author: TERNUS, Justice.

text:
    Thomas Joseph STECKLEIN and Mary Beth Stecklein, Appellees, v. CITY OF CASCADE, Appellant.
    No. 03-0904.
    Supreme Court of Iowa.
    March 4, 2005.

      Michael J. Coyle and Norman J. Wang-berg of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., Dubuque, for appellant.
    Joseph J. Bitter of Bitter Law Offices, Dubuque, for appellees.
   TERNUS, Justice.

The City of Cascade appeals from a district court judgment quieting title to certain platted, but unopened, streets in the appellees, Thomas and Mary Beth Stecklein. The district court ruled the city had an easement to use and maintain roads through the Steckleins’ property but lost that right by the Steckleins’ adverse possession and through the operation of Iowa’s forty-year marketable title statute, Iowa Code section 614.31 (2001). Upon our review of the record and the governing legal principles, we conclude the city holds fee title to the disputed land. Therefore, we reverse the district court’s judgment quieting title in the Steckleins, and remand for entry of judgment in favor of the city.

I. Scope of Review.

Our review of the court’s ruling in this quiet title action is de novo. Fend v. City of Harpers Ferry, 620 N.W.2d 808, 811 (Iowa 2000). Accordingly, we will examine the facts and the law to decide anew the issues properly presented. Id. Although we give weight to the trial court’s fact findings, neither the court’s findings of fact nor its conclusions of law are binding. Id.

II. Factual Background.

In 1857, a county judge accepted for recording a plat of land containing the disputed streets, titled “Second Union Addition to the Village of East Cascade, Du-buque County, Iowa.” At that time, unincorporated, platted real estate was known as a village. See Iowa Code §§ 632, 649 (1851). Although the Village of East Cascade was never incorporated, the City of Cascade was incorporated on December 31, 1880, and its boundaries included the Second Union Addition. At that time the Second Union Addition was located in the southeastern corner of the city limits and, although platted as blocks, lots, and streets, was used for farming.

There is no record of a formal ordinance or resolution of the city accepting the streets designated in the Second Union Addition. Nonetheless, in 1905 the city passed an ordinance establishing the grades of certain streets, including two of the streets found in the Second Union Addition. In the 1930s or early 1940s a house (now owned and occupied by the Steckleins) was built on block 34 of the Second Union Addition; it did not encroach on any of the platted streets. At some point in time an access road to the house developed on a platted, but unopened street designated as South Street.

In 1966 the city adopted an ordinance changing the names of certain streets within the Second Union Addition, including changing South Street to Sixth Avenue. In addition, for a number of years, the exact dates unknown, the city utility owned a gas main located in Sixth Avenue S.E. in the Second Union Addition. In 1988 the city vacated a portion of Washington Street within the Second Union Addition. The city council allowed the abutting property owners to purchase the property, but retained a utility easement over a portion of the vacated land.

In June 1990 the Steckleins purchased the following described real estate, located in Cascade, Iowa, from Catherine Schmidt:

Lots 5, 6, 7, 8, of Block 33; Block 34; Block 35; Block 40; Block 41; Block 42; Block 43; in the Second Union Addition to the Village of East Cascade, Dubuque County, Iowa. All in the City of East Cascade, Iowa, according to the recorded plat thereof subject to easements of record.

This description, contained in the Steck-leins’ warranty deed, did not include the platted streets. At the time the Steckleins purchased this property it was enclosed by a thirty to forty-year-old fence. In addition, there were some very old internal fences on the property, some of which crossed the platted streets. There was no visible use of any of the platted streets within the perimeter fence, other than the gravel road leading to the house.

In 1993, the city paved Adams Street, which abuts the Steckleins’ property on the west. The city also installed radii curbs on the east side of Adams Street at Sixth Avenue S.E. and Seventh Avenue S.E. in anticipation of these proposed perpendicular streets intersecting Adams at some time in the future. In addition, the city required the developer of a subdivision to the south and east of Second Union Addition to install a sewer adequate to handle future development on Sixth, Seventh, Eighth, and Washington, which are streets running through the Second Union Addition.

In 1994, the Steckleins obtained an appraisal of their property. The appraisal stated it was for the purpose of establishing a fair market value “for the property as a whole,” but included a market analysis for eight lots in blocks 34 and 41 platted for residential purposes. This appraisal referenced “future proposed streets” in its discussion of the value and suitability of these lots for development purposes. The appraisal noted the lots were too small by today’s standard, and their value was also negatively affected by the fact “the proposed streets will have to be paid for by the developer with no help from city-funds.” In 1998, upon the advice of their attorney, the Steckleins obtained a quit claim deed from Catherine Schmidt of all her rights in “the unused and abutting streets” relating to the lots designated in the Second Union Addition.

On August 13, 2001, the issue of opening and improving Sixth Avenue S.E. came before the city council. On August 15, 2001, the Steckleins filed an affidavit of possession, claiming record title to all of the blocks and lots contained in their warranty deed from Schmidt and “that part of the unused and fenced in abutting streets, all according to the recorded plats thereof.”

It is undisputed the Steckleins have never paid taxes on the streets. Although the Steckleins planted trees on the property when they removed the old perimeter fence, they did not plant trees along the line where proposed Sixth and Seventh Avenues would intersect Adams Street. The Steckleins graded the gravel access road at some point in time, but the city has otherwise maintained the road, putting down gravel and removing snow. Originally garbage and recycling materials were picked up in front of the Steckleins’ house on the Sixth Avenue access road, but after the city’s notice of intent to improve Sixth Avenue, the Steckleins began placing their garbage and recycling items at the intersection of Adams and Sixth Avenue. No buildings or structures have been erected in any of the proposed streets.

III. Prior Proceedings.

On March 25, 2002, the Steckleins filed an action in equity to quiet title to the platted, but unopened, streets in the Second Union Addition and to prevent the city from entering thereon. In its answer, the city denied the Steckleins owned the disputed land. The matter was tried to the court, which issued a ruling in favor of the plaintiffs. The district court determined the city had only an easement in the streets, which it lost through its failure to exercise its rights for over 120 years. The court reasoned that the city’s failure to open the streets, coupled with the continuous farming of the land and the enclosure of the disputed property with fences, supported a finding of abandonment and adverse possession sufficient to extinguish the city’s right to the platted streets. The court also found merit in the plaintiffs’ argument that the city was divested of its easement by Iowa Code section 614.31 because the city had failed to take any action or file any documentation of its interest in the land for over forty years. The district court rejected the plaintiffs’ assertion the city was equitably estopped from asserting its rights in the disputed property. Based on its finding of adverse possession and the effect of section 614.31, the court quieted title to the disputed property in the Steckleins.

After the trial court denied the city’s post-trial motions, the city filed this appeal. It claims the court erred in three particulars: (1) in holding the city had only an easement in the streets and not fee title; (2) in holding the plaintiffs acquired title by adverse possession; and (3) in holding the marketable title statute divested the city of its interest in the property.

IV. Nature of City’s Interest in Land.

We begin our consideration of this appeal with an analysis of the city’s claimed interest in the disputed streets. The city contends it holds title in fee to the platted streets, whereas the plaintiffs assert the city held a mere easement. To determine the nature of the city’s interest, it is necessary to examine the statutes in effect at the time the plat at issue was recorded in 1857.

Chapter 41 of the 1851 Iowa Code set out the requirements for a proprietor of land to lay out a village plat and make a dedication of land for public use. See Iowa Code §§ 632-635 (1851). Because there is no dispute that the Second Union Addition plat conformed to the statutory requirements, we turn our attention to the provisions governing recording and dedication of the plat:

Sec. 636. Recorded. The plat and ac-knowledgement shall then be presented to the county judge, who if satisfied that the above requirements have been fully complied with shall enter thereon an order that the whole be recorded.
Sec. 637. Dedication to public. The acknowledgement and recording of such plat is equivalent to a deed in fee simple of such portion of the land as is therein set apart for public use....

Iowa Code §§ 636-637 (1851). The record clearly establishes a county judge ordered that the plat be recorded. Although section 637 provided that the court’s action was equivalent to a deed in fee simple, the City of Cascade did not exist in 1857. The plaintiffs argue the public obtained a mere easement when the plat was recorded, and the city succeeded to this interest when it later incorporated.

This court has said that the filing of a plat dedicating a road in a village conveys to the general public, prior to acceptance by an incorporated town, a mere easement to use the dedicated tract for public purposes. See Town of Kenwood Park v. Leonard, 177 Iowa 337, 342, 158 N.W. 655, 658 (1916). But upon the incorporation of a city and its acceptance of a plat, village streets become streets of the incorporated town. See Kelroy v. City of Clear Lake, 232 Iowa 161,164, 5 N.W.2d 12, 16 (1942); Inc. Town of Ackley v. Cent. States Elec. Co., 206 Iowa 533, 536, 220 N.W. 315, 316 (1928). Moreover, the streets are held by the incorporated city in fee simple. See Kelroy, 232 Iowa at 164, 5 N.W.2d at 16. In Kelroy, a plat of the Village of Clear Lake dedicating certain property to the public for use as streets was recorded in 1856. Id. at 164, 5 N.W.2d at 14. The Village of Clear Lake was incorporated in 1871, and the city by ordinance accepted the streets. Id. at 164, 5 N.W.2d at 15. We held the City of Clear Lake held fee simple title to the streets set out in the plat. Id. at 164, 5 N.W.2d at 16. Our decision in Kelroy controls here: the City of Cascade acquired title in fee to the streets dedicated in the Second Union Addition plat upon its incorporation and acceptance of the plat.

The plaintiffs claim, though, that the City of Cascade never accepted the plat and therefore did not acquire title. Acceptance of a dedication may be by formal action, public use, or implied from “ ‘some act which unequivocally shows an intent to assume jurisdiction over the thing dedicated.’ ” The Sons of the Union Veterans of the Civil War v. Griswold Am. Legion Post 508, 641 N.W.2d 729, 734 (Iowa 2002) (citations omitted). In an early case, this court held a city’s act of including an addition in its corporate limits was adequate acceptance so as to pass fee title in the streets to the city by operation of law. City of Des Moines v. Hall, 24 Iowa 234, 242-43 (1868); accord 23 Am. Jur.2d Dedication § 47, at 42 (2002) (stating “[fjormal acceptance may consist of ... an act of ... incorporating a town, or adopting a map showing its limits”). The record here establishes the city’s acceptance of the streets dedicated in the Second Union Addition in a similar manner. As noted earlier, the Second Union Addition was included in the city limits of the City of Cascade. This act was sufficient acceptance so as to pass title to the streets to the city.

The plaintiffs also make much of the fact that the city was not incorporated until twenty-three years after the plat was recorded, implying that after twenty-three years of nonuse it was too late for the city to acquire an interest in the platted streets. We disagree. The recording of the plat was a tender of those portions of the land set aside as streets. Burroughs v. City of Cherokee, 134 Iowa 429, 482-33, 109 N.W. 876, 878 (1906). This tender continues “until something has been done to indicate to the public that the tender has been definitely and permanently withdrawn.” Town of Kenwood Park, 177 Iowa at 343, 158 N.W. at 659. There is no proof in the record before us that the prior owners of the platted land in Second Union Addition withdrew their tender in the twenty-three years prior to the incorporation of the City of Cascade. The mere passage of time did not prevent the city from accepting the tender of the public streets when it was incorporated in 1880. We now consider whether the facts and circumstances since the city’s incorporation have served to divest the city of title.

V. Adverse Possession/Equitable Es-toppel.

As stated above, the district court rejected the plaintiffs’ equitable es-toppel claim, but held the plaintiffs had acquired title to the streets under the doctrine of adverse possession. “It has long been the rule in Iowa that the doctrine of adverse possession does not apply to governmental entities.” Fencl, 620 N.W.2d at 816 n. 5. Thus, proof of adverse possession alone will not defeat a city’s interest in land. Consequently, the district court’s judgment cannot be affirmed upon a theory of adverse possession.

We turn, then, to the plaintiffs’ alternative claim of equitable estoppel. The species of equitable estoppel required to establish title to property claimed adversely to a governmental entity includes three elements: (1) “conduct on the part of the city indicating an abandonment of its interest,” including actual nonuse for more than ten years; (2) “a claim of ownership through adverse possession”; and (3) unfair damage to the claimant if the city were permitted to assert its interest. Id. at 816. While we have serious doubts that any of these elements are established by the record before us, we limit our discussion to the first requirement — abandonment.

The plaintiffs rely on this court’s decision in Brewer v. Claypool, 223 Iowa 1235, 275 N.W. 34 (1937), for the proposition that when “private rights have been acquired by adverse possession, an abandonment may be presumed.” 223 Iowa at 1238, 275 N.W. at 35. If this statement was ever an accurate announcement of Iowa law, it is no longer. We have held in a long line of cases since Brewer that “[i]n order to prove abandonment, actual acts of relinquishment accompanied by an intention to abandon must be shown.” Allamakee County v. Collins Trust, 599 N.W.2d 448, 451 (Iowa 1999); accord City of Marquette v. Gaede, 672 N.W.2d 829, 834 (Iowa 2003); Marksbury v. State, 322 N.W.2d 281, 286-87 (Iowa 1982); Town of Marne v. Goeken, 259 Iowa 1375, 1382, 147 N.W.2d 218, 224 (1966). “Mere nonuse is not enough.” Fencl, 620 N.W.2d at 816; accord Kelroy, 232 Iowa at 168, 5 N.W.2d at 17 (“mere non-user will not of itself defeat the public title to a street”); Kuehl v. Town of Bettendorf, 179 Iowa 1, 9, 161 N.W. 28, 32 (1917) (same). Thus, the failure of a small town to improve a street “before public convenience requires it, will not amount to either an abandonment or an estoppel.” Kuehl, 179 Iowa at 9, 161 N.W. at 31; accord Wolfe v. Kemler, 228 Iowa 738, 740, 293 N.W. 322, 325 (1940) (noting that not “ ‘all the streets shown upon [a] plat will be immediately opened and used,’ ” and that it might be many years before future growth and development requires that the platted streets be opened and improved (citation omitted)); McClenehan v. Town of Jesup, 144 Iowa 352, 357, 120 N.W. 74, 76 (1909) (stating “to create [an] estoppel something more must be shown than a failure to demand the opening of the public way before the growth or expansion of the town has made such demand reasonably necessary”).

Upon our review of the record, we find no affirmative evidence of the city’s intent to abandon the streets dedicated in the Second Union Addition. To the contrary, the city’s actions over the years, while intermittent, were always consistent with its claim of ownership of the streets. These actions included the city’s specification of the grade of the streets, its renaming of the streets, its vacation of a portion of one street, its maintenance of the gravel road, its delivery of garbage and recycling service over the gravel road, and its construction of Adams Street with radii curbs to facilitate connection with the Second Union Addition streets. The plaintiffs, having failed to prove abandonment, cannot rely on the doctrine of equitable estop-pel to support their claim of ownership.

VI. Marketable Title Act.

The district court held the plaintiffs had established their title to the property under Iowa Code section 614.31 (2001). That statute provides in pertinent part:

Any person who has an unbroken chain of title of record to any interest in land for forty years or more, shall be deemed to have a marketable record title to such interest as defined in section 614.29, subject only to [matters not relevant here].

Iowa Code § 614.31. This statute has no application here because the plaintiffs cannot show “an unbroken chain of title of record” to the platted streets. The record discloses no conveyance or title transaction in the plaintiffs’ chain of title that includes the streets of the Second Union Addition. In fact, the plaintiffs’ own deed clearly conveyed only the blocks and lots in the addition, not the streets. See City of Marquette, 672 N.W.2d at 835 (rejecting claim based on marketable title act in part because recorded deed upon which claimants relied did not include disputed property). Schmidt’s subsequent quit claim deed which purported to convey her interest in the streets to the plaintiffs was ineffectual as she had no interest in the streets to convey. See McClenehan, 144 Iowa at 358-59, 120 N.W. at 76 (holding quitclaim deeds by grantors did not strengthen the plaintiffs claim to disputed property where grantors only had title to property as lots and not to streets and alleys). The trial court erred in concluding section 614.31 gave the plaintiffs marketable record title to the disputed property.

VII. Summary and Disposition.

The city’s inclusion of the Second Union Addition plat within the city limits vested fee simple title to the dedicated streets in the city. There is no evidence the city thereafter intended to abandon its interest in the streets. Therefore, the city is not equitably estopped from asserting its ownership interest in this lawsuit. In addition, the plaintiffs have failed to establish marketable title under Iowa Code section 614.31 because they do not have an unbroken chain of record title to the streets. The trial court erred in quieting title in the disputed tracts of land in the plaintiffs. Therefore, we reverse and remand for entry of judgment in favor of the city.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    Jason Michael LEE, Appellee, v. IOWA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Appellant.
    No. 04-0565.
    Supreme Court of Iowa.
    March 4, 2005.

      Thomas J. Miller, Attorney General, and John W. Baty, Assistant Attorney General, for appellant.
    Stephen D. Marso of Whitfield <& Eddy, P.L.C., West Des Moines, for appellee.
   STREIT, Justice.

Criminal and administrative proceedings are independent of one another, and a favorable outcome in one does not guarantee the same outcome in the other. Sitting in its judicial review capacity, the district court cut in half the revocation time of Jason Lee’s driver’s license because Lee received a deferred judgment in a related criminal matter. We reverse this ruling.

I. Facts and Prior Proceedings

On July 17, 2003, an Ankeny police officer stopped Jason Lee for speeding. According to the officer, Lee had a strong odor of alcohol, blood-shot eyes, and slurred speech. Lee stated he was on his way home from The Lumber Yard, a local strip club, and had drunk four or five beers. Lee failed three field sobriety tests and a preliminary breath test. The officer arrested Lee for first-offense drunk driving. At the police station, the officer administered another breath test to Lee. The testing device indicated alcohol concentrations of .155 and .156, nearly twice the legal limit. See Iowa Code § 321J.2(1)(6) (Supp.2003) (legal limit .08 alcohol concentration). The test had a five-percent margin of error.

Two separate and distinct proceedings were instituted against Lee. Pursuant to Iowa Code section 321J.2, the State of Iowa prosecuted Lee for drunk driving. Simultaneously, the Iowa Department of Transportation (IDOT) brought civil administrative proceedings against Lee under Iowa Code section 321J.12 to revoke his driver’s license for failing the breath test.

The administrative matter began on July 30, 2003, when IDOT notified Lee that it would revoke his license for 180 days for failing the breath test. The revocation would begin on August 14, 2003 unless Lee appealed. Lee filed a timely appeal with IDOT, and the Iowa Department of Inspections and Appeals scheduled a hearing on the administrative revocation for September 22, 2003. IDOT stayed the administrative revocation pending Lee’s appeal.

Four days before the scheduled hearing on Lee’s administrative appeal, Lee pled guilty in his criminal matter. As part of an agreement with the county attorney, Lee received a deferred judgment on the condition he undergo a substance abuse evaluation, complete a two-day drunk drivers’ course, and give $1000 to a local charity. The parties also stipulated that Lee’s alcohol concentration was “more than .100 but less than .150.” Although not part of the stipulation, Lee had submitted an affidavit from an expert who concluded, without articulating why, “Lee’s blood alcohol level was below .150 at the time he was stopped.... ”

Although Lee’s criminal troubles apparently ended with his deferred judgment, on September 22, 2003, the administrative proceedings continued. The Department of Inspections and Appeals held a hearing on Lee’s appeal of IDOT’s 180-day revocation for failing the breath test. The administrative law judge found Lee “submitted to [a] breath test with an alcohol concentration of .156” and upheld the revocation under Iowa Code section 321J.12. Lee filed an intra-agency appeal, and IDOT once again stayed his revocation.

The reviewing officer affirmed. In addition to upholding the 180-day revocation, the reviewing officer ruled Lee was not eligible for a temporary restricted license until thirty days of the revocation had passed. See id. § 321J.12(2).

Lee filed a petition for judicial review in the district court, and the district court stayed the revocation. The court reversed in part and affirmed in part. The court held that because Lee received a deferred judgment in his criminal matter, IDOT could only revoke Lee’s license for a maximum of ninety days in the administrative proceedings. The court affirmed on the temporary-restricted-license issue.

IDOT appealed the length-of-revocation ruling and Lee cross-appealed the temporary-restricted-license ruling. We stayed the revocation pending our decision.

II. Principles of Review

Judicial review of an action of the department of transportation is brought in the district court pursuant to Iowa Code chapter 17A, the Iowa Administrative Procedure Act. See id. § 321J.14 (2003). On appeal, we apply the standards of chapter 17A to determine whether the conclusions we reach are the same as those of the district court. Mycogen Seeds v. Sands, 686 N.W.2d 457, 464 (Iowa 2004). If they are the same, we affirm; otherwise we may reverse. See id.; see also Iowa Code § 17A.19(10).

This case involves the agency’s interpretation of several statutes. Reversal may be warranted where “substantial rights ... have been prejudiced because the agency action is ... [bjased upon an erroneous interpretation of a provision of law whose interpretation has not clearly been vested by a provision of law in the discretion of the agency.” Iowa Code § 17A.19(10)(c); see, e.g., Mycogen Seeds, 686 N.W.2d at 464. On this count, then, we “need not give the agency any deference regarding its interpretation and are free to substitute our judgment de novo for the agency’s interpretation.” Mycogen Seeds, 686 N.W.2d at 464.

In an administrative proceeding, Lee bears the burden to prove why his license should not be revoked. Pointer v. Iowa Dep’t of Transp., 546 N.W.2d 623, 625 (Iowa 1996).

III. The Merits

Like the district court below, we determine there are two issues for our review in this case. (Lee reframes matters as involving ten issues, but we do not.) The first issue concerns the length of Lee’s revocation. The second issue is whether Lee is immediately eligible for a temporary restricted license.

A. Period of Revocation

This civil administrative proceeding was brought pursuant to Iowa Code section 321J.12 because Lee failed a breath test. The relevant portion of that statute states:

1. Upon certification, subject to penalty for perjury, by the peace officer that there existed reasonable grounds to believe that the person had been operating a motor vehicle in violation of section 321 J.2, that there existed one or more of the necessary conditions for chemical testing described in section 321J.6, subsection 1, and that the person submitted to chemical testing and the test results indicated ... an alcohol concentration equal to or in excess of the level prohibited by section 321J.2 [(.08)], ... the department shall revoke the person’s driver’s license ... for the following periods of time:
a. One hundred eighty days if the person has had no revocation under this chapter.

Iowa Code § 321J.12 (Supp.2003). The administrative law judge in this case found all elements of this civil statute were met and upheld revocation of Lee’s license for 180 days.

In reversing, the district court looked to Iowa Code section 321J.4(3), which provides:

If the court defers judgment pursuant to section 907.3 for a violation of section 321J.2, and if the defendant’s driver’s license ... has not been revoked under section 321J.9 or 321J.12, or has not otherwise been revoked for the occurrence from which the arrest arose, the department shall revoke the defendant’s driver’s license ... for a period of not less than thirty days nor more than ninety days.

Id. § 321J.4(3). The district court, apparently finding Iowa Code section 321J.4(3) more specifically applied to the facts of this case, reduced the period of Lee’s revocation in this administrative matter to ninety days.

Iowa Code sections 321J.4 and 321J.12 are, at a fundamental level, different statutes in purpose, nature, and consequence. As we stated fifteen years ago in Johnson v. Iowa Department of Transportation,

There are three basic methods by which an operator’s license may be suspended in Iowa when an individual is arrested for driving while intoxicated. The first of these ... is based upon failure of a chemical test at the time of arrest. Iowa Code § 321J.12 (1987). The second means by which a suspension may be incurred involves a refusal to take a chemical test by the operator. Iowa Code § 321J.9 (1987). In both of these cases revocation is the result of administrative action taken by [IDOT] pursuant to chapter 17A of the Code. A final means by which revocation may be imposed is as the result of a conviction for driving while intoxicated. Iowa Code § 321J.4 (1987). While this revocation too is an administrative action taken by [IDOT], it is based upon a conviction for the offense in a court of law.

446 N.W.2d 778, 779-80 (Iowa 1989). Although Lee’s criminal troubles arose from the same set of facts as this administrative proceeding, the two statutes at issue in this case — Iowa Code sections 321J.4 and 321J.12 — are distinct and generally proceed independently of one another. See Iowa Dep’t of Transp. v. Iowa Dist. Ct., 670 N.W.2d 114, 118 (Iowa 2003); Heidemann v. Sweitzer, 375 N.W.2d 665, 668 (Iowa 1985); Severson v. Sueppel, 260 Iowa 1169, 1176, 152 N.W.2d 281, 285 (1967); Gottschalk v. Sueppel, 258 Iowa 1173, 1180, 140 N.W.2d 866, 870 (1966). But see Iowa Code § 321J.13(6)(5)-(c) (2003) (mandating that certain trial court rulings are binding in administrative proceedings). IDOT’s original notice of revocation to Lee clearly indicated the present matter was an administrative proceeding under Iowa Code section 321J.12. See Iowa Code § 321 J.13(1) (requiring notice).

The legislature has limited the issues in this administrative proceeding. Id. § 321J.13(2). Here the only issues properly before the agency were (1) whether the police officer had reasonable grounds to believe Lee was driving drunk, (2) whether a breath test was administered, and (3) whether that test indicated an alcohol concentration greater than or equal to .08. See id. Whether Lee was operating a motor vehicle while intoxicated was not an issue in this administrative matter. Cf. Saunders v. Comm’r of Pub. Safety, 226 N.W.2d 19, 22 (Iowa 1975).

That Lee received a deferred judgment in his criminal matter does not preclude IDOT from seeking a 180-day revocation for Lee’s breath test failure. “The outcome of any criminal prosecution is of no consequence in this civil proceeding although they may arise out of the same motor vehicle operation.” Shellady v. Sellers, 208 N.W.2d 12, 14 (Iowa 1973). Even though Lee’s deferred judgment limits the period of the revocation imposed for his criminal matter to ninety days, IDOT may administratively revoke Lee’s license for 180 days for failing the breath test. This proceeding was brought as an administrative matter pursuant to Iowa Code section 321J.12, and no provision in that statute permits a court to reduce the period of that revocation to ninety days upon evidence the driver received a deferred judgment in a related criminal matter. The district court erred when it ruled otherwise. We reverse the district court and reinstate the agency’s 180-day revocation of Lee’s driver’s license.

B. Eligibility for a Temporary Restricted License

Iowa Code section 321 J.12 states:

A defendant whose alcohol concentration is more than .10 shall not be eligible for any temporary restricted license for at least thirty days if a test was obtained and ... the defendant’s alcohol concentration exceeded .15.

Iowa Code § 321J.12(2)(6) (Supp.2003). In a cross-appeal, Lee contends this bar on a temporary restricted license should not apply because his alcohol concentration was, in fact, less than .15 at the time he was driving.

Lee’s argument may be broken down into its legal and factual parts. In his legal argument, Lee contends the “alcohol concentration” referred to in Iowa Code section 321J.12(2)(6) concerns his condition at the time he was driving, not at the time he took the breath test. In support of this claim, Lee argues the so-called “relation-back” provision of the drunk driving criminal statute, see Iowa Code section 321J.2(8)(u), should apply in this administrative proceeding. In his factual argument, Lee points to the opinion of his expert witness, the stipulation of the parties, in his criminal case, the margin of error of the breath test machine, and an inadmissible preliminary breath test result taken at the scene of the stop. Lee posits this evidence proves his alcohol concentration was, in fact, less than .15 at the time he was driving.

1. Legal Claim

The agency concluded Iowa Code section 321J.12 does not require IDOT to prove Lee’s alcohol concentration at the time he was driving. On appeal, Lee contends it is absurd to think the legislature in devising a driver’s license revocation statute would care what his alcohol concentration was at any other time than when he was driving. Lee posits section 321J.2(8), the so-called “relation-back provision” of the OWI statute, should apply in this administrative proceeding.

Although there is a blush of logic in. Lee’s argument, it once again conflates criminal and administrative proceedings. By its own terms, section 321J.2(8) only applies to “any prosecution under this section,” i.e., criminal proceedings brought under section 321J.2. Section 321J.12, on the other hand, does not contain any language requiring IDOT to prove the licensee’s alcohol concentration at the time of driving. That is, unlike Iowa Code section 321J.2, a criminal statute directed at drunk driving, Iowa Code section 321J.12, an administrative statute directed at chemical-test failure, does not contain a “relation-back” provision like section 321J.2(8). Legislative intent is expressed by omission as well as by inclusion, and we decline to write such a provision into section 321J.12. Wiebenga v. Iowa Dep’t of Transp., 530 N.W.2d 732, 735 (Iowa 1995). Although under the implied consent doctrine the test must be administered within two hours of driving, nothing in the statute requires IDOT to show the driver’s alcohol concentration exceeded .15 at the time of vehicle operation. Cf. Saunders, 226 N.W.2d at 22 (“The question of whether plaintiff was in fact operating a motor vehicle while under the influence of an alcoholic beverage ... is not an issue in this civil proceeding. ...”). To the contrary, the legislature has expressly indicated these administrative proceedings should be limited to, inter alia, whether the defendant took the test and whether those test results indicated an alcohol concentration in excess of the legal limit. See Iowa Code § 321J.13(2)(&) (2003). In considering Lee’s legal claim, the reviewing officer correctly concluded Iowa Code section 321J.12 does not require IDOT to prove Lee’s alcohol concentration at the time he was driving.

2. Factual Claim

On appeal, Lee argues there is not substantial evidence to show he had an alcohol concentration greater than .15 at the time he was driving. As indicated, however, the issue in this administrative hearing is whether his alcohol concentration exceeded .15 at the time of the test. Accordingly, we do not reach Lee’s factual claim. The agency’s finding that Lee’s alcohol concentration exceeded .15 at the time of the test stands, and we affirm on the temporary restricted license issue.

We have considered all other arguments Lee presents and find them insufficiently preserved, lacking merit, or necessarily resolved in the foregoing analysis. We specifically point out, however, that our decision in Pietig v. Iowa Department of Transportation, 385 N.W.2d 251 (Iowa 1986), which Lee briefs extensively, is inapposite. Pietig is irrelevant to our disposition of this case because it merely judicially defined “revocation” as “the termination of the licensee’s authority to drive.” 385 N.W.2d at 253. Implicitly premised upon the differences between administrative and criminal proceedings, Pietig held that an administrative revocation that was never implemented did not preclude a later criminal revocation. 385 N.W.2d at 251-54.

IV. Conclusion

We reverse on IDOT’s appeal and affirm on Lee’s cross-appeal. We rescind the previously granted stay of Lee’s revocation. We remand to the district court for an order affirming IDOT’s revocation of Lee’s license for 180 days with no possibility of a temporary restricted license until thirty days after the revocation has commenced.

DISTRICT COURT JUDGMENT REVERSED ON APPEAL; AFFIRMED ON CROSS-APPEAL; REMANDED WITH INSTRUCTIONS.

All justices concur except WIGGINS, J., who concurs in result only.

      . Nothing in this opinion should be construed as implicit approval of this practice.


author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Omar Rasheen WILKINS a/k/a Michael Lamar Carter, Appellant.
    No. 03-0598.
    Supreme Court of Iowa.
    March 11, 2005.

      Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Drew Bockenstedt and Mark A. Campbell, Assistant County Attorneys, for appellee.
   CARTER, Justice.

Defendant, Omar Rasheen Wilkins, appeals from his conviction of first-degrée murder. He contends that his challenge to a prospective juror for cause was improperly denied and that the prosecuting attorney engaged in misconduct that prejudiced his right to a fair trial. He requests that additional claims based on newly discovered evidence be preserved for postconviction relief. The State urges that defendant’s appeal should be dismissed as a sanction for his escape from custody after he had been imprisoned as a result of his conviction.

After reviewing the record and considering the arguments presented, we conclude that defendant’s appeal should be considered on the merits. We find that he has shown no prejudice from the court’s denial of his challenge to a juror and that the prosecutor’s conduct, although clearly subject to criticism, was not such as would likely affect the jury’s verdict. The record is insufficient to determine defendant’s claim based on newly discovered evidence. We affirm the judgment of the district court, but preserve defendant’s claim based on newly discovered evidence for consideration in a claim for postconviction relief.

The evidence at trial viewed most favorably toward the State revealed the following facts. On July 3, 2002, Myree Coleman drove David Hayes to 1510 Jones Street in Sioux City in order that Hayes might purchase crack cocaine from the defendant who resided at that address. A transaction was concluded, and Coleman and Hayes returned to Hayes’ residence. In the early morning hours of July 4, 2002, Hayes contacted Coleman and requested that he again be transported to 1510 Jones Street in order to purchase more crack cocaine from defendant.

When Coleman and Hayes arrived at defendant’s residence, defendant and Wayne Edwards came out of the house to meet them. Hayes removed a wad of money from his pocket and began negotiating with defendant as to price. While this was going on, three men left the porch of a house on the other side of the street and proceeded to the area where Coleman and Hayes were talking. One of these men, Ezzard Woods, announced that it was his turn to make a sale. At this point, Hayes, feeling uncomfortable with the situation, repocketed his money and attempted to get back in Coleman’s van. Before he was able to do so, he was punched, knocked to the ground, and kicked by defendant, Edwards, Woods, and Alton Burden. At some point, Woods declared that Hayes was not going to leave with the money. As the assault against Hayes continued, he was told by his assailants that, if he left the money, he was free to go.

Woods, at some time, went back across the street to the residence from which he had come and obtained an assault rifle. He returned to the area where Hayes was being assaulted and attempted to shoot Hayes. The gun, which apparently had the safety on, did not fire. Defendant then took the weapon from Woods and struck Hayes under the chin with the butt of the weapon. He then took the safety off and shot and killed Hayes. Defendant later stated “I shot the hell out of him.”

The foregoing events were described at the trial by Coleman, and most of the details were confirmed by the testimony of Woods, Edwards, and Burden. Another witness named Michael Daniels indicated that it was Woods who shot Hayes rather than defendant. Other facts will be considered in our discussion of the legal issues presented.

I. The State’s Motion to Dismiss.

The State has moved to dismiss the appeal on the ground that defendant escaped while confined in the Iowa Medical Classification Facility following his conviction. It appears that he ultimately turned himself in to authorities in another state and is presently serving a life sentence in an Iowa prison. Although the State cites authorities that, under the circumstances presented, would warrant dismissal of defendant’s appeal as a sanction for his disregard of our system of law that is the foundation for seeking an appeal, we elect to hear the appeal on the merits.

We considered a similar situation in State v. Byrd, 448 N.W.2d 29, 30-31 (Iowa 1989), and made the same decision. We noted in Byrd that there is no statute or rule that calls for the dismissal of a properly perfected appeal in the event of an escape. Byrd, 448 N.W.2d at 31. As in the present case, the defendant in Byrd was back in custody prior to the time that the appeal was to be considered by this court. The facts there were perhaps more egregious than in the present case because the defendant had not voluntarily surrendered to authorities. As in Byrd we find no persuasive reason to dismiss the appeal in the present case.

II. The Denial of Defendant’s Challenge to a Potential Juror.

One of the prospective jurors who was questioned at the beginning of the trial was a law enforcement officer employed by the Department of Transportation. His job was to investigate and initiate charges with respect to overweight vehicle violations. He had worked with some of the assistant county attorneys in the county where defendant’s case was being prosecuted. At the time of trial, there were overweight charges that he had initiated pending in Woodbury County.

This juror, when questioned, indicated that he would have no problem being fair and impartial, but defendant challenged him for cause. The district court denied the challenge. Ultimately, the juror was removed by the exercise of one of defendant’s peremptory challenges.

Defendant argues that the juror’s connection with the Woodbury County Attorney’s Office was both substantial and continuing, a circumstance that rendered him sufficiently conflicted that he should not have been allowed to sit on the jury. We are asked in connection with our consideration of that contention to abandon the legal proposition established in State v. Neuendorf, 509 N.W.2d 743, 747 (Iowa 1994), that the use of a peremptory challenge to remove an allegedly prejudiced juror from the array negates any prejudice that might otherwise arise from a denial of a challenge for cause. Defendant argues that both challenges for cause and peremptory challenges are important arrows in counsel’s trial arsenal, and neither should be compromised.

Defendant quotes from a Montana case as follows:

The purpose of voir dire in a criminal proceeding is to determine the existence of a prospective juror’s partiality, that is, his or her bias and prejudice. This enables counsel to intelligently exercise their peremptory challenges.... When jurors who should have been removed for cause are not removed and must, therefore, be removed by peremptory challenge, the party wrongfully denied the challenge for cause effectively loses [that] to which he is entitled by law.

State v. Herman, 316 Mont. 198, 204-05, 70 P.3d 738, 742-43 (2003) (citations omitted).

The position taken by the Montana court is similar to the law that existed in this state for many years. However, as we observed in Neuendorf, 509 N.W.2d at 747, it differs from the current law in many jurisdictions. We further recognized in Neuendorf that the Supreme Court in Ross v. Oklahoma, 487 U.S. 81, 86, 108 S.Ct. 2273, 2277, 101 L.Ed.2d 80, 88 (1988), had determined that when the impartiality of a juror is questioned the focus should be limited to those jurors who actually served in the case. We have no inclination to retreat from our declaration in Neuendorf that

[t]he partiality of a juror may not be made the basis for reversal in instances in which that juror has been removed through exercise of a peremptory challenge. Any claim that the jury that did serve in the case was not impartial must be based on matters that appear of record. Prejudice will no longer be presumed from the fact that the defendant has been forced to waste a peremptory challenge.

Neuendorf, 509 N.W.2d at 747. Viewed in this light, there is nothing in the record on which to question the impartiality of the jury that heard defendant’s case.

III. Alleged Prosecutorial Misconduct.

Defendant asserts that the assistant county attorney who prosecuted the case engaged in misconduct by continuing throughout the trial to refer to defendant as “O.J.” Because no objection to this practice was made at trial, the claim is premised on an assertion that defendant received ineffective assistance based on trial counsel’s failure to make such objection.

It was established through the testimony of witnesses that O.J. was defendant’s nickname. His own counsel even succumbed to referring to him in that manner on one occasion during the trial. Nevertheless, we agree with defendant’s claim that the prosecutor’s persistent use of this name when referring to defendant was both unnecessary and unprofessional. The prosecutor made it a point to tell the jury in his opening statement that defendant’s nickname was although that fact was in no way material to any issue in the case. Throughout the trial, he referred to defendant as O.J. more than a dozen times and continued to call him by that name in making his closing argument to the jury.

The American Bar Association standards for criminal justice in referring to the function of a prosecutor state: “It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by applicable professional traditions, ethical codes, and law in the prosecutor’s jurisdiction.” ABA Standards for Criminal Justice 3-1.2(e) (3d ed. 1993). In keeping with that requirement, Ethical Consideration 1-5 accompanying Disciplinary Rule 1-101 of the Iowa Rules of Professional Responsibility for Lawyers states that a lawyer should be temperate and dignified. We are satisfied that, in order for a lawyer to proceed in a dignified manner, they should not attempt to disparage the dignity of other participants in the trial process. Witnesses and parties, including criminal defendants, should be called by their proper names.

Defendant contends that the prosecutor’s references to “O.J.” were calculated to link defendant in the minds of the jurors with O.J. Simpson, a perceived pariah in matters of homicide. Although we are unable to know with certainty whether that was the prosecutor’s motive, his actions clearly suggest that he was using this form of reference to disparage defendant in front of the jury.

We are unable to conclude that the failure of defendant’s trial counsel to object to the county attorney’s actions produced a level of prejudice that would warrant the granting of a new trial. Prosecutorial misconduct does not in every instance prejudice the defendant to the extent of warranting a reversal of a conviction. We have said that “it is the prejudice resulting from misconduct, not the misconduct itself, that entitles a defendant to a new trial.” State v. Piper, 663 N.W.2d 894, 913 (Iowa 2003). In determining whether there is sufficient prejudice to warrant the granting of relief from a conviction, we must consider not only the severity and pervasiveness of the misconduct but also the significance of the misconduct with respect to the central issues in the case. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003).

Notwithstanding our disapproval of the prosecutor’s conduct, we do not believe that it warrants a reversal of defendant’s conviction. We are unwilling to conclude that the jurors either individually or collectively would have been so neglectful of their responsibility that the prosecutor’s references to defendant’s nickname would sway their verdict in favor of the prosecution. We are confident that the jurors decided the case in keeping with the instructions of the court and based on the rather substantial testimony presented concerning the shooting of David Hayes.

IV. Newly Discovered Evidence.

Defendant has presented an affidavit of a former county jail prisoner who purports to have heard some of the, witnesses against defendant concoct a conspiracy to convict him. All of this was beyond the record at defendant’s trial. Defendant asks that his claim for new trial based on newly discovered evidence be preserved for postconviction relief. We agree that he may present this challenge to his conviction in a postconviction proceeding. We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

      . This conflict in the evidence is not significant for two reasons. First, the jury was entitled to believe the testimony of those witnesses who contended that defendant shot Hayes. Second, defendant was convicted of first-degree murder based on a theory of felony murder in which he engaged in joint criminal conduct with Woods and others while participating in a robbery of Hayes. In any event, the sufficiency of the evidence has not been made an issue on appeal.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Kristen Joy JAMES, Appellant.
    No. 03-2031.
    Supreme Court of Iowa.
    March 11, 2005.
    Linda Del Gallo, State Appellate Defender, and Patricia A. Reynolds, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, R. Steven Johnson, County Attorney, and Michael J. Jacobson, Assistant County Attorney, for appellee.
   LARSON, Justice.

Kristen James was convicted of child endangerment in violation of Iowa Code section 726.6 (2008). We conclude the district court misinterpreted the “knowingly” element of the child endangerment statute, and we therefore reverse the judgment of the district court and remand for a new trial.

I. Facts and Prior Proceedings.

Jason and Kristen James lived in a second-floor apartment in Newton, Iowa, with their son, A.J., who was two years and nine months old. The following facts appear to be undisputed. On the day of this incident, Jason left for work at about 5:30 a.m. Both Kristen and A.J. were asleep, but Kristen soon awoke with a migraine headache. She got up and took a medication, and in the process, awakened A.J. Kristen intended to go back to sleep, but she was concerned that A.J., who had a penchant for opening doors, would leave his room and possibly go outside. Kristen tied his door almost shut with a telephone cord, leaving a gap of about two inches so he could call for her. Kristen went back to bed and, apparently because of the migraine medication, fell sound asleep.

Around noon Dawn Hoover, a neighbor, saw A.J. leaning out of his second-story window and attempted to persuade him to move away from it. She called Dianna Dougan, the apartment manager, for help. Dianna ran out of her office and yelled at her husband, Murry, the complex maintenance man, asking him to meet her at the James apartment. When Dianna arrived, she saw A.J. and joined Ms. Hoover in encouraging him to move away from the window. When Murry arrived, he went up the stairs to the James apartment. He rapped loudly on the door, but got no answer. He then used his maintenance key to open the door. Once inside, he saw the telephone cord tied to A.J.’s bedroom doorknob. He saw Kristen walk out of the apartment’s other bedroom, looking like she just awoke from a deep sleep.

Murry told Kristen that A.J. was hanging out the window, so she should untie the cord. She attempted to untie it, but she was unsuccessful, apparently because she was too groggy. Murry rushed over, yanked the cord off the knob, and went into the bedroom to pull A.J. away from the window. Dianna called social services.

The following day, a child-protection worker and a deputy met with Kristen and her husband to conduct an interview. During the interview, they insisted that the window was shut and locked and remained that way when Kristen went back to bed early in the morning. They admitted they had seen A. J. push the screen out before, but they had never known him to open the window by himself. They assumed that he could not unlatch the lock on his window, an assumption that other witnesses confirmed. Still, the child-protection worker concluded that Kristen had subjected A.J. to a substantial risk of harm.

Kristen was charged with child endangerment under Iowa Code section 726.6(l)(a), which provides:

A person who is the parent, guardian, or person having custody or control over a child ... commits child endangerment when the person ... [kjnowingly acts in a manner that creates a substantial risk to a child or minor’s physical, mental or emotional health or safety.

A violation of the statute that does not result in serious injury to the child is an aggravated misdemeanor. Iowa Code § 726.6(6).

At the trial, the court heard considerable debate over the proper interpretation of the statute, particularly the phrase “knowingly acts.” Relying on State v. Dunham, 662 N.W.2d 371 (Table), 2003 WL 183774 (Iowa Ct.App. Jan. 29, 2003) (unpublished decision), the State argued that the phrase only required the defendant to have a conscious awareness of her actions. “ ‘Knowingly’ modified the act[,] not the outcome,” according to the State, and the court agreed, ruling that “knowingly” in the statute means “a conscious awareness of her own actions.” The defendant requested the instruction that was expressly rejected in Dunham, which would have informed the jury that

[f]or the defendant to know something means she had a conscious awareness that she was creating a substantial risk to ... “the child[’s] physical, mental, or emotional health or safety.”

The court rejected this instruction, saying it felt bound by the court of appeals decision in Dunham.

Based on its reading of the Dunham case, the court instructed the jury that the State had to prove the following elements:

1. The defendant ... is the parent of [A.J.]
2. [A.J.’s] age is less than fourteen years.
3. The defendant, in the State of Iowa, on or about 26 March 2003, acted knowingly.
4. The manner in which she acted created a substantial risk to [A.J.’s] physical health or safety.

The trial court also provided this definition of knowledge:

For the defendant to know or have knowledge of something means she had a conscious awareness of her own actions.

The instructions as given did not require the jury to find the defendant had a conscious awareness that her actions created a substantial risk to the child’s physical, mental, or emotional health or safety.

The jurors were confused as to the meaning of “knowingly” and sent a note to the judge asking the judge to “define knowingly.” The court simply referred the jurors to the instructions as submitted to them.

II. Analysis.

The jurors were not alone in being confused about the application of the “knowingly” element of the crime. When “knowingly” appears at the beginning of a sentence, the question is whether it applies only to the first word — here “acts” — ■ or to later words in the same sentence. One authority illustrated this inherent ambiguity by discussing a federal case interpreting a criminal statute that prohibited “knowingly” selling a security without a permit.

What, for instance, does “knowingly” modify in a sentence from a “blue sky” law criminal statute punishing one who “knowingly sells a security without a permit” from the securities commissioner? To be guilty must the seller of a security without a permit know only that what he is doing constitutes a sale, or must he also know that the thing he sells is a security, or must he also know that he has no permit to sell the security he sells? As a matter of grammar the statute is ambiguous; it is not at all clear how far down the sentence the word “knowingly” is intended to travel— whether it modifies “sells,” or “sells a security,” or “sells a security without a permit.”

Wayne R. LaFave, Substantive Criminal Law § 5.1(b), at 335 (2d ed. 2003). This authority concludes that “knowingly” in this sort of context refers to more than simply the defendant’s acts. Id.

United States v. Gifford, 17 F.3d 462 (1st Cir.1994), considered a federal statute that prohibited

“knowingly” to receive “any visual depiction that has been mailed ... if (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct.”

Gifford, 17 F.3d at 464 n. 1 (quoting 18 U.S.C. § 2252(a)(2) (1988)). The issue in Gifford was the scope of the modifier “knowingly”: does it refer only to the defendant’s receipt of the pornographic material, or does it refer to the other aspects of the crime? The court ruled that the statute required more than knowingly receiving the material, saying

section 2252(a) incorporates a paragraph-wide scienter requirement. We read the term “knowingly,” as used in the statute, to modify not only “receives” but also the entire paragraph, including age and conduct.

Gifford, 17 F.3d at 472; cf. United States v. Gendron, 18 F.3d 955, 958 (1st Cir.1994) (“Knowingly” refers to more than simply receiving the pornographic material.).

The Iowa Court of Appeals in the unpublished Dunham case, and the district court in the present case, gave great weight to the syntax of the endangerment statute: the word “acts” follows immediately after the word “knowingly.” However,

one cannot know automatically, simply from the position of the words in the sentence, just which of the words following “knowingly” the word “knowingly” is meant to modify.... [T]hat linguistic fact simply reflects the more basic fact that statements, and parts of statements, quite often derive their meaning from context.

Gendron, 18 F.3d at 958.

The Gendron case provided this interesting illustration:

The sentence “John knows that people speak Spanish in Tegucigalpa, which is the capital of Honduras,” taken by itself, leaves us uncertain whether or not John knows that Tegucigalpa is the capital of Honduras; but, the context of the story in which the sentence appears, a context that includes other sentences, may clear up our uncertainty and leave us with no doubt at all.

Id.

State v. Lambert, 280 Mont. 231, 929 P.2d 846 (1996), examined the context of a criminal-endangerment statute to discern the scope of the word “knowingly.” In that case, the trial court had instructed the jury that “knowingly” referred only to the defendant’s conduct — i.e., driving a car. Lambert, 929 P.2d at 848. The supreme court reversed, saying:

Our reading of the criminal endangerment statute is that it emphasizes result over conduct. The portion of the statute that we are reviewing here does not particularize the conduct that, if engaged in, results in the commission of the offense. Rather, a person may engage in a wide variety of conduct and still commit the offense of criminal endangerment, provided that the conduct creates a substantial risk of death or serious bodily harm. It is the avoidance of this singular result, the risk of death or serious harm, that the law attempts to maintain.
There being no particularized conduct which gives rise to criminal endangerment, applying to that offense’s mental element the definition of “knowingly” that an accused need only be aware of his conduct is incorrect. It is the appreciation of the probable risks to others posed by one’s conduct that creates culpability for criminal endangerment; were it otherwise, where culpability could lie for mere appreciation of one’s conduct, such as driving a car or shooting a hunting rifle, some very unfair results could follow.

Id.

This view is consistent with that of the Model Penal Code, which explains the concept of knowledge in criminal cases:

A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct ..., he is aware that his conduct is of that nature ..., and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

Model Penal Code § 2.02(2)(b) (2001).

This interpretation is also consistent with interpretations of similar statutes. Delaware, Missouri, and New York appear to be the only states with child-endangerment statutes that employ the “knowingly acts” language. The courts of these states have interpreted the statutes as requiring the prosecution to prove that the defendant at least knew the facts and circumstances that created the risk. See State v. Lynch, No. 9911009756, 2000 WL 33115707, at *3 (Del.Super.Ct. Oct. 13, 2000) (unpublished opinion) (stating that the State must show that defendant “knowingly endangered” the child’s welfare); State v. Mullins, 140 S.W.3d 64, 72 (Mo.Ct.App.2004) (holding that, under Missouri’s statute, the prosecution must prove that the defendant knew her acts put the child in a position of substantial risk); People v. Pelt, 157 Misc.2d 90, 596 N.Y.S.2d 301 (N.Y.City Crim.Ct.1993).

In Pelt the defendant was charged with child endangerment for shooting a firearm at a moving vehicle in which a three-year-old child was riding. Pelt, 596 N.Y.S.2d at 302. The court dismissed the charge because the bill of particulars contained “no facts which demonstrate that the defendant knew the child was in the car, e.g., that the child was visible.” Id. at 303. The court explained:

While a court may infer from the circumstances that a defendant acted “knowingly”, the accusatory instrument, in this case, is devoid of any facts from which the court could infer that the defendant acted “knowing” that her conduct would likely be injurious to a child.... Thus, the court cannot infer, by legally sufficient circumstantial evidence, that the defendant acted “knowing” that her conduct was likely to be injurious to a child.

Id.

We conclude it was error for the trial court to instruct that “knowingly” refers only to the defendant’s act. The instructions should have informed the jury that it must find the defendant acted with knowledge that she was creating a substantial risk to the child’s safety.

We reverse and remand for a new trial.

REVERSED AND REMANDED.

      . In Dunham the Iowa Court of Appeals noted that, in the statute’s text, the word "knowingly” comes before the word “acts.” Dun-ham, 2003 WL 183774, at *3. From this, the court concluded that "knowingly” only modifies "acts.” Thus, the court found that "the statute does not require the State to show that the defendant had a conscious awareness that her acts were creating a substantial risk of harm to the children.” Id. The district court interpreted this language as implying that, if a substantial risk was in fact created, a defendant may be convicted for child endangerment regardless of her knowledge.

      . See Del.Code Ann. tit. 11, § 1102 (2003) ("A person is guilty of endangering the welfare of a child when ... [he] [kjnowingly acts in a manner likely to be injurious to [a child's welfare].” (Emphasis added.)); Mo.Rev.Stat. § 568.045.1(1) (2003) ("[A] person commits the crime of endangering the welfare of a child in the first degree if ... [t]he person knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child....” (Emphasis added.)); N.Y. Penal Law § 260.10(1) (McKinney 2003) (stating that a person is guilty of child endangerment if he "knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child” (emphasis added)).

      . There are several other Missouri cases that also support this interpretation of the Missouri statute. See, e.g., State v. Manwarren, 139 S.W.3d 267, 272 (Mo.Ct.App.2004) (stating that, because defendant had, on previous occasions, tossed the child into the air so hard the child’s head put a hole in the ceiling, the jury could have concluded that the defendant "knowingly created the substantial risk to the health of [the child]” when he tossed the child again); State v. Fuelling, 145 S.W.3d 464, 468 (Mo.Ct.App.2004) ("the State had to prove that Ms. Fuelling knew that her conduct was 'practically certain to endanger the child' ”).

      . There are several other New York cases that also support this interpretation of the New York statute. See, e.g., People v. Hitchcock, 98 N.Y.2d 586, 750 N.Y.S.2d 580, 780 N.E.2d 181, 183 (2002) ("Criminal liability for endangering the welfare of a child is imposed when a defendant engages in conduct knowing it will present a likelihood' of harm to a child (i.e., with an awareness of the potential for harm). In short, a defendant must simply be aware that the conduct may likely result in harm to the child.” (Citations and internal quotations omitted.)); People v. M.T., 2 Misc.3d 980, 773 N.Y.S.2d 247, 250 (N.Y.City Crim.Ct.2004); People v. Gibhle, 2 Misc.3d 510, 773 N.Y.S.2d 499, 501 (N.Y.City Crim.Ct.2003).