile court ...:
a. From the time the child is taken into custody for any alleged delinquent act that constitutes a serious or aggravated misdemeanor or felony under the Iowa criminal code, and during any questioning thereafter by a peace officer or probation officer.

The crimes with which Hajtic was charged, robbery and burglary, fall under category “a.” However, a subsequent provision allows for a juvenile’s waiver of counsel without parental consent in some cases. Under section 232.11(2),

[t]he child’s right to be represented by counsel under subsection 1, paragraphs “b ” to “/” of this section shall not be waived by a child of any age. The child’s right to be represented by counsel under subsection 1, paragraph “a” [the class in which this case falls] shall not be waived by a child less than sixteen years of age without the written consent of the child’s parent, guardian, or custodian. The waiver by a child who is at least sixteen years of age is valid only if a good faith effort has been made to notify the child’s parent, guardian, or custodian that the child has been taken into custody and of the alleged delinquent act for which the child has been taken into custody, the location of the child, and the right of the parent, guardian, or custodian to visit and confer with the child.

(Emphasis added.)

When a juvenile is over sixteen, section 232.11 does not require a parent’s consent to the juvenile’s Miranda waiver, but only a good-faith effort to inform the parent (1) that the child is in custody, (2) the nature of the act charged, (3) the location of the child, and (4) the right of the parent to confer with the child. See Iowa Code § 232.11(2); State v. Nelson, 435 N.W.2d 344, 348 (Iowa 1989); State v. Means, 547 N.W.2d 615, 620 (Iowa Ct.App.1996).

Following a call by the police to Hajtic’s home, Hajtic’s mother, his fourteen-year-old sister, and a younger brother came to the police station. An officer informed Hajtic’s sister of the nature of the charges, so she could translate the information to Hajtic’s mother in their Bosnian language. Hajtic’s mother was permitted to talk with him before he signed his Miranda waiver. This was all captured on a videotape.

The police provided Hajtic’s mother with all of the information required by section 232.11(2). The police officer’s use of Hajtic’s sister to convey to the mother the necessary information constituted a good-faith effort to inform the mother, as required by section 232.11(2). Despite Hajtic’s argument that his sister was unable to accurately translate the fíne points of a Miranda warning, it is clear that his mother was informed that Hajtic was in custody, the nature of the act charged, where Hajtic was being held, and the mother’s right to confer with him. Hajtic’s mother obviously knew he was in custody because she was there with him. In fact, Hajtic’s mother testified at the suppression hearing, with the aid of an interpreter, that the Waterloo Police Department had informed her that they had Arif in their custody, and that he was suspected of the crimes of burglary and robbery. She further testified that, during the time he was at the police department, she was permitted to talk with him.

In summary, even if Hajtic is correct that his sister did not accurately translate the contents of the Miranda warning to his mother, this was not fatal to the State’s use of his confession because his mother was given all the information required by Iowa Code section 232.11(2).

III. The Miranda Waiver.

Hajtic claims his statements to the police were inadmissible because the State failed to show they were made knowingly, . intelligently, and voluntarily and that they were not induced by intimidation, coercion, or deception. See Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410, 420-21 (1986); State v. Countryman, 572 N.W.2d 553, 559 (Iowa 1997). In assessing the validity of a defendant’s Miranda waiver, the State bears the burden of proving these factors by a preponderance of the evidence. State v. Morgan, 559 N.W.2d 603, 606 (Iowa 1997); Means, 547 N.W.2d at 621. Our review of the record on the voluntariness of a confession is de novo, and we make our own evaluation of the circumstances. Morgan, 559 N.W.2d at 606; State v. Vincik, 398 N.W.2d 788, 789 (Iowa 1987).

In Miranda, the Court held that a suspect’s waiver of his Fifth Amendment privilege against self-incrimination is valid only if it is made voluntarily, knowingly, and intelligently. 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706-07. The inquiry into whether a waiver is valid “has two distinct dimensions.” Moran, 475 U.S. at 421, 106 S.Ct. at 1141, 89 L.Ed.2d at 420-21.

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Id. (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197, 212 (1979)). A written waiver of constitutional rights is not sufficient on its own to establish the waiver as knowing, intelligent, and voluntary. Vincik, 398 N.W.2d at 789. However, it is strong proof of its validity. Fryer v. State, 325 N.W.2d 400, 409 (Iowa 1982).

Courts use an objective standard to determine whether a defendant’s waiver is voluntary, knowing, and intelligent. Pettyjohn v. United States, 419 F.2d 651, 654-55 (D.C.Cir.1969). Factors bearing on voluntariness include the defendant’s age, experience, prior record, level of education, and intelligence; the length of time the defendant is detained or interrogated; whether physical punishment was used, including deprivation of food or sleep; the defendant’s ability to understand the questions; the defendant’s physical and emotional condition and his reaction to the interrogation; whether any deceit or improper promises were used in gaining the admissions; and any mental weakness the defendant may possess. State v. Hodges, 326 N.W.2d 345, 348 (Iowa 1982). Obviously, a defendant’s alienage and unfamiliarity with the American legal system should be included among these objective factors, given that the ultimate determination of whether a waiver is knowing, intelligent, and voluntary must rest on the totality of the circumstances. Fare, 442 U.S. at 725, 99 S.Ct. at 2572, 61 L.Ed.2d at 212.

We are aided in our de novo review of this case by a complete videotape and audiotape of the Miranda proceedings and the interrogation that followed. The videotape shows the officer with his side or back to the camera and Hajtic facing the officer and the camera. Hajtic’s sister sat about an arms’ length to his right. Their mother and Hajtic’s six-year-old brother sat behind them in the interrogation room. The officer read out loud a Miranda waiver form, and Hajtic read it for himself. Hajtic said he understood his rights and that he had no questions. He signed the waiver form, which stated that he could “read and understand the English language.” His ability to understand English was confirmed by the videotape of the Miranda proceedings and the questioning that followed. He showed no reluctance to ask questions if he did not understand. When the officer asked a question confusing to Hajtic, he asked the officer to clarify it, and the officer did so. For the most part, however, the officer’s questions were answered responsively and without any reliance for interpretation by his sister. In fact, during the interview, Hajtic appeared almost oblivious to his sister’s presence. Judging by Hajtic’s actions and responses to the questions, he clearly understood the questions asked.

This case illustrates the value of electronic recording, particularly videotaping, of custodial interrogations. One authority has observed that

[o]ne way to satisfy the burden [of voluntary waiver] is an audio or video recording of the warning, any waiver, and any questioning made in response, but this is not required as a matter of federal constitutional law and few state courts have made such a requirement.

1 Charles Alan Wright, Federal Practice & Procedure § 76.3, at 224 (1999) [hereinafter Wright].

At least two states have required electronic recording of such proceedings. See, e.g., Stephan v. State, 711 P.2d 1156, 1160 (Alaska 1985); State v. Scales, 518 N.W.2d 587, 592 (Minn.1994). The eighth circuit has also discussed this practice favorably. See Hendricks v. Swenson, 456 F.2d 503, 505-07 (8th Cir.1972).

The eighth circuit

suggested] that a videotape is protection for the accused. If he is hesitant, uncertain, or faltering, such facts will appear. If he has been worn out by interrogation, physically abused, or in other respects is acting involuntarily, the tape will corroborate him in ways a typewritten statement would not. Instead of denying a defendant his rights, we believe it is a modern technique to protect a defendant’s rights.

Id. at 506.

The Alaska Supreme Court went so far as to adopt an exclusionary rule for confessions obtained without electronic recordation, based on the due process provisions of its state constitution. It did so because law enforcement officials and lower courts had not heeded the court’s suggestion in earlier cases that custodial interrogations should be recorded when feasible. It stated:

Such recording is a requirement of state due process when the interrogation occurs in a place of detention and recording is feasible. We reach this conclusion because we are convinced that recording, in such circumstances, is now a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.

Stephan, 711 P.2d at 1159-60 (footnotes omitted).

In discussing the efficacy of videotaping custodial interrogations, one Alaska appeals court judge observed:

[Cjlaims [of Miranda violations] invariably produce a swearing contest in which defendants claim that they were not afforded their constitutional rights and the police officers claim that they were. Since defendants are interrogated in custody, isolated from anyone other than police officers, they cannot provide independent corroboration of their own testimony regarding what occurred during the interrogation. In a sense then, a tape recording provides an objective means for evaluating what occurred during interrogation. It also provides the defendant with a means of “cross-examining” his confession .... The importance of such a tape recording lies in the fact that trial courts and appellate courts tend to trust police officers’ recollections of what occurred at the expense of the criminal defendant’s account. Thus, in the absence of a tape recording, the prosecuting authorities invariably win the swearing contest. The heavy burden of proving compliance established by Miranda becomes, in practice, no burden at all.

Harris v. State, 678 P.2d 397, 414 (Alaska Ct.App.1984) (Singleton, J., concurring and dissenting) (citation omitted), overruled by Stephan v. State, 711 P.2d 1156 (Alaska 1985).

As noted by the Alaska Supreme Court, advantages of videotaping go beyond protection of the defendant’s rights:

The recording of custodial interrogations is not, however, a measure intended to protect only the accused; a recording also protects the public’s interest in honest and effective law enforcement, and the individual interests of those police officers wrongfully accused of improper tactics. A recording, in many cases, will aid law enforcement efforts, by confirming the content and the volun-tariness of a confession, when a defendant changes his testimony or claims falsely that his constitutional rights were violated. In any case, a recording will help trial and appellate courts to ascertain the truth.

Stephan, 711 P.2d at 1161.

The Minnesota Supreme Court adopted a rule requiring electronic recording under its supervisory jurisdiction to assure fair trials. Scales, 518 N.W.2d at 592. Commentators, and the American Bar Association, have advocated videotaped recording of custodial interrogations. See Steven A. Drizin & Marissa J. Reich, Heeding the Lessons of History: The Need for Mandatory Recording of Police Interrogations to Accurately Assess the Reliability and Vol-untariness of Confessions, 52 Drake L.Rev. 619, 619-46 (2004). As these authors have stated,

failing to record police interrogations may no longer be a luxury that police officers can afford. We live in a video age, an age when satellites can track our every movement and when cameras are in our banks, in our stores, on our roads, and in our homes. Most of the citizens who make up the jury pool either have or will soon have video or digital cameras of their own. In this context, it is becoming increasingly difficult for jurors to accept the assertions of police officers that they did not tape interrogations because it was not their policy to do so. In the post-DNA age, when every wrongful conviction is front-page news, and police officers and prosecutors are being asked to explain what went wrong in each of these cases, police officers may have to start recording interrogations as a matter of self-preservation. Their failure to do so will, as the reformers suggested, breed distrust in their methods and cause a strain in their relations with the public.

Id. at 638-39.

In addition, the American Bar Association has endorsed the concept of videotaping. The official ABA policy states:

RESOLVED, That the American Bar Association urges all law enforcement agencies to videotape the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to audiotape the entirety of such custodial interrogations.
FURTHER RESOLVED, That the American Bar Association urges legislatures and/or courts to enact laws or rules of procedure requiring videotaping of the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical, to require the audiotaping of such custodial interrogations, and to provide appropriate remedies for noncompliance.

American Bar Association Report to the House Delegates (Feb.2004), available at http:/ /www. abanet. org/leadership/2001p/recommendations/8a.pdf.

We believe electronic recording, particularly videotaping, of custodial interrogations should be encouraged, and we take this opportunity to do so. In this ease, the videotape of Hajtic’s confession and the Miranda warnings that preceded it clearly show that he understood the Miranda warnings given to him and the questions asked. Further, there is no indication the officer made improper promises or threats. Our conclusion that Hajtic understood the nature of the rights waived and the questions asked is bolstered by other evidence: he lacked only one month of being eighteen and had been in this country for six years. He had attended Waterloo schools until the eleventh grade, and he was able to hold down a job. A jailer who conversed with Hajtic on a daily basis testified he had no trouble communicating with him. Further, Hajtic testified at the suppression hearing in a coherent and understanding manner without an interpreter, although one was in court and available to him.

On our de novo review of the record, we conclude that Hajtic’s waiver of his Miranda rights was valid, and his confession was voluntarily, knowingly, and intelligently made. The confession was therefore properly admitted, and we affirm on that issue.

IV. Sufficiency of the Evidence.

Hajtic argues that, because his confession was not admissible, his conviction was supported only by the testimony of Eric Miller, an accomplice. Under Iowa Rule of Criminal Procedure 2.21(3),

[a] conviction cannot be had upon the testimony of an accomplice or a solicited person, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

Because we have rejected the underlying premise of Hajtic’s argument, i.e., that the confession was inadmissible, we reject this argument. There was clearly sufficient evidence to support the verdict when we consider the testimony of Eric Miller together with Hajtic’s confession.

V. The Consolidation Argument.

Hajtic complains that the court should not have consolidated his trial on the burglary and robbery charges. Under Iowa Rule of Criminal Procedure 2.6(1),

[t]wo or more indictable public offenses which arise from the same transaction or occurrence or from two or more transactions or occurrences constituting parts of a common scheme or plan, when alleged and prosecuted contemporaneously, shall be alleged and prosecuted as separate counts in a single complaint, information or indictment, unless, for good cause shown, the trial court in its discretion determines otherwise. Where a public offense carries with it certain lesser included offenses, the latter should not be charged, and it is sufficient to charge that the accused committed the major offense.

Our review of a district court’s consolidation order is for abuse of discretion. See State v. Thornton, 506 N.W.2d 777, 779 (Iowa 1993). To show the district court abused its discretion in consolidating, a defendant must prove that his interest in severance was greater than the State’s interest in judicial economy. State v. Lam, 391 N.W.2d 245, 251 (Iowa 1986).

A “common scheme or plan” under rule 2.6(1) requires “that all offenses charged be products of a single or continuing motive.” Lam, 391 N.W.2d at 250. In determining whether the offenses are products of a single or continuing motive, “we have found it helpful to consider factors such as intent, modus operandi, and the temporal and geographic proximity of the crimes.” State v. Oetken, 613 N.W.2d 679, 688 (Iowa 2000). In Lam, we held there was sufficient evidence that the offenses charged were parts of a common scheme or plan to burglarize apartments. We found it was relevant that the burglaries took place on the same day, in the same general location, and using the same method of transportation. In Oetken, there was sufficient evidence of a common scheme or plan with a single continuing motive when the burglaries were committed on two consecutive days, using similar methods.

In this case, the crimes took place within a twenty-four-hour period. The objectives were similar — to obtain money and/or cigarettes. The same method of transportation was used, and the businesses targeted were in the same general location. Hajtic’s defense was the same in all the cases — he was acting under intimidation by Eric Miller, his accomplice.

We conclude the trial court did not abuse its discretion in consolidating the trials.

VI. The Ineffective Assistance of Counsel Issue.

Hajtic argues that his counsel was ineffective because he failed to produce expert testimony on the inherent weaknesses in eyewitness testimony and on Hajtic’s mental state. The record on this appeal is insufficient to assess these claims, and they are therefore preserved for possible posteonvietion relief proceedings.

AFFIRMED.

All justices concur except HECHT, J., who takes no part.