author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Edward Henry WELLS, Jr., Appellant.
    No. 00-0324.
    Supreme Court of Iowa.
    May 31, 2001.
    As Corrected June 12, 2001.
    Rehearing Denied July 3, 2001.

      Rod Powell of Powell Law Firm, P.C., Norwalk, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Kevin Parker, County Attorney, and Diana L. Rolands, Assistant County Attorney, for appellee.
   CADY, Justice.

This is an appeal from a judgment and sentence following a jury trial for two counts of livestock neglect in violation of Iowa Code section 717.2(2) (1997). The principal issue presented is whether the State can bring multiple serious misdemeanor charges of livestock neglect when the charges stem from the same uninterrupted period of neglect. We affirm in part, reverse in part, vacate the sentence, and remand for resentencing.

I. Background Facts and Proceedings.

Edward Wells, Jr., operated a boarding house for horses on a farm near Cumming, Iowa. Wells boarded his own horses, as well as horses owned by others. As manager of the horse facility, Wells was responsible for providing adequate sustenance to the horses. Wells had been around horses nearly his entire life, and was familiar with the practice of care.

On November 16, 1998, the Warren County Sheriffs Department received an anonymous telephone call informing them that dead horses could be found in the northwest field of Wells’ farm. Deputy Sheriff Rick Champ investigated the report the same day. As he drove on the road next to the farm, he observed two dead horses on the northwest corner of Wells’ field.

Champ took several photographs of the dead horses from an area adjacent to Wells’ property. Champ then stopped at Wells’ residence to discuss the report. Wells acknowledged he was the owner of the two dead horses. Wells and Champ then walked through the field to the location of the dead horses. Champ observed the two horses were extremely thin. The bones of both horses were clearly visible to the naked eye. In his experience as a police officer, Champ had observed numerous dead animals, many of which had died from starvation. From his personal experiences and his own observation of the horses, Champ concluded malnourishment was the cause of death. He informed Wells he would return the next day with a search warrant to seize the animal carcasses.

Champ subsequently applied for a search warrant to obtain evidence to substantiate his findings. In the application for the warrant, Champ described the emaciated appearance of the horses and concluded the horses had possibly died from starvation. Champ explained the purpose of the search warrant was to retrieve the carcasses so a veterinarian could perform tests to determine the cause of death. The district court issued the search warrant.

Champ executed the warrant the following day. He was accompanied by Dr. Brian Brennan, a doctor of veterinarian medicine. Champ took more photographs of the horses, while Dr. Brennan conducted autopsies on both horses. Shortly after the execution of the warrant, Wells gave a statement to Champ in which he claimed both horses had died in a storm approximately one week earlier. Wells believed the two horses had been struck by lightning.

Dr. Brennan took tissue samples from one of the horses during the autopsies. He did not take samples from the other horse because it had been partially consumed by scavengers. Both of the horses had begun to decompose. The samples were abstracted from the horse’s heart, liver, kidney, and intestine. Dr. Brennan rendered a preliminary finding of starvation as the cause of death in both of the horses. He then sent the tissue samples to the Iowa State Diagnostic Lab, where Dr. Patrick G. Halbur further examined the samples. Dr. Halbur was a doctor of veterinarian medicine, as well as an associate professor of pathology at Iowa State University.

Dr. Halbur concluded the horse had been mobilizing its stored body fat. He believed this was caused by either malnourishment or metabolic disease, but was unable to conclude which of these two conditions actually caused the horse’s death.

Considering his personal observation of the horses, the results of the autopsies, and Dr. Halbur’s analysis, Dr. Brennan concluded both horses had died of starvation. As a result, Wells was charged with two counts of livestock neglect in violation of Iowa Code section 717.2(1) and section 717.2(2).

Wells filed a motion to dismiss one of the counts. He contended section 717.2(2) prohibited the State from filing multiple charges of livestock neglect when the death of the livestock stemmed from a single uninterrupted period of alleged neglect. Wells also filed a motion to suppress, alleging the search warrant was not supported by probable cause. Wells further claimed the photographs taken by Champ during the execution of the search warrant should be suppressed as irrelevant and unfairly prejudicial. Champ took twenty-three photographs.

At the hearing on the motions, the State suggested a motion in limine, not a motion to suppress, was the more appropriate template for raising the issue of the admissibility of the photographs. Wells then offered to set forth the issue in a motion in limine at a later time, but acknowledged the court could properly rule on this issue by suppressing the photographic evidence as fruits of an illegal search. The court did not comment on what motion constituted the proper method to address the issue.

The district court denied the motion to suppress and the motion to dismiss. Additionally, the court found thirteen of the photographs were admissible, but held the remaining ten photographs were inadmissible due to their inflammatory nature.

At trial, Champ described his observations of the dead horses and the crime scene, as well as the circumstances surrounding the execution of the search warrant. Dr. Halbur explained the tests he performed and his conclusions.

Dr. Brennan detailed the analysis which formed his finding of starvation. He found no fat surrounding the abdomen or heart, which suggested to him that the horses were forced to utilize their stored body fat in the absence of adequate nourishment. In addition, Dr. Brennan found no evidence of any other causes of death, such as metabolic disease. Moreover, he could find no indication the horses had been struck by lightning or were the victims of other adverse weather conditions.

Wells testified on his own behalf, as did David Spiering and Carrie Flynn. Spier-ing had provided Wells hay to feed his horses during the period of time prior to the discovery of the dead horses. Flynn was a former employee of Wells, and was working for Wells when the horses died. Wells described his care and maintenance of the two dead horses, as well as the other horses on the farm. Furthermore, Wells testified the two horses died in a storm, probably by lightning or from exposure.

Marlys Larsen was called as a rebuttal witness by the State. She was a neighbor of Wells and testified to specific instances of horse mistreatment by Wells. She also gave testimony of the community’s adverse perception of Wells.

At the close of the evidence, Wells moved for a directed verdict, alleging insufficiency of the evidence. The district court denied the motion.

The jury returned guilty verdicts on both charges of livestock neglect. Wells subsequently filed a motion for new trial, contending the jury had been tainted after allegedly overhearing Larsen and her friend make disparaging remarks about Wells outside of the courtroom before closing arguments. An affidavit signed by Wells was the only evidence presented to support the claim.

In addition, Wells filed a motion in arrest of judgment. He argued the guilty verdicts were against the weight of the evidence as no expert testimony regarding starvation had been introduced by the State. Wells further claimed Larsen provided improper character evidence. The district court denied both motions. The court then sentenced Wells to one year incarceration for each count, but suspended the sentences and placed him on probation with a condition that he perform 150 hours of community service at the Animal Rescue League. The two sentences were directed to run concurrently.

Wells appeals. He argues the district court erroneously permitted the State to file multiple charges of livestock neglect under section 717.2(2) when the State acknowledged there was only one incident of neglect. Wells also argues the search warrant was not supported by probable cause and all the photographs should have been excluded from the trial. Finally, Wells claims the district court erroneously denied his motions for new trial and in arrest of judgment.

II. Scope of Review.

We review a motion to dismiss a charge alleged in a trial information for the correction of errors at law. State v. Johnson, 528 N.W.2d 638, 640 (Iowa 1995). Likewise, we review issues of statutory interpretation for errors at law. Id.

We review the district court’s denial of the motion to suppress the fruits of the search warrant de novo because Wells asserts his constitutional rights were violated when the warrant was issued "without probable cause. State v. OHiz, 618 N.W.2d 556, 558-59 (Iowa 2000); State v. Prior, 617 N.W.2d 260, 262-63 (Iowa 2000); State v. Leto, 305 N.W.2d 482, 484 (Iowa 1981). Additionally, we review district court rulings on the admissibility of evidence and juror misconduct claims for an abuse of discretion. See Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000) (general admissibility of evidence); State v. Powell, 400 N.W.2d 562, 565 (Iowa 1987) (juror misconduct); State v. Chadwick, 328 N.W.2d 913, 917 (Iowa 1983) (admissibility of photographs). Furthermore, we uphold district court rulings on sufficiency of the evidence claims unless the guilty verdict is not supported by substantial evidence. State v. McDaniel, 512 N.W.2d 305, 309 (Iowa 1994); State v. Hall, 235 N.W.2d 702, 715-16 (Iowa 1975).

III. Livestock Neglect.

Iowa Code section 717.2 makes it a crime to neglect livestock. It defines the crime as failing to provide proper care or depriving necessary sustenance to confined livestock. Iowa Code § 717.2(l)(a), (b). The crime is classified as a simple misdemeanor. Id. § 717.2(2). However, if an individual intentionally commits the offense and the livestock suffers serious injury or dies as a result of the neglect, the individual is guilty of a serious misdemean- or. Id. Additionally, this section further defines the units of prosecution available under the statute. It provides that an individual

shall not be guilty of more than one offense of livestock neglect punishable as a serious misdemeanor, when care or sustenance is not provided to multiple head of livestock during any period of uninterrupted neglect.

Id. (emphasis added). It is this portion of the statute which serves as the basis for the principal issue presented. We must decide if the statute limits the prosecution under the facts of this case to one count of serious misdemeanor livestock neglect.

A. Motion to Dismiss.

The State first claims that the motion to dismiss filed by Wells was not the proper mechanism to challenge duplicative counts in the trial information. It claims that the grounds to support a motion to dismiss are specified by Iowa Rule of Criminal Procedure 10(6)(a) and (c), and do not include duplicative counts of a trial information.

We agree with the State that, at the time the trial information was filed in this case, a motion to dismiss was not a proper vehicle to challenge duplicative counts in a trial information without first challenging the sufficiency of the evidence by filing a request for a bill of particulars. State v. Graham, 291 N.W.2d 345, 350 (Iowa 1980). A bill of particulars is a prerequisite to a motion to dismiss an information under rule 10(6)(a). Id. Clearly, Wells did not first request the State to produce evidence to support a multiple count information based upon interrupted or separate incidences of neglect. Nevertheless, the State did not resist the motion to dismiss on the grounds that separate counts were supported by interrupted neglect, but claimed section 717.2 permitted multiple counts even with uninterrupted neglect. The parties acknowledge the issue did not rest on the sufficiency of evidence, but involved an interpretation of the statute. The challenge raised by Wells was presented to the district court on that basis. Under these circumstances, a bill of particulars was unnecessary and the issue was properly raised by the motion to dismiss.

B. Multiple Counts.

Our legislature has both the power and responsibility to describe crimes and fix punishment. State v. Schmidt, 588 N.W.2d 416, 419 (Iowa 1998); State v. Fuhrmann, 261 N.W.2d 475, 479 (Iowa 1978); State v. Nelson, 178 N.W.2d 434, 437 (Iowa 1970). Thus, the elements of each offense are derived from the statute. State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980). Similarly, the question of how many convictions are lawful under a statute rests with the legislative intent. State v. Kidd, 562 N.W.2d 764, 765 (Iowa 1997); see United States v. Freisinger, 937 F.2d 383, 388 (8th Cir.1991); Castaldi v. United States, 783 F.2d 119, 121 (8th Cir.1986). Any doubt as to the legislative intent of the appropriate units of prosecution must be resolved in favor of the accused. Freisinger, 937 F.2d at 388 (statute which prohibited carrying “a firearm” during the commission of a drug offense permits multiple counts for carrying multiple firearms); Castaldi, 783 F.2d at 121 (statute prohibiting counterfeiting of “any postage stamp” permitted multiple counts for each denomination of postage stamps); Kidd, 562 N.W.2d at 766 (statute prohibiting possession of weapon permits multiple counts for multiple weapons).

The language of section 717.2 expressly prohibits multiple convictions for a serious misdemeanor offense of livestock neglect “when care or sustenance is not provided to multiple head of livestock during any period of uninterrupted neglect.” Iowa Code § 717.2(2). The State argues this language means only one conviction can result for serious misdemeanor livestock neglect when the same neglect occurs to a herd of livestock. Yet, the State claims the two horses in this case did not constitute a herd, and were not part of a larger group of horses.

We begin by considering our well-established “principle of statutory construction that when a statute is plain and its meaning is clear, [we] should not reach beyond the express terms of the statute.” Garwick v. Iowa Dep’t of Transp., 611 N.W.2d 286, 289 (Iowa 2000); see Schmidt, 588 N.W.2d at 419-20; Saadiq v. State, 387 N.W.2d 315, 319 (Iowa 1986); 2A Norman J. Singer, Sutherland Statutory Construction § 46.01, at 113 (6th ed.2000). We consider legislative intent only when the statutory terms are ambiguous. Garwick, 611 N.W.2d at 289. The terms of the statute are ambiguous “if reasonable minds could differ ... as to the meaning of the statute.” Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996). Moreover, we have held that undefined statutory terms should be accorded their plain and ordinary meaning. State ex rel. Attorney Gen. of Iowa v. Terry, 541 N.W.2d 882, 887-88 (Iowa 1995).

We believe section 717.2 is clear and unambiguous. The State’s argument substitutes the phrase “herd of livestock” for “head of livestock.” In the context of livestock, the word “head” is commonly defined as “one of a number.” Webster’s New Collegiate Dictionary 522 (1981); see State v. Sailer, 587 N.W.2d 756, 760 (Iowa 1998) (we consider the context in which the term is used). Thus, multiple head of livestock under the statute plainly refers to more than one.

The object of the offense is livestock neglect. The statute seeks to prohibit a person who confines livestock from neglecting the animals. When neglect is uninterrupted or continuous, results in serious injury or death, and involves multiple livestock, the statute makes it clear that only one conviction can result. Multiple convictions are not based on the number of livestock, but on the separate incidents of neglect. See State v. Vandewater, 203 Iowa 94, 100, 212 N.W. 339, 342 (1927) (separate incident of larceny is committed only when different items were taken in separate and distinct transactions).

The State further argues that the statute merely defines an affirmative defense which Wells did not raise. It points out that the statute does not prohibit the prosecution of multiple counts, but only provides “a person shall not be guilty of’ multiple offenses. Iowa Code § 717.2(2).

We reject the notion that the statute defines an affirmative defense. An affirmative defense places the burden on the defendant to submit evidence to support the defense. See State v. Lawler, 571 N.W.2d 486, 489 (Iowa 1997); State v. Delay, 320 N.W.2d 831, 834 (Iowa 1982). If section 717.2 defined an affirmative defense, the defendant would be required to prove the period of neglect was uninterrupted. We do not interpret the statute to impose such an absurd result. See State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999) (we do not construe a statute in a manner which creates an absurd result).

We conclude the statute prohibits prosecution of multiple counts of livestock neglect as a serious misdemeanor based on uninterrupted neglect to multiple head of livestock. When multiple counts are brought in a case involving neglect resulting in serious injury or death of a multiple number of livestock, the period of neglect becomes an element of the crime and each count must be supported by a separate period of uninterrupted neglect. See State v. Butler, 415 N.W.2d 634, 637 (Iowa 1987) (two offenses can be prosecuted out of the same incident if each offense requires proof of a separate element not required in the other offense). Under the evidence as well as the stated theory of the case, Wells was only subject to prosecution for one count of livestock neglect.

IV. Motion to Suppress.

A search warrant may be issued only upon a finding of probable cause by a judge. State v. Beckett, 532 N.W.2d 751, 753 (Iowa 1995). Although we give substantial deference to the judge’s finding of probable cause, we must ensure the judge did not merely ratify the bare conclusions of the applicant. Beckett, 532 N.W.2d at 753-54; see State v. Simpson, 528 N.W.2d 627, 634 (Iowa 1995). The test for determining whether probable cause supported the search warrant is “whether a reasonable person would believe a crime was committed on the premises or that evidence of a crime could be located there.” Simpson, 528 N.W.2d at 634; see State v. Seager, 341 N.W.2d 420, 426-27 (Iowa 1983). In reviewing the judge’s determination, we only consider the information presented to the judge in the application for the search warrant. State v. Godbersen, 493 N.W.2d 852, 855 (Iowa 1992). Additionally, the information needed for a finding of probable cause to support a search warrant is far less demanding than the information necessary to sustain a conviction. See Leto, 305 N.W.2d at 485-86.

We conclude the district court, had a substantial basis for finding probable cause existed to support the issuance of the search warrant to obtain the horse carcasses from Wells’ property. In the application for the warrant, Officer Champ described his observations of the horses and his belief that the horses had possibly died from starvation. In his experience as deputy sheriff, Wells had observed numerous dead animals, including many that had died from starvation. An officer’s opinion based on his personal experiences as a police officer is a factor for the judge to consider in reviewing an application for a warrant. See Godbersen, 493 N.W.2d at 855-56. Moreover, the information Champ included in the application amounted to more than a mere suspicion that the animal carcasses were connected with criminal activity engaged in by Wells. See Seager, 341 N.W.2d at 427-28 (mere suspicion of criminal activity insufficient to support issuance of warrant); Leto, 305 N.W.2d at 485 (same); State v. King, 256 N.W.2d 1, 5 (Iowa 1977) (mere subjective conclusions of applicant insufficient).

V. Admissibility of Photographic Evidence.

Wells raised his claim that all the photographs should have been excluded from trial in a motion to suppress. The State contends Wells failed to preserve error when he failed to file a motion in limine. We agree that a motion in limine is the favored method of raising admissibility of evidence issues. See 60 C.J.S. Motions and Orders § 2, at 6 (1969). However, the title of a motion does not control our rulings on preservation issues. State v. O’Connell, 275 N.W.2d 197, 202 (Iowa 1979). To the contrary, we are guided by what the district court did or purported to do in ruling on the motion. Id.

In this case, we find the district court did rule on the admissibility of the photographs as if it had been raised in a motion in limine. Furthermore, the ruling was definitive and Wells was not further required to object at trial. See State v. Tangie, 616 N.W.2d 564, 569 (Iowa 2000) (when court rules on admissibility of evidence in a motion in limine, objection must not be renewed at trial); State v. Mark, 286 N.W.2d 396, 410 (Iowa 1979) (same); O’Connell, 275 N.W.2d at 197 (same). We conclude Wells preserved error on this issue.

We engage in a two-prong test to determine whether the district court abused its discretion in admitting evidence: (1) whether the evidence is relevant, and, if so, (2) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Graber, 616 N.W.2d at 638; Chadwick, 328 N.W.2d at 916-17. Evidence is relevant if it makes the existence of a consequential fact more or less probable. Iowa R. Evid. 401; Graber, 616 N.W.2d at 638; Chadwick, 328 N.W.2d at 917. The photographs admitted by the district court were relevant. They depicted the condition of the dead horses and the property where the horses were found; Moreover, the jury could have used these photographs to aid in its evaluation of the testimony presented by both the State and defense. See Chadwick, 328 N.W.2d at 917. We have previously admitted photographs of allegedly neglected animals to aid the fact finder in its deliberations. See State v. Walker, 236 N.W.2d 292, 294-96 (Iowa 1975) (photographs of nine cows and calves that had been dead for several weeks, had begun to decompose, and had been partially consumed by scavengers); State v. Thompson, 239 Iowa 907, 909-10, 33 N.W.2d 13, 14-15 (1948) (photographs of allegedly neglected dogs and their pens taken by newspaper photographer as the Animal Rescue League took the dogs from their keeper). Furthermore, the district court alleviated any potential prejudice by excluding the photographs that displayed severe decomposition and consumption by scavengers. Thus, any prejudice created by the admission of the photographs was outweighed by their probative value.

VI. Sufficiency of the Evidence.

Wells also contends the guilty verdicts are not supported by substantial evidence in the record. The State counters Wells failed to preserve error on the sufficiency of the evidence issue, claiming a motion in arrest of judgment was not the proper mechanism to address the issue. However, we find Wells preserved this claim when he filed a motion for directed verdict, alleging insufficiency of the evidence, at the close of the presentation of the evidence.

Even though we find Wells preserved error, we deem his claim without merit. When considering sufficiency of the evidence claims, we examine the evidence in a light most favorable to the State. McDaniel, 512 N.W.2d at 309; Hall, 235 N.W.2d at 715. We are bound by the jury’s verdict unless it is not supported by substantial evidence. McDaniel, 512 N.W.2d at 309. Moreover, we defer to the fact finder’s determinations concerning witness credibility. See State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998); State v. Martin, 341 N.W.2d 728, 729 (Iowa 1983). The testimony of Dr. Brennan, Dr. Halbur, and Officer Champ, considered together with the photographs, were substantial evidence for the jury to find Wells guilty of one count of livestock neglect.

VII. Remaining Issues.

We conclude Wells did not preserve error on his remaining claims. Wells first raised the allegation of juror misconduct in a motion for new trial. Although Wells observed the alleged jury communication incident prior to closing arguments, he claims he did not realize the significance of what he witnessed until after the jury had returned the verdicts. However, Wells’ contention contravenes the rationale underlying the requirement that an objection must be made once the grounds become apparent. See State v. Jackson, 397 N.W.2d 512, 514 (Iowa 1986). If Wells would have raised the issue to the district court prior to the time the jury commenced deliberations, the court would have been able to consider the claim and, if necessary, taken steps to alleviate any prejudice that may have occurred. Id. Instead, Wells waited for a verdict, and when it was unfavorable, he then complained. In essence, Wells was gambling, and we do not reward those who make losing bets on their own convictions. See id. (we do not permit people “to wait until victory is lost before complaining”).

Wells also failed to timely assert his claim that the court permitted Marlys Larsen to provide improper character evidence. Wells first objected to the admission of character evidence in his motion in arrest of judgment. No objection was made at trial when Larsen testified to specific instances of horse mistreatment engaged in by Wells. Likewise, Wells failed to properly object to Larsen’s testimony regarding Wells’ reputation in the community. Instead, Wells’ objection to that line of questioning was that “there’s been no foundation as to any sort of expertise beyond having been around horses.” To preserve error on this issue, Wells should have objected that insufficient foundation had been laid to establish Larsen’s ability to testify to Wells’ reputation. Thus, error was not preserved on either issue concerning character evidence.

VIII. Conclusion.

We conclude the district court erred in failing to dismiss one of the counts in the trial information. We otherwise affirm the district court. We remand the case to the district court for entry of judgment on a single count and for resentencing.

AFFIRMED IN PART, REVERSED IN PART, SENTENCE VACATED, AND REMANDED FOR RESENTENCING.

      . Iowa Code section 717.2 provides:
      1. A person who impounds or confines livestock, in any place, and does any of the following commits the offense of livestock neglect:

        a. Fails to provide livestock with care consistent with customary animal husbandry practices.

        b. Deprives livestock of necessary sustenance.
      c. Injures or destroys livestock by any means which causes pain or suffering in a manner inconsistent with customary animal husbandry practices.
      2. A person who commits the offense of livestock neglect is guilty of a simple misdemean- or. A person who intentionally commits the offense of livestock neglect which results in serious injury to or the death of livestock is guilty of a serious misdemeanor....

      . We recognize Iowa Rule of Criminal Procedure 10(6)(a) was amended during the pen-dency of this appeal to remove the language supporting our holding in State v. Graham that a bill of particulars is a prerequisite to a motion to dismiss. See State v. Graham, 291 N.W.2d 345, 350 (Iowa 1980). Rule 10(6)(a) now permits a defendant to file a motion to dismiss based on particulars stated in "the indictment or information and the minutes of evidence” and imposes an obligation on the prosecuting attorney to respond with a bill of particulars to cure the defect claimed in the motion to dismiss. Iowa R. Crim. P. 10(6)(a) (2001). Although procedural amendments can be applied retroactively, we are reluctant to apply the amended rule to this case because the State could not have known that it was required to resist the motion by filing a bill of particulars. Nevertheless, this is an issue that we do not need to address.

      . The reference in’ section 717.2 to the number of convictions of guilt for multiple head of
      livestock relates only to livestock neglect punishable as a serious misdemeanor. See Iowa Code § 717.2(2). We do not address the issue of the number of convictions for livestock neglect as a simple misdemeanor.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    James Charles TINDELL, Appellant, v. STATE of Iowa, Appellee.
    No. 00-0118.
    Supreme Court of Iowa.
    July 5, 2001.

      Philip B. Mears of Mears Law Office, Iowa City, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William E. Davis, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.
   LARSON, Justice.

In 1995 James Tindell entered a plea of guilty to fraudulent conduct under Iowa Code sections 502A.6 and 502A.14(1) (1995). He withdrew the plea at sentencing, however, because the sentencing judge refused to grant probation. On the same day, Tindell was sentenced by a different judge, without again pleading guilty. In this postconviction-relief proceeding, Tin-dell argues his sentence was “illegal” because “at the time of sentencing there was no plea or finding of guilt on the record. The previous plea of guilty had been withdrawn by leave of court, and it had not been reinstated.” He claims this violated statutory law and his state and federal due process rights. We hold he has waived his challenge to the sentencing procedure and therefore affirm his conviction and sentence.

I. Facts and Prior Proceedings.

On March 29, 1995, Tindell entered his plea of guilty before Judge Bobbi Alpers. The plea was entered pursuant to Iowa Rule of Criminal Procedure 9 (procedure for entering guilty plea in the presence of a plea agreement). On the morning of April 14, Tindell appeared before Judge John Nahra for sentencing. Judge Nahra refused to recognize the plea agreement, stating “I simply in good conscience cannot follow my oath and grant a period of probation when in my opinion incarceration is so clearly indicated.” Tindell’s counsel then asked that he be allowed to withdraw the plea of guilty and asked that the matter be set for trial. Judge Nahra granted the request to withdraw the plea.

In the afternoon of the same day, Tin-dell again appeared before Judge Alpers, who agreed to sentence him in accordance with the plea agreement under which he was to be granted probation. When Judge Alpers asked defense counsel whether there was any “legal reason why sentence should not be imposed,” Tindell’s counsel replied that he knew of none.

Almost three years later, on February 5, 1998, Tindell’s probation was revoked for failure to make restitution. Tindell filed a petition for postconviction relief on November 24, 1998, raising several issues not involved in this appeal. After a hearing on the petition, Judge James Havercamp discovered the guilty plea had been withdrawn by Tindell and had never been explicitly reaffirmed. This judge requested additional argument on the effect of this failure to reaffirm the guilty plea. Tindell then amended his postconviction-relief petition to include his claim that his sentence was illegal. Judge Havercamp rejected the claim of illegality and denied Tindell’s motion to correct an illegal sentence under Iowa Rule of Criminal Procedure 23(5).

II. Discussion.

The sole issue on this appeal is whether, as the State argues, Tindell has waived any challenge to the sentence or, as Tindell argues, the sentence is “illegal” so as to obviate the need for objections in the district court. See State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000) (“An illegal sentence is void and ‘not subject to the usual concepts of waiver, whether from a failure to seek review or other omissions of error preservation.’ ”) (quoting State v. Ohnmacht, 342 N.W.2d 838, 843 (Iowa 1983)); see also Iowa R.Crim. P. 23(5)(a) (“The court may correct an illegal sentence at any time.”). Our review of challenges to the illegality of a sentence is for errors at law. State v. Carstens, 594 N.W.2d 436, 437 (Iowa 1999).

Ordinarily, objections must be raised at the earliest opportunity after the grounds for the objection become apparent. State v. Johnson, 476 N.W.2d 330, 333 (Iowa 1991). Therefore, unless the sentence imposed by Judge Alpers was illegal, Tindell cannot now challenge the sentence. He does not claim to have raised any objection in the district court.

Iowa Rule of Criminal Procedure 23(5)(a), and our eases, allow challenges to illegal sentences at any time, but they do not allow challenges to sentences that, because of procedural errors, are illegally imposed. See State v. Wilson, 294 N.W.2d 824, 825 (Iowa 1980); see also 3 Charles Alan Wright, Federal Practice and Procedure § 585, at 395 (1982) (“There is a distinction between an illegal sentence and a sentence imposed in an illegal manner.”).

Federal Rule of Criminal Procedure 35, which is the counterpart to our rule 23(5)(a), was amended in 1966 to allow challenges to sentences illegally imposed (as contrasted to sentences that are illegal in themselves), subject to time limitations. However, Iowa’s rule 23(5)(a) still requires the sentence itself to be illegal in order to be challenged at any time. See Iowa R.Crim. P. 23(5)(a); Wilson, 294 N.W.2d at 825.

Our cases are clear that, to be “illegal” for purposes of rule 23(5)(a), the sentence must be one not authorized by statute.

The exclusion of illegal sentences from the principles of error preservation is limited to those eases in which a trial court has stepped outside the codified bounds of allowable sentencing. In other words, the sentence is illegal because it is beyond the power of the court to impose.

State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998) (citations omitted). In Wilson we said:

The Iowa rule (as did federal rule 35 before 1966) provides that the correction may be made “at any time,” strongly suggesting it is directed to excision of sentences insofar as they were beyond the jurisdiction of the court and therefore void. If we were to expand that concept to encompass redress for underlying procedural defects, as well, it would open up a virtual Pandora’s box of complaints with no statutorily prescribed procedures for their disposition nor any time limits for their implementation. We do not believe the legislature intended such a result. We note that federal rule 35 was amended in 1966 to provide a means for objecting to the procedure as well as the sentence itself, within prescribed time limits. We have no such provision in our rule 23(5)(a) and we may not add it by statutory construction. In short, a defective sentencing procedure does not constitute an illegal sentence under Iowa R.Crim. P. 23(5)(a). 294 N.W.2d at 825 (emphasis added).

Tindell does not claim his sentence is in excess of that prescribed by law and thus outside the jurisdiction of the court to impose. His claim of procedural error is not a claim of illegal sentence, and therefore, it is precluded by our normal error-preservation rules. We therefore affirm his conviction and sentence.

AFFIRMED.


text:
    STATE of Iowa, Appellee, v. Justin Auman KEENE, Appellant.
    No. 00-0643.
    Supreme Court of Iowa.
    July 5, 2001.

      Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, Fred H. McCaw, County Attorney, and Christine Corken, Assistant County Attorney, for appellee.
   CADY, Justice.

This appeal requires us to determine whether our criminal transmission of the human immunodeficiency virus (HIV) statute, Iowa Code section 709C.1(1) (1999), is unconstitutionally vague as applied to the facts of this case. Additionally, we must determine whether a factual basis existed to support a plea of guilty to the charge of criminal transmission of the HIV. We conclude the statute is not unconstitutionally vague and that a factual basis supported the plea of guilty. We affirm the judgment and sentence of the district court.

I. Background Facts and Proceedings.

Justin Keene was charged by trial information with criminal transmission of the HIV. The charge stemmed from a sexual encounter with a woman we identify as C.J.H. Keene agreed to plead guilty to the crime in exchange for a lenient sentence.

Before accepting Keene’s guilty plea, the district court determined that Keene was voluntarily and intelligently entering the plea and that a factual basis existed for the plea. The court relied upon the minutes of testimony and statements made by Keene during the guilty plea proceeding to find a factual basis. »

The minutes of testimony included the testimony of C.J.H. C.J.H. has a mental illness and met Keene while she worked at a McDonald’s restaurant. They had a brief romance and engaged in consensual, unprotected sexual intercourse on October 9, 1998. C.J.H. was uncertain whether or not Keene ejaculated during the sexual encounter, and was unaware of Keene’s HIV status. C.J.H. further stated that Keene accompanied her to Hillcrest Family Services in Dubuque on October 16 for a pregnancy test. During this visit, C.J.H. expressed her desire to conceive a baby with Keene to Hillcrest nurse Kathy Meyer. Keene subsequently questioned Meyer concerning “what having AIDS meant to having a child.”

The testimony of Meyer confirmed the October 16 meeting at Hillcrest with C.J.H. and Keene. Meyer reiterated Keene’s questions regarding the transmission of the HIV and the potential effects on a baby conceived by an HIV positive parent. Furthermore, Meyer stated C.J.H. appeared surprised when Keene questioned Meyer about the HIV’s effect on babies.

The minutes of testimony also included the statements of Dubuque police officer Tom Parker, who investigated the charge against Keene. Keene admitted to Parker that he engaged in consensual, unprotected sexual intercourse with C.J.H. on October 9. Keene believed he did not ejaculate during the October 9 encounter, but if he did ejaculate, he did so only on his or C.J.H.’s stomach. Additionally, Keene acknowledged his visit to Hillcrest with C.J.H. on October 16. Keene further informed Parker that he was infected with the HIV and that he did not notify C.J.H. of the infection prior to engaging in sexual intercourse.

Parker was prepared to additionally testify to his subsequent interview with C.J.H. C.J.H. told Parker she had consensual, unprotected vaginal intercourse with Keene on October 9, but could not recall whether Keene ejaculated during intercourse.

The minutes of testimony also listed Keene’s physician, Dr. Jack Stapleton. He would testify to Keene’s HIV positive status during October 1998. Kris Keene, Keene’s mother, would provide the same testimony. Mary Rose Corrigan, a public health nurse with the Dubuque Health Department, would testify to the risk of exposure to the HIV during sexual contact with an infected individual. Elizabeth Blasen, a co-worker of both C.J.H. and Keene in October 1998, stated she warned C.J.H. of rumors concerning Keene’s HIV status. Lastly, Robert Bradfield, Keene’s cellmate at the Dubuque County Jail, stated Keene admitted he had unprotected sexual intercourse with C.J.H. without informing her he was HIV positive.

In response to the district court’s questions concerning the factual basis of the guilty plea, Keene stated that the witnesses would be telling the truth if they testified according to the minutes of testimony. Although Keene acknowledged that the State could prove the elements of the charge beyond a reasonable doubt, he claimed he never intended to expose C.J.H. to the HIV. However, Keene admitted that he knew he was HIV positive when he had sexual intercourse with C.J.H.

Finding a factual basis, the district court accepted the guilty plea and advised Keene of his right to file a motion in arrest of judgment to challenge the plea. Keene subsequently received a twenty-five year suspended prison sentence and was placed on probation.

Keene appeals. He argues section 709C.1 is unconstitutionally vague. Additionally, he claims his trial counsel was ineffective for permitting him to plead guilty to a charge which lacked a factual basis.

II. Scope of Review.

We review challenges to the constitutionality of a statute de novo. State v. Robinson, 618 N.W.2d 306, 311 (Iowa 2000); In re Morrow, 616 N.W.2d 544, 547 (Iowa 2000). Although we ordinarily review challenges to guilty pleas on error, Iowa R.App. P. 4, we review Keene’s factual basis challenge de novo as it is raised as an ineffective assistance of counsel claim. State v. Campbell, 589 N.W.2d 705, 706 (Iowa 1999).

III. Preservation of Error.

Keene failed to file a motion in arrest of judgment challenging his guilty plea. See Iowa R.Crim. P. 23(3)(a); Robinson, 618 N.W.2d at 310. Normally, Keene would be precluded from asserting error on appeal. See State v. Gant, 597 N.W.2d 501, 503-04 (Iowa 1999); State v. Birch, 306 N.W.2d 781, 783 (Iowa 1981). However, in State v. Hunter, 550 N.W.2d 460 (Iowa 1996), we held a guilty plea does not waive an as applied vagueness chai-lenge. Hunter, 550 N.W.2d at 465; see Robinson, 618 N.W.2d at 312. We recently disavowed our analysis in Hunter and held a guilty plea does waive as applied vagueness claims. Robinson, 618 N.W.2d at 312. Notwithstanding, we ruled this precedent would apply only to guilty pleas accepted after the date of the decision. Id. at 312-13. Accordingly, because Keene entered his guilty plea prior to the issuance of Robinson, he did not waive his vague-as-applied claim.

Alternatively, Keene claims his trial counsel was ineffective for permitting him to plead guilty and for failing to file a motion in arrest of judgment challenging the guilty plea. We recognize an ineffective assistance of counsel claim serves as an exception to our error preservation rules. See Gant, 597 N.W.2d at 504; State v. Carter, 582 N.W.2d 164, 165 (Iowa 1998). Consequently, Keene preserved error on his factual basis claim.

IV. Constitutionality of Section 709C.1.

We begin our analysis of the challenge to section 709C.1 with the presumption that a statute is constitutional. State v. White, 545 N.W.2d 552, 557 (Iowa 1996); State v. Sylvester, 516 N.W.2d 845, 849 (Iowa 1994). To overcome this heavy burden, the party challenging the statute must prove beyond a reasonable doubt the statute’s unconstitutionality. Robinson, 618 N.W.2d at 314; White, 545 N.W.2d at 557; Sylvester, 516 N.W.2d at 849. To do so, the challenger must refute every reasonable basis upon which the statute could be found to be constitutional. Robinson, 618 N.W.2d at 314; Morrow, 616 N.W.2d at 547.

To withstand a vagueness challenge, a criminal statute must sufficiently define the offense so that ordinary people have fair notice of what type of conduct is prohibited under the statute. Robinson, 618 N.W.2d at 314; State v. Milner, 571 N.W.2d 7, 14 (Iowa 1997); Sylvester, 516 N.W.2d at 849. Moreover, explicit standards protect against arbitrary and discriminatory enforcement by those applying the statute. Milner, 571 N.W.2d at 14.

However, a statute need not contain express definitions of its terms. State v. Osmundson, 546 N.W.2d 907, 909 (Iowa 1996). Fair notice of prohibited conduct is provided “if the meaning of the words used can be fairly ascertained by reference to their ordinary and usual meaning, the dictionary, similar statutes, the common law, or previous judicial determinations.” Id.; see Milner, 571 N.W.2d at 15. We must give effect to each statutory term, Osmundson, 546 N.W.2d at 910, and consider the statute together with the entire statutory scheme to which it belongs. Robinson, 618 N.W.2d at 314-15.

Iowa Code section 709C.1 criminalizes the transmission of the HIV. Iowa Code § 709C.1. A person violates section 709C.1 if he “[e]ngages in intimate contact with another person” while knowing he is HIV positive. Id.

§ 709C.l(l)(a). Section 7090.2(b) defines intimate contact as “the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the [HIV].” Id. § 709C.l(2)(b) (emphasis added). The person exposed to the HIV need not become infected with the virus in order for the infected person to be prosecuted under this section. Id. § 709C.1(4). However, if the exposed person was aware of the infected person’s HIV positive status, an affirmative defense exists. Id. § 7090.1(5).

Keene claims section 709C.1 is unconstitutionally vague because the term “could result” is not defined in the statute. Keene argues that the meaning of “could” is unclear, and thus he was not fairly warned that his conduct was prohibited by the statute.

We find the statute is sufficiently clear and consequently provides a reasonably intelligent person with fair notice of its meaning. In enacting this statute, the legislature did not intend “could result” to mean “did result.” See id. § 709C.1(4). Furthermore, “could” is the past tense of “can,” which is defined as “[u]sed to indicate possibility or probability.” The American Heritage Dictionary 232, 330 (2d college ed.1985). Thus, for a person to be guilty of violating section 709C.1, it must simply be shown that transmission of the HIV from the infected person to the exposed person was possible considering the circumstances.

Over the past decade, our nation’s understanding of possible methods of transmitting the HIV has increased dramatically. It is a well-known fact that an infected individual may possibly transmit the HIV through unprotected sexual intercourse with his or her partner. See State v. Stark, 66 Wash.App. 423, 832 P.2d 109, 116 (1992). We take judicial notice of the fact that the HIV may be transmitted through contact with an infected individual’s blood, semen or vaginal fluid, and that sexual intercourse is one of the most common methods of passing the virus. See People v. Russell, 158 Ill.2d 23, 196 Ill.Dec. 629, 630 N.E.2d 794, 795 (1994); People v. Dempsey, 242 Ill.App.3d 568, 182 Ill.Dec. 784, 610 N.E.2d 208, 223 (1993); State v. Mahan, 971 S.W.2d 307, 309 (Mo.1998); State v. Hutchinson, 135 Ohio App.3d 459, 734 N.E.2d 454, 457 (1999). In fact, our own statutes recognize the risk of transmission during sexual intercourse and in other activities that involve the use of bodily fluids. See Iowa Code § 915.40(11) (presumption of significant exposure to the HIV when infected individual engages in sexual intercourse); § 709C.l(l)(b) (recognizing semen and blood as potentially infectious bodily fluids). Thus, any reasonably intelligent person is aware it is possible to transmit HIV during sexual intercourse, especially when it is unprotected.

We find that Keene was aware of the risk of transmission of the HIV when he engaged in unprotected sexual intercourse with C.J.H. When an individual is diagnosed with the HIV, a doctor typically informs the patient of the risks of exposure. See Mahan, 971 S.W.2d at 309 n. 3 (those diagnosed with the HIV receive significant counseling from public health officials concerning prevention of the spread of the virus); see also Stark, 832 P.2d at 114-16 (doctor had administered several counseling sessions to defendant). However, even if Dr. Stapleton had not counseled Keene on prevention, we can reasonably infer that Keene knew that the HIV could be transmitted during sexual intercourse. The questions Keene propounded to Meyer during the October 16 visit to Hillcrest concerning the transmission of the HIV to babies conceived by an infected parent indicate Keene’s knowledge on the subject of transmission. Additionally, any claim by Keene that he did not ejaculate on October 9 or that if he did ejaculate, he ejaculated outside of C.J.H.’s body, is irrelevant. See Stark, 832 P.2d at 114. Moreover, section 709C.1 only requires the body of one person to be exposed to the bodily fluid of another. See Iowa Code § 709C.l(2)(b) (defining intimate contact).

Consequently, we reject Keene’s vague-as-applied claim. In doing so, we recognize that we are not the first state to reject such a challenge. Several states with nearly identical criminal transmission statutes have rejected similar constitutional challenges. See Russell, 196 Ill.Dec. 629, 630 N.E.2d at 796; State v. Gamberella, 633 So.2d 595, 602-03 (La.Ct.App.1993); People v. Jensen, 231 Mich.App. 439, 586 N.W.2d 748, 751-52 (1998); Mahan, 971 S.W.2d at 309, 312; Stark, 832 P.2d at 115-16.

V. Factual Basis.

Before accepting a guilty plea, the district court must establish on the record a factual basis for the plea. Iowa R.Crim. P. 8(2)(b); see State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999); State v. Williams, 224 N.W.2d 17, 18-19 (Iowa 1974). The court may consider the minutes of testimony, statements of the prosecutor and the defendant from the guilty plea colloquy, and the presentence investigation report. Schminkey, 597 N.W.2d at 788. Trial counsel commits ineffective assistance when he permits a defendant to plead guilty to an offense lacking a factual basis in the record. Id. In addition, the defendant is inherently prejudiced under such circumstances. Id.

Keene contends a factual basis was not established because the record failed to show how sexual intercourse “could result” in the transmission of the HIV. In essence, this is the same argument advanced in the challenge to the constitutionality of the statute.

We conclude our above analysis concerning the vagueness argument applies with equal force to Keene’s factual basis claim. In establishing a factual basis, the district court relied upon the minutes of testimony and Keene’s statements during the guilty plea colloquy which included his admission to engaging in unprotected sexual intercourse while knowing he was infected with the HIV. Considering Keene’s admission together with the well-known fact of the risk of transmission of the HIV through unprotected sexual intercourse, in addition to the minutes of testimony, we conclude a factual basis existed to support Keene’s plea of guilty. See State v. Randall, 258 N.W.2d 359, 362 (Iowa 1977). Accordingly, Keene’s counsel did not provide ineffective assistance when he permitted Keene to plead guilty and when he did not file a motion in arrest of judgment. See Carter, 582 N.W.2d at 165-66; State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). Thus, Keene’s ineffective assistance claim is without merit.

YI. Conclusion.

We conclude Iowa Code section 709C.1 is not unconstitutionally vague as applied to Keene. In addition, we find a factual basis existed for Keene’s guilty plea to criminal transmission of the HIV. Thus, trial counsel was not ineffective for permitting Keene to plead guilty and for not filing a motion in arrest of judgment challenging the guilty plea.

AFFIRMED.

      . The offense of criminal transmission of the HIV was enacted on April 13, 1998. See 1998 Iowa Acts ch. 1087, § 7 (codified at Iowa Code § 709C.1 (1999)).

      . Keene does not contend he did not enter the plea voluntarily and intelligently. Thus, we limit our discussion to those facts concerning the factual basis of the plea.

      . Although Keene does not specifically label his argument as a vague-as-applied challenge, we treat it as such. Furthermore, we do not address whether section 709C.1 is facially vague, as Keene has not advanced such a claim on appeal. Even if Keene had preserved error on a facial vagueness claim, we would reject the claim for lack of standing. State v. Robinson, 618 N.W.2d 306, 311 & n. 1 (Iowa 2000). Because section 709C.1 does not implicate the First Amendment, no exception to the standing requirement can be invoked. See id. at 311 n. 1 (statute implicating First Amendment rights qualifies as an exception to the standing requirement); People v. Russell, 158 Ill.2d 23, 196 Ill.Dec. 629, 630 N.E.2d 794, 796 (1994) (statute penalizing criminal transmission of the HIV did not implicate First Amendment rights).

      . A person also violates section 709C.1 if he knows he is HIV positive and

        b. Transfers, donates, or provides the person's blood, tissue, semen, organs, or other potentially infectious bodily fluids for transfusion, transplantation, insemination, or other administration to another person.

        c. Dispenses, delivers, exchanges, sells, or in any other way transfers to another person any nonsterile intravenous or intramuscular drug paraphernalia previously used by the person infected with the human immunodeficiency virus.
      Iowa Code § 709C.l(l)(b), (c).

      . Section 915.40 is a part of the Victim Rights Act, which was enacted on April 13, 1998. See 1998 Iowa Acts ch. 1090, § 33 (codified at Iowa Code § 915.40 (1999)).


author: NEUMAN, Justice.

text:
    Danny Dean ADAMS, Jr., Individually and as Next Friend of April Lynn Adams, and Cindy Lou Adams, Appellants, v. CITY OF DES MOINES, Appellee, Midamerican Energy Company, Defendant.
    No. 99-0699.
    Supreme Court of Iowa.
    July 5, 2001.

      Christopher A. Kragnes, Des Moines, Tom Whitney of Tom Whitney’ Law Offices, Des Moines, and Jeff Carter of Jeff Carter Law Offices, Des Moines, for appellants.
    Mark Godwin, Deputy City Attorney, Des Moines, for appellee.
   NEUMAN, Justice.

This appeal concerns the scope of a city’s immunity from liability under Iowa Code section 670.4(11) (1997), the “emergency response” exemption. Because the record reveals, as a matter of law, that the city firefighter’s conduct toward plaintiff occurred “in connection with an emergency response,” we conclude the district court properly granted summary judgment for the city. We therefore affirm.

I. Background Facts and Legal Proceedings.

Plaintiff Danny Dean Adams operated a telescopic conveyor as part of a roofing project at a residence in Des Moines. The conveyor carried shingles to the roof. It was mounted on a flatbed truck that Adams had parked in the home’s driveway.

Evidently unknown to Adams, the boom on his truck came in contact with high voltage wires crossing the driveway, starting a fire in the house. Five emergency vehicles from the Des Moines fire department responded to the fire. A representative from MidAmerican Energy Company also arrived on the scene. After the firefighters extinguished the fire in the house, one of them instructed Adams to move the boom truck out of the driveway. Adams believed, mistakenly, that the electrical power had been turned off. When he grabbed the door of the truck, he was thrown to the ground by a jolt of electricity-

Adams sued MidAmerican and the city of Des Moines for injuries suffered as a result of the electrical shock. A settlement was reached with MidAmerican. The city, meanwhile, moved for summary judgment. It claimed immunity from liability, as a matter of law, based on Iowa Code section 670.4(11). Pertinent to this case, the statute exempts a municipality from liability for claims “arising out of an act or omission in connection with an emergency response.” Iowa Code § 670.4(11).

The district court granted the city’s motion. It reasoned that, despite Adams’ claim of a factual dispute about whether the emergency was over when the command to move the truck was made, the issue was really whether the exemption granted by section 670.4(11) had yet expired. In the court’s words, “the acts complained of no matter whether they were authorized or not were in connection with an emergency response.” This appeal by Adams followed.

II. Issues on Appeal/Scope of Review.

Adams asserts two issues on appeal. First, he claims the court erred by granting summary judgment because a dispute over material facts exists. We review the issue for correction of errors at law. A genuine issue of material facts exists if “the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Fin. Mktg. Servs., Inc. v. Hawkeye Bank & Trust, 588 N.W.2d 450, 455 (Iowa 1999). To make that determination, we view the record made on summary judgment in the light most favorable to the nonmoving party. Phillips v. Covenant Clinic, 625 N.W.2d 714, 717 (Iowa 2001). If no genuine issue of material fact exists, we then determine whether the moving party is entitled to judgment as a matter of law. Id.

Adams also challenges the constitutionality of section 670.4(11), urging the statute cannot survive “strict scrutiny analysis” because he faced a loss of liberty if he had chosen to disobey the firefighter’s order. See Iowa Code § 102.5 (disobedience toward lawful order of firefighter punishable as simple misdemeanor). Adams cites no authority for this proposition, and we entertain serious doubts about its validity. Cf. Kulish v. Ellsworth, 566 N.W.2d 885, 890 (Iowa 1997) (equal protection challenge to section 670.4(11) analyzed, and rejected, using rational basis test analysis). We need not decide the question, however. Although Adams urged this argument in district court, the court’s ruling did not address it. Adams filed no motion under Iowa Rule of Civil Procedure 179(b) to have the court expand its ruling. Thus the matter has not been preserved for our review and we give it no further consideration. See Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999) (rule 179(b) crucial to preservation of error where unsuccessful litigant intends to challenge district court ruling on issue court did not resolve).

III. Analysis.

Although claims of negligence do not ordinarily lend themselves to summary adjudication, when the only dispute concerns legal consequences flowing from undisputed facts, summary judgment may be appropriate. Kulish, 566 N.W.2d at 888-89. Here Adams contends he generated a jury question as to whether the emergency created by the electrical fire still existed at the time he was ordered to move his truck, or whether the firefighters were merely cleaning up after extinguishing the fire, i.e., the emergency was over. The city counters that all of the evidence, even when viewed in the light most favorable to Adams, overwhelmingly demonstrates that the emergency started by the fire continued at the point when a city firefighter told Adams to move Jiis truck.

Our analysis starts with a review of the statutory framework for governmental immunity. Iowa Code section 670.2 states that “[ejxcept as otherwise provided in this chapter, every municipality is subject to liability for its torts and those of its officers and employees, acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function.” Iowa Code section 670.4 lays out specific exceptions to this rule, including the provision at issue in this case. As already noted, section 670.4(11) immunizes a city from liability for “claimfe] based upon or arising out of an act or omission in connection with an emergency response....”

The question is whether the city’s action in ordering Adams to move his truck was an act that occurred “in connection with an emergency response.” If so, then the city is immune from liability for Adams’ injuries. If not, then the city is subject to liability pursuant to Iowa Code section 670.2.

Neither the legislature nor our court has specifically defined the statutory terms “in connection with” or “emergency response.” In Kulish, however, this court noted that “in connection with” is a broad term that conveys a legislative intent to cover a wide range of situations. Kulish, 566 N.W.2d at 891. Kulish involved a suit against county emergency personnel who responded to a two-car collision on icy winter roads. Officials made a decision to transport Kulish by ambulance, rather than helicopter, to the Mayo clinic; he died en-route of a heart attack. Id. at 887. This court upheld the district court’s judgment for the county under section 670.4(11), rejecting the plaintiffs „claim that a factual dispute existed over applicability of the “emergency response” exception once Kulish was stabilized and on his way to the hospital. Id. at 891. We held, as a matter of law, that the broad language of section 670.4(11) conveyed a legislative intent to embrace within its ambit just such emergencies and the response required by medical personnel dispatched to the scene. Id.

Here, as in Kulish, there can be no question that an emergency existed necessitating the response of emergency personnel. Adams concedes the point but then characterizes the fighting issue as whether the emergency created by the fire still existed at the time the firefighter ordered him to move his truck. The district court, however, cast the issue in a different, and we think important, way: “whether or not the City’s grant of immunity expired at some time before the acts or omissions that gave rise to the Plaintiffs injuries.” The difference between these formulations highlights the controversy before us.

Under Adams’ characterization of the statute, immunity depends on whether the emergency continued at the time of the city’s allegedly negligent act. A close reading of section 670.4(11), however, reveals that its focus is not limited to the emergency giving rise to the response, but to the response itself. In other words, it is the occurrence and continuation of an emergency response, rather than just an emergency, that extends the city’s immunity from liability. So, while there may be a factual question as to whether an emergency — as that term is commonly understood — -still existed at the time Adams moved his truck, the real issue here is whether the firefighter’s action was done “in connection with an emergency response.” See Iowa Code § 670.4(11). Like the district court, we are convinced that it was.

The emergency response in this case began when five emergency vehicles responded to several 9-1-1 calls concerning the electrical fire. Plainly the response to the emergency included extinguishing the blaze. But it also included firefighting actions taken after that, including activities described by both plaintiffs’ and defendant’s experts as overhaul, salvage, and investigation' — making sure all embers have been extinguished, trying to salvage what is left of the building, and attempting to determine the cause of the fire. As Adams rightly notes, these actions' — including the command to Adams to move his truck- — were performed after the fire had been extinguished. But, by its terms, section 670.4(11) does not limit immunity to actions taken contemporaneously with the emergency; it immunizes actions that are part of the emergency response. We are convinced that the conduct about which Adams complains fits that description.

Our view of the breadth of section 670.4(11) is fortified when we consider this court’s application of a companion exception in Baker v. City of Ottumwa, 560 N.W.2d 578 (Iowa 1997). In Baker, a patron of a city-owned water slide sued the city of Ottumwa alleging it was liable for injuries caused when a child stuck his foot in Baker’s path, striking him in the eye as he came down the slide. Baker, 560 N.W.2d at 581. Baker claimed his injuries stemmed from inattentiveness by the lifeguard stationed at the bottom of the slide. The district court granted summary judgment to the city under section 670.4(12), which provides municipal immunity for claims “relating to a swimming pool.” Id. at 582. On appeal, Baker argued that this subsection pertained to claims regarding water quality, not lifeguards. Id. We rejected his argument, noting the language “claim relating to a swimming pool” created a very broad classification of claims which, absent any specific language to the contrary, included negligent lifeguards. Id.

Our decision with respect to section 670.4(11) should not be interpreted to mean that the words “in connection with an emergency response” will automatically immunize city firefighters for any post-emergency action, no matter how remote. The case before us must be limited to its undisputed facts. Here the conduct complained of occurred just shortly after the fire had been extinguished while firefighters remained at the house. The firefighters were still in the process of investigation and overhaul connected with the original response by emergency personnel. We hold that on these facts Iowa Code section 670.4(11) affords the city of Des Moines immunity, as a matter of law, ■for its firefighter’s action in telling Adams to move his truck. Accordingly, we affirm the judgment of the district court.

AFFIRMED.

      . Adams' wife and daughter were also named plaintiffs in the suit. For convenience they will be referred to collectively as “Adams.”

      . In its answer, the city denied that any firefighter ever told Adams to move his truck. We assume, as did the district court, that for purposes of ruling on summary judgment, the order was given.


author: CARTER, Justice.

text:
    MIDWEST JANITORIAL SUPPLY CORP., Craig Hotchkiss, Bruce Hotchkiss, and Steve Hotchkiss, Appellants, v. David GREENWOOD and Greenwood Cleaning Systems, Appellees.
    No. 98-2031.
    Supreme Court of Iowa.
    July 5, 2001.

      Patrick M. Roby and Christopher L. Bruns of Elderkin & Pirnie, P.L.C., Cedar Rapids, for appellants.
    Martha L. Shaff of Betty, Neuman & McMahon, L.L.P., Davenport, for appellee David Greenwood. -
    Thomas N. Kamp of Lane & Waterman, Davenport, for appellee Greenwood Cleaning Systems.
    McGIVERIN, Senior Judge, participates in place of NEUMAN, J., who takes no part.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   CARTER, Justice.

Midwest Janitorial Supply Corporation (Midwest) and Craig Hotchkiss, Bruce Hotchkiss, and Steve Hotchkiss, who are three of its officers and directors, appeal from an adverse judgment in their action against David Greenwood and Greenwood Cleaning Systems. Appellants assert that Greenwood took certain actions while he was an officer and director of Midwest to form a competing business operation that is now Greenwood Cleaning Systems. Appellants urge that in so doing Greenwood breached his fiduciary obligations to Midwest. The district court dismissed plaintiffs’ claim following a bench trial. We affirm.

Both parties accept the findings of fact set forth by the district court. Relevant portions of the district court’s findings are as follows. In the mid-1970s, two brothers, Bruce and Craig Hotchkiss, went to work with Chuck Norton, who owned a janitorial service in Cedar Rapids. Between 1977 and 1978, Bruce and Craig acquired more interest from Norton and brought another brother, Steve Hotchkiss, into the business. In 1978 the Hotchkisses founded the plaintiff company as a separate corporation independent of the janitorial service. Its business is the selling of janitorial supplies. In 1981 David Greenwood, who was married to the Hotchkisses’ sister, Michele, was brought into Midwest. Bruce and Craig continued to own and operate the Cedar Rapids janitorial service. The three brothers and Greenwood owned equal shares and were directors of Midwest up to the time of Greenwood’s resignation. Steve Hotchkiss was president of Midwest, and Greenwood was vice president. Bruce and Craig Hotchkiss were not involved in the daily operation of Midwest nor were they compensated by Midwest. As Midwest grew and evolved in the 1980s, Steve Hotchkiss managed the home office of Midwest in Cedar Rapids, and Greenwood managed Midwest’s only other office located in Davenport.

Beginning in about 1989 and continuing through 1994, Greenwood operated Midwest’s business in Davenport autonomously from the Cedar Rapids operation. The Davenport operation, under Greenwood, grew substantially faster and was more financially successful than Midwest’s Cedar Rapids business. Greenwood was Midwest’s most productive salesperson, producing fifty percent of the sales in the Quad Cities area. Greenwood’s independent operation of Midwest in the Quad Cities area was subject only to an occasional board meeting. His success was such that he was soon taking a salary and bonuses substantially exceeding those of Steve Hotchkiss. Greenwood’s wife, Michele, was also on the Midwest payroll for part-time work handling accounts receivable and payable.

By 1994 Greenwood’s operation of Midwest in Davenport became openly troubling to the Hotchkisses. They viewed the situation as one in which Greenwood was taking most of the profits from Midwest’s operation in Davenport in salaries and bonuses, leaving little for those who worked at the headquarters office in Cedar Rapids. The brothers Hotchkiss were displeased with this situation because the four were equal shareholders in Midwest. Moreover, Bruce and Craig had put up most of the initial investment in the company.

In a 1994 board meeting, the three brothers voted to deny Greenwood’s request for a $25,000 bonus and a salary increase for 1995. By February of 1995, the Hotchkisses, led primarily by Craig, increased their control over the Davenport operation. At an April 11 or 12, 1995 board meeting, Craig presented an “agenda” of Midwest company issues for board resolution. Greenwood objected to most items. The Hotchkisses outvoted Greenwood three to one, deciding to: require all four to sign a noncompete covenant (Greenwood never signed the covenant), consolidate all accounts receivable and payable into Midwest Cedar Rapids, draw all checks from one bank out of Cedar Rapids and require two signatures for each check, increase the rent Midwest paid to Midwest Janitorial Supply, Inc. for warehouse space, constrain Greenwood’s salaries, bonuses, and use of company automobiles, begin paying Bruce and Craig salaries, and leave more of the profits in the business for distribution as dividends among the four shareholders.

Greenwood saw these changes as moving the business away from his successful Quad Cities operation and toward the less successful operation being carried on in Cedar Rapids. In an April 12, 1995 memo to the Hotchkiss brothers, he stated that he believed he and Michele were being forced out of the company. On April 17, 1995, Craig telephoned Michele and terminated her job with Midwest. Greenwood and his wife viewed this act as an escalation of a business dispute into a personal dispute.

At this point, the Greenwoods considered their options outside of Midwest. These options included joining another company, leaving the area, or starting their own janitorial supply business. During the last two weeks of April and first four days of May 1995, David Greenwood began preparation for a likely separation from Midwest. The Greenwoods shared their discontent with Midwest employees at a social event held at the Greenwoods’ home on April 21,1995.

Before David’s resignation from Midwest on May 5, 1995, the Greenwoods engaged in the following activities: contacting a realtor to seek availability of a warehouse, investigating the pricing of telephone systems, investigating the acquisition of new computer hardware and software, seeking a line of credit from a bank, and arranging for a sign company to supply signs for a new business location.

On Friday, May 5, 1995, David entered the Midwest office in Davenport at about 10 a.m. and tendered his resignation as director and vice president. At this time, he requested redemption of his shares in accordance with the shareholder’s agreement. Michele drove to Midwest, picked David up, and they went directly to their attorney’s office to prepare articles of incorporation and other documents to begin a new janitorial supply company. On Saturday, May 6, 1995, they executed a lease for an office and warehouse in the Quad Cities area. On Monday, May 8, 1995, they opened their new business, Greenwood Cleaning Systems, at that location. On that same day, the second most productive salesperson for Midwest in the Quad Cities area, Marilyn Korthaus, left Midwest to begin working for Greenwood Cleaning Systems. Two days later, another salesperson, Jeff Stanger, left Midwest and joined Greenwood’s business. Greenwood’s new company started making deliveries on May 25, 1995, and has progressed to a successful janitorial supply business in the Quad Cities area. During the first month it was in business, Greenwood Cleaning Systems had sales of $63,000, only $433 of which was derived from customers that had not previously been served by Midwest.

After finding that the facts were substantially as we have recited them, the district court concluded:

David exercised care in investigating his options. He made no preparations on company time or property. He did not solicit its sales staff. He did not tell vendors in advance. He did not solicit customers. Moreover, he took nothing with him when he left but his knowledge, experience, and goodwill. The fact that sales people, vendors, and customers went with David after he resigned and opened a new competing business is attributable to David having been the operator of [Midwest’s Davenport operation] which, without him, was an empty shell.
David did not breach his duty of loyalty and good faith to [Midwest] by investigating the possibility of opening a competing business. He committed no act of disloyalty. He walked the fine line between investigating it and doing it. Initiating the contingency plans he and Michele made in this case and under these circumstances did not go over the line.
David did no act to damage [Midwest] while he was with it. When he decided to act contrary to the interests of [Midwest] he resigned. Thereafter, with no contract to the contrary, he owed [Midwest] no duty and was free to compete.
[Midwest’s] claim fails.

The foregoing discussion formed the basis for the district court’s disposition of plaintiffs’ claim of breach of fiduciary responsibility. To the extent that it contains factual determinations concerning the extent of Greenwood’s preparations to compete while still an officer and director of Midwest those factual findings are supported by substantial evidence. The plaintiffs also alleged theories of recovery involving usurpation of corporate opportunity, wrongful utilization of trade secrets, palming off, and tortious interference with its business, all of which were rejected by the district court. On appeal plaintiffs only assert error with respect to the breach-of-fidueiary-duty claim.

In considering plaintiffs’ claims, we begin with the recognition that directors and officers of a corporation have a fiduciary duty to act in all things wholly for the benefit of the corporation. Midwest Mgmt. Corp. v. Stephens, 353 N.W.2d 76, 80 (Iowa 1984); Iowa Code §§ 490.830(1)(c), 490.842(1)(c). This duty limits a director’s or officer’s conduct both as to actions taken on behalf of the corporation and actions taken in the fiduciary’s own behalf that may have an effect on the corporation. Holden v. Constr. Mach. Co., 202 N.W.2d 348, 358 (Iowa 1972).

Plaintiffs assert that the actions Greenwood took to form a competing business while he was still an officer and director of Midwest were manifestly detrimental to Midwest’s interests and therefore a violation of his fiduciary duty to the corporation. Appellees on the other hand urge that the law allows an officer or director of a corporation contemplating resignation to make preparations for a competing business prior to leaving. That is the view expressed in Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, 531 P.2d 428 (1975), in which the court states:

At the time a director or officer is removed or resigns from the corporation his position of trust with the corporation is terminated. It is generally held in such case that even before termination he is entitled to make arrangements to compete, except he cannot properly make use of confidential information peculiar to the corporation’s business and acquired therefrom. Thus, he may purchase or initiate a rival business before the end of his relationship as an officer or director and upon termination of his employment immediately compete.

Parsons Mobile Prods., 531 P.2d at 432-33 (emphasis added). The views espoused by the Kansas court have also been accepted in Vigoro Indus., Inc. v. Crisp, 82 F.3d 785, 788 (8th Cir.1996); Raines v. Toney, 228 Ark. 1170, 313 S.W.2d 802, 809 (1958); Ellis & Marshall Assocs., Inc. v. Marshall, 16 Ill.App.3d 398, 306 N.E.2d 712, 716 (1973); and Maryland Metals, Inc. v. Metzner, 282 Md. 31, 382 A.2d 564, 569 (1978).

The authorities relied upon by plaintiffs to establish a less tolerant rule of fiduciary responsibility, Bentz v. Vardaman Manufacturing Co., 210 So.2d 35 (Miss.1968), and Steelvest, Inc. v. Scansteel Semce Center, Inc., 807 S.W.2d 476 (Ky.1991), are, we believe, distinguishable on their facts from the present controversy. In imposing liability on a competing former director in Bentz, the court stated: “A director is not relieved from liability by the fact that plans which were made and partially carried out while he was in office are consummated after he has ceased to be a director.” 210 So.2d at 41. But, the liability imposed in that case was for self-dealing initiated by the director prior to his resignation and not for initiating a competing business.

In imposing liability on a former director in the Steelvest case, the court stated that corporate directors or officers seeking to establish a competing enterprise “should terminate their position/status as directors or officers when they first make arrangements or begin preparations to compete directly with the employer corporation.” 807 S.W.2d at 483. The preparation to compete that took place in that case, however, extended over a period of eleven months, while the defendant remained as a director of the corporation and included solicitation of financing for defendant’s new company from his former company’s leading customers.

An insightful analysis of whether mere preparation to form a competing business organization is actionable as a breach of fiduciary obligation is found in Cudahy Co. v. American Laboratories, Inc., 313 F.Supp. 1339, 1346 (D.Neb.1970), and Bancroft-Whitney Co. v. Glen, 64 Cal.2d 327, 49 Cal.Rptr. 825, 411 P.2d 921, 936 (1966). Both cases conclude that such conduct is not actionable unless it is shown that something in the preparation to compete produced a discreet harm to the former business beyond the eventual competition that results from the preparation. We accept that conclusion as a reasonable approach to the problem.

The most disturbing thing that occurred in connection with the start up of Greenwood’s new business was the act of a saleswoman who left Midwest to join the new business. Before leaving Midwest she persuaded one of its customers to send its bidding form to her residence so that Midwest would not receive it and she could use it once she entered Greenwood’s employment. However, Greenwood’s complicity in this act was not established and, more critical to plaintiffs’ claim, there was no showing that this act was a factor in diverting business from Midwest to Greenwood. Accepting the findings of the district court as to the preparations to compete that took place while Greenwood was still an officer and director of Midwest, the period in which those preparations took place was extremely brief. He was positioned to start his new business very quickly even if his preparation had been delayed until after his resignation from Midwest. It does not appear therefore that acts Greenwood undertook in preparing to form a competing business provided a discreet harm to Midwest beyond the eventual competition, which resulted in part from those preparatory acts. Based on these considerations, we affirm the judgment of the district court.

AFFIRMED.

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


text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Appellee, v. Kevin J. VISSER, Appellant.
    No. 01-0077.
    Supreme Court of Iowa.
    July 5, 2001.

      Roger T. Stetson and Margaret C. Callahan of Belin Lamson McCormick Zum-bach Flynn, P.C., Des Moines, for appellant.
    Norman G. Bastemeyer and David J. Grace, Des Moines, for appellee.
   LARSON, Justice.

This respondent, Kevin J. Visser, is an attorney practicing in Cedar Rapids. He graduated from law school in 1980 and was admitted to practice the same year. He testified he has a general practice with an emphasis on litigation involving labor and employment issues. One of his business clients became involved in a dispute with a former employee that ended up in litigation. The respondent was contacted by a newspaper reporter who obtained a statement from him resulting in these disciplinary charges. The Grievance Commission found this statement violated DR 7 — 107(G)(1), (2), and (4) (prohibiting extrajudicial statements by lawyer involved in civil litigation). Although the Board of Professional Ethics and Conduct had also charged a violation of DR 1 — 102(A)(1), (4), and (5) (prohibiting misleading statements), the commission made no findings as to that charge. The commission recommended a public reprimand. On our review, we conclude the board did not establish a violation of DR 7-107 but did establish a violation of DR 1-102(A). We admonish the respondent for that violation.

I. Facts and Prior Proceedings.

In 1998 the respondent’s client, Davis-Jones-Lamb Insurance Agency, Inc. (DJL), was contemplating a business venture with a Waterloo business called Net Worth Advisers, a company managed by a Steve Mulder. Mulder was to become a shareholder in DJL under this plan. However, a DJL employee, Charles Heins, objected to the proposal on the ground it would violate his employment agreement with DJL. Heins ultimately was fired, and he brought two suits against DJL.

The first suit challenged a disbursement by DJL, which Heins contended was improper. Heins obtained a temporary injunction, and the respondent’s firm moved to dissolve it. The district court dissolved the temporary injunction, and in this order noted that Heins was unlikely to succeed on the merits of his claim. The second suit by Heins was aimed at problems he had experienced with DJL while he was employed there.

Although DJL is a business located in Cedar Rapids, a reporter from the Waterloo Courier became interested because the dispute arising out of DJL’s proposal affected a Waterloo business. Pat Kinney, a reporter for the Courier, attempted to call Visser, but Visser was involved in a deposition and was unable to take the call. Kinney left a message for the respondent to call him back. The respondent attempted to return the reporter’s call on the same day but was unable to reach him. He therefore left a voice mail message, and because he felt an immediate response was necessary, faxed a letter to the reporter on the same day. Following is the content of that letter:

I unsuccessfully sought to return your call, and will be in deposition most of the rest of the day. The following points summarize the Defendants’ reaction to Mr. Heins’ suit:
1. The agency and the individuals were disappointed that Charlie Heins chose to stand in the way of progress by refusing to attend meetings or attend to the agency’s work during the time after Davis, Jones & Lamb began to work with Mr. Mulder.
2. The agency was left with no choice but to declare Charlie’s employment over after months went by and he refused to meet with the agency or individuals in an effort to understand the benefits of partnering with Net Worth Ad-visors and how those benefits would help existing Davis, Jones & Lamb clients, including his own. Charlie chose, instead, to be a disruptive influence within the agency, its employees, and customers.
3. The agency is saddened that a confused and angry young man has chosen to embarrass himself further by filing a lawsuit which is unlikely to succeed. One judge has already determined that he is unlikely to succeed on the merits of his far-fetched claims. (See attached copy of ruling.)
4. When a plaintiff brings a lawsuit claiming ten or more legal theories, it is a pretty good indication that he lacks confidence in any one theory. The agency and individuals, while disappointed that Heins is choosing to sue, are confident that his claims will be found groundless.
5. The individual and corporate defendants have well-earned and longstanding reputations for integrity in the eastern Iowa business community and fully expect that a judge or jury will exonerate them from the claims of this unhappy and confused former employee.
Should you wish further comment, please give me a call.

The Courier article written by Kinney appeared on June 6, 1998, the day after Visser faxed his letter. The Conner, article quoted Visser’s letter at length, but it omitted paragraph four, which suggested Heins lacked confidence in any of his theories of suit.

II. The Charges.

The board’s complaint alleged violations of DR T — 107(G)(1), (2), and (4) and DR 1-102(A)(1), (4), (5), and (6) of the Iowa Code of Professional Responsibility for Lawyers. DR 7-107(G), dealing with trial publicity, states:

A lawyer or law firm associated with a civil action shall not during its investigation or litigation make or participate in making an extrajudicial statement, other than a quotation from or reference to public records, that a reasonable person would expect to be disseminated by means of public communication and that relates to:

(1) Evidence regarding the occurrence or transaction involved.
(2) The character, credibility, or criminal record of a party, witness, or prospective witness.
(4) An opinion as to the merits of the claims or defenses of a party, except as required by law or administrative rule.
(5) Any other matter reasonably likely to interfere with a fair trial of the action.

The commission found Visser violated DR 7-107 but made no finding as to DR 1-102(A).

III. Resolution.

We review recommendations of the commission de novo. Ct. R. 118.11. The burden of proof is on the board to establish the violations by a convincing preponderance of the evidence. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bjorklund, 617 N.W.2d 4, 8 (Iowa 2000).

A. The charge under DR 7-107(G). The board contends the statements made by the respondent to the Waterloo Courier violated DR 7-107(G) under subparts 1 (commenting on evidence), 2 (commenting on the character or credibility of a party), and 4 (expressing an opinion on the merits of the claim). The respondent counters that DR 7-107(G) is unconstitutional on its face and as applied to him. According to him, the rule is so broad it impinges on lawyers’ First Amendment rights because the rule is susceptible of application to protected expression, ie., out-of-court statements that do not create any real threat to the fairness of the proceedings. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1077, 111 S.Ct. 2720, 2746, 115 L.Ed.2d 888, 925 (1991) (Rehnquist, C.J., dissenting):

[E]ven those lawyers involved in pending cases can [under a state disciplinary rule and the First Amendment] make extrajudicial statements as long as such statements do not present a substantial risk of material prejudice to an adjudicative proceeding.

The board’s primary response to the constitutional argument is that, although the respondent initially raised the constitutional issue before the commission, he withdrew it before the commission hearing, and he has therefore waived it. However, we will consider the alleged constitutional infirmities in DR 7-107(G), notwithstanding the respondent’s failure to raise it as an issue before the commission, because such an inquiry is necessary to properly interpret the rule. In the analogous area of statutory interpretation, courts will read statutes in such a way as to make them constitutional if they are amenable to that interpretation.

When possible, statutory provisions should be construed in such a way as to avoid unconstitutionality rather than simply void them on the basis of an interpretation which renders them constitutionally infirm. If the law is reasonably open to two constructions, one that renders it unconstitutional and one that does not, the court must adopt the interpretation that upholds the law’s constitutionality. It would also be preferable to construe the statute to support constitutionality rather than to rewrite or try to improve the statute in some other way.

2A Norman J. Singer, Statutes and Statutory Construction § 45.11, at 70-71 (2000 rev.) (footnotes omitted). The same rule of interpretation applies to disciplinary rules. See Fisher v. Davis, 601 N.W.2d 54, 59-60 (Iowa 1999) (“Rules have the force and effect of statutes. Consequently we interpret rules in the same manner we interpret statutes.”).

Disciplinary rules restricting communications by lawyers are “necessarily constrained by the First Amendment.” Peel v. Attorney Disciplinary Comm’n, 496 U.S. 91, 108, 110 S.Ct. 2281, 2292, 110 L.Ed.2d 83, 99 (1990) (lawyer advertising); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wherry, 569 N.W.2d 822, 825 (Iowa 1997) (same). Similarly, lawyers’ out-of-court statements regarding matters in litigation are entitled to First Amendment protection. See Gentile, 501 U.S. at 1075-76, 111 S.Ct. at 2745, 115 L.Ed.2d at 923-24.

[I]n cases raising First Amendment issues ... an appellate court has an obligation to “make an independent examination of the whole record” in order to make sure that “the judgment does not constitute a forbidden intrusion on the field of free expression.”

Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502, 515 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 729, 11 L.Ed.2d 686, 709 (1964)).

The Nevada disciplinary rule in Gentile was substantially different from our rule. Also, Gentile involved a lawyer’s comments at a press conference about a pending criminal, not a civil, case. Nevertheless, the Court made it clear that, to avoid running afoul of the First Amendment, a rule must be restricted to speech that creates a “substantial likelihood of material prejudice.” Gentile, 501 U.S. at 1075, 111 S.Ct. at 2745, 115 L.Ed.2d at 923. Four members of the Court also stated:

While it is true that [the rule’s] standard for controlling pretrial publicity must be judged at the time a statement is made, ex post evidence can have probative value in some cases.

Id. at 1047, 111 S.Ct. at 2730, 115 L.Ed.2d at 905 (plurality opinion). In view of this principle, these four justices concluded that later events bore on the question of the publicity’s effect on the right to a fair trial. This included the fact that no request had been made for a change of venue, the jury was impaneled without apparent difficulty, members of the jury panel had only vague recollections of news reports, and “not a single juror indicated any recollection of [the lawyer] or his press conference.” These four justices would have held there was not a “likelihood of material prejudice.” Id. at 1048, 111 S.Ct. at 2731, 115 L.Ed.2d at 906 (plurality opinion).

The Restatement of the Law Governing Lawyers adopts the view that, to be sanc-tionable, a statement must be one reasonably likely to affect the outcome. Section 109 of the Restatement provides:

An Advocate’s Public Comment on Pending Litigation.
(1) In representing a client in a matter before a tribunal, a lawyer may not make a statement outside the proceed-, ing that a reasonable person would expect to be disseminated by means of public communication when the lawyer knows or reasonably should know that the statement mil have a substantial likelihood of materially prejudicing a juror or influencing or intimidating a prospective witness in the proceeding. However, a lawyer may in any event make a statement that is reasonably necessary to mitigate the impact on the lawyer’s client of substantial, undue, and prejudicial publicity recently initiated by one other than the lawyer or the lawyer’s client.

2 Restatement (Third) of the Law Governing Lawyers § 109, at 160-61 (1998) (emphasis added).

If we were to apply rule 7-107(G)(1), (2), and (4) without any limitation as to the potential effect of the lawyer’s comments, this would clearly make the rules violative of a lawyer’s First Amendment rights because they would proscribe statements that do not 'pose “a substantial risk of material prejudice” to the judicial proceeding in question. See Gentile, 501 U.S. at 1075, 111 S.Ct. at 2745, 115 L.Ed.2d at 923.

Pennsylvania’s commonwealth court interpreted their rule similar to our rule 7-107 to incorporate a requirement that the statement be “reasonably likely to interfere with a fair hearing.” Widoff v. Disciplinary Bd., 54 Pa.Cmwlth. 124, 420 A.2d 41 (1980). Pennsylvania’s DR 7-107(H) applied to comments by lawyers in connection with administrative proceedings, but we believe the rationale of that case is applicable here as well. Pennsylvania’s rule provided:

During the pendency of an administrative proceeding, a lawyer or law firm associated therewith shall not make or participate in making a statement, other than a quotation from or reference to public records, that a reasonable person would expect to be disseminated by means of public communication if it is made outside the official course of'the proceedings and relates to:
(1) Evidence regarding the occurrence or transaction involved.
(2) The character, credibility, or criminal record of a party, witness, or prospective witness.
(3) Physical evidence or the performance or results of any examinations or tests or the refusal or failure of a party to submit to such.
(4) His opinion as to the merits of the claims, defenses, or positions of an interested person.
(5) Any other matter reasonably likely to interfere with a fair hearing.

Widoff, 420 A.2d at 43 (emphasis added).

We note Pennsylvania’s rule, like Iowa’s, does not incorporate the “reasonably likely to interfere” requirement in its first four subparagraphs. That language appears only in subparagraph 5 of the Pennsylvania rule, as in Iowa’s DR T — 107(G).

The Pennsylvania court said:

If we were to interpret the wording of paragraphs (1) through (4) to be such as the [attorney] proposes, we would be hard-pressed not to agree that the rule is unconstitutionally broad. It seems unlikely to us that every public comment by an attorney as to his opinion of the evidence, of the witnesses or of the merits in a pending administrative hearing would be likely to prejudice that proceeding.

Widoff, 420 A.2d at 45 (emphasis added).

The court noted the general principle that such provisions will be read in a way to uphold them under constitutional challenge and continued:

[W]e hold that the “reasonable likelihood” standard of paragraph (5) supplements and modifies each of paragraphs (1) through (4). These paragraphs stand as guidelines to indicate the kind of statements which would normally threaten the fairness of a hearing but such statements are not unqualifiedly prohibited, and whether or not an attorney in a case must remain silent as to any matter delineated in subparagraphs (1) through (4) must depend upon whether or not his speech on that particular issue and in that specific situation would be reasonably likely to prejudice the tribunal.

Id. at 46 (emphasis added). The court in Widoff found that, when the restrictive language of subparagraph 5 is read into the other subparagraphs, the rule passed First Amendment scrutiny. Id. at 47.

We agree with this analysis. In order for DR 7-107(G) to pass constitutional muster, the statements made here must have been reasonably likely to affect the fairness of the proceedings.

In applying the rule as so interpreted, we look to the facts surrounding the' statements at the time they were made, but we also look to the ex post evidence that relates to the likelihood of prejudice. See Gentile, 501 U.S. at 1047, 111 S.Ct. at 2730, 115 L.Ed.2d at 905 (plurality opinion). The newspaper article spawned by the respondent’s letter was published in Waterloo, which is over fifty miles from Cedar Rapids, where the trial was held. This article, which was the only one published in connection with the case, was published on November 6, 1998 — almost two years before the trial. None of the jurors had even heard of the parties. Patrick Roby, an attorney testifying for Visser before the commission, said he did not believe the Courier article had any impact on the trial, stating “I don’t know where you’d find a Waterloo Courier in Cedar Rapids.”

On our review of the record, we believe a reasonable fact finder would not conclude that the statement in question was reasonably likely to affect the fairness of the proceeding. We therefore find no violation of DR 7-107(G).

B. The charge under DR 1-102(A). As we noted earlier in the statement of facts, the respondent said in his letter to the Courier reporter that “one judge has already determined that [Heins] is unlikely to succeed on the merits of his far-fetched claims.” As the respondent concedes, this is only partially true. This comment by the judge was only in connection with the plaintiffs first suit requesting an injunction. The judge expressed no opinion on the merits of the second suit, under which the claims were different.

The board charged this statement by the respondent violated DR 1-102(A):

A lawyer shall not:
(1) Violate a disciplinary rule.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.

The respondent argues that the claims under the first and second suits arose out of the same factual background and were so interrelated that a statement as to one case by the judge could be construed to apply to both. He also argues that he had attached a copy of the actual court order to his letter to the reporter, so the reporter could discern for himself the true scope of the order. However, while the reporter’s reading of the order might have caused him to disagree with the respondent’s view of the order’s scope, the fact is the respondent’s actual statement misrepresented its scope.

Although we realize the statement was made under the pressure of the situation, the fact is it was only partially true and was therefore a misrepresentation under DR 1-102(A)(4). We admonish the respondent, and the bar generally, that we do not condone such conduct. See Comm. on Prof'l Ethics & Conduct v. Liles, 430 N.W.2d 111, 113 (Iowa 1988) (“We employ professional admonitions not so much by way of criticism as to instruct the bar. We view admonitions as considerably less severe than reprimands, and consider them to be something less than actual discipline.”).

We do not agree with the commission that the board established a violation of DR 7-107(G). However, we admonish the respondent for his violation of DR 1-102(A).

ATTORNEY ADMONISHED.