author: MEIERHENRY, Justice.

text:
    2008 SD 29
    STATE of South Dakota, Plaintiff and Appellee, v. Judy Lyn WILLIAMS, Defendant and Appellant.
    No. 24396.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 6, 2007.
    Decided April 9, 2008.
    Rehearing Denied May 8, 2008.

      Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Mark Kadi, Office of the Public Advocate, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Judy Lyn Williams was convicted of Grand Theft for embezzlement from the Veterans of Foreign Wars Post (VFW) in Brandon, South Dakota. Williams appeals. We affirm.

FACTS

[¶ 2.] The State charged Williams with grand theft, claiming she converted VFW funds for her own use. The VFW hired Williams to manage its lounge in 2004. The lounge had a bar and several video lottery machines. As lounge manager, Williams managed the daily operations of the lounge, including accounting for all lounge proceeds, making bank deposits, handling lottery transactions, scheduling employees and taking care of facility rentals. Williams worked during the day, and other employees worked during the evening hours.

[¶3.] The VFW’s process of handling the money and accounts involved an on-site safe, a till, three bank bags and two bank accounts. The three bank bags were used to segregate video lottery money from other lounge proceeds. One bank bag was used for video lottery. It contained $7,000 in cash to pay video lottery winnings, customer checks cashed to play the video lottery machines and winning tickets redeemed for cash. A second bank bag contained $1,000 in cash, checks and winning bar pull-tabs. The third bag contained $350 in cash used to make change at the bar. All the bags were kept in a safe located in the back office. Williams and all VFW officers possessed keys to the safe. The safe was left unlocked during hours of operation, but was locked at night. Before closing, the night staff gathered and organized the daily proceeds for Williams’ review when she arrived at work the next morning. She then segregated the funds from the different sources and deposited them in the proper accounts. Williams then forwarded the daily totals and weekly receipts to Quartermaster Kevin Anderson, who then forwarded the information to the accountant, Ronald Parker, who prepared monthly audits.

[¶ 4.] The VFW maintained two bank accounts, the “general account” and the “lounge account.” The bar, lottery and facility rentals were deposited in the general account. The reimbursement checks for video lottery pay-outs went into the lounge account. Williams deposited money in both accounts, but only had authority to draw checks on the lounge account.

[¶ 5.] The VFW leased its video lottery machines from Myrmoe Vending Company (Myrmoe Vending). Pam Myrmoe (Myr-moe) owned and operated Myrmoe Vending. Myrmoe Vending reimbursed the VFW for video lottery payouts by check. Part of Williams’ responsibilities included depositing Myrmoe Vending payout checks into the lounge account. The VFW also obtained cash advances from Myrmoe Vending to pay video lottery winnings. The cash advances were to go directly into the video lottery bag. Myrmoe would then deduct the amount of the cash advances from the reimbursement/payout checks. Williams was authorized to request and receive the cash advances from Myrmoe Vending, but had no authority to use the advances for any purpose except video lottery payouts.

[¶ 6.] Myrmoe testified at trial that Williams requested an abnormal number of cash advances during 2004. Myrmoe testified that Myrmoe Vending advanced the VFW approximately $80,000 that year, the majority of which Williams had requested. Myrmoe also testified that because of the unusual amount of activity, she alerted the VFW Commander Ben Sunvold that “something funny was going on.” After an audit, the VFW claimed Williams failed to report one of the cash advances, in the amount of $2,000. Two other advances totaling $8,000 were considered suspicious by the VFW because Williams took them before her vacation without stating a reason and the funds appeared to be missing while she vacationed.

[¶ 7.] Also during 2004, Williams reported two thefts of VFW cash to the Brandon Police Department — one in May and one in December. Williams reported that she suspected an employee was involved in the May theft. The VFW maintained one surveillance camera for the facility. Sergeant Wade Else of the Brandon Police Department investigated the May theft and reviewed the surveillance video but was unable to identify any criminal activity. In response to the May theft, the VFW installed two additional surveillance cameras near the video lottery machines and the safe.

[¶ 8.] Sergeant Else also investigated the December theft. This time he had videos from the three surveillance cameras for the twenty-two-hour time frame of the theft. Williams and Sergeant Else reviewed all the videos from the three cameras to try to identify who took the money. Williams was present for all of the viewing. Later when Sergeant Else copied the surveillance videos, he inadvertently deleted a thirty-three-minute segment.

[¶ 9.] Shortly after the December 2004 theft, Williams quit her job as lounge manager. She took a short vacation and did not return to work. An audit, completed in early 2005, revealed mishandling of VFW finances. The audit showed that Williams had deposited checks in the wrong bank account, overstated her deposit slips and video lottery payouts, and received three suspicious cash advances from Myrmoe, one of which went unreported. As a result, the State charged Williams with grand theft, specifically alleging that she had overstated video lottery payouts by $1,700, inflated check deposits by $3,266.44, failed to report a $2,000 cash advance from Myrmoe Vending in October of 2004, and took two suspicious cash advances totaling $3,000 from Myrmoe Vending in August of 2004. Williams admitted to depositing checks into the wrong account. She denied the State’s other allegations and claimed that someone else may have taken the missing money from the safe.

[¶ 10.] A jury found Williams guilty of grand theft in violation of SDCL 22-30A-10 and SDCL 22-30A-17. Williams was sentenced to thirty days in jail, with work release authorized and credit for four days served. The trial court did not order restitution because the evidence indicated that Williams had in all probability redeposited the missing funds during her employment. Williams appeals and raises five issues.

ANALYSIS AND DECISION

1. Whether the trial court erred by not granting a mistrial because of conversations between a State witness and a jury member and between two sequestered State witnesses.

[¶ 11.] Williams claims that the trial court should have declared a mistrial because one State witness engaged in improper communications with a juror and two State witnesses had inappropriate communications with each other during the trial. Prior to trial, the court sequestered the witnesses. The court also instructed the jury not to discuss the case or to speak with witnesses when the court was in recess. The trial court charged the jury at the start of trial as follows:

During the proceeding of the trial, there will be times when you will be outside the courtroom for rest periods and other times when you will be allowed to separate. During all of those times that you are outside the courtroom, you must not talk about this case among yourselves or with anyone else. A violation of this order is serious.... Do not talk to the lawyers, defendant, or the witnesses. The lawyers, defendant and witnesses are not permitted to talk to you during the trial even in discussions which had no relation to the case would give a bad appearance. Should anyone attempt to talk to you about the trial, you should refuse and you should report the attempt to the bailiff or to the judge at first opportunity....

(Emphasis added). Throughout the trial, the court repeated a similar admonition to the jury. Outside the presence of the jury, the trial court cautioned the attorneys and Williams as follows:

It just occurred to me as we were going through the jury selection process that there’s been several jurors that have connections with Brandon, and I know that we may have witnesses who have connections with Brandon, I’d encourage both sides, counsel on both sides to re-urge their witnesses to be cautious about not talking to the jurors or speaking to them in any fashion, even if it’s about the weather or whatever. So that we don’t run into problems that we sometimes run into in other cases.

(Emphases added).

[¶ 12.] Despite the court’s admonitions, State witness, VFW Commander Ben Sun-void, had a conversation with a juror during a smoke break about the weather; and State witness, Pam Myrmoe, had a conversation with another State witness, Noelan Letcher. The Myrmoe-Letcher conversation involved a discussion concerning several mutual Mends. Williams moved for a mistrial, and the trial court denied the motion.

[¶ 13.] We review the denying of motions for mistrial under the abuse of discretion standard. State v. Buchhold, 2007 SD 15, ¶ 17, 727 N.W.2d 816, 821; State v. Carothers, 2006 SD 100, ¶ 8, 724 N.W.2d 610, 615-16. “An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. Beckley, 2007 SD 122, ¶20, 742 N.W.2d 841, 847.

[¶ 14.] “Trial court’s [sic] have considerable discretion in granting or denying a mistrial and to justify the granting of a mistrial, an actual showing of prejudice must exist.” State v. Bousum, 2003 SD 58, ¶ 31, 663 N.W.2d 257, 265-66. Prejudice is an error, “which, in all probability, [] produced some effect upon the jury’s verdict and is harmful to the substantial rights of the party assigning it.” State v. Mollman, 2003 SD 150, ¶ 23, 674 N.W.2d 22, 29 (citation omitted). However, when improper juror contact “has taken place in a criminal case there arises a rebuttable presumption of prejudice, and the burden is on the state to show the harmless effect of the communication.” State v. Swallow, 350 N.W.2d 606, 610 (S.D.1984).

[¶ 15.] Williams claimed that the Sunvold-juror conversation about the weather bolstered Sunvold’s credibility. She claimed that the conversation established a common ground with the juror because both Sunvold and the juror were from the City of Brandon, which was the location of the alleged embezzlement. The State argued that the communication was harmless and had no effect upon the juror’s impartiality. The trial court agreed and determined that the brief pleasantry concerning the weather was harmless and caused no prejudice to Williams. Although the communication was improper, a review of the entire record supports the trial court’s ruling on lack of prejudice.

[¶ 16.] Williams next argued that the Myrmoe-Letcher communication about mutual friends was prejudicial because it was part of a cumulative progression of the State tampering with evidence and the trial process. Williams specifically pointed to the erased segment of the surveillance video and to materials that she claimed should not have been admitted because they were altered and lacked trustworthiness. As to the missing segment of the surveillance video, the trial court determined that (1) Williams presented insufficient evidence that the video contained exculpatory evidence to be prejudicial, and (2) at most, Sergeant Else’s deletion of the video segment was “sloppy” not intentional. We agree with the trial court. Williams viewed the entire surveillance video with Sergeant Else, including the subsequently deleted thirty-three minutes when Sergeant Else was investigating the May, 2004 theft. Neither Williams nor Sergeant Else remembered anything of significance on the missing segment that would have exonerated Williams or implicated a third party. Had the missing segment shown a third person stealing money, both Sergeant Else and Williams conceivably would have identified the thief.

[¶ 17.] The other challenged materials were Myrmoe Vending checks that had white-out and re-written information on the memo line, and other documents used in the audit process that contained notes and markings added by Myrmoe or other people doing the audit. At trial, the relevant witnesses explained when and why they had made the notes and changes. The court found that their explanations were sufficient to establish trustworthiness for admissibility. Further, the court determined that the Myrmoe-Letcher conversation was not prejudicial since they had not discussed their testimony or anything else concerning the trial. We agree. Williams failed to show prejudice or that the court abused its discretion in denying her motion for a mistrial.

2. Whether the trial court erred by allowing two of the State’s witnesses to give testimony regarding VFW accounting practices and another witness to testify as a rebuttal witness.

[¶ 18.] The State presented testimony from VFW Commander Ben Sunvold and past Commander Noelan Letcher about the bookkeeping practices and specific audits of the VFW lounge. Williams claimed that their testimony and opinions lacked proper foundation. Proper foundation requires testimony “that a document has been prepared or kept in the ordinary course of regularly-conducted business activity.” DuBray v. Dep’t of Soc. Serv., 2004 SD 130, ¶ 15, 690 N.W.2d 657, 662-63 (citation omitted); SDCL 19-16-10. ‘We review a trial court’s ruling on the admissibility of evidence under an abuse of discretion standard.” State v. Williams, 2006 SD 11, ¶ 8, 710 N.W.2d 427, 430.

[¶ 19.] Letcher testified that he was a long-standing member and past Commander at the VFW, and that he and another member created the bookkeeping system for the VFW. Further, he testified that he conducted weekly “mini-audits” and had been active in the VFW’s bookkeeping practices for approximately eight years. Letcher trained Williams for approximately six weeks on the bookkeeping practices, including how to handle the books and conduct a daily accounting. Letcher testified about procedures for deposits and withdrawals from the bank accounts and the arrangement of obtaining cash advances from Myrmoe Vending. Further, Letcher identified three cash advances that Williams obtained from Myrmoe that, in his opinion, were without sufficient justification.

[¶ 20.] Sunvold testified that during the period in which the alleged thefts occurred, he was Senior Vice-Commander of the VFW. Sunvold was actively involved in hiring Williams. He and Letcher conducted the October 15, 2004 audit that uncovered some of the alleged wrongdoings by Williams, including the funds deposited in the wrong account and the cash advances from Myrmoe Vending. Sunvold also testified that Myrmoe contacted him in July, 2004, because she believed there was “something funny going on” with respect to the unusually high number of cash advances. Sunvold and Letcher both testified that their audit uncovered that Williams overstated her video lottery payouts by $1,700, inflated her check deposits by $3,266.44, and failed to report or misappropriated $5,000 in cash advances from Myrmoe Vending.

[¶ 21.] Williams claims that the testimony of Letcher and Sunvold was inadmissible because they were unqualified to testify to the accounting practices at the VFW because neither were accountants. The record, however, indicates that Letch-er and Sunvold were sufficiently familiar with the VFW’s bookkeeping practices to testify as to its procedures. The State laid the proper foundation for Letcher and Sunvold’s testimony regarding the audits they conducted and their findings. Letch-er and Sunvold explained to the jury how they conducted the audits and the meaning of the markings they had made on receipts and documents while conducting the audits. Additionally, the evidence showed that Letcher and Sunvold prepared and kept the records from the audits in the course of regularly conducted VFW business. See DuBray, 2004 SD 130, ¶ 15, 690 N.W.2d at 662-63; SDCL 19-16-10. Williams fails to show that the trial court abused its discretion in allowing the testimony.

[¶ 22.] Williams also claims that the trial court improperly admitted rebuttal testimony from Quartermaster Kevin Anderson. Trial court judges have “wide discretion in permitting the State to introduce additional evidence after it has closed its case.” State v. Stuck, 434 N.W.2d 43, 54 (S.D.1988). This also applies when the testimony admitted is rebuttal evidence to contradict the defendant’s version of the facts. Id. Williams’ testimony raised questions about whether she had done the VFW’s books on August 12, 2004, before she left for vacation because “Kevin [Anderson] has writing just like me.” She testified that she could not recall if she had deposited money in the VFW’s lounge account or taken any cash advances on the twelfth of August. The State called Anderson, who testified that he had done the books while Williams was on vacation and had prepared a daily worksheet on August 13, 2004, for the preceding day. His testimony also rebutted Williams’ claim that the alleged missing $3,000 of cash advances was most likely in the safe. He described how he had opened the safe and accounted for all the funds. Thus, the court did not abuse its discretion by allowing Anderson to rebut Williams’ testimony about the bookkeeping, deposits, cash and cash advances. See State v. Fowler, 1996 SD 78, ¶17, 552 N.W.2d 92, 95-96; SDCL 23A-24-2(4).

3. Whether the trial court erred in denying Williams’ motion to dismiss based on the destruction of evidence.

[¶ 23.] We review the trial court’s denial of a motion to dismiss under an abuse of discretion standard. Carothers, 2006 SD 100, ¶ 8, 724 N.W.2d at 615-16. The State’s duty to preserve the evidence is “limited to evidence that might be expected to play a significant role in [a] suspect’s defense.” Moeller v. Weber, 2004 SD 110, ¶ 15, 689 N.W.2d 1, 7 (emphasis in original). The United States Supreme Court in Brady v. Maryland set forth the test to determine whether a defendant is entitled to a new trial when the State withholds exculpatory evidence. 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). The Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. at. 1196-97, 10 L.Ed.2d 215; see also Strickler v. Greene, 527 U.S. 263, 280-81, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999) (stating “that the duty to disclose [exculpatory] evidence is applicable even though there has been no request by the accused”). This Court has stated that Brady violations are analyzed under the three-part test set forth by the United States Supreme Court: (1) whether the evidence at issue was “favorable to the defendant because it is exculpatory or impeaching”; (2) whether the evidence was “suppressed by the State either -willfully or inadvertently”; and (3) whether prejudice resulted. State v. Piper, 2006 SD 1, ¶ 19, 709 N.W.2d 783, 795 (citations omitted).

[¶ 24.] Prior to trial, Williams moved to dismiss claiming a due process violation under Brady. Williams claimed that the thirty-three minutes of missing surveillance footage, prepared by Sergeant Else, constituted State suppression of exculpatory evidence, requiring dismissal of the charges. Sergeant Else testified that he did not know why a segment of the video was missing and that the video was supposed to have been copied in its entirety. He further testified that he could not remember what was on the missing segment. Williams argued that the missing segment of the video could have shown another employee removing money from the safe. Part of her defense was that if money was missing, someone else must have taken it. The rest of the surveillance video was in evidence, some of which showed other employees accessing the safe.

[¶ 25.] Williams also filed a motion for a new trial on the same basis at the conclusion of trial. Under the materiality prong of the Brady test, Williams had to show that “there [was] a reasonable probability that [the] conviction or sentence would have been different had these materials been disclosed.” Strickler v. Greene, 527 U.S. 263, 296, 119 S.Ct. 1936, 1955, 144 L.Ed.2d 286 (1999). In State v. Leisinger, we held that in order for suppressed evidence to require a new trial, the defendant must demonstrate that the evidence was favorable or helpful to the defense and that prejudice resulted from its suppression. 2003 SD 118, ¶ 14, 670 N.W.2d 371, 375 (citation omitted). Williams, who had personally viewed the missing segment before it was erased, did not establish that the erased thirty-three-minute segment contained exculpatory evidence. Thus, Williams failed to establish there was a reasonable probability she would not have been convicted had the missing video been available. The trial court did not abuse its discretion in denying Williams’ motions to dismiss.

4. Whether the trial court erred in denying Williams’ motion for judgment of acquittal based on insufficiency of the evidence.

[¶ 26.] Williams was convicted of violations of SDCL 22-30A-10 and SDCL 22-30A-17. SDCL 22-30A-10 provides the elements of embezzlement of property received in trust:

Any person, who has been entrusted with the property of another and who, with intent to defraud, appropriates such property to a use or purpose not in the due and lawful execution of his or her trust, is guilty of theft. A distinct act of taking is not necessary to constitute theft pursuant to this section.

At the time of the offense, SDCL 22-30A-17 defined grand theft as theft of property exceeding $500 in value. Williams argues the State failed to present evidence that she “appropriated money to a use or purpose not in the due course of lawful execution of her trust” with a value greater than $500. SDCL 22-30A-10. She alleges that the trial court erred by denying her motion for acquittal. Specifically, Williams argues the State failed to provide evidence of the nature of the alleged trust, the requisite intent to appropriate funds, the conversion of funds to Williams’ own use and the total amount of money taken, as evidenced by the court’s inability to order restitution.

[¶ 27.] We analyze the sufficiency of the evidence by determining whether there is evidence in the record, which if believed by the jury, “is sufficient to sustain a finding of guilt beyond a reasonable doubt.” State v. Mulligan, 2007 SD 67, ¶ 7, 736 N.W.2d 808, 812-13. The jury is “the exclusive judge of the credibility of the witnesses and the weight of the evidence.” Id. A jury verdict will only be set aside if “the evidence presented, including the favorable inferences drawn therefrom,” does not provide “a rational theory that supports the jury’s verdict.” State v. Motzko, 2006 SD 13, ¶ 13, 710 N.W.2d 433, 439.

[¶ 28.] Although the State’s evidence is not overwhelming, a review of the evidence and the favorable inferences drawn therefrom indicates sufficient evidence to sustain the verdict. Clearly the VFW entrusted Williams to handle and account for all the cash taken in and paid out while she served as manager. She was allowed to receive cash advances from Myrmoe Vending when video lottery payouts approached $7,000 in order to have enough cash on hand to cover future video lottery payouts for one week, Thursday to Wednesday. She was entrusted to settle accounts with Myrmoe each Thursday, including commission for the use of the machines, video lottery payouts and repayment for any cash advances taken the previous week. Her duties also included accounting for and depositing of proceeds into the VFW bank accounts. She had authority to withdraw funds from the lounge account but not the general account. The State’s evidence, if believed by the jury, sufficiently established the requisite entrustment with VFW property pursuant to SDCL 22-30A-10.

[IT 29.] The State also presented sufficient evidence that Williams converted funds for her own use. Some of the conversion claim derived from the excessive cash advances Williams requested from Myrmoe Vending. Williams requested several cash advances in 2004, totaling more than the amount of video lottery payouts and causing a negative account balance with Myrmoe Vending. The October 15, 2004 audit, prompted by Myrmoe’s concerns about the excessive number of Williams’ cash advances, revealed that Williams received but failed to account for two cash advances from Myrmoe Vending totaling $3,000. The day before the audit, Williams had filled out a deposit ticket for the lounge account in the amount of $648.25. The Bank’s records showed that Williams actually deposited $2,648.25 and then wrote a check for cash in the amount of $2,648.25. The State’s theory was that Williams used the $2,000 to replenish the lottery bag for money she had previously taken.

[¶ 30.] Additionally, the State presented evidence that Williams altered her daily bookkeeping worksheets by increasing the amount actually paid out in video lottery winnings and by improperly depositing general account funds into the lounge account and immediately withdrawing the same. The daily worksheets for the six video lottery machines showed overstated payouts in increments of $1,000, $2,000 or $3,000. Williams then deducted these overstated payouts noting the correct payouts on the final worksheet for the week. There was also evidence of improper deposits into the lounge account — the account on which Williams could write checks. The deposits included checks from commissions and rentals that belonged in the general account — the account on which Williams could not write checks. The evidence revealed that Williams made the improper deposits then wrote checks and received cash.

[¶ 31.] Williams claimed the deposits in the wrong accounts were merely mistakes and did not prove that she intended to embezzle. The requisite intent for grand theft embezzlement pursuant to SDCL 22-30A-10 is the “intent to defraud.” SDCL 22-30A-10; State v. DeWall, 343 N.W.2d 790, 791-92 (S.D.1984). Intent is defined in SDCL 22 — 1—2(l)(b) as “a specific design to cause a certain result. ...” To prove intent, the State presented evidence that shortly before Williams went on vacation she received $3,000 in cash advances from Myrmoe Vending that she failed to put into the video lottery bag and misrepresented another $2,000 cash advance. The State also established her intent by her overstated video lottery payouts on her daily records and her erroneous deposit of funds into the account on which she was authorized to write checks for cash. If believed by the jury, the State’s evidence, along with favorable inferences therefrom, was sufficient to establish intent to defraud.

[¶ 32.] Although the State did not present direct evidence on how she used the converted funds, the evidence was sufficient for the jury to conclude that she converted it for her own use. The evidence showed that she was in sole possession of the VFW funds for periods of time without authorization. The audits revealed that Williams deposited funds into the wrong bank account, and improperly accounted for and withdrew these unauthorized funds for no legitimate business purpose. Furthermore, Myrmoe testified regarding the excessive number and amount of cash advances during Williams’ tenure as lounge manager. The inference is that Williams took the funds for her own use for a period of time even though she may have ultimately replaced the funds. This circumstantial evidence, if believed by a reasonable jury, was sufficient under our standard of review to establish that Williams converted the funds, at least temporarily, for her own use. See Mulligan, 2007 SD 67, ¶ 7, 736 N.W.2d at 812-13; see also State v. Shaw, 2005 SD 105, ¶ 45, 705 N.W.2d 620, 633 (“All elements of a crime, including intent ..., may be established circumstantially.”) (citations omitted).

[¶ 33.] Finally, Williams argues that the State failed to establish that the value of the stolen property exceeded $500. Hundreds of receipts and financial report documents showing the misappropriation of funds were presented at trial. The documents indicated that during periods in 2004, money in excess of $500 was misappropriated/missing. Testimony of overstated video lottery payouts of $1,700, Williams’ inflated check deposits by $3,266.44, and unreported or misrepresented cash advances from Myrmoe Vending of $5,000 established a value over $500. Based on all the evidence, the trial court did not err in denying Williams’ motion for judgment of acquittal.

5. Whether the trial court erred in failing to instruct the jury on the lesser-included offense of petty theft.

[¶ 34.] Williams argues the court erred in refusing her proposed lesser-included-offense instruction for petty theft. “A lesser-included-offense instruction should be given when (1) the elements test is met and (2) some evidence in support of such instructions exists in the record.” State v. Giroux, 2004 SD 24, ¶ 5, 676 N.W.2d 139, 141 (quoting State v. Hoadley, 2002 SD 109, ¶64, 651 N.W.2d 249, 264). “If evidence has been presented which would support a conviction of a lesser charge, refusal to give the requested instruction would be reversible error.” State v. Heumiller, 317 N.W.2d 126, 132 (S.D.1982) (citation omitted). We apply de novo standard of review to the refusal of proposed lesser-included instruction. Giroux, 2004 SD 24, ¶ 4, 676 N.W.2d at 140-41.

[¶ 35.] There is no dispute that under the elements test, petty theft is a lesser-included offense of grand theft. The issue here is whether there was some evidence in support of a petty theft instruction. To justify the lesser-included instruction, Williams must proffer some evidence that would tend to support the lesser charge. As this Court stated in Giroux, “[t]he defendant is only required to present some evidence for the lesser included offense to be presented to the jury.” 2004 SD 24, ¶16, 676 N.W.2d at 145. We review the factual evidence “in the light most favorable to the defendant, which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was, in fact, committed.” State v. Wall, 481 N.W.2d 259, 264 (S.D.1992) (citations omitted).

[¶36.] The State’s evidence was that Williams overstated lottery payouts by $1,700, inflated check deposits by $3,266.44, failed to report a $2,000 cash advance from Myrmoe Vending, and received another $3,000 in cash advances allegedly for her personal use. Any one of these was sufficient to establish the monetary requirement of grand theft. Based on the evidence, the trial court concluded that the jury could only find guilt of grand theft or acquit. Williams’ only argument for a petty theft instruction is based on her own testimony that she once made a mistake and incorrectly rang up a $100 instead of $1.00 for the cigarette lighter. However, her claimed error in ringing up an incorrect charge did not figure in any of the State’s allegations of theft. Williams did not testify she converted these funds to her own use or misappropriated them in anyway; she merely testified that one potential discrepancy in the audits could have been due to her mistake. The trial court concluded that the evidentiary requirements for a lesser-included instruction were not met. We agree. The record is devoid of evidence that would support the lesser charge of petty theft.

[¶ 37.] We affirm on all issues.

[¶ 38.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . Another employee pleaded guilty to theft from the VFW women's auxiliary at the same time these allegations arose. The other employee denied all involvement with any alleged theft from the Brandon VFW.

      . Effective July 1, 2006, SDCL 22-30A-17 was amended to increase the amount required for grand theft from $500.00 to $1000.00. At the time of the commission of the offense the statute provided as follows: "Theft is grand theft, if: (1) The value of the property stolen exceeds five hundred dollars;

      Theft in all other cases is petty theft.”


source: Caselaw Access Project

author: TERNUS, Chief Justice.

license: Public Domain

text:
    BONTRAGER AUTO SERVICE, INC.; Skay Automotive Service, Inc.; Brian K. Decoster; Rogers Rental, LLC; Marlys Breese; The Breese Co. Inc.; Gregg R. Redlin; Eugene F. Fisher; Erin K. Fisher; Edward I. Schmucker; K & G; Michael A. McNiel; Todd Davis; Carmen Davis; Sand Road Investors; Keith L. Miller; Debra S. Miller; Paul M. Kennedy, Jr.; Mary Frances Kennedy; William B. Kron, Jr.; and Derrold M. Foster, Appellees v. The IOWA CITY BOARD OF ADJUSTMENT, Appellant. Hilltop Mobile Home Court, Appellee, v. The Iowa City Board of Adjustment and Shelter House Community Shelter and Transition Services, Appellants.
    No. 05-1064.
    Supreme Court of Iowa.
    March 7, 2008.
    Rehearing Denied April 1, 2008.

      Sarah E. Holecek, First Assistant City Attorney, Iowa City, for appellant Iowa City Board of Adjustment.
    Timothy J. Krumm and Anne E. Daniels of Meardon, Sueppel & Downer P.L.C., Iowa City, for appellant Shelter House Community Shelter and Transition Services.
    Gregg Geerdes, Iowa City, for appellees Bontrager Auto Service, Inc. et al.
    Raymond M. Tinnian, Kalona, for appel-lee Hilltop Mobile Home Court.
   TERNUS, Chief Justice.

The appellant, Iowa City Board of Adjustment, approved the application of appellant, Shelter House Community Shelter and Transition Services, for a special exception to a local zoning regulation to allow Shelter House to construct transient housing in a commercial district. The appel-lees, opponents of Shelter House’s application, successfully challenged the board’s decision in district court. Although the district court rejected the objectors’ contention the board had failed to make the necessary factual findings, the court ruled there was not substantial evidence to support the board’s finding that the proposed transient housing would not substantially diminish or impair property values in the neighborhood. The court also determined the board had improperly interpreted and applied the parking-space requirements governing transient housing.

The board and Shelter House appeal the district court’s reversal of the board’s approval of Shelter House’s application. We agree with the district court that the board made sufficient factual findings, but conclude error was not preserved on the adequacy of the parking spaces. Because we think there was substantial evidence to support the board’s finding that property values would not be adversely affected, we reverse the judgment of the district court and remand this case for entry of a judgment affirming the board’s decision.

I. Background Facts and Proceedings.

Shelter House is a nonprofit corporation that has operated transient housing on North Gilbert Street in Iowa City for approximately twenty years. The facility on Gilbert Street is approved for housing twenty-nine transient persons at one time. It was undisputed the shelter has to turn homeless persons away due to a lack of space.

In 2004 Shelter House sought to build a new two-story facility at 429 Southgate Avenue that would provide transitional housing for up to seventy people. This site is zoned intensive commercial, which permits transient housing by special exception. In order to approve a special exception, the board must find the applicant meets the standards set forth for the specific proposed exception, as well as seven general standards to the extent they are applicable.

The Iowa City Department of Planning and Community Development reviewed Shelter House’s application and recommended approval. Subsequently, the board held a well-attended meeting at which approximately thirty-seven persons spoke. The main concern of objectors was the possibility of increased criminal activity in the neighborhood, a concern the proponents of the special exception attempted to refute. There was also some evidence elicited relating to property values, with the witnesses for and against the application disagreeing on whether property values would decrease due to the construction of transient housing in the affected neighborhood. Following public comments, the board approved the special exception on a vote of three to one. A written decision granting the application was filed several days later.

Thereafter, neighboring landowners filed petitions for writ of certiorari in the district court, which were consolidated. They claimed the board acted illegally for several reasons, three of which are pertinent to this appeal:

a. The Board of Adjustment acted arbitrarily and capriciously when it granted the application even though the evidence before the Board was that the requested special use would substantially diminish or impair the property values in the neighborhood of the requested special exception and that the proposed special exception would be injurious to the use and enjoyment of other property in the area. Under these circumstances the actions of the Board are a violation of Iowa City Ordinance 14-6W-2(B)(2)(b).
f. The property which is the subject of the special exception does not comply with various provisions of Iowa City zoning law ...:
a) There is insufficient parking under Ordinance 14-6N-1....
g. The Board has made inadequate findings of fact and conclusions of law, contrary to Ordinance 14-6W-3(D).

The last allegation of illegality — that the board’s findings of fact were inadequate— was based on the board’s alleged failure to specifically find in its written decision that the proposed exception would not substantially diminish or impair property values in the neighborhood.

In response to the petitions, the board submitted its records to the court, including the application for special exception, the staff report recommending approval of the special exception, written materials and comments received by the board, a transcript of the public hearing, the board’s minutes, and the board’s written decision. In addition, at the trial on the objectors’ petitions, the district court heard further testimony from Robert Mik-lo, city planner for the City of Iowa City. Miklo testified with respect to the staff report and the board’s findings of fact. No other evidence outside the board’s records was offered or received.

The court subsequently issued a ruling reversing the board’s decision. Although the court decided the board had sufficiently complied with the requirement for written findings of fact, it concluded Shelter House had failed to present substantial evidence the proposed special exception would not substantially diminish or impair property values in the neighborhood. The court also held the board had not correctly interpreted the parking-space requirements of its ordinance. The board had approved the special exception on the basis that eighteen parking spaces would be sufficient; whereas, under the district court’s interpretation, the ordinance would require twenty-two parking spaces.

The board and Shelter House filed timely appeals from the district court’s decision. For convenience, any references in this opinion to the board include Shelter House unless the context indicates otherwise.

II. Issues on Appeal.

On appeal, the board contends there was substantial evidence to support its determination that property values would not be substantially diminished or impaired by the location of transient housing at the proposed site. With respect to the court’s ruling on the required parking spaces, the board asserts that it correctly interpreted the parking-space requirements of its ordinance.

The objectors disagree, of course, with the arguments asserted by the board on appeal. In addition, they claim that, even if the district court’s decision on these issues was incorrect, its ruling can nonetheless be upheld on the basis that the board did not make an adequate factual finding on the property-values issue.

In our review of the record, we have discovered a preliminary issue that must be addressed: whether any error with respect to the board’s determination of the required number of parking spaces was preserved by the objectors. See Top of Iowa Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (stating “this court will consider on appeal whether error was preserved despite the opposing party’s omission in not raising this issue at trial or on appeal”). We will address that issue first.

III. Error Preservation on Parking-Spaces Objection.

The objectors argued in the district court and again on appeal that the board failed to properly interpret the parking-spaces requirement of the applicable city ordinance and, consequently, acted illegally in approving a special exception that did not propose an adequate number of parking spaces. In reviewing the record certified by the board to the district court, we are unable to find any discussion of this issue before the board. The application for special exception stated that the plot plan “shows 18 spaces.” The staff report also reflected this fact and stated, “Eighteen parking spaces are required.... ” The petitions signed by the opponents to the special exception did not raise any concerns with respect to the parking requirements. At the board’s meeting, city staff presented its report and again specifically informed the board and those present that the property would be required to have eighteen parking spaces. No one at the meeting challenged the legality of the proposed exception on the basis that it did not comply with the applicable standard for parking spaces.

“In most jurisdictions a reviewing court will not decide an issue which was not raised in the forum from which the appeal was taken.... A reviewing court will not entertain a new theory or a different claim not asserted on the board level.” 4 Kenneth H. Young, Anderson’s American Law of Zoning § 27:37, at 633-34 (4th ed. 1996); accord 83 Am.Jur.2d Zoning & Planning § 957, at 791 (2006) (“It has been held that a reviewing court will not decide an issue that was not raised in the zoning board from which an appeal has been taken.”). Our court has similarly held that “issues must first be presented to the agency in order to be preserved for appellate review.” State ex rel. Miller v. DeCoster, 608 N.W.2d 785, 789 (Iowa 2000); accord Licari v. Bd. of Educ., 280 A.D.2d 673, 721 N.Y.S.2d 372, 373 (2001); Iwan v. Zoning Bd. of Appeals, 252 A.D.2d 913, 677 N.Y.S.2d 190, 191 (1998); Leoni v. Whitpain Twp. Zoning Hearing Bd., 709 A.2d 999, 1002 (Pa.Commw.Ct.1998). Based upon this principle and the record before us, we conclude the issue concerning the alleged inadequacy of the proposed parking spaces, which was not raised at the hearing before the board of adjustment, has not been preserved for this court’s review.

IV. Sufficiency of Board’s Factual Finding Regarding Impact on Property Values.

The Iowa City Code requires the Iowa City Board of Adjustment to render its decision in writing, “including findings of fact and conclusions of law.” Iowa City Code § 14-6W-3(D). It is undisputed the board failed to make a specific finding or conclusion in its written decision regarding the effect of the proposed special exception on property values. This issue was of critical importance because, before the board may approve an application for a special exception, the board must find the applicant has met several general standards. One of those standards states: “The specific proposed exception will not be injurious to the use and enjoyment of other property in the immediate vicinity and will not substantially diminish or impair property values in the neighborhood.” Id. § 14-6W-2(B)(2)(b).

Notwithstanding the board’s failure to specifically address this standard in its decision, the district court concluded the board had substantially complied with the requirement of written findings of fact and conclusions of law. The board urges this court to reach the same conclusion with respect to the adequacy of its written decision.

The Iowa City ordinance codifies the rule adopted by our court “that boards of adjustment shall make written findings of fact on all issues presented in any adjudicatory proceeding.” Citizens Against the Lewis & Clark (Mowery) Landfill v. Pottawattamie County Bd. of Adjustment, 277 N.W.2d 921, 925 (Iowa 1979). We agree with the district court that substantial — as opposed to literal — compliance with the written-findings requirement is sufficient.

In Thorson v. Board of Supervisors, 249 Iowa 1088, 90 N.W.2d 730 (1958), we held a board’s substantial compliance with a statutory requirement was satisfactory, noting “the requirements imposed by statute upon an inferior tribunal should not be too technically construed, lest its efficiency be wholly paralyzed.” 249 Iowa at 1097, 90 N.W.2d at 735; accord Johnson v. Bd. of Adjustment, 239 N.W.2d 873, 887 (Iowa 1976) (“ ‘[OJnly where it clearly appears there was a failure to substantially comply with the statutory requirements will there be found jurisdiction violations.’ ” (quoting Bd. of Educ. v. Iowa State Bd. of Pub. Instruction, 261 Iowa 1203, 1210, 157 N.W.2d 919, 923 (1968))). More recently, in Obrecht v. Cerro Gordo County Zoning Board of Adjustment, 494 N.W.2d 701 (Iowa 1993), we held substantial compliance with a zoning ordinance was sufficient. In that case, the county zoning ordinance required that an application for special use be signed by the landowner. Obrecht, 494 N.W.2d at 703. The application at issue had been signed by the lessee of the land, not the owner. Id. at 702. The owner had, however, appeared at and participated in the hearing on the application and had voiced no opposition. Id. at 703. We held the owner’s presence at the hearing was substantial compliance with the ordinance requiring the owner’s signature on the application because “the owner was available to verify his support of the application and to answer any questions.” Id. Therefore, “[t]he objectives of the owner filing requirement were more than satisfied.” Id.

As implied by this statement from Obrecht, “substantial compliance” means the statute or rule “ ‘has been followed sufficiently so as to carry out the intent for which it was adopted.’ ” Brown v. John Deere Waterloo Tractor Works, 423 N.W.2d 193, 194 (Iowa 1988) (quoting Smith v. State, 364 So.2d 1, 9 (Ala.Crim. App.1978)). Thus, the reviewing court must determine based on the facts of the particular case whether the actual compliance has accomplished the purpose of the statute or rule. Id. Consequently, we begin with an examination of the purpose of the requirement at issue.

This court was persuaded to adopt a rule requiring written findings by the following “compelling considerations”: “‘facilitating judicial review, avoiding judicial usurpation of administrative functions, assuring more careful administrative consideration, helping parties plan their cases for rehearings and judicial review, and keeping agencies within their jurisdiction.’ ” Citizens, 277 N.W.2d at 925 (quoting K. Davis, Administrative Law Treatise § 16.05 (2d ed. 1978)). Consistent with these considerations, we noted in Citizens that a board’s findings “must be sufficient to enable a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the board acted.” Id.; accord Bd. of Dirs. v. Justmann, 476 N.W.2d 335, 340 (Iowa 1991). Here, the objectors appear to claim that, because there is no mention of the property-values issue in the board’s written decision, the board failed to make a decision on this issue, thereby rendering its action granting the special exception illegal.

Our review of the record convinces us that neither the objectors nor the district court had to guess whether the board considered and resolved the property-values issue. The board was clearly aware of the requirement that the special exception could not be approved if it substantially impaired neighboring property values. Shelter House addressed this standard in its application, and later, at the meeting scheduled to consider the application, city planner Robert Miklo told the board it must consider, among other items, the requirement that “the proposed special exception ... will not substantially dimmish or impair property values in the neighborhood.” In addition, several of the numerous persons who spoke at the hearing addressed the issue of property values.

After the public comment portion of the meeting concluded, the board members expressed their views. Board member Mauer was the first to speak, and he expressly focused his remarks on “the general standards.” Mauer commented on several of these standards, including the matter of property values. He stated the impact on property values was “a big issue” that could not be determined for sure until someone decides to sell property in the area after Shelter House is there. Mauer was most concerned, however, regarding the impact of the facility on the comfort, safety, and health of neighboring residents (another general standard). At this point in the proceedings, board counsel Holecek reminded the board that the board had to “conclude each of these standards has been met.” Board member Mauer then voted “no,” immediately followed by board member Wright, who discussed the general standards without any specific mention of property values, and then voted “yes.” Board member Leigh then commented on the impact of the current transient house on North Gilbert on the surrounding neighborhood and concluded by saying the proposal “has met the standards as were previously mentioned and I will vote in favor of this.” Board member Alexander then stated, “For the reasons already mentioned, I too am going to vote in favor.” A roll call vote was then taken, resulting in approval of the application for a special exception on a vote of three to one.

The board later filed a written decision on the Shelter House application that contained findings of fact, conclusions of law, and a disposition. In its conclusions of law, the board concluded “that developing the Shelter House at [the proposed] location will not be detrimental overall to the public health, safety, comfort or general welfare,” as required by section 14-6W-2(B)(2), but did not make specific reference to the other portion of section 14-6W-2(B)(2) dealing with property values.

These facts show that with respect to the property-values aspect of general standard section 14-6W-2(B)(2), the board did not literally comply with the rule that findings of fact and conclusions of law be in writing. We think, however, that there was substantial compliance. Considering the board’s written decision in the context of the meeting at which the vote memorialized in the decision occurred, we are able “to determine with reasonable certainty the factual basis and legal principles upon which the board acted.” Citizens, 277 N.W.2d at 925. We think it is sufficiently clear that the board considered the general standards, including whether the proposed special exception would “substantially diminish or impair property values in the neighborhood,” and concluded by a majority vote that these standards were met. The board’s failure to reference the entirety of the general standard appearing in section 14-6W-2(B)(2) in its written conclusions of law is not a fatal flaw that warrants reversal.

Y. Scope and Standard of Review of Property-Values Issue.

Our standard of review of the district court’s ruling on the property-values issue is dependent upon resolution of a disagreement between the parties with respect to the proper role of the district court in its review of the board’s decision. Shelter House maintains that the district court must conduct a substantial-evidence review of the board’s findings. See generally Grant v. Fritz, 201 N.W.2d 188, 195 (Iowa 1972) (“The ‘substantial evidence rule’ is utilized in judicial checking of findings of fact_”). Under that standard of review, the board’s findings are binding if supported by substantial evidence. In contrast, the opponents claim the district court is entitled to find the facts anew and on appeal to this court, the district court’s findings are binding if supported by substantial evidence.

Unlike the typical certiorari case, in which the standard of review is well established, the review of decisions of boards of adjustment has always been somewhat problematic. Iowa Code chapter 414 (2003) provides the procedure for review of a decision of a city board of adjustment. A person aggrieved by a board decision may file a petition for writ of certiorari in the district court, identifying the claimed illegality of the board’s action. Iowa Code § 414.15 (stating petition must “specify! ] the grounds of the illegality” of the board’s decision). Upon the filing of a petition, the board of adjustment must make a return to the writ, which includes the “papers acted upon by it” and “other facts as may be pertinent and material to show the grounds of the decision appealed from.” Id. § 414.17.

At this point, the review process reveals its unique characteristics. Section 414.18 states:

If upon the hearing which shall be tried de novo it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with the referee’s findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

Id. § 414.18 (emphasis added). This court has attempted over the years to interpret what the legislature intended when it provided for a trial de novo and for the taking of additional necessary evidence by the district court.

In our first case to interpret section 414.18, Anderson v. Jester, 206 Iowa 452, 221 N.W. 354 (1928), we considered “what questions may be raised on certiorari.” 206 Iowa at 462, 221 N.W. at 359. Relying on section 414.15, we held only issues of illegality are a permissible basis for relief. Id. at 463, 221 N.W. at 359. We observed that “arbitrary and unreasonable action or proceedings” that are not authorized, are contrary to the statute defining the powers of the board, or are unsupported by facts upon which the board’s power to act depends are illegal. Id. These grounds of illegality track those that are raised in certiorari actions generally. See Nash Finch Co. v. City Council, 672 N.W.2d 822, 825 (Iowa 2003) (‘“An illegality is established if the board has not acted in accordance with a statute; if its decision was not supported by substantial evidence; or if its actions were unreasonable, arbitrary, or capricious.’ ” (quoting Perkins v. Bd. of Supervisors, 636 N.W.2d 58, 64 (Iowa 2001))). See generally 3 Arden H. Rathkopf et al., Rathkopfs The Law of Zoning & Planning § 62:32, at 62-66 (2001) (noting same grounds) [hereinafter Rathkopfs Law of Zoning].

We also considered in Anderson “the method and scope of review by the trial court permitted by [this] legislative enactment.” Anderson, 206 Iowa at 454, 221 N.W. at 355. Noting that the board of adjustment is not required “to return findings of fact,” this court explained the purpose of the district court’s power to take additional evidence as follows:

If all the material facts appear in the record, or are not disputed, or only questions arising upon the record are presented, the taking of evidence is not necessary. Questions likely to arise in such cases are of such great importance that the Legislature appears to have had in mind that the parties should, on the question of the legality of the board’s action, be entitled to a full and complete hearing before a proper court of record and according to accepted judicial method of ascertaining facts.

Id. at 461-62, 221 N.W. at 359 (emphasis added). Thus, when the record is inadequate to determine the legality of the board’s action, additional evidence is necessary and may properly be taken by the district court.

Our discussion in Anderson of the district court’s scope of review was not as clear. We said:

The parties are not, on certiorari, bound by the finding or opinion of the local board on the facts, or by the evidence offered there, or by knowledge outside of the evidence on which the board may have acted, but, ordinarily at least, are entitled to take testimony when a determinative issue of fact is raised.

Id. at 462, 221 N.W. at 359 (emphasis added). Later in the same opinion, this seemingly expansive de novo review is qualified:

If it had been intended to give to the aggrieved party the right to remove the determination of the entire matter from the local officers and board to the court, it is reasonable to suppose that the remedy provided would have been appeal rather than certiorari....
... The trial de novo permitted, and the determination of whether testimony is necessary, and the admission of such testimony, ... should be confined to the questions of illegality raised by the petition for the writ.... If one of the grounds of alleged illegality is arbitrary, unreasonable, or discriminatory action on the part of the board, and on the facts the reasonableness of the board’s action is open to a fair difference of opinion, there is, as to that, no illegality. The court is not, in such case, authorized to substitute its judgment for that of the local board.

Id. at 462-63, 221 N.W. at 359 (emphasis added). We noted that arbitrary and unreasonable action includes action that is not authorized by the statute defining the board’s power or that is contrary to or unsupported by the required facts. Id. at 463, 221 N.W. at 359.

Although one could argue our discussion of the statute in Anderson did not completely clarify the district court’s de novo fact-finding role, our subsequent cases consistently limited the trial de novo “to the questions of illegality raised by the petition for the writ.” Deardorf v. Bd. of Adjustment, 254 Iowa 380, 383, 118 N.W.2d 78, 80 (1962); accord Vogelaar v. Polk County Zoning Bd. of Adjustment, 188 N.W.2d 860, 863 (Iowa 1971). Our cases also confirmed that the statute did not provide “for trial de novo by equitable proceedings.” Deardorf, 254 Iowa at 383-85, 118 N.W.2d at 80 (examining sufficiency of evidence before the board on question of unnecessary hardship); accord Trailer City, Inc. v. Bd. of Adjustment, 218 N.W.2d 645, 647 (Iowa 1974) (“The term ‘de novo’ ... does not bear its equitable connotation.”); Vogelaar, 188 N.W.2d at 863 (noting trial is de novo only “in the sense that testimony in addition to the return may be taken if it appears to the court necessary for the proper disposition of the matter”); Zilm v. Zoning Bd. of Adjustment, 260 Iowa 787, 794-95, 150 N.W.2d 606, 611 (1967) (reversing district court’s determination of boundary line location contrary to that found by the board, stating there was no basis for finding board did not act reasonably and therefore, court could not substitute its judgment).

We now turn to our decision in Weldon v. Zoning Board, 250 N.W.2d 396 (Iowa 1977). In that case, we considered “what effect the statutes have on the mode and scope of district court review when a claim of illegality in the certiorari action involves an issue of the sufficiency of evidence to support the decision of the inferior tribunal.” Weldon, 250 N.W.2d at 400. We observed that section 414.18 had “modified” the rule applicable in ordinary certio-rari actions that “the findings of fact of the inferior tribunal may not be upset if they are supported by substantial evidence before that tribunal.” Id. We attributed this interpretation of section 414.18 to our decision in Anderson:

Therefore, the teaching of the Anderson case is that in a certiorari proceeding in a zoning case the district court finds the facts anew on the record made in the certiorari proceeding. That record will include the return to the writ and any additional evidence which may have been offered by the parties. However, the district court is not free to decide the case anew. Illegality of the challenged board action is established by reason of the court’s findings of fact if they do not provide substantial support for the board decision. If the district court’s findings of fact leave the reasonableness of the board’s action open to a fair difference of opinion, the court may not substitute its decision for that of the board.

Id. at 401. It appears, then, that in Weldon we interpreted section 414.18 to place the entire fact-finding role on the district court even when the claimed illegality was that the evidence was not sufficient to support the board’s decision. See Giesey v. Bd. of Adjustment, 229 N.W.2d 258, 260 (Iowa 1975) (holding illegality exists when there is not substantial evidence to support the decision of the board).

Notwithstanding our attempt in Weldon to clarify what the legislature meant by the language “tried de novo,” in at least two subsequent cases in which the alleged illegality of the board’s decision was a lack of substantial evidence to support its decision, the district court simply reviewed the sufficiency of the evidence to support the board’s decision without making its own fact-findings. See Cyclone Sand & Gravel Co. v. Zoning Bd. of Adjustment, 351 N.W.2d 778, 783 (Iowa 1984); Jorgensen v. Bd. of Adjustment, 336 N.W.2d 423, 426 (Iowa 1983). These cases appear to be more in line with a case that predated Weldon, Buchholz v. Board of Adjustment, 199 N.W.2d 73 (Iowa 1972), which considered a county zoning statute identical to the city zoning statute at issue in this case. In Buchholz, we stated that “de novo” as used in section 335.21

does no more than permit the introduction of additional evidence in district court if the court finds that course necessary for proper disposition of the cause. With that qualification the decision of the administrative body is conclusive unless arbitrary, capricious or otherwise illegal.

199 N.W.2d at 78.

In considering the scope of review in the present appeal, this court is faced with the problem of ascertaining the meaning of section 414.18 in the face of conflicting case law. It is helpful, then, to examine general authorities in this area of the law. In Rathkopfs Law of Zoning, the authors state the review provision in the standard zoning enabling act “gives the court the power to take evidence when there is an issue raised by the pleadings in the proceeding other than whether the determination is supported by substantial evidence.” Rathkopfs Law of Zoning § 62:46, at 62-123 (emphasis added).

In those cases in which the issue is whether the action of a board is based upon substantial evidence, the determination as to the validity of a board’s decision should be based upon the record of the proceedings before the board as supplemented by the testimony taken before the court. It should not decide the case merely on the basis of the testimony taken before it if the facts found by the court therein are materially at variance with those found by the board. The court cannot make new findings on issues presented below.

Id. at 62-129 (emphasis added).

The author clarifies that, with respect to issues of substantial evidence, “[i]t is only in those extraordinary cases in which it is not clear from the record what a board considered and how it arrived at its findings that additional testimony will ordinarily be taken in order for a court to evaluate [the board’s] determination.” Id. § 62:46, at 62-130 to -131. According to this treatise, other claims of illegality more properly give rise to the need for additional testimony in district court:

Where an issue is raised by the petition and answer as to whether the determination was made in violation of lawful procedure, or was arbitrary and an abuse of discretion, the court should take evidence with respect to the matters thus put in issue, and apply the law thereto. Since such matters would not ordinarily appear in the return and record of the respondent in the proceedings, such authority will be utilized when questions of fact are presented which cannot be summarily decided in the review proceeding on the basis of allegations in the petition, although sworn to, or in affidavits, or on the exhibits and other types of informal evidence which a board of appeals is accustomed to consider.
Where the person appealing from the action of the administrative body sets forth in his petition sufficient facts to persuade the court that there were “in fact or in all likelihood, factors present, not of record which influenced the action of the council complained of,” ... the court should conduct a hearing and consider evidence not of record before the administrative body since the court could not properly have determined the question from the transcript of the proceedings at the public hearing.

Id. at 62-123 to -124, 62-128.

Thus, with respect to the district court’s proper role in taking additional evidence, this authority distinguishes between illegalities that appear in the record made before the board, e.g., insufficiency of the evidence to support the board’s findings, and illegalities that are outside the record, e.g., a board member’s conflict of interest. Only when the illegality does not appear in the record made before the board should the district court take additional evidence. In addition, this authority would limit the court’s fact-finding role to issues that were not before the board.

Although the standard act discussed in Rathkopf admittedly does not contain the “tried de novo” language appearing in Iowa’s statute, courts from other states interpreting statutory language similar to Iowa’s have interpreted their statutes consistently with Rathkopfs analysis. See Colorado Land Use Comm’n v. Bd. of County Comm’rs, 199 Colo. 7, 604 P.2d 32 (1979); People ex rel. St. Albans-Springfield Corp. v. Connell, 257 N.Y. 73, 177 N.E. 313 (1931); Bd. of Zoning Appeals v. Combs, 200 Va. 471, 106 S.E.2d 755, 758-59 (1959) (relying on Iowa Anderson case). In Colorado Land Use Commission, the Colorado Supreme Court defined the phrase “trial de novo” as used in a statute describing review of decisions of the board to mean something less than “trial anew on the merits”: “The de novo term is included to indicate that any relevant evidence may be introduced to attempt to prove illegality such as fraud, sham, bribery, failure to comply with statutory requirements, or abuse of legislative discretion.” 604 P.2d at 36. Since the appellant in that case had sought a de novo review of the merits of the board’s determination, the Colorado court held the trial court had properly dismissed the appellant’s complaint. Id. Similarly, in St. Albans-Springfield, the highest court in New York observed that a court having a power of review similar to that provided in chapter 414 “is not supposed to exercise it as though it were the board of standards and appeals.... The courts must not trespass upon this administrative work, but confine their review to correcting legal errors.” 177 N.E. at 315.

Although these decisions and Rathkopfs discussion of the district court’s role in reviewing a board decision are contrary to our holding in Weldon, we think the analysis of these authorities makes sense and is entirely consistent with our statutory language. Section 414.18 allows the court to take evidence “[i]f ... it shall appear to the court that testimony is necessary for the proper disposition of the matter.” (Emphasis added.) Ordinarily, testimony would not be necessary when the claimed illegality is insufficient evidence, at least when a record was made before the board. Our proposed interpretation of the statute also reflects our traditional deference to the fact-finding role of the local tribunal with respect to the issues of fact essential to its decision by preserving the substantial-evidence rule in the review of board decisions. We think it is simply inconsistent to define an illegality as a lack of substantial evidence to support the board’s decision, a rule used to review an inferior tribunal’s fact-finding, but then place the ultimate fact-finding responsibility on the district court. In other words, a substantial-evidence review makes more sense if the fact-finding relevant to the issues before the board remains with the board.

We also think application of the substantial-evidence rule is more consistent with the principle stated in Weldon and other Iowa cases that the court should not substitute its judgment for that of the board. See, e.g., Helmke v. Bd. of Adjustment, 418 N.W.2d 346, 352 (Iowa 1988); Weldon, 250 N.W.2d at 401; Anderson, 206 Iowa at 463, 221 N.W. at 359. The existence of a particular fact is often outcome determinative, as in the present case. To allow the district court to make this crucial finding of fact necessarily allows the court to substitute its judgment for that of the board.

Importantly, interpreting section 414.18 consistently with Rathkopfs explanation of the standard act does not render the Iowa statute’s reference to “the hearing which shall be tried de novo” superfluous because, for illegalities that are not based on the board’s fact-finding function, the district court does find the facts pertinent to the claimed illegality. Finally, we think the Rathkopfs interpretation is more understandable, more easily and consistently applied by the district courts, and more consistent with the certiorari mode of review adopted by the legislature for review of board decisions.

In summary, we overrule Weldon to the extent it permitted the court to make new factual findings on issues that were before the board for decision. Such fact-findings will be reviewed under the substantial-evidence test traditionally employed in certiorari reviews.

VI. Substantial Evidence to Support Board’s Finding That Property Values Would Not be Substantially Diminished or Impaired.

As noted above, the board could not grant a special exception to Shelter House unless it was satisfied “[t]he specific proposed exception ... will not substantially diminish or impair property values in the neighborhood.” Iowa City Code § 14-6W-2(B)(2)(b). We must determine whether there was substantial evidence to support the board’s finding that this standard was met. “Evidence is substantial “when a reasonable mind could accept it as adequate to reach the same findings.’ ” City of Cedar Rapids v. Mun. Fire & Police Ret. Sys., 526 N.W.2d 284, 287 (Iowa 1995) (quoting Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d 904, 913 (Iowa 1987)).

In concluding Shelter House “failed to present substantial evidence that the proposed Special Exception will not substantially dimmish or impair property values in the neighborhood,” the district court observed

there was no testimony or comment at the public hearing from any real estate assessor, real estate appraiser, realtor or owner of property near the current Shelter House concerning this issue, with the exception of a property manager who commented on the already existing problem of renting out property [in the vicinity of the new location].

The district court also gave little credence to the testimony of an urban planner, who referred to national research that property values located in areas of transient housing do not necessarily go down, because the speaker did not provide any documentation of the research or its source. The court concluded the minutes of the board meeting, the transcript of that meeting, and the board’s written decision did not collectively contain substantial evidence to support the board’s finding that property values would not be impaired or substantially diminished.

While the issue is close, we conclude there was substantial evidence to support the board’s decision. As the district court accurately observed, there was no expert testimony that property values would not be impaired by the location of the transient home. Nonetheless, the absence of such evidence is not fatal, as expert testimony concerning the valuation of property is not required by our cases or by the Iowa City Code. Cf. Petersen v. Harrison County Bd. of Supervisors, 580 N.W.2d 790, 796 (Iowa 1998) (noting no requirement under chapter 352, dealing with designation of property as an agricultural area, that expert testimony concerning reduced property values be presented at hearing before the board). See generally Norland v. Worth County Comp. Bd., 323 N.W.2d 251, 253 (Iowa 1982) (noting determination of a prevailing wage is not an exact science, and there was no statutory constraint on the type of evidence the board could consider).

One person residing in the vicinity of the current transient house commented that the property values in that neighborhood had not been adversely affected. The board was certainly permitted to rely on such anecdotal evidence. See Cambodian Buddhist Soc’y v. Planning & Zoning Comm’n, 285 Conn. 381, 941 A.2d 868, 905-06 (2008) (noting “commission was entitled to credit the anecdotal reports that past activities on the society’s property had made neighboring properties less desirable” in determining whether proposed construction of temple would impair property values). In addition, the board may rely on commonsense inferences drawn from evidence relating to other issues, such as use and enjoyment, crime, safety, welfare, and aesthetics, to make a judgment as to whether the proposed use would substantially diminish or impair property values in the area. See Miller v. Hill, 337 Ill.App.3d 210, 271 Ill.Dec. 600, 785 N.E.2d 532, 539 (2003) (concluding testimony of neighbors of firing range that noise did not bother them and they were not concerned about safety was adequate proof that proposed firing range would not adversely affect property values); Balias v. Town of Weaverville, 121 N.C.App. 346, 465 S.E.2d 324, 326-27 (1996) (holding testimony that “bed and breakfast would be an ‘attribute to the community’ supports an inference that it would not impair property values in the neighborhood”). We examine, then, evidence before the board that would permit an inference with respect to property values.

The concern most often voiced by opponents of the special exception was the increased likelihood of criminal acts in the neighborhood. Several witnesses reviewed the statistics concerning the arrest rates for residents of the current shelter house and for residents of Hilltop Mobile Home Court, a mobile home development in the neighborhood of the new location. Although the witnesses differed in their interpretation of this data, a close inspection of these figures reveals that the arrest rate for persons giving Shelter House as their address was likely less than the arrest rate for persons giving Hilltop Mobile Home Court as their address. Moreover, there appeared to be more concern about potential crime due to the number of persons turned away by Shelter House than by the persons who actually stay there. There was testimony that the proposed doubling of capacity at the new facility may offset this negative impact by significantly reducing the number of persons turned away for lack of room. There was also a statement from a neighbor of the current shelter house that he did not observe any “rise or change in the amount of crime in the neighborhood.”

In addition to the evidence regarding crime, there was testimony from two persons residing in the neighborhood of the current shelter house that the establishment caused no problems in the neighborhood other than some detrimental aesthetics relating to trash cans and the lawn. These issues were to be addressed at the new transient house through a requirement that the new location have a landscape buffer and an eight-foot privacy fence. Another neighbor at the current location denied there was any increase in vehicular traffic due to the presence of the transient house. There was also evidence that it was already difficult to rent property at any price in the area of the new location, supporting an inference that transient housing would not have much of an effect on the already depressed property values. Finally, notwithstanding a lack of documentation, the board could consider the testimony of the urban planner that national research showed property values do not necessarily go down when such a use is introduced into a neighborhood.

We think this evidence, considered collectively, is adequate to support the board’s conclusion that the proposed special exception would not substantially diminish or impair the value of neighboring properties. Although there was evidence to the contrary, the reasonableness of the board’s decision is open to a fair difference of opinion, and therefore, the board’s decision should have been affirmed on that basis. See Helmke, 418 N.W.2d at 352 (stating “whether the evidence in a close case such as this one might well support an opposite finding is of no consequence, for the district court cannot substitute its judgment for that of the board of adjustment”).

VII. Disposition.

We conclude the board made adequate findings, and its decision was supported by substantial evidence. Accordingly, the district court erred in reversing the board’s grant of Shelter House’s application for a special exception. We therefore reverse the district court’s judgment and remand this case back to the district court for entry of an order affirming the decision of the board of adjustment.

REVERSED AND REMANDED.

      . Shelter House was permitted to intervene.

      . The city code requires that transient housing provide “one-quarter (⅛) parking space per occupant, based on the maximum number of occupants.” Iowa City Code § 14-6N-l(J)(l)(j). The parties disagreed on whether persons working at the facility were "occupants” so as to require their inclusion in the calculation of the required number of parking spaces.

      . It is not clear that the district court made its own factual findings as contended by the opponents. The dispositive analysis from the district court’s ruling seems to focus on the board’s findings rather than finding the facts anew:
      I conclude that proponents of the Special Exception failed to present substantial evidence that the proposed Special Exception will not substantially diminish or impair property values in the neighborhood. The minutes of the public hearing, the transcript of the public hearing and the decision of the Board of Adjustment, collectively, do not contain substantial evidence to support a finding by the board that the proposed Special Exception will not substantially diminish or impair property values in the neighborhood. Therefore, the decision of the Board of Adjustment granting the Special Exception must be reversed.
      (Emphasis added.) Although one could argue based on a reading of the court’s entire discussion of this issue that the court reweighed the evidence, we need not determine whether the trial court found the facts anew, as this question does not affect our ultimate resolution of this appeal.

      . Comparable statutory provisions govern review of county boards of adjustment. See Iowa Code §§ 335.18-21. We have said the review provisions of chapter 335 and chapter 414 should be interpreted identically. See Bluffs Dev. Co. v. Bd. of Adjustment, 499 N.W.2d 12, 14 (Iowa 1993); Trailer City, Inc. v. Bd. of Adjustment, 218 N.W.2d 645, 647 (Iowa 1974).

      . Over the years, the Code editor has renumbered the chapter dealing with city zoning, so some of our early cases refer to the relevant sections of chapter 414 by a different number. For clarity, we will simply use the current section numbers in discussing these decisions. The substance of the pertinent code provisions has not changed.

      . Section 414.18 of Iowa’s zoning act is identical to the standard zoning enabling act with the exception of the additional language in the Iowa act, “which shall be tried de novo.”


author: PER CURIAM.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant v. Jeffrey M. IRELAND, Respondent.
    No. 07-1814.
    Supreme Court of Iowa.
    May 9, 2008.

      Charles L. Harrington and Teresa A. Vens, Des Moines, for complainant.
    Jeffrey M. Ireland, Ozark, MO, pro se.
   PER CURIAM.

This case comes before the court on the report of a division of the Grievance Commission of the Supreme Court of Iowa. See Iowa Ct. R. 35.10. The Commission found the respondent, Jeffrey M. Ireland, violated the Iowa Code of Professional Responsibility by neglecting a client’s legal matter, by not providing an accounting or return of retainer funds to the client, by failing to return personal papers, by failing to notify the client he had closed his office, and by failing to cooperate with the Iowa Supreme Court Attorney Disciplinary Board in its investigation. The Commission recommends suspension of the respondent’s license with no possibility of reinstatement for two years. Upon our respectful consideration of the findings of fact, conclusions of law, and recommendation of the Commission, we find the respondent committed the charged ethical violations and suspend his license to practice law for six months.

I. Standard of Review.

Our review of attorney disciplinary proceedings is well established. The Commission’s findings are reviewed de novo. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Gottschalk, 729 N.W.2d 812, 815 (Iowa 2007). Although we give the Commission’s findings and recommendations respectful consideration, we are not bound by them. Id. The Board has the burden of proving attorney misconduct by a convincing preponderance of the evidence. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Conrad, 723 N.W.2d 791, 791-92 (Iowa 2006).

This burden is less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case. Once misconduct is proven, we “may impose a lesser or greater sanction than the discipline recommended by the grievance commission.”

Id. (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)).

II. Factual Findings.

At the time of the conduct at issue here, Jeffrey Ireland was an Iowa lawyer who had practiced in several communities in the state. In January 2002 Ireland was maintaining a law office in Panora, Iowa. The matter giving rise to the Board’s complaint involved the estate of Leland Barker.

In early 2002 Ireland agreed to act as the attorney for the estate of Leland Barker. The decedent’s son, Dale Barker, met with the respondent on three separate occasions to discuss the estate. At the first meeting, Barker provided Ireland with his father’s will and other paperwork. At the second meeting, the respondent agreed to handle the estate for a $2000 fee. Barker’s mother and widow of the decedent, Pauline Barker, also met briefly with the respondent on one occasion. In February 2002 Barker provided Ireland with a $1000 check written on Pauline’s account. The memo portion of the check read “retainer for L.G. Barker estate.” Ireland deposited the check in his trust account.

Ireland failed to take any action on behalf of the estate. In May 2002 he closed his law office in Panora without notifying the Barkers. The Barkers never received an accounting or refund of their retainer. Ireland did not return their personal papers, including the decedent’s will. The Barkers eventually sought new counsel to handle the estate, which was subsequently successfully closed.

In March 2003 Pauline Barker filed a complaint with the Board. In August 2005 the Board wrote to the respondent requesting a response to the complaint and all records and documents showing the respondent’s handling of the $1000 retainer. In his response, Ireland asserted he was retained to prepare living trust documents for Dale and Pauline, not to probate Leland’s estate. He claimed he had tried to locate the Barkers prior to closing his office, but was unable to do so due to the fact that he had no mailing address for them. Ireland stated he would return the clients’ materials if given a current address. The respondent also asked for more time to retrieve the documents requested by the Board.

Subsequent requests by the Board produced a final billing statement that was never received by Dale or Pauline Barker, but the respondent did not produce the trust account statements sought by the Board. The respondent did, however, provide copies of the drafts of the living trusts he claimed to have prepared for the Barkers.

On January 24, 2007, the Board filed a complaint against the respondent with the Grievance Commission, claiming various violations of the Iowa Rules of Professional Responsibility. The Board asserted Ireland’s failure to take action on the Barker estate violated DR 6-101(A)(3) (neglect), DR 7-101(A)(l) (failing to meet lawful objectives of client), and DR 1-102(A)(5) and (6) (prohibiting conduct prejudicial to the administration of justice and conduct that adversely reflects on the fitness to practice law). The Board alleged Ireland’s failure to return the Barkers’ documents violated DR 2 — 110(A)(2) (lawyer shall not withdraw until reasonable steps have been taken, including delivery of client’s papers and property to the client) and DR 9-102(B)(4) (lawyer shall promptly deliver to client property that client is entitled to receive). It also asserted the respondent’s failure to fully cooperate with the Board violated DR 1-102(A)(5) and (6). Finally, the Board alleged Ireland’s failure to provide his clients with an accounting of the advance fee payments and failure to promptly return funds they were entitled to receive was a violation of DR 9 — 102(B)(3) and (4) (lawyer shall maintain records of all funds of the client coming into lawyer’s possession and render appropriate accounting and promptly pay or deliver to the client funds the client is entitled to receive).

A hearing before a panel of the Grievance Commission was held on October 12, 2007. Dale Barker testified to the circumstances surrounding the respondent’s retention to handle his father’s estate. He testified that after a couple of meetings with the respondent, a retainer of $1000 was written on his mother’s account. The check contained the address of the residence that both Barkers had resided at for years and where Pauline Barker had resided for over sixty years. When Barker diseovered Ireland had closed his office, Barker left numerous messages on the respondent’s answering machine, all of which were unreturned. He also sent a certified letter asking the respondent to return his papers and the retainer. Barker received a signed return receipt for the letter but nothing else. The respondent, Barker testified, kept his mother’s $1000 retainer without conferring any benefit on them and without providing any accounting for the funds received.

Ireland did not attend the hearing. Now living in Missouri, the respondent advised the Commission by letter that he did not have the funds to travel to Des Moines and had no intention of returning to Iowa to practice law. He maintained, however, that he did not misuse the retainer and completed the matter that he was hired to do — prepare living trusts.

The Commission found the Board had met its burden of proving the violations alleged in the complaint. Specifically, the Commission found Ireland had accepted employment to probate Leland Barker’s estate and then did nothing to achieve this end. He accepted a $1000 retainer, but never made any accounting to his clients. Moreover, the Commission concluded, there was no credible evidence in the record that showed Ireland did anything that would allow him to keep any fee. In addition, he failed to return the clients’ papers upon request as he was required to do. Finally, Ireland abandoned his clients after getting their money and then failed to cooperate with the Board’s requests for information.

In considering the appropriate sanction, the Board found several aggravating circumstances, including prior disciplinary actions and a current suspension. In addition, the Commission found Ireland evasive and untruthful with the Board in its investigation of the matter. Based upon these findings, the Commission recommended Ireland’s law license be suspended for two years. Prior to reinstatement, the Commission recommended the respondent be required to provide proof that all client property and the $1000 retainer had been returned to Barker.

III. Ethical Violations.

The evidence established that Ireland completely failed to perform the legal work he had contracted to do, a violation of Iowa Code of Professional Responsibility DR 6-101(A)(3) (“a lawyer shall not neglect a client’s legal matter”). See Gottschalk, 729 N.W.2d at 817 (stating neglect often involves a lawyer doing little or nothing to advance the interests of his client); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Moorman, 688 N.W.2d 549, 551 (Iowa 2004) (stating professional neglect involves failure to perform those obligations that a lawyer has assumed). Such action constitutes not only a disservice to the client, but is also conduct prejudicial to the administration of justice and conduct that reflects adversely on the fitness to practice law. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Kirlin, 741 N.W.2d 813, 817 (Iowa 2007); Iowa Code Prof'l Responsibility DR 1-102(A)(5), (6).

Ireland’s abandonment of his client, prior to performing the contracted legal services, also resulted in his failure to meet the lawful objectives of his client, a violation of DR 7-101(A)(l). This neglect and abandonment were compounded by the fact Ireland made no attempt to notify his clients of his withdrawal or to return their paperwork or retainer to them. Contrary to his assertions, the evidence established Ireland made no effort to contact the Barkers, whose address had been unchanged for years. Despite the Board’s repeated requests, the respondent failed to provide his clients with a final billing or the Board with an accounting of the trust fund disbursement. Thus, the Board has established by a convincing preponderance of the evidence violations of DR 2-110(A)(2) (lawyer shall not withdraw until reasonable steps have been taken, including delivery of client’s papers and property to the client) and DR 9-102(B)(3) and (4) (requiring lawyer to maintain records and render appropriate accounting and promptly deliver funds and property the client is entitled to receive). Finally, Ireland’s failure to fully cooperate with the Board also constituted conduct prejudicial to the administration of justice and reflected adversely on his fitness to practice law in violation of DR 1-102(A)(5) and (6). See Iowa Supreme Ct. Att’y Disciplinary Bd. v. McCarthy, 722 N.W.2d 199, 205 (Iowa 2006).

IV. Sanction.

In fashioning an appropriate sanction, we consider the nature of the violations, the attorney’s fitness to continue in the practice of law, the protection of society from those unfit to practice law, the need to uphold public confidence in the justice system, deterrence, maintenance of the reputation of the bar as a whole, and any aggravating or mitigating circumstances. Id. The specific facts and circumstances of each individual case determine the form and extent of a disciplinary sanction. Id. “Often, the distinction between the punishment imposed depends upon the existence of multiple instances of neglect, past disciplinary problems, and other companion violations.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 104 (Iowa 2006).

The sanction for neglect of client legal matters generally ranges from a public reprimand to a six-month suspension. Gottschalk, 729 N.W.2d at 821. Harm resulting to the client and multiple incidents of neglect are considered aggravating circumstances warranting a more serious sanction. Id. Misrepresentations and past disciplinary history are also factors that warrant a more serious discipline than simple neglect. Id.

In this case, the Barkers were harmed by the respondent’s failure to return the unearned retainer. Moreover, the respondent’s continued assertions that he was not hired to probate the estate have been shown to be false by the testimony presented in this case, and these misrepresentations to the Board and the Commission constitute further aggravating circumstances.

In addition, the evidence establishes the respondent has had prior disciplinary sanctions including a private admonition in July 2002 and a public reprimand in December 2002 relating to incidents of neglect. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Ireland, 723 N.W.2d 439, 440 (Iowa 2006). More recently, in 2006, Ireland’s license to practice law was suspended for not less than three months for two complaints based upon neglect. Id. at 441-42. The neglect of the Barker matter occurred in 2002, prior to this court’s suspension of the respondent’s license in 2006. The underlying neglect, by itself, demonstrates the same pattern of conduct found in the prior disciplinary case, thereby arguably warranting only an additional public reprimand. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Moorman, 729 N.W.2d 801, 806 (Iowa 2007) (similar violations occurred during same time frame as prior acts resulting in suspension; reprimand warranted). However, additional violations, including the respondent’s failure to cooperate with the Board, misrepresentations to the Board, and failure to return clients’ papers and funds, constitute additional aggravating factors. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. D’Angelo, 710 N.W.2d 226, 233-36 (Iowa 2006).

Ireland has indicated he has no plans to resume the practice of law, thereby making suspension perhaps unnecessary for the protection of the public or for deterrence. However, given the aforementioned aggravating circumstances, an additional suspension is consistent with promoting public confidence in the justice system and maintenance of the reputation of the bar as a whole. The commission recommends we suspend Ireland’s license to practice law for two years. While we agree that Ireland’s misconduct is serious, we conclude that a less severe sanction is warranted under the specific facts of this case. Accordingly, we conclude a six-month suspension of Ireland’s license to practice law is an appropriate sanction.

Y. Conclusion.

We suspend Ireland’s license to practice law with no possibility of reinstatement for at least six months from the date of the filing of this opinion. This suspension shah apply to all facets of the practice of law. Iowa Ct. R. 35.12(3).

Upon any apphcation for reinstatement, the respondent shall have the burden to show he has not practiced law during the period of suspension and that he meets the requirements of Iowa Court Rule 35.13. In addition, as a condition to any reinstatement, the respondent shall satisfy this court that all client property has been returned to Dale Barker and that the respondent has repaid the $1000 retainer that was paid to him by the Barkers. Costs are taxed to the respondent pursuant to Iowa Court Rule 35.25(1).

LICENSE SUSPENDED.

      . Pauline Barker died prior to the Commission's hearing.