author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Raymond Clifford METZ, Appellant.
    No. 99-1790.
    Supreme Court of Iowa.
    Nov. 15, 2001.

      Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger and Scott D. Brown, Assistant Attorneys General, Ron Robertson, County Attorney, and Timothy N. Schott, Assistant County Attorney, for ap-pellee.
   CARTER, Justice.

Defendant, Raymond Clifford Metz, appeals from the judgment and sentence entered following his conviction for first-degree murder. He contends the district court erred in failing to grant a mistrial due to the prosecutor’s comments on his postarrest silence. The court of appeals agreed that the matter complained of warranted the granting of a new trial. After reviewing the record and considering the arguments presented, we vacate the decision of the court of appeals. The judgment of the district court is reversed, and the case is remanded to that court for a new trial.

The evidence presented at defendant’s trial was substantially as follows. Defendant and his friend, Donald Rundall, the victim of the alleged crime, were drinking together on the evening of September 15, 1998. Late that evening, they went to defendant’s apartment, where Rundall died from blunt-force trauma sometime before 8 a.m. the following morning! The injuries that Rundall sustained were cranial, cerebral, and cervical trauma; a broken nose, jaw, breast bone, several broken ribs; a torn liver; and a bruised lung.

At 8 a.m. on September 16, Richard Hogan, a coemployee of defendant, arrived at Metz’s apartment by prior arrangement to drive Metz to work. Hogan testified that, when Metz opened the door of his apartment, he was covered with blood and stated, “I think I killed a man.” Metz then stepped outside and Hogan entered the apartment. Hogan observed Rundall’s body on the floor. Although the body was stiff, Hogan checked for a pulse and found none.

Hogan exited the apartment and told Metz that the man inside was dead. At that point, Metz told Hogan to do what he had to do. Metz reentered his apartment, changed his shirt, and then came back outside. He then walked away toward a nearby bar and encountered other employees, telling them “I didn’t mean to do it.” At the bar he consumed an undisclosed amount of alcohol and told persons gathered there that “I think I killed a man” and “I didn’t mean to do it.”

Responding to Hogan’s call, police came to the scene, located defendant at the nearby bar, and arrested him for the murder of Rundall. The police attempted to interview defendant over a period of eight hours. Only a portion of this interview was recorded. The record is silent as to the content of any unrecorded statements Metz may have made to the police. The recorded portion of the interview is difficult to understand, and it appears that Metz was under the influence of alcohol during this questioning. Noticeably lacking in the recorded interview is any description of how Rundall’s death occurred or defendant’s role in it.

At trial Metz testified that he and Rundall had been drinking at Rundall’s girlfriend’s apartment on the evening of September 15. Toward the end of the evening, they left, walked to a convenience store and purchased beer, which they took to Metz’s apartment. Defendant testified that, after he and Rundall had consumed some of the beer, he either passed out or fell asleep. He stated that early on the morning of September 16 he was awakened by a person lying on top of him. In addition to that person, he was able to see silhouettes in the semi-darkness that indicated the presence of at least two other persons.

Metz testified that he became engaged in a fight with the intruder who was lying on top of him. Metz testified that he fought with the person until the intruder stopped struggling. He then turned on the light and realized for the first time that the other person was Rundall. He gave no explanation as to what occurred with the two other persons he purported to see in the room. He stated that he passed out again and did not awake until Hogan came to his apartment at 8 a.m.

In cross-examining Metz, the prosecutor asked the following questions:

Q. I just want you to answer my question, did you tell the police what you’ve told us here in this court room today, did you ever tell them that? A. No.
Q. Never did? You had an opportunity to do that, didn’t you? Didn’t you talk to Detective Webb and Guthrie? A. I never really talked to them, no.
Q. Okay. But you were with them at the police department, for quite a long time? A. For about nine hours, wasn’t it?
Q. You never told them what we’ve just heard here in the court room today? A. No.
Q. Never told them about the silhouettes or about Don Rundall jumping on you at the apartment, never told them that? A. I don’t believe I told them anything. As a matter of fact, I told them I didn’t want to talk to them.

When this questioning commenced, defendant’s attorney immediately objected and asked to make a record outside of the presence of the jury because he thought that if the jury heard his objection it would prejudice his ease. Outside the presence of the jury, defendant’s counsel objected to the questioning on the basis it impinged on his client’s right to remain silent and to avoid self-incrimination. The district court overruled that objection and also overruled defendant’s subsequent motion for mistrial. During rebuttal argument, the prosecutor reminded the jury that Metz had failed to tell police officers about his version of the incident when he was questioned at the police station on September 16,1998.

The jury returned a verdict of guilty on the charge of first-degree murder. Other facts that bear on the issues involved in this appeal will be discussed in connection with the legal arguments that have been presented.

I. Prosecutor’s Cross-Examination of Defendant Concerning His Postar-rest Silence.

A. Should this cross-examination have been permitted? The basis for defendant’s argument in the district court and in this court is that this questioning was improper because it diluted his Fifth Amendment guarantee against self-incrimination that was expressly confirmed in the Miranda warning he received. A similar claim was successfully advanced in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Doyle involved two defendants who each testified at trial that he had been framed. During cross-examination, the prosecutor inquired as to why they had not told the police their story following arrest. The Court held that the Fifth Amendment guaranty against self-incrimination prohibits impeachment on the basis of a criminal defendant’s silence after receipt of Miranda warnings. Doyle, 426 U.S. at 618, 96 S.Ct. at 2245, 49 L.Ed.2d at 96. In commenting on the attempted use of postarrest silence in circumstances in which the accused had received Miranda warnings, the Court stated:

In such circumstances, it [is] fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

Id. The court of appeals held that the challenged testimony fell within the Doyle proscription.

The State, on further review, urges that Doyle does not prohibit cross-examination designed to show that a defendant told the police a substantially different story than that which was told to the jury. It urges that such impeachment by prior inconsistent statement is authorized in the Court’s post-Doyle decision in Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980).

Anderson involved a defendant arrested for murder after he was discovered in the victim’s automobile. The defendant was given Miranda warnings before he told the police detective that he had stolen the car from a location about two miles from the bus station. At trial defendant testified he had stolen the car from a parking lot directly across the street from the bus station. On cross-examination, he was questioned about the inconsistency between his postarrest statements and trial testimony. Defendant sought to overturn his conviction through federal habeas corpus on the theory that this cross-examination was prohibited by Doyle. The Court, although reaffirming Doyle, held that it does not apply to cross-examination that merely inquires into prior inconsistent statements. Anderson, 447 U.S. at 408, 100 S.Ct. at 2182, 65 L.Ed.2d at 226. The Court concluded “[s]uch questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent.” Id. In Bass v. Nix, 909 F.2d 297 (8th Cir.1990), the federal court attempted to reconcile the Doyle decision with the Anderson decision and concluded that the fact there is some conversation with the police does not necessarily bring a case within the Anderson doctrine unless the conversation pertains to the suspect’s role in the offense or offers an exculpatory story or alibi. Bass, 909 F.2d at 301. That was not the situation in the present case.

We agree with the court of appeals that the present case is governed by the proscription laid down in Doyle. The challenged cross-examination cannot be viewed as mere inquiry into prior inconsistent statements. We say that for two reasons. First, any claim that the challenged cross-examination was part of an effort to impeach defendant by the use of prior inconsistent statements is completely negated by the fact that the alleged inconsistent statements were never offered in evidence for the jury to hear. As a result, the impeachment on which the State relies is a phantom impeachment that never occurred. Second, because the parties have argued this issue based on the contents of the recorded portion of defendant’s interrogation, which is in the record only as an exhibit relevant to a suppression hearing, we have, like the court of appeals, listened to the tape and conclude that it is noticeably lacking in any comment by defendant on how Rundall’s death occurred or defendant’s role in it.

The State contends that the recorded interview shows that Metz asked the investigating officers about Rundall’s condition and also mentioned that' he had “popped someone.” A suspect does not waive his right to remain silent by asking the officers a question. Id. at 301. The statement that he had “popped someone” was in no way inconsistent with his trial testimony. There was simply nothing in the police interview relied on by the State that gave it any basis for impeaching defendant’s trial testimony based on inconsistent statements made in that interview. The prosecutor’s question in the present case was designed and so functioned to impeach Metz’s trial testimony by reference to his postarrest silence and nothing else. The State did not advise the jury of any prior inconsistent statement, and in the record before us, none has been shown to exist.

B. The State’s claim of harmless error. We are unable to accept the State’s contention that any error from permitting an improper impeachment of defendant by commenting on his postarrest silence was harmless. The court of appeals concluded that, because the issue is being raised on direct appeal, the harmless-error standard for constitutional deprivation laid down in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), is the standard to be utilized in the present case. We agree. Although the State requests that we apply the standard applied in Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987), that case establishes the less-demanding standard of prejudice to be applied in collateral attacks based on Doyle violations. It implicitly recognizes that the Chapman standard applies in direct appeals of Doyle violations. Greer, 483 U.S. at 765-66, 107 S.Ct. at 3109, 97 L.Ed.2d at 630. Moreover, the finding of harmless error in Greer was based on a factual situation in which the offending testimony had been stricken by the court and the jury instructed to disregard it. Id.

Under the standard established in Chapman, error of constitutional dimension must be shown to have been harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710-11. In the present case, the error, which is of constitutional dimension, allowed an improper contradiction of facts that constituted the heart and core of defendant’s defense. The improper matter that the court allowed would surely have cast doubt in the jurors’ minds as to defendant’s claims of justification and absence of malice and intent to kill. The court of appeals was correct in concluding that the error was not harmless.

II. Issues That May Arise on Retrial.

We find it necessary to consider other issues raised on appeal that may occur again on retrial.

A. Refusal to give a mistake-of-fact instruction. Defendant requested the district court to give a mistake-of-fact instruction, allowing the jury to excuse his conduct or diminish its legal effect because of his mistaken belief that the victim was someone other than Rundall. The district court refused to so instruct the jury. Under Iowa Code section 701.6, a mistake of fact is only of legal significance if it tends to negate some element of the crime charged. Saadiq v. State, 387 N.W.2d 315, 323 (Iowa 1986).

Apparently, it is defendant’s theory that, if he had known it was Rundall who jumped upon him, he would not have attacked him. We do not believe that the hypothetical question of what defendant would have not done given certain knowledge was a matter for the jury to decide. Its job was to decide what he did do. The trial court correctly instructed the jury on the elements of first-degree murder, including the need for the State to show malice and a specific intent to kill. The court also correctly instructed the jury on the defendant’s theory of justification. Under neither of these instructions was the identity of the victim of any significance. If the jury found, as it must have, that the killing was not in justification and was done with malice and a specific intent to kill, it matters not who defendant believed the victim was or was not. The district court did not err in refusing to instruct the jury on defendant’s mistake-of-fact theory.

B. Crime scene photographs. Defendant contends that the district court erred in admitting into evidence gruesome photographs of the victim’s body as found in Metz’s apartment and as it appeared in various stages of autopsy. We have recognized that “[mjurder is often a gruesome affair giving rise to equally gruesome evidence — [t]hat alone is not sufficient reason to exclude that evidence.” State v. Brown, 397 N.W.2d 689, 700 (Iowa 1986). The photographs in question were used to illustrate the testimony of the medical examiner and make it comprehensible to the jury. They also demonstrated the violent nature of the attack and thus constituted material evidence of the State’s assertion that the killing was done with malice and a specific intent to kill. We conclude that the district court did not err in concluding that the probative value of the photographs was not outweighed by the prejudicial effect.

C. Admission of hearsay evidence. Defendant contends that the district court erred by admitting the testimony of a DCI agent concerning a conversation with a witness who, at the time of trial, was deceased. The witness in question was an employee of a pawn shop that Metz visited shortly following Hogan’s discovery of the victim’s body and prior to defendant’s arrest. This employee, Judy Leaym, told the DCI agent that, when Metz entered the pawn shop he stated, “I did it, I killed somebody” and “I really did it this time, I slipped.”

The district court admitted the evidence over defendant’s hearsay objection by relying on the residual-hearsay exception contained in Iowa Rule of Evidence 804(b)(5). In considering the proper use of the residual-hearsay exception, we have said that to fall within its provisions the proffered hearsay statement must show (1) trustworthiness, (2) materiality, (3) necessity, and (4) that it fosters the interest of justice. State v. Weaver, 554 N.W.2d 240, 247 (Iowa 1996); State v. Rojas, 524 N.W.2d 659, 662-63 (Iowa 1994). In addition, the rule requires that prior to admitting such evidence the adverse party must be given notice in advance of trial and reasonable opportunity to prepare to meet the evidence. Iowa R. Evid. 804(b)(5); State v. Kone, 562 N.W.2d 637, 639 (Iowa Ct.App.1997).

In the present case, the State had available to it for use at trial the testimony of other witnesses who had actually heard statements made by the defendant between the time of Hogan’s discovery of the body and the time of his arrest. These utterances included statements by defendant that he had killed somebody and that he had made a big mistake. One portion of the officer’s hearsay account of what Leaym purportedly heard merely duplicated the testimony of other witnesses that defendant had stated that he had killed somebody. The other portion of the hearsay statement that “I really did it this time, I slipped” does not differ substantially from the testimony of the other witnesses that defendant stated that he had made a big mistake. We find no basis for concluding that this evidence was necessary for the State’s case. The residual hearsay rule should not be invoked in the absence of a far greater need than that which was shown to exist. On retrial this hearsay evidence should be excluded.

We have considered all arguments presented and conclude that the decision of the court of appeals should be vacated due to the admission of the challenged hearsay testimony, which we have deemed to be inadmissible. The judgment of the district court is reversed, and the case is remanded to that court for a new trial consistent with this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.


source: Caselaw Access Project

author: LARSON, Justice. CARTER, Justice

license: Public Domain

text:
    Tara E. BARTSCH, Appellee, v. Nathan R. BARTSCH, Appellant.
    No. 00-0068.
    Supreme Court of Iowa.
    Nov. 15, 2001.

      Janette S. Voss of Remley, Willems, McQuillen & Voss, Anamosa, for appellant.
    Anne E.H. Hoskins of Fishel and Hos-kins, Marion, for appellee.
   LARSON, Justice.

Nathan Bartsch, a nonresident of Iowa, appeared specially in an Iowa domestic-abuse case under Iowa Code chapter 236 (1999) to challenge the court’s personal jurisdiction over him. The court agreed it did not have personal jurisdiction but concluded that, for purposes of entering a protective order under chapter 236, personal jurisdiction was not required. The court also denied Nathan’s motion to dismiss based on forum non conveniens. We agree and therefore affirm.

I.Facts and Prior Proceedings.

Tara Bartsch filed an application for a protective order against Nathan Bartsch in Jones County District Court in November 1999. Tara was a resident of Iowa, and Nathan was apparently a resident of Colorado. (He has asserted residency in both Utah and Colorado.) They were married but separated. Their daughter, Morgan, was less than a year old when Tara moved to Iowa to live with her parents in October 1999. While both Nathan and Tara had early ties to Iowa, they moved to Utah in 1994 and lived there until December 1997, when they moved to Texas. Approximately a year later, they moved back to Utah and continued to live there until October 1999, when Tara moved to Iowa. She lived in Iowa at the time she filed her application for a protective order on November 12, 1999. The court entered a temporary protective order on that date. See Iowa Code § 236.4. By that time, Nathan says he had moved to Colorado, where he was served with notice of Tara’s application for a protective order. He immediately challenged the order by a motion to dismiss. The court denied his motion.

II. Standard of Review.

Our scope of review on a motion to dismiss is well established.

“The trial court’s findings of fact have the effect of a jury verdict and are subject to challenge only if not supported by substantial evidence in the record; we are not bound, however, by the trial court’s application of legal principles or its conclusions of law.”

Percival v. Bankers Trust Co., 450 N.W.2d 860, 861 (Iowa 1990) (quoting State ex rel. Miller v. Internal Energy Mgmt. Corp., 324 N.W.2d 707, 709-10 (Iowa 1982)).

III. Personal Jurisdiction.

The district court found that the defendant did not have sufficient minimum contacts for personal jurisdiction, but personal jurisdiction was not required. The defendant challenges the district court’s exercise of jurisdiction as “contrary to Iowa case law regarding the necessity of a finding of both subject matter jurisdiction and personal jurisdiction in order to exercise jurisdiction over the case.” The plaintiff seems to concede the need for personal jurisdiction but contends it is “inconceivable” that defendant lacks sufficient minimum contacts.

We believe the district court’s finding of insufficient contacts for personal jurisdiction is supported by substantial evidence, and we reject Tara’s argument to the contrary. While both parties were born in Iowa, lived here most of their lives, and were married here, they moved to Utah in 1994 immediately after their marriage, and Nathan currently lives in Colorado. Despite the fact Nathan maintained substantial ties to Iowa prior to 1994, he has had virtually no ties to Iowa since that time, except that his wife and child now live here.

Nevertheless, we affirm the legal conclusion by the district court that, under these circumstances, personal jurisdiction over a nonresident defendant is not required for a court to enter an order preserving the protected status afforded Iowa residents under chapter 236. See State v. Vincik, 436 N.W.2d 350, 354 (Iowa 1989) (court’s ruling “will be upheld if sustainable on any grounds appearing in the record”). The district court’s ruling does not purport to grant affirmative relief against the defendant; it merely preserves the protected status accorded to the plaintiff by chapter 236.

In other situations it is clear personal jurisdiction is not necessary to satisfy the demands of the Due Process Clause. For example,

[t]he Supreme Court has held that personal jurisdiction over a nonresident spouse is not necessary to dissolve a marriage because it is a status determination. Traditionally, child custody determinations have also been exempt from the personal jurisdiction requirement. The original drafters of the [Uniform Child Custody Jurisdiction Act] stated that custody determinations were status exceptions and exempt from the personal jurisdiction requirement.

Anthony A. Dorland, Case Note, Hughs ex rel. Praul v. Cole, 572 N.W.2d 747 (Minn.Ct.App.1997), 25 Wm. Mitchell L.Rev. 965, 988-89 (1999) (citations omitted). As early as Pennoyer v. Neff, the Supreme Court recognized that not all exercises of a state’s subject matter jurisdiction require personal jurisdiction of a defendant. The Court stated:

The jurisdiction which every State possesses, to determine the civil status and capacities of all its inhabitants involves authority to prescribe the conditions on which proceedings affecting them may be commenced and carried on within its territory. The State, for example, has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved. One of the parties guilty of acts for which, by the law of the State, a dissolution may be granted, may have removed to a State where no dissolution is permitted. The complaining party would, therefore, fail if a divorce were sought in the state of the defendant; and if application could not be made to the tribunals of the complainant’s domicile in such case, ... the injured citizen would be without redress.

Pennoyer v. Neff, 95 U.S. 714, 734-35, 24 L.Ed. 565, 573 (1877). (emphasis added).

This concept is reflected in the Restatement of Conflict of Laws, which recognizes that an adjudication of status does not require personal jurisdiction. The Restatement illustrates the point:

A leaves his home in State X and goes to State Y, where he becomes domiciled and there obtains an ex parte divorce from B, his wife. Assuming that the requirements of proper notice and of opportunity to be heard have been met, this divorce is valid and must be recognized in X under full faith and credit even though B was not personally subject to the jurisdiction of the Y court and at all times retained her domicile in X.

Restatement (Second) of Conflict of Laws § 71 cmt. a, illus. 1, at 219 (1971). Thus, marriage-dissolution actions, insofar as they affect the status of marriages, do not require personal jurisdiction of the defendant.

Domicile creates a relationship to the state which is adequate for numerous exercises of state power. Each state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders. The marriage relation creates problems of large social importance. Protection of offspring, property interests, and the enforcement of marital responsibilities are but a few of commanding problems in the field of domestic relations with which the state must deal. Thus it is plain that each state by virtue of its command over its domiciliaries and its large interest in the institutions of marriage can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent. There is no constitutional barrier if the form and nature of the substituted service meet the requirements of due process.

Williams v. North Carolina, 317 U.S. 287, 298-99, 63 S.Ct. 207, 213, 87 L.Ed. 279, 286 (1942) (emphasis added) (citations omitted). Iowa Code chapter 236 clearly creates a status of “protection” under the reasoning of Williams. In fact, we have said “chapter 236 is protective rather than punitive.” Christenson v. Christenson, 472 N.W.2d 279, 280 (Iowa 1991).

The recognition in Williams that the “protection of offspring” is a state concern overriding the need for personal jurisdiction underlies the general rule that a state may make custody adjudications without personal jurisdiction of the defendant. See Unif. Child Custody Jurisdiction Act § 12 cmt. (1999) (“There is no requirement for technical personal jurisdiction, on the traditional theory that custody determinations, as distinguished from support actions, are proceedings in rem or proceedings affecting status.” (citation omitted)); In re Marriage of Torres, 62 Cal.App.4th 1367, 73 Cal.Rptr.2d 344, 352 (1998); In re Paternity of Robinaugh, 616 N.E.2d 409, 411 (Ind.Ct.App.1993) (“Custody proceedings are adjudications of status, and as such are an exception to the minimum contacts requirements normally associated with discussions of personal jurisdiction.”); Hudson v. Hudson, 35 Wash.App. 822, 670 P.2d 287, 293 (1983); see also Iowa Code § 598B.201(3) (Supp.1999) (“Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.”).

The court in Perry v. Ponder, 604 S.W.2d 306 (Tex.Civ.App.1980), explains the rationale of our ruling today:

[A] family relationship may be among those matters concerning which the forum state may have such an interest that its courts may reasonably make an adjudication affecting that relationship, even though one of the parties to the relationship may have had no personal contacts with the forum state.
The reasonableness of such an adjudication is well recognized in divorce cases, in which the status of marriage may be adjudicated at the domicile of one party without establishing any contacts by the nonresident spouse with the state of the forum. See Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942). Custody of children is a status or relationship in which the state has an interest no less than in a marriage.... For these reasons, custody of children has been recognized traditionally as a status which may be determined at the domicile of the child.

Perry, 604 S.W.2d at 314-15.

At least one state has applied, by statute, the jurisdictional provisions of the Uniform Child Custody Jurisdiction Act (UCCJA) (which, as we have already discussed, does not require personal jurisdiction of a defendant) to domestic-abuse cases. See In re Marriage of Los, 229 Ill.App.3d 357, 170 Ill.Dec. 584, 593 N.E.2d 126, 129 (1992); see also Iowa Code § 598B.102(4) (Supp.1999) (new Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies specifically to domestic-abuse protection orders). The Minnesota Supreme Court has found no due process problems in a statute allowing ex parte restraining orders in domestic-abuse cases, relying on (1) a state’s strong interest in preventing abuse, (2) the necessity for prompt action, and (3) the protection provided by judicial scrutiny. See Baker v. Baker, 494 N.W.2d 282, 288 (Minn.1992).

The Oklahoma Supreme Court applied the status rationale of Williams in a case involving state court jurisdiction to decide the issue of a noneonsensual stepparent adoption in In re Adoption of J.L.H., 737 P.2d 915 (Okla.1987). In that case, the children's natural father and stepmother petitioned in Oklahoma for the nonconsen-sual adoption of the father’s children on the ground their mother, a nonresident of Oklahoma, had willfully failed to pay child support. Two issues were raised on appeal: whether the district court had jurisdiction and whether the plaintiffs had proved their claim of willful nonpayment. J.L.H., 737 P.2d at 917-20. The Oklahoma court concluded the district court had jurisdiction of the case, but rejected the petition on its merits. Id. at 918-21.

The Oklahoma court rejected the nonresident’s argument that the minimum contacts requirement of International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), prevented the court’s exercise of jurisdiction:

[T]he so-called minimum contacts doctrine ... was fashioned to gauge the standards of due process for the exercise of jurisdiction to render an in per-sonam judgment against one not served within the state — a form of forensic cognizance that is not implicated in this case because here no personal judgment is sought against the Kansas mother.

J.L.H., 737 P.2d at 919 (footnote omitted); see also In re Marriage of Kimura, 471 N.W.2d 869, 875 (Iowa 1991) (divisible divorce doctrine recognizes when court does not have personal jurisdiction over absent spouse it still has “jurisdiction to grant a divorce to one domiciled in the state but no jurisdiction to adjudicate the incidents of the marriage, for example, alimony and property division”).

A Texas court explained the distinction between adjudications affecting family relationships and those requiring personal jurisdiction:

Unlike adjudications of child support and visitation expense, custody determinations are status adjudications not dependent upon personal jurisdiction over the parents. Generally, a family relationship is among those matters in which the forum state has such a strong interest that its courts may reasonably make an adjudication affecting that re lationship even though one of the parties to the relationship may have had no personal contacts with the forum state.

In re S.A.V., 837 S.W.2d 80, 84 (Tex.1992) (emphasis added) (citations omitted).

The greater and more immediate risk of harm from domestic violence, as opposed to the “ ‘considerable interest in preventing bigamous marriages and in protecting the offspring in marriages from being [illegitimate]’ ” in dissolution proceedings, see Kimura, 471 N.W.2d at 875 (quoting Estin v. Estin, 334 U.S. 541, 546, 68 S.Ct. 1213, 1217, 92 L.Ed. 1561, 1567 (1948)), makes application of the status exception to protective orders even more compelling than in dissolution actions. Indeed, the State’s interest in protecting victims of domestic abuse is equal to, if not greater than, its interest in actions determining child custody or terminating parental rights because it involves the safety of the protected parties. If the State can make adjudications without personal jurisdiction over a nonresident parent in custody determinations in which it has a strong state interest, it also has that right in domestic-abuse protection actions in which it has an even stronger interest.

The interstate nature of many abusive relationships, and the concomitant need for protection extending beyond the borders of a particular state was discussed by us, under analogous facts, in State v. Bellows, 596 N.W.2d 509 (Iowa 1999). “Future violence ought to be constrained in any state in which the victim is located.” Bellows, 596 N.W.2d at 513. Our domestic-abuse statute evidences a special solicitude for potential abuse victims. It allows a petition to be filed without payment of costs, Iowa Code § 236.3(7); forms are provided for pro se filing, Iowa Code § 236.3A(2); and the county attorney may assist the plaintiff in all stages of the proceeding, Iowa Code § 236.3B.

It is true that due process requires, in status determinations as well as others, reasonable attempts to notify the defendant and a reasonable opportunity to defend. The Oklahoma court in J.L.H. acknowledged that “[a] quest for a con-sentless adoption must, of course, always conform to the procedural requirements of due process.” Nevertheless,

the natural mother had ample notice of the Oklahoma proceeding and was afforded sufficient opportunity to appear and defend against the attempted judicial extinguishments of her consent power, the minimum standards of fundamental fairness in the Due Process Clause were adequately met. In short, due process was not offended by the procedure used to hale her into the Oklahoma forum.

737 P.2d at 919; see also Hudson, 670 P.2d at 293. These requirements were satisfied in this case. Nathan was served notice in his home state, and he appeared at the hearing through counsel to challenge the court’s jurisdiction.

The protected status established by our statute is sufficient to justify the district court in exercising jurisdiction. However, this defendant suggests that the plaintiff should be required to go to the state of Utah (where, apparently, neither of the parties now resides), get a protective order, then transfer it to Iowa. See Iowa Code § 236.19 (registration of foreign protective orders). This would be a cumbersome and time-consuming procedure that is not required by the Constitution and is not even consistent with common sense. A court in a state where none of the parties resided would be unlikely to become involved in view of the doctrine of forum non conveniens and issues of subject matter jurisdiction.

The order here does not attempt to impose a personal judgment against the defendant. See J.L.H., 737 P.2d at 919 n. 13 (“Kulko [v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978),] is distinguishable [from a case in which no money judgment is sought] because it deals with jurisdiction to enforce liability arising from status rather than with determination of status.”). The district court merely ordered the defendant to “stay away from the protected party” and not assault or communicate with her, in furtherance of the State’s strong interest in protecting Iowa residents from domestic abuse. If a court may constitutionally make orders affecting marriage, custody, and parental rights without personal jurisdiction of a defendant, it certainly should be able to do what the court did here- — enter an order protecting a resident Iowa family from abuse.

IV. Forum Non Conveniens.

Nathan contends the district court erred in refusing to dismiss Tara’s action on forum non conveniens grounds. We first discussed this doctrine in detail in Silversmith v. Kenosha Auto Transport, 301 N.W.2d 725 (Iowa 1981). “Forum non conveniens is a facet of venue under which a court can decline to proceed with an action, although venue and jurisdiction are proper.” Silversmith, 301 N.W.2d at 726. Application of the doctrine presupposes at least two forums in which jurisdiction and venue are proper. Douglas Mach. & Eng’g Co. v. Hyflow Blanking Press Corp., 229 N.W.2d 784, 791 (Iowa 1975). The decision as to which forum should hear the case lies in the sound discretion of the trial court. Silversmith, 301 N.W.2d at 728; Restatement (Second) of Conflict of Laws § 84 cmt. b, at 251 (1971).

The mere desire of a party to have a case tried in his or her state of residence is insufficient; nor is it a sufficient ground that the claim arose elsewhere. Silversmith, 301 N.W.2d at 727. With respect to residence, Nathan’s status is unclear. Part of his brief states he is a resident of Utah, for forum non conveniens purposes, but he also states he was a resident of Colorado at the time Tara filed her application. Apparently, the only non-party witness to the event is Tara’s mother, who lives in Iowa. Nathan argues that “[m]ost, if not all, of the evidence regarding the allegations contained in Tara’s application was most easily accessible in the state of Utah, where the parties had resided [at the pertinent time].” However, Tara and her mother both live in Iowa, and if he has moved to Colorado, as he has stated, a Utah venue for the case would be inconvenient for him as well. Further, for the reasons discussed in Division III, Iowa has a significant interest in protecting its residents under chapter 236. A foreign jurisdiction — whether Utah or Colorado— would not have a significant interest in protecting a family that does not even live there. We believe the district court was well within its discretion in refusing to dismiss the case on forum non conveniens grounds.

V. Other Issues.

Nathan complains that the court erred in refusing to vacate its temporary order for child custody and visitation issues, and both parties request an award of appellate attorney fees. We reject the first of these claims because it is moot; the court entered its permanent order, which did not purport to deal with issues of child support or visitation, and at the point the permanent order was entered, the temporary order became ineffective. Any request for attorney fees shall be filed in the district court and ruled on after procedendo has issued.

AFFIRMED.

All justices concur except CARTER, J., LAVORATO, C.J., and TERNUS, J., who dissent.

CARTER, Justice

(dissenting).

I dissent.

The majority of the court now permits the Iowa courts to adjudicate substantial rights of persons over which they have no in personam jurisdiction in domestic-abuse actions brought under Iowa Code chapter 236. The court concedes, as did the district court, that defendant, Nathan Bartseh, did not have sufficient contacts with the State of Iowa to establish jurisdiction over his person. The court nevertheless proceeds to adjudicate Nathan’s substantial rights on the mistaken assumption that a domestic-abuse order under chapter 236 is a status determination. I strongly disagree with that conclusion.

More than 100 years ago in Pennoyer v. Neff, 95 U.S. 714, 722, 24 L.Ed. 565, 568 (1877), the court suggested that cases involving personal status of a plaintiff such as divorce actions could be adjudicated in the plaintiffs state of domicile even though personal jurisdiction of the defendant could not be acquired by the courts of that state. The adjudications thus permitted were those “affecting the personal status of the plaintiff.” Pennoyer, 95 U.S. at 733, 24 L.Ed. at 572. That principle was ratified in Williams v. North Carolina, 317 U.S. 287, 299, 63 S.Ct. 207, 213-14, 87 L.Ed. 279, 286 (1942).

In those instances where status adjudications take place without personal jurisdiction over an affected party, the adjudication must be limited to a declaration of status. It may not also award related affirmative relief. Kulko v. Superior Ct., 436 U.S. 84, 100-01, 98 S.Ct. 1690, 1701, 56 L.Ed.2d 132, 146-47 (1978) (notwithstanding state’s substantial interest in protecting resident children, jurisdiction with which defendant lacked minimum contacts is not a “ ‘fair forum’ in which to require [father] either to defend a child support suit or suffer liability by default.”) The Restatement (Second) of Judgments recognizes that

[j]urisdiction to establish or terminate a status should be distinguished from jurisdiction to determine the existence of a status as an incidental question in litigation whose primary objective is resolution of some other controversy.... It should also be distinguished from jurisdiction to enforce liability arising from a status, for example, liability for child support.

Restatement (Second) of Judgments § 7 cmt. a (1982) (citing Kulko).

What Tara Bartseh sought from an Iowa court was not a declaration of her status, but rather a grant of injunctive relief against a party beyond the jurisdiction of the Iowa court. Nor did the district court attempt to adjudicate her status in any manner. Consequently, the essential predicate for the majority’s holding is missing. Moreover, even if an adjudication of status had been involved, the court had no jurisdiction to grant collateral relief against Nathan. The majority apparently believes that the unavailability of collateral relief against foreign domiciliaries in status adjudications only extends to money judgments. That is not correct. The court in Kulko described the protection much more broadly:

The Due Process Clause of the Fourteenth Amendment operates as a limitation on the jurisdiction of state courts to enter judgments affecting rights or interests of nonresident defendants.

Kulko, 436 U.S. at 91, 98 S.Ct. at 1696, 56 L.Ed.2d at 140 (emphasis added). The “rights or interests” of Nathan that have been adversely affected by the district court’s judgment are substantial. There has been a direct invasion of his liberty interest. In addition, there are collateral consequences of a lasting nature. See 18 U.S.C. § 922(g)(8) (possession of a firearm precluded).

Although, as the majority notes, the state clearly has an important interest in fostering protection against domestic abuse, its power to do so does not extend to granting protective orders against persons lacking the requisite minimum contacts with the forum state. The need to establish such minimum contacts stands as “a prerequisite to [the State’s] exercise of power over [foreign domiciliaries].” Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283, 1296 (1958).

I would reverse the judgment of the district court.

LAVORATO, C.J., and TERNUS, J, join this dissent.


author: LARSON, Justice.

text:
    Roy Walter GRAY, Appellant, v. KINSETH CORPORATION d/b/a Country Kitchen and Linda Skinner, Appellees.
    No. 99-1370.
    Supreme Court of Iowa.
    Nov. 15, 2001.

      Edward L. Wintroub of Wintroub, Rin-den, Sens & McCreary, Omaha, Nebraska, for appellant.
    Jacob J. Peters of Peters Law Firm, P.C., Council Bluffs, for appellees.
   LARSON, Justice.

Roy Gray filed suit against Kinseth Corporation, his former employer, alleging gender discrimination. Kinseth moved to dismiss on the ground Gray had failed to file the suit within ninety days of a right-to-sue letter sent to him by the Council Bluffs Human Relations Commission. The district court dismissed the case, and the plaintiff appealed. We reverse and remand.

I. Facts and Prior Proceedings.

Roy Gray was an employee of Kinseth beginning May 20, 1996, at a Country Kitchen restaurant in Council Bluffs. Gray quit this employment on June 23, 1996, and on October 11, 1996, he filed a complaint with the Council Bluffs Human Relations Commission (local commission), alleging gender-based discrimination.

Four days after Gray filed his complaint, the local commission sent a memo to the Iowa Civil Rights Commission (state commission), stating “[w]e are cross-filing [Gray’s] complaint with you, but investigation will be handled through our office.” On October 18, 1996, the state commission sent the local commission a preprinted form acknowledging receipt of Gray’s complaint. This form had statements next to boxes to be marked concerning the local commission’s involvement. A box was marked next to the statement that the state commission had docketed the case and was notifying the local commission that it would “await results of your processing.” However, the boxes next to statements indicating the state commission was referring or deferring Gray’s case to the local commission, in accordance with a “referral” or “deferral” contract, were not marked.

On January 8, 1999, counsel for Gray requested an administrative release (“right-to-sue letter”) from the local commission, which was issued to Gray on January 12, 1999. This letter stated that Gray “must sue WITHIN 90 DAYS from your receipt of this Notice, otherwise your right to sue is lost.” Gray also received a right-to-sue letter from the state commission dated February 10,1999, stating:

With this release, Complainant has the right to commence an action in a State District Court. That action must occur within ninety (90) days of the issue date: February 10,1999.

On May 10, 1999, Gray filed his petition in Pottawattamie County District Court asserting his gender-discrimination claim and alleging that he had sought and exhausted his administrative remedies against the defendant. This petition was filed within ninety days of the state’s right-to-sue letter but 118 days after the issuance of his right-to-sue letter from the local commission.

On July 17, 1999, Kinseth filed a motion to dismiss on the basis Gray’s petition was filed beyond the ninety days allowed after the local commission’s right-to-sue letter. This was a “speaking” motion to dismiss, ie., a motion that asserts facts not contained in the petition. Generally, a motion to dismiss may be granted only if the petition shows on its face no right of recovery under any state of facts. Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999). While the plaintiff contends Kinseth’s motion to dismiss was improper because it asserted facts not contained in the petition, he has conceded all of the facts necessary to resolve the narrow legal issue of whether his suit is time-barred. We therefore hold the plaintiff has waived his procedural argument.

On August 3, 1999, the district court granted the motion to dismiss on the ground the complaint was filed with the local commission, and the local commission had acted as the “lead” agency in the matter. Therefore, the January 12 letter from the local commission began the ninety-day time period to file suit, rather than the February 10 letter from the state commission, according to the ruling.

II. The Merits.

Gray makes three arguments why he should not be bound by the timing of the local commission’s letter: (1) the district court improperly considered matters not contained in his petition (a matter already discussed); (2) a local commission cannot issue a right-to-sue letter preempting a right-to-sue letter from the state commission; and (3) even if a local commission may be delegated the power to issue a right-to-sue letter binding on the state commission, it may do so only when the power is expressly delegated to them, and here there was no evidence of a referral contract between the state and local commissions.

Gray contends there is no statutory authority for a local commission to issue an administrative release that would preempt a plaintiffs right to sue under the Iowa Civil Rights Act. Rather, he claims, such a release by a local commission would limit a plaintiffs right only under a local ordinance. Gray cites Quaker Oats Co. v. Cedar Rapids Human Rights Commission, 268 N.W.2d 862, 864 (Iowa 1978), to support this argument. The statute cited by Quaker Oats was amended in 1978 (and later moved to section 216.19), and now it appears that, pursuant to section 216.19, local commissions have jurisdiction to enforce the Iowa Civil Rights Act as well as local ordinances. Part of the new language reads:

Nothing in this chapter shall be construed as indicating an intent to prohibit an agency or commission of local government having as its purpose the investigation and resolution of violations of this chapter from developing procedures and remedies necessary to insure the protection of rights secured by this chapter. All cities shall, to the extent possible, protect the rights of the citizens of this state secured by the Iowa civil rights Act. Nothing in this chapter shall be construed as limiting a city or local government from enacting any ordinance or other law which prohibits broader or different categories of unfair or discriminatory practices.

Iowa Code § 216.19 (1995) (emphasis added).

We believe the local commission here has authority to enforce the Iowa Civil Rights Act, under Iowa Code chapter 216. This, however, does not mean the local commission has replaced the state commission.

Much of Kinseth’s argument is based on its claim the state commission deferred to the local commission or referred the case to it, citing Iowa Code section 216.5(12) (1995), which grants power to the state commission “[t]o defer a complaint to a local civil rights commission under commission rules promulgated pursuant to chapter 17A,” and Iowa Code section 216.19(fifth unnumbered paragraph), providing the state commission

in its discretion may refer a complaint ... to a referral agency ... for investigation and resolution; and a referral agency ... may refer a complaint filed with that agency to the commission for investigation and resolution.

Iowa Code section 216.19(fourth unnumbered paragraph) authorizes the state commission to “establish by rules the procedures for designating a referral agency and the qualifications to be met by a referral agency.” According to Iowa Administrative Code rule 161 — 1.6(2)(c), “ ‘referral agency means any agency of local government that has been awarded that status by contract with the [state] commission.” As Gray argues, there is no evidence of such a contract in the record. Further, in the October 1996 letter from the state commission to the local commission acknowledging receipt of Gray’s case for cross-filing, the state commission did not mark the boxes indicating it was referring Gray’s case to the city commission under a referral contract or that it was deferring Gray’s case to the city commission under a deferral contract. Thus, there has been no showing that the local commission had the authority to bind the state commission by issuing a right-to-sue letter. In fact, the only responsibility assumed by the local commission as indicated by the exchange of correspondence was that “investigation will be handled through our office.” (Emphasis added.)

In the absence of a clear showing that the right to bind the state commission has been delegated to the local commission through a referral contract, the state commission’s right-to-sue letter controls. Because we believe the ninety days began to run on the date of the state commission’s right-to-sue letter and the suit was therefore timely, we reverse and remand for further proceedings.

REVERSED AND REMANDED.

      . See Dietz v. Dubuque Human Rights Comm’n, 316 N.W.2d 859, 860 (Iowa 1982).


text:
    Valerie FOSTER, Appellee, v. Cassandra Strutz, Defendant, and Vince ANKRUM, Appellant.
    No. 99-1680.
    Supreme Court of Iowa.
    Nov. 15, 2001.

      Sharon Soorholtz Greer of Cartwright, Druker & Ryden, Marshalltown, for appellant.
    Stephen M. Terrill of Terrill & Martens Law Offices, Ames, for appellee.
   LARSON, Justice.

One of the defendants in this personal-injury action has appealed a judgment against him, raising issues of sudden emergency, comparative fault, and alleged excessive damages. The court of appeals reversed and remanded on the sudden-emergency ground, and we granted further review. We vacate the court of appeals decision and affirm the judgment of the district court.

I. Facts and Prior Proceedings.

Valerie Foster, the plaintiff, and a friend were passengers in a pickup driven by a third friend. They spotted a vehicle, occupied by the defendants (owned by defendant Vince Ankrum and operated by defendant Cassandra Strutz), sitting in a parking lot. The Foster vehicle pulled into the parking lot as did a third vehicle, which was occupied by several young men in what has been called the “Ruggles” vehicle. The Ruggles vehicle was parked at the northwest corner of the lot, the Ankrum vehicle was parked to the east of the Ruggles vehicle, and the Foster pickup was parked to the south of the other two vehicles.

Just before this accident, Foster was standing alongside the pickup. “All of a sudden” three to five young men from the Ruggles car approached defendant Ank-rum as he was sitting in the passenger seat of his car. The young men began yelling at Ankrum, striking him through the open window, and attempting to pull him out of the car. One of the men struck at Ankrum by reaching across the driver’s seat. Ankrum shielded Strutz, who was in the driver’s seat, by pulling her down into his lap. Ankrum saw a fist come through the driver’s window and hit the gearshift. He heard a clicking noise, which he believed placed the car in reverse, although he said he did not realize it at the time. Strutz, seated in the driver’s seat but lying across Ankrum’s lap, stepped on the accelerator, believing the car was in drive and the car would proceed forward through the parking lot exit. As the car was actually in reverse, the ear backed toward the pickup. Foster attempted to pull herself over the side and into the bed of the pickup, but her foot was crushed between the rear bumper of Ankrum’s car and the side of the pickup. The time frame of the incident is not clear; there was evidence that, after the altercation began, it was “probably ten or fifteen seconds” before Strutz stepped on the accelerator, “[everything happened within a single minute,” and “within those two minutes a ... lot of stuff happened.”

Foster sued Ankrum, owner of the vehicle, and Strutz, as the operator. Ankrum and Strutz in turn filed a third-party petition naming one of the assailants as a third-party defendant. The district court refused to give a sudden-emergency instruction, reasoning that “the evidence shows that some time did pass — not a great deal of time admittedly — but some time did pass for the occupants of [Ank-rum’s] car to assess the situation and make some judgment calls.” The court found that “[t]he circumstances which confronted Ms. Strutz and Mr. Ankrum developed over a period of at least a few minutes.... [A]s a matter of law, Ms. Strutz and Mr. Ankrum were not confronted with a sudden emergency.” The court also refused to instruct the jury on comparative fault. The jury found the third-party defendant was not negligent and attributed fifty-five percent of the fault to Ankrum and forty-five percent to Strutz. The jury assessed damages in favor of Foster in the amount of $289,576. Ankrum appealed, claiming the jury should have been instructed as to sudden emergency and Foster’s comparative fault, and that the verdict was excessive.

The court of appeals reversed and remanded for a new trial, holding a sudden-emergency instruction should have been given. The court of appeals affirmed the district court’s refusal to give a comparative-fault instruction and its ruling that the verdict was not excessive. Foster sought, and we granted, further review.

II. The Sudden-Emergency Instruction.

Ankrum and Strutz requested the following sudden-emergency instruction:

Strutz claims that if you find that she violated the law in the operation of the vehicle, she had a legal excuse for doing so because she was confronted with a sudden emergency and, therefore, is not negligent. A sudden emergency -is a combination of circumstances that calls for immediate action or a sudden or unexpected occasion for action. A driver of a vehicle who, through no fault of her own, is placed in a sudden emergency, is not chargeable with negligence if the driver exercises that degree of care which a reasonably careful person would have exercised under the same or similar circumstances.

This instruction follows our Uniform Instruction. See 1 Iowa Civ. Jury Instructions 600.75 (2001).

The doctrine of sudden emergency allows a fact finder to excuse a defendant’s failure to obey statutory law when confronted with an emergency not of the defendant’s own making. Weiss v. Bal, 501 N.W.2d 478, 480 (Iowa 1993). In addition to excusing a failure to obey statutory law, the doctrine of sudden emergency “also has independent significance in common-law claims.” Id.

Sudden emergency has been defined as

(1) an unforeseen combination of circumstances which calls for immediate action; (2) a perplexing contingency or complication of circumstances; (3) a sudden or unexpected occasion for action, exigency, pressing necessity.

Bangs v. Keifer, 174 N.W.2d 872, 374 (Iowa 1970).

The district court rejected the requested instruction on the ground the emergency was not sudden. The testimony at trial as to the time for the defendant to react to the situation, “given the most favorable construction possible in favor of [Ankrum],” Greenwood v. Mitchell, 621 N.W.2d 200, 205 (Iowa 2001), was that it was “probably ten or fifteen seconds” after the altercation began before Strutz stepped on the accelerator. We agree with the district court’s assessment: a sudden emergency is “an event that require[s], if not an instantaneous response, certainly something fairly close to that.” As we said in Weiss:

This is not a case in which a driver was suddenly confronted with oncoming traffic on the wrong side of the road, an unexpected patch of ice, a nonnegligent failure of brakes, or a sudden heart attack.

501 N.W.2d at 482. The defendants had ten to fifteen seconds to think and to act. This was sufficient time, under the circumstances, to assess the situation, make some judgment calls, and drive off without striking the plaintiff.

The doctrine of sudden emergency has fallen into considerable criticism and has even been abandoned in some jurisdictions. See id. at 480-81. We have expressed some concern because of the tendency “to unduly emphasize one aspect of the case,” although we have not rejected the doctrine. See id. at 481. If we were to hold the instruction on sudden emergency was required in the present case, we would not just preserve the doctrine, we would expand it well beyond its appropriate scope. The district court did not err in refusing the instruction.

III. The Comparative Fault Issue.

Ankrum complains of the trial court’s refusal to instruct the jury on the plaintiffs comparative negligence. He contends that, “where [a] pedestrian knows of the great potential for a conflict and remains to observe, the jury should be able to assess that fault.” He cites no authority for this proposition, and it seems that a decision by a relatively distant bystander not to flee an altercation between others would generally not rise to the level of negligence. The defendant’s assertion that the plaintiff was negligent by “participating in a joint enterprise” is not supported by any evidence. The district court properly refused to instruct the jury as to comparative fault.

IV. The Damages.

The defendant moved for a new trial on the basis the verdict was excessive. A district court ruling on a motion for new trial based on the size of the verdict is reviewed for abuse of discretion. Kuta v. Newberg, 600 N.W.2d 280, 284-85 (Iowa 1999).

This plaintiffs injuries were severe; her foot was nearly severed, and she suffers from limitations in the use of her foot that will require future surgeries. We conclude the district court did not abuse its discretion in refusing a new trial on this ground.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.


author: NEUMAN, Justice. CADY, Justice

text:
    STATE of Iowa, Appellee, v. Joseph Allen SUTTON, Appellant.
    No. 99-1245.
    Supreme Court of Iowa.
    Nov. 15, 2001.

      Kent A. Simmons, Davenport, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, William E. Davis, County Attorney, and Jerald Feuerbach and Robert Cusack, Assistant County Attorneys, for appellee.

       Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2001).

   NEUMAN, Justice.

Numerous legal challenges are raised in this appeal by Joseph Sutton from his conviction for aiding and abetting vehicular homicide by reckless driving. But the decisive issue is whether the facts fail to support the conviction as a matter of law. We conclude they do. We therefore vacate a contrary court of appeals decision and reverse the judgment of the district court.

I. Background Facts and Legal Proceedings.

On a sunny Saturday morning in an older residential neighborhood of Davenport, three-year-old Steven Choate played in the front yard of a friend’s home. His grandparents were hosting a garage sale across the street. In an evident attempt to rejoin his family, little Steven suddenly ran into the street. Tragically, he was struck and killed by a car driven by fifteen-year-old Joseph “Junior” Butler. Defendant Joseph Sutton, who is seventeen years old, was a passenger in the Butler vehicle.

Wilkes Avenue, where the collision occurred, is a two-lane residential street with parking allowed on both sides and a posted speed limit of twenty-five miles per hour. An eyewitness and two accident reconstruction experts estimated that Butler’s pre-impact speed was twenty-seven miles per hour. The eyewitness, Jim Willert, had just passed the Butler vehicle traveling in the opposite direction. Willert drove a van towing a trailer with a stock car on it. As he met the Butler vehicle, Willert pulled over to the curb behind one of two parked cars because there was limited room to pass. Willert’s van and trailer were then in a “V” position, between the two parked cars, with the front of the van edging slightly over the middle of the street.

Another passenger in the Butler vehicle, thirteen-year-old Markey Glenn, testified that Butler had to swerve slightly to miss the Willert vehicle, which Glenn described as coming right at them. This explains Willert’s belief that the Butler vehicle went somewhat up on the opposite curb and slowed down before resuming speed and passing him. Glenn also testified that upon executing this maneuver, Sutton told Butler “good job” and the two exchanged a “high five.” It was reportedly just after this congratulatory gesture that Butler first saw the child in his path. He applied his brakes but failed to stop in time to avoid hitting the child. Willert observed the collision in his rear-view mirror.

Willert assisted Butler in retrieving the child from the undercarriage of the vehicle. Emergency help was summoned. Sutton and Glenn, meanwhile, panicked and fled on foot.

The State charged Sutton with aiding and abetting vehicular homicide by reckless driving in violation of Iowa Code section 707.6A(2)(a) (Supp.1997). The case proceeded to jury trial. During jury selection, Sutton mounted a Batson challenge to the State’s peremptory strike of the only African-American on the jury panel. See generally Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). After hearing argument on the point, the court rejected the challenge. The court likewise rejected motions by Sutton for judgment of acquittal based on alleged insufficiency of the evidence to support the charged offense.

The jury returned a verdict finding Sutton guilty as charged. After failing to prevail on a motion for new trial, Sutton appealed. We transferred the case to the court of appeals. That court, with one judge dissenting, affirmed the denial of Sutton’s motions for judgment of acquittal but reversed and remanded with directions to the court to apply the correct weight-of-the-evidence standard to Sutton’s motion for new trial. See State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). The dissent believed the district court failed to properly instruct the jury on proximate cause and that counsel’s failure to preserve error on this crucial issue warranted preservation of the claim for postconviction relief. The court also rejected Sutton’s constitutional challenge to the imposition of $150,000 in victim restitution under Iowa Code section 910.3B(1) (Supp.1997).

The case is now before us on Sutton’s petition for further review. Additional facts will be detailed as they pertain to the issues on review.

II. Issue on Appeal/Scope of Review.

As we noted at the outset, Sutton mounts several legal challenges to his conviction, including the court’s denial of his Batson challenge and a forceful claim that error by trial counsel led the court to give the jury an inadequate proximate cause instruction. We are convinced, however, that resolution of the appeal turns on the fundamental question of whether, as a matter of law, the State failed to tender sufficient proof of reckless conduct — or aiding and abetting that conduct — to support the charge against Sutton.

We are guided by well-established rules as we consider Sutton’s sufficiency-of-the-evidence challenge:

The district court’s finding of guilt is binding upon us unless we find there was not substantial evidence in the record to support such a finding. In determining whether there was substantial evidence, we view the record evidence in the light most favorable to the State.
Substantial evidence means such evidence as could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt.
A reviewing court cannot make a substantial evidence determination if it considers only the evidence supporting guilt. This is so because a rational fact finder cannot render a verdict without taking into consideration all the record evidence. So in determining whether there is substantial evidence, we must consider all the record evidence, not just the evidence supporting guilt.

State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993) (citations omitted).

III. Applicable Law.

Iowa Code section 707.6A(2)(a) sets forth the reckless driving alternative to the crime of homicide by vehicle. The statute provides:

2. A person commits a class “C” felony when the person unintentionally causes the death of another by any of the following means:
a. Driving a motor vehicle in a reckless manner with willful or wanton disregard for the safety of persons or property, in violation of section 321.277.

Iowa Code § 707.6A(2)(a). The language of the reckless driving statute, section 321.277, echoes section 707.6A(2)(a), defining the crime as “drivfing] any vehicle in such manner as to indicate either a willful or a wanton disregard for the safety of persons or property.” Reckless driving is punishable as a simple misdemeanor. Iowa Code § 321.277 (1997).

The burden rests upon the State to prove recklessness. State v. Cox, 500 N.W.2d 23, 26 (Iowa 1993). In Cox, this court made plain that, even when a death occurs, violation of a rule of the road, by itself, does not elevate “a simple misdemeanor to a class ‘C’ felony.” Id. Thus proof that a motorist failed to yield at a stop sign, without accompanying evidence of speeding or erratic driving, was insufficient as a matter of law to establish the recklessness necessary to support a conviction for vehicular homicide. Id. Relying on Cox, the court held in State v. Klatt, 544 N.W.2d 461, 463 (Iowa Ct.App.1995), that proof of improper passing, without more, could not sustain a vehicular homicide conviction. Klatt involved a motorist who was attempting to pass two semi-trailer trucks when he collided with an oncoming vehicle, killing the driver. Although the maneuver occurred in a no-passing zone, the court held that absent proof of excessive speed or other conscious disregard for the safety of others, the State failed in its burden of proving recklessness. Klatt, 544 N.W.2d at 463.

These cases, and others addressing conduct resulting in the unintentional death of another, recognize that attaching criminal culpability to an act requires more than proof of accidental or negligent behavior. “[F]or recklessness to exist,” this court held in State v. Torres,

the act must be fraught with a high degree of danger. In addition the danger must be so obvious from the facts that the actor knows or should reasonably foresee that harm will probably— that is, more likely than not — flow from the act.

495 N.W.2d at 681. In other words, a person acts recklessly when the person’s actions are not merely unreasonable but “highly” unreasonable; not merely a departure from ordinary care but an “extreme” departure. See id. (quoting William L. Prosser, Handbook of the Law of Torts § 34, at 185 (4th ed.1971)).

Several cases involving prosecutions for vehicular homicide demonstrate behavior deemed highly unreasonable and, therefore, reckless. In State v. Conyers, 506 N.W.2d 442, 443 (Iowa 1993), the facts revealed that.defendant drove ten miles an hour over the posted speed limit in a school zone, traveling through a red light and into a marked crosswalk where he struck and killed a nine-year-old on her way home from school. The facts further revealed that three out of the four brakes on Conyers’ truck were “completely deteriorated and inoperable.” Conyers, 506 N.W.2d at 443. Conyers knew of the brakes’ defective condition and, in fact, had been warned that very day not to drive the vehicle. Id. at 444. This court held that the defendant’s disregard for this danger, combined with driving at an excessive speed in a school zone, demonstrated the level of recklessness necessary to support a conviction for vehicular homicide. Id. at 445.

In a more recent case, this court distinguished Klatt and Cox, upholding a conviction for vehicular homicide where, in a deadly move, the defendant — driving nearly ninety miles per hour in a no-passing zone — forced an oncoming motorist off the road and into the path of another vehicle. State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997). Likewise, in State v. Travis, 497 N.W.2d 905, 907 (Iowa Ct.App.1993), our court of appeals found the requisite recklessness established in a record that showed defendant riding his motorcycle at excessive speeds “on curbs, sidewalks and lawns, and lifting his motorcycle off the front wheel while riding.” The defendant then put the vehicle in the hands of an inexperienced and underage driver who, without instruction about how to stop, eventually struck and killed a six-year-old playing nearby. Travis, 497 N.W.2d at 907.

Consistent with the definition of recklessness articulated in Torres, the convictions upheld in Conyers, Abbas and Tra vis rested on proof of highly unreasonable conduct in forseeably dangerous situations. We highlight this observation because in Conyers this court stated that “a person recklessly drives when they consciously or intentionally drive and they know or should know that by driving they create an unreasonable risk of harm to others.” Co-nyers, 506 N.W.2d at 444 (emphasis added); accord Abbas, 561 N.W.2d at 74. To the extent the standard announced in Co-nyers might be interpreted as requiring the State to prove no more than a violation of the reasonable person standard necessary to establish negligence, we hereby take this opportunity to clarify it. To prove recklessness sufficient to support a conviction for vehicular homicide under section 707.6A(2)(a), the State must prove that the defendant engaged in conduct “fraught with a high degree of danger,” conduct so obviously dangerous that the defendant knew or should have forseen that harm would flow from it. Torres, 495 N.W.2d at 681.

To sustain a conviction based on the theory of aiding and abetting, the State must tender substantial proof that the accused “assented to or lent countenance and approval to the criminal act either by active participation or by some manner encouraging it prior to or at the time of its commission.” State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000); see Travis, 497 N.W.2d at 908.

IV. Analysis.

The question is whether Butler’s driving on Wilkes Avenue was highly unreasonable or such an extreme departure from ordinary care as to constitute not just negligence but recklessness. The State’s expert conceded that driving twenty-seven miles per hour in a twenty-five mile per hour zone could not fairly be described as reckless. So the State attempted to portray Butler’s minor speeding infraction as not an isolated act but part of a pattern of reckless driving engaged in by the trio on the morning of the accident. The drivers were underaged, unlicensed and inexperienced, the State argued, and the car they were driving had faulty brakes. Additionally, although not corroborated by any eyewitness testimony (including passenger Glenn), the State surmised that Butler must have failed to stop at a stop sign in the preceding block in order to achieve twenty-seven miles per hour just before braking for the child.

We think testimony by the State’s expert puts the collision in perspective. An average driver will perceive and react to a hazard in one-and-a-half seconds. A car moving at a speed of twenty-seven miles per hour travels forty feet per second. Butler’s vehicle left fifty-six feet of skid marks, suggesting a better-than-average reaction time to a crisis situation. Sadly, Butler’s reaction time was not fast enough to prevent the collision that took Steven Choate’s life. So the State argues that if the car’s brakes had been better, Butler would have been able to stop sooner. Key to this assertion, however, would be proof that Butler — and Sutton — knew of the brakes’ condition and drove heedlessly despite the hazard. See Conyers, 506 N.W.2d at 445 (upholding conviction where defendant admitted knowledge of dangerously defective brakes yet drove ten miles per hour over speed limit in school zone, striking schoolgirl); Travis, 497 N.W.2d at 908 (aiding and abetting reckless driving). The vehicle’s owner, called by the State, conceded the brakes were “mushy” but not sufficiently hazardous to prevent him from driving the car. Thirteen-year-old Markey Glenn testified that during his turn at the wheel, the brakes “sort of gave out” at one intersection so that he “almost” did not stop. But he went on to state that the incident gave him no farther concern. The record contains no proof that he mentioned it to Butler or Sutton, or that either one of them had any knowledge whatsoever that the brakes were in such obviously poor condition that harm would probably flow from driving the car. See Torres, 495 N.W.2d at 681.

In making our assessment of the sufficiency of the evidence, we are obliged to consider all the evidence, not just the evidence supporting the verdict. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980); accord Cox, 500 N.W.2d at 24. It is apparent from viewing the photographic evidence in this case that Willert’s van and stock car trailer obscured Butler’s view of the playing children Willert had just passed. Willert understood the hazard ahead; the record contains no proof that Butler was aware of it. Considered in retrospect, Butler’s actions were arguably negligent. The circumstances may have counseled driving lower than the posted speed limit. But neither on their own, nor when measured against our prior decisions, do the facts before us spell recklessness.

The fact that the defendant before us was not the driver of the vehicle, but a passenger, only reinforces our conclusion that the judgment against him cannot stand. Accordingly, we reverse the conviction and sentence entered against Joseph Sutton for aiding and abetting vehicular homicide.

DECISION OP COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED.

All justices concur except CADY and LARSON, JJ., who dissent. SNELL, S.J., participates in lieu of STREIT, J., who takes no part.

CADY, Justice

(dissenting).

I respectfully dissent.

The majority has properly stated our standard of review, yet fails to adhere to the standard in its review of this case.

This case has two layers of conduct at issue. The first is the conduct of the driver. The second is the conduct of the passenger. The legal standard applicable to each type of conduct is well settled. The conduct of the driver must be reckless. This means there must be evidence the driver knew or should have reasonably foreseen that harm would probably flow from his actions. State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993). The passenger must have assented to the recklessness by his active participation or encouragement. State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000).

The majority determines the record failed to reveal substantial evidence to support a finding of recklessness by the driver. Yet, its analysis reveals this was done only by emphasizing evidence that tended to minimize the driver’s conduct and by drawing inferences from the evidence contrary to those that would support the verdict of the jury. See Torres, 495 N.W.2d at 681 (must consider all the evidence, not just that supporting defendant’s guilt). This is contrary to our appellate standard of review. An appellate court must not review a case as a jury, but must review the verdict reached by the jury. In performing this task, it must consider the evidence in a light most favorable to the State, not advocate for the defense. See id.

The majority first concludes the expert testimony concerning the skid marks left by the vehicle on the pavement of the street revealed the youthful driver in this case was abnormally quick and attentive to react to the crisis situation. It then uses this conclusion to defeat the State’s argument that the youthfulness, inexperience, and unlicensed status of the driver were factors to support recklessness.

This logic is not only a non sequitur, but the premise lacks foundation and is a misstatement to the record. The skid mark evidence in this case was unrelated to the skill of the driver in reacting to the situation. Instead, it simply revealed the vehicle probably came to a stop 116 feet from the point at which the driver made the decision to stop the vehicle. If the point of impact was known, it would also show the distance between the vehicle and the victim when the driver realized the need to brake the vehicle. ■

Contrary to the majority, no expert in this case rendered an opinion about the skill of the driver, but only opined about the distance between the vehicle and the victim at the moment the driver saw the need to apply the brakes. The defendant had argued at trial that there was not enough time to stop the vehicle because the victim ran into the path of the vehicle. This conclusion was based on a claim that the point of impact occurred ten feet into the skid. The State argued the point of impact occurred at the very end of the skid, implying that a reasonably safe driver would have had enough time to stop the car without striking the victim. The majority not only fails to consider this evidence in a light most favorable to the State, as it is required, but draws an inference favorable to the defendant that is incorrect.

The majority next turns to the evidence of the poor condition of the brakes of the vehicle and concludes this evidence cannot be imputed to the driver because there was no direct evidence he knew the brakes were faulty. Again, the majority fails to consider the evidence in the ease in a light most favorable to the State. There was ample circumstantial evidence in the record that the driver knew the brakes were not in good condition. The owner of the vehicle testified the brakes were “mushy.” There was evidence the brake warning light on the dashboard of the vehicle was illuminated. Furthermore, even the thirteen-year-old boy who also operated the vehicle on that fateful morning, Markey Glenn, could tell from driving the vehicle that the brakes were not in good condition. Clearly, the inference the State was entitled to receive and that the jury could have drawn is that any driver operating the vehicle would have realized the brakes did not work properly.

The majority then turns to the evidence that the stock car trailer obscured the driver’s full view of the street ahead, as well as the children playing near the street in the obscured area. It then uses this evidence to conclude the driver could not have been reckless because he had no knowledge of the young child ahead. However, there is another important conclusion that can be drawn that is favorable to the State. A reasonable driver would stop or at least slow down when the vision of the road ahead is obscured by an obstruction on the road. The inference the majority should draw in this case is that the driver failed to slow to a safe speed when his vision became obscured, and this failure is a factor to support recklessness. The vehicle in this case was not being driven in an area where the presence of children in or near the street would not be expected. It was in a residential area. It was a sunny, fall Saturday morning. It was a time for drivers to expect people to be in the area. The failure to reduce the speed of the vehicle or to stop the vehicle when the driver’s vision ahead is obscured is a clear factor that supports recklessness. It showed a clear lack of care and concern for what might be in the obscured area. Moreover, it certainly cannot be used to disprove recklessness.

Finally, the majority minimizes the evidence offered by the State that the driver failed to stop at an intersection, as required, just prior to the collision. The majority downplays this evidence because it was not supported by an eyewitness. Again, the majority violates our standard of review. Tests by police after the incident revealed it was not possible to reach the speed of the vehicle in this case from a stopped position at the stop sign. This was circumstantial evidence the driver failed to stop that we must accept. Additionally, the majority consistently refers to the speed of the vehicle at twenty-seven miles per hour. The State’s experts, however, placed the speed of the vehicle in a range between twenty-nine and thirty-two miles per hour seconds before the accident.

In my view, substantial evidence supports recklessness, and we have done a disservice to our jury system by reversing the conviction. There was evidence the driver should have reasonably foreseen some harm was likely by operating a vehicle, in a residential area at the time children would be expected to be playing outside, at a speed up to seven miles over the speed limit, and when the driver’s vision of the street ahead and adjoining yards was substantially obstructed. Additionally, the vehicle had noticeably faulty brakes and was driven by a youthful, inexperienced, untrained, unlicensed operator who had just ran a stop sign and was celebrating the successful passage of an oncoming truck and trailer, with a maneuver that required him to jump the curb, by exchanging high-five’s with the passenger. As the driver and the passenger engaged in their reckless and heedless celebration, the vehicle blindly and contemptuously continued to speed into the path of little Steven Choate. This was reckless conduct by the driver, and Sutton is responsible for it as an aider and abettor. Sutton was the only experienced driver in the vehicle. Instead of discouraging such reckless conduct, he commended the driver by telling him he was doing a “good job.”

The majority is correct that a violation of the rule of the road, by itself, does not constitute recklessness. See State v. Cox, 500 N.W.2d 23, 26 (Iowa 1993). Clearly, we cannot compartmentalize reckless driving into categories of violations of rules of the road. This is because reckless driving is actually a state of mind. Thus, we look beyond the particular violation of the rule of the road involved in the case to consider whether the overall conduct of the driver would support a reckless state of mind — a mind that reveals actual or constructive knowledge that the operation of the vehicle creates an unreasonable risk of harm for others. See Torres, 495 N.W.2d at 681. Thus, in Cox, for example, the running of a stop sign did not constitute reckless driving because there was no additional evidence the driver was speeding or operating the vehicle in an erratic manner. Cox, 500 N.W.2d at 26.

The driver in this case was not reckless simply because he was speeding or because his conduct resulted in the death of another. Instead, he was reckless because he was driving erratically and carelessly, just as the driver in Cox would have been reckless if the stop sign violation would have been accompanied by erratic driving. This case is not a case of misjudgment or inadvertence by the driver. It is a case of horseplay accompanied by an uncaring attitude and careless frame of mind. The behavior displayed was “fraught with a high degree of danger” and was clearly enough to show the driver should have known that the operation of the vehicle created an unreasonable risk of harm. See Torres, 495 N.W.2d at 681. We are obligated by our standard of review to affirm the verdict of the jury.

LARSON, J., joins this dissent.