author: PER CURIAM.

text:
    2003 SD 118
    STATE of South Dakota, Plaintiff and Appellee, v. Kevin LEISINGER, Defendant and Appellant.
    No. 22728.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 25, 2003.
    Decided Sept. 24, 2003.
    See also 651 N.W.2d 693.

      Lawrence E. Long, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.
    Steven R. Binger, Sioux Falls, SD, for defendant and appellant.
   PER CURIAM.

[¶ 1.] Kevin Leisinger appeals the circuit court’s affirmance of the magistrate court’s denial of his motion for a new trial following his conviction for one count of violating a protection order. We affirm.

FACTS

[¶ 2.] Leisinger and his wife, Cheryl Jacobson, were married for approximately twenty years and commenced divorce proceedings in 1997. On March 24, 2000, Cheryl obtained a protection order that, among other things, restrained Leisinger from coming within a distance of one mile of her rural residence in Minnehaha County-

[¶ 3.] At approximately 5:20 p.m. on August 7, 2000, Cheryl’s sister, Carol Brower, and her sister’s companion, John (Jack) McCormick, were loading their pickup with some stored furniture from a shed on Cheryl’s property. Cheryl was not home at the time. As Brower and McCormick worked, they both observed Leisinger drive by Cheryl’s property in his white pickup towing a trailer and skid loader. Knowing of Cheryl’s protection order, Brower notified Cheryl of Leisinger’s drive-by. On August 8, 2000, Cheryl FAXed a complaint to the Minnehaha County Sheriff that read in pertinent part:

For what this is worth please consider this a complaint.
As you should be aware of, my ex husband (Kevin Leisinger) is supposed to stay 1 mile from my property as the current Protection Order states. However, yesterday Monday 8/7/00 he went by my house again at 5:20 p.m.
This time apparently hoping to be seen because he was pulling his loader. Carol Brower & Jack McCorrmick ... was [sic.] at the end of my driveway getting their things out of the shed & watched him go by. They know Kevin & his truck well. I was not home but they called me & informed me last night, (bolding in original).

[¶ 4.] As a result of Cheryl’s complaint, Leisinger was charged with one count of violation of a protection order. See SDCL 25-10-13. The case was tried in magistrate court before a jury on February 13, 2001. The State did not call Cheryl as a witness, but relied on testimony from Brower and McCormick. Both of them identified Leisinger as the person who had driven by Cheryl’s house on August 7 and neither of them expressed any doubt whatsoever over the accuracy of their identification.

[¶ 5.] Defense counsel reserved his opening statement until commencement of the defense case. During his statement, he attempted to touch upon the acrimony between Leisinger and Cheryl resulting from their divorce, the ensuing series of legal disputes between them, Cheryl’s history of filing criminal complaints against Leisinger and Leisinger’s civil lawsuit against Cheryl for malicious prosecution. It was defense counsel’s intention to establish that these facts motivated Cheryl to suborn perjury from Brower and McCormick in their testimony against Leisinger. The prosecutor objected on relevancy grounds to all such commentary and further discussion of these matters by defense counsel was foreclosed by the trial court.

[¶ 6.] Defense counsel called Cheryl as a defense witness. Counsel inquired as to Cheryl’s whereabouts at the time of Leis-inger’s drive-by and also inquired as to Cheryl’s motivation in obtaining the protection order against Leisinger. When Cheryl denied wanting the order to control Leisinger, defense counsel impeached her testimony with a prior recorded statement. The balance of Leisinger’s defense was to deny driving by Cheryl’s house on August 7 and the presentation of testimony from one of his employees that he was actually the person who had driven Leisinger’s pickup past Cheryl’s house on that date.

[¶ 7.] The jury ultimately returned a verdict finding Leisinger guilty of the protection order violation. On March 1, 2001, the trial court sentenced him to a $200 fine and a 180 day suspended jail sentence.

[¶ 8.] During discovery relating to the ensuing civil lawsuit between Leisinger and Cheryl, a copy of a FAX Cheryl had sent to the Minnehaha County Sheriffs Office on October 6, 2000 came to light. The FAX consisted of a log Cheryl had kept of her contacts with Leisinger since early 2000. The log included the following reference for August 7, 2000, the date of Leisinger’s protection order violation:

8/7/00 Monday. I met Kevin on the road & John was along with me. Later, the woman helping Kevin called from a pay phone <& told mom her name was Cindy & she saw me at the Gold Rush. I was there for an hour, (bolding in original).

[¶ 9.] Based upon this newly discovered evidence, Leisinger’s defense counsel filed a motion for a new trial on August 16, 2001. Counsel referred to the objections to his opening statement during trial and asserted that this new evidence would have supported his argument that Cheryl’s credibility was in question and that Cheryl was motivated to suborn perjury from the State’s chief witnesses, Brower and McCormick.

[¶ 10.] The trial court held a hearing on the new trial motion on August 30, 2001 and continued it on September 21. At the close of the hearing, the trial court made an oral ruling denying the motion and subsequently entered conforming findings of fact and conclusions of law and a written order. Leisinger appealed the denial of his new trial motion to the circuit court which affirmed. Leisinger now appeals to this Court.

ISSUE

[¶ 11.] Did the trial court abuse its discretion in denying Leisinger’s motion for a new trial?

[¶ 12.] Initially, there is some discrepancy in the briefs over the standards by which to review the denial of Leisinger’s new trial motion. As set forth in State v. Gonzalez, 2001 SD 47, ¶ 11, 624 N.W.2d 836, 839, this Court has traditionally employed a four-part test to identify error in the denial of a new trial motion premised upon the prosecution’s failure to disclose material evidence. That four-part test, however, was adopted by this Court in Ashker v. Solem, 467 N.W.2d 473, 477 (S.D.1990) and was adapted from language in the United States Supreme Court’s decision in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The Supreme Court has issued decisions in this area subsequent to Agurs that have refined its analysis. See e.g. Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). These refinements call into question the validity of at least the fourth part of the Ashker test requiring the defense to request evidence. As recently noted in Strickler, 527 U.S. at 280, 119 S.Ct. 1936, “the duty to disclose [material] evidence is applicable even though there has been no request by the accused.”

[¶ 13.] Given the obvious .question over the continuing viability of the Ashker analysis in light of Supreme Court developments in this area, Ashker’s four-part test as recently applied in Gonzalez is not utilized in this decision for review of the issues presented. Rather, reliance is placed upon more recent analysis by the Eighth Circuit Court of Appeals in United States v. Carman, 314 F.3d 321 (8th Cir. 2002) and by the Supreme Court in Strick-ler, supra.

[¶ 14.] At the outset, a reviewing court reviews “a denial of a motion for a new trial based on a Brady claim for an abuse of discretion.” Carman, 314 F.3d at 324. The Supreme Court itself outlined the analysis for a Brady claim in Strickler:

In [Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ], this Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” We have since held that the duty to disclose such evidence is applicable even though there has been no request by the accused, and that the duty encompasses impeachment evidence as well as exculpatory evidence. Such evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Moreover, the rule encompasses evidence “known only to police investigators and not to the prosecutor.” In order to comply with Brady, therefore, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in this case, including the police.”
... There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.

Strickler, 527 U.S. at 280-282, 119 S.Ct. 1986 (some citations omitted).

[¶ 15.] Here, two components of a true Brady violation are lacking. The newly discovered evidence consisting of the log page from Cheryl’s October 2000 FAX to the sheriffs office is neither favorable to Leisinger nor did prejudice ensue from its suppression.

[¶ 16.] Leisinger repeatedly asserts that the log page establishes Cheryl perjured her testimony during trial and that her perjury supports his argument that she suborned additional perjury from witnesses Brower and McCormick in order to support his conviction. The log page, however, merely indicates that, on the same date as Leisinger’s drive-by Cheryl’s residence, Cheryl met Leisinger on an unidentified road at an unidentified time and that she was accompanied at that time by someone named John. How this in any fashion impeaches or conflicts with Cheryl’s trial testimony or supports Leisinger’s assertion that Cheryl suborned perjury from witnesses Brower and McCormick goes unexplained in Leisinger’s brief. In fact, the passage from the log page actually supports Cheryl’s trial testimony that she was at the Gold Rush Casino on the day of the drive-by.

[¶ 17.] The trial court also found Leis-inger’s argument unpersuasive. In its findings and conclusions denying Leisinger’s new trial motion, it found no nexus between the encounter described in the log page and “the specific incident and facts proven at trial that were the basis for [Leisinger’s] convietion[.]” The court concluded in pertinent part:

Absent such a nexus, that fax is irrelevant to the specific charge and facts that supported it regarding his conviction. Irrelevant extraneous information by definition cannot be either material or favorable to the Defendant, and therefore there is no “reasonable probability” that the jury would have acquitted the defendant had it been disclosed.

[¶ 18.] The trial court’s determination is well-reasoned and supported by the applicable standards. Given the lack of any reasonable probability that the jury would have acquitted Leisinger had the log page been previously disclosed, there is no showing in this record of prejudice sufficient to establish a Brady violation. Therefore, the trial court committed no abuse of discretion in denying Leisinger’s new trial motion premised on Brady.

[¶ 19.] In Kyles, the Supreme Court observed that a Brady violation not only results from the government’s suppression of favorable evidence, but also, “where previously undisclosed evidence reveals] that the prosecution introduced trial testimony that it knew or should have known was perjured[.]” Kyles, 514 U.S. at 488,115 S.Ct. 1555. The Court noted that, “ ‘a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ ” Id. (quoting Agurs, 427 U.S. at 103, 96 S.Ct. 2392). Leisinger also attempts to raise an argument under this aspect of Brady, asserting that the log page establishes the State’s knowing presentation of perjured testimony at his trial. This argument fails, however, for the same reason as Leisinger’s first argument, ie., the log page simply fails to show perjury in the testimony of any witness at Leisinger’s trial let alone a knowing presentation of perjured testimony.

[¶ 20.] Affirmed.

[¶ 21.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and ZINTER, participating.

[¶ 22.] MEIERHENRY, Justice, disqualified.

      . Leisinger was ultimately successful in his civil lawsuit against Cheryl and a jury returned a verdict of $133,755 in his favor on May 23, 2001, approximately three months after this criminal case was tried. This Court later affirmed the verdict, but reduced the award of $120,000 in punitive damages to $25,000. See Leisinger v. Jacobson, 2002 SD 108, ¶ 25, 651 N.W.2d 693, 701.

      . The test is outlined in Gonzalez, 2001 SD 47 at ¶ 11, 624 N.W.2d at 839, as follows:
      [A] new trial must be granted if these questions can be answered affirmatively: (1) was the defense unaware of the evidence, (2) is the evidence favorable to the accused, (3) is the evidence material to the defense, (4) did the defense make a request for the evidence!?]


source: Caselaw Access Project

author: KONENKAMP, Justice. SABERS, Justice

license: Public Domain

text:
    2003 SD 117
    Duane HAY and Paulette Hay, Petitioners and Appellants, v. BOARD OF COMMISSIONERS FOR GRANT COUNTY, South Dakota, James Peters, Gene Mann, Clayton Tucholke, Paul Dummann, and Richard Berens, Respondents and Appellees.
    No. 22760.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 25, 2003.
    Decided Sept. 24, 2003.

      James G. Abourezk, Sioux Falls, South Dakota, Attorney for appellants.
    Jack H. Hieb of Richardson, Groseclose, Wyly, Wise & Sauck, Aberdeen, South Dakota, Attorneys for appellees.
   KONENKAMP, Justice.

[¶ 1.] A zoning and planning commission, acting as a board of adjustment, granted a permit for the expansion of a dairy operation. Aggrieved by the decision, two taxpayers appealed to the county commissioners. The commissioners declined to hear the appeal, ruling that they lacked jurisdiction to review a decision of the board of adjustment. The taxpayers then petitioned the circuit court for a writ of mandamus requiring the commissioners to act. In denying the writ, the court ruled that the planning and zoning commission was properly sitting as a board of adjustment, and the county commissioners lacked jurisdiction over the board of adjustment. On appeal, the taxpayers question whether a planning and zoning commission must expressly convene as a board of adjustment to decide on board of adjustment matters. Because South Dakota law allows for the designation of a planning and zoning commission to act as a board of adjustment and this board took final action on the permit, the county commission had no jurisdiction to review the decision. We affirm.

Background

[¶ 2.] Whetstone Valley Dairy, Inc. is a concentrated animal feeding operation (CAFO) located in Grant County. Whetstone existed as a “non-permitted” dairy farm before Grant County adopted its comprehensive zoning regulations, and thus, it was exempt from the zoning requirements for a CAFO. Whetstone wanted to sell its operation. Because the exemption would not apply to a subsequent owner, Whetstone sought a CAFO permit under the Grant County zoning ordinances. The Grant County Review, a newspaper of general circulation in the area, published proper notice of a special meeting in which the Grant County Planning and Zoning Commission would consider Whetstone’s application.

[¶ 3.] When, on October 24, 2002, the planning commission convened, Duane and Paulette Hay appeared with their attorney and objected to the permit application. After hearing from both proponents and opponents, the planning commission voted five to two in favor of granting the permit. The Grant County Review published notice of the planning commission’s final decision on October 30, 2002.

[¶ 4.] On November 6, 2002, the Hays appeared before the Grant County Commission to object to the planning commission’s grant of the permit to Whetstone. Noting that the planning commission had acted as a board of adjustment, the county commission declined to review the matter for lack of jurisdiction. The commissioners told the Hays that the matter should be referred to the circuit court.

[¶ 5.] Rather than proceeding under SDCL 11-2-61, on December 10, 2002, the Hays applied for writ of mandamus, asking the circuit court to require the Grant County Commission to review the planning commission’s decision. In denying the Hays’ application, the court concluded that South Dakota law does not empower a county commission to review decisions made by a planning commission acting as a board of adjustment. On appeal, the Hays offer the following issues: (1) <fWhether the trial court erred when it determined that the Zoning and Planning Commission was acting as a Board of Adjustment at the October 24, 2002 meeting of the Zoning and Planning Commission.” (2) “Whether the trial ■ court erred when it ruled that petitioners’ time for appeal or referendum had expired when the County Commission had failed to either approve or disapprove of the Zoning Board’s action.”

Analysis and Decision

[¶6.] When reviewing a circuit court’s interpretation of statutes, as this case requires us to do, we interpret the statutes de novo. Maas v. Dept. of Commerce and Regulation, 2003 SD 48, ¶ 8, 661 N.W.2d 726, 730 (further citations omitted). On a denial of a writ of mandamus, we decide only whether the trial court abused its discretion. Vitek v. Bon Homme County, 2002 SD 45, ¶ 5, 644 N.W.2d 231, 233 (citations omitted). A mandamus petitioner must show a clear legal right to performance of the specific duty sought to be compelled, and the respondent must have a definite legal obligation to perform that duty. Willoughby v. Grim, 1998 SD 68, ¶ 7, 581 N.W.2d 165, 168 (citations omitted).

[¶ 7.] The Hays insist that the planning commission was not properly sitting as a board of adjustment during its October 24, 2002 meeting, and therefore, any decision made that evening was a decision of the planning commission and not the board of adjustment. Three sections of SDCL ch 11-2, as they read in 2002, provide for the appointment of a board of adjustment. SDCL 11-2-49:

Except as otherwise provided by § 11-2-60, the board shall provide for the appointment of a board of adjustment, or for the planning and zoning commission to act as a board of adjustment, and in the regulations and restrictions adopted pursuant to the authority of this chapter, shall provide that the board of adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, grant variances to the terms of the ordinance.

Id. (emphasis added). SDCL 11-2-60:

In lieu of appointing the board of adjustment provided by § 11-2-49, the board of county commissioners having adopted and in effect a zoning ordinance may act as and perform all the duties and exercise the powers of the board of adjustment. The chair of the board of county commissioners is chair of the board of adjustment as so composed. The concurring vote of at least two-thirds of the members of the board as so composed is necessary to reverse any order, requirement, decision, or determination of any administrative official, or to decide in favor of the appellant on any matter upon which it is required to pass under any zoning ordinance, or to effect any variation in the ordinance.

Id. SDCL 11-2-50:

A board of adjustment, other than the planning and zoning commission acting as a board of adjustment, consists of five members, each to be appointed for a term of three years and removable for cause by the appointing authority upon written charges and after public hearing. Vacancies shall be filed [sic] for the unexpired term of any member whose term becomes vacant. The appointing authority may also appoint a first alternate and a second alternate for a term of three years each. If a member is unable to attend a meeting, the first alternate, or second alternate, in turn, shall serve in the members place.

Id. (emphasis added.)

[¶ 8.] These statutes delineate three available options in the appointment of a board of adjustment. First, an independent board of adjustment may be appointed. SDCL 11-2-50 provides for the composition of a board of adjustment, the terms of its members, the method of filling vacancies, and the appointment of alternate members. Second, the planning and zoning commission may act as a board of adjustment. If a planning and zoning commission is appointed to act as a board of adjustment, the requirements of SDCL 11-2-50 do not apply. Third, a county commission may act as a board of adjustment. If a county commission is to act as a board of adjustment, the provisions of SDCL 11-2-60 must be followed.

[¶ 9.] Words and phrases in a statute must be given their plain meaning and effect. Esling v. Krambeck, 2003 SD 59, ¶ 6, 663 N.W.2d 671, 676 (citing Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (citations omitted)). We do not interpret these statutes as requiring Grant County to establish an independent board of adjustment. Nor do they require a planning and zoning commission authorized to act as a board of a adjustment to specify whether each of its actions constitutes an action as a planning commission or a board of adjustment. Instead, the statutes permit county commissioners to vest in the planning commission the authority to make decisions in lieu of a board of adjustment. The plain language of these statutes supports our interpretation. SDCL 11-2-49 specifically allows “the planning and zoning commission” to act as “a board of adjustment.” Id. The statute does not require that the members of a planning and zoning commission be appointed to act as members of a board of adjustment. Rather, the planning and zoning commission, as a whole, is substituted for a board of adjustment. This interpretation is supported by SDCL 11-2-50. That statute provides for how an independent board of adjustment must be constituted, but specifically exempts planning and zoning commissions from its requirements.

[¶ 10.] Under the statutory guidelines for creating a board of adjustment found in SDCL 11-2-49, the Grant County Commissioners appointed the planning commission to act as the board of adjustment. Article V, section 501 of the Grant County Comprehensive Zoning Regulations provides:

The Board of Grant County Commissioners shall appoint the Grant County Planning Commission and four (4) alternates to act as the Board of Adjustment. The alternates to the Board of Adjustment shall be the members of the Grant County Board of Commissioners. If a Planning Commissioner acting as a Board of Adjustment member is unable to attend a meeting, the Grant County Commissioner representing the district in which the applicant requesting a Board of Adjustment action, shall be the first alternate, subsequent alternates shall be chosen by the Board of [Adjustment.

(Emphasis added.) Therefore, the Hays’ position that the planning commission must have convened as a board of adjustment to grant Whetstone’s permit application is not meritorious.

[¶ 11.] The Hays failed to seek timely review of the board of adjustment’s decision. SDCL ch 11-2 outlines the statutory procedure for appealing from a board of adjustment decision. Particularly, the version of SDCL 11-2-61 in effect at the time provided:

Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board, or bureau of the county may present to a court of record a petition duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board of adjustment.

Id. (emphasis added). On November 6, 2002, only thirteen days after the board of adjustment decision to grant the permit, the Hays appeared before the county commissioners. During this meeting, the commissioners advised the Hays that because the planning commission had acted as a board of adjustment, the Hays’ only recourse was an appeal to the circuit court. They declined to heed this advice and, instead, chose to apply for a writ of mandamus.

[¶ 12.] The circuit court did not abuse its discretion in denying the Hays’ request for a writ. They had no legal right to the performance requested because the commissioners had no jurisdiction over the matter.

[¶ 13.] Affirmed.

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

[¶ 15.] SABERS, Justice, concurs specially.

SABERS, Justice

(concurring specially).

[¶ 16.] I recognize that the planning and zoning commission may be substituted for a board of adjustment under SDCL 11-2-49. However, whenever the planning commission acts as a board of adjustment, the public is entitled to notice of same and any such action taken in the future without sufficient notice to the public should be voidable.


author: MEIERHENRY, Justice.

text:
    2003 SD 116
    Gordon GRONAU and Melba Gronau, Plaintiffs, v. James J. WUEBKER and Vincent Wuebker, individually, and d/b/a Marshall Spas and Pools, and Four Seasons Solar Products, Corp., Defendants and Third Party Plaintiffs and Appellees, v. James Utne, individually, and d/b/a Utne Construction and Roofing Company, Third Party Defendant and Appellant.
    No. 22625.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 25, 2003.
    Decided Sept. 24, 2003.

      Timothy J. Cummings of Green, Schulz, Roby, Oviatt, Cummings & Linngren, Wa-tertown, South Dakota, Attorneys for defendants and third party plaintiffs/appel-lees.
    Douglas M. Deibert, Karen A. Leonard of Cadwell, Sanford, Deibert & Garry, Sioux Falls, South Dakota, Attorneys for third party defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] James Utne, individually, and d/b/a/ Utne Construction and Roofing (Utne) appeals the trial court’s denial of expenses and attorney fees against James and Vincent Wuebker, individually, and d/b/a/ Marshall Spas and Pools, and Four Seasons Solar Products Corporation (Wuebker). Utne claims Wuebker’s Third Party Complaint against him was frivolous initially because there was no evidence of negligence on his part. Further, Utne claims that Wuebker’s failure to dismiss the complaint voluntarily after discovery produced no evidence of negligence was also frivolous. Utne appeals. We affirm.

Procedural Background and Facts

[¶ 2.] Gordon and Melba Gronau (Gro-nau) contracted with Wuebker to design and add a four seasons room and a hot tub room to their residence. Wuebker subcontracted with Utne to prepare the residence and construct the additions. Before the project was completed, a dispute arose between Gronau and Wuebker concerning the construction. The work was put on hold. The Utne crew covered the unfinished portion of the roof with a tarp and did not return to the site. Gronau filed suit against Wuebker claiming negligent construction. Wuebker impleaded Utne as a third party defendant claiming that if there was any finding of negligence in the construction that Utne would be responsible.

[¶ 3.] During discovery, the depositions revealed no evidence of negligence by Utne. Neither James Wuebker nor Wuebker’s expert attributed any negligence to Utne or his crew. Based on the undisputed lack of evidence of negligence, Utne’s counsel wrote and faxed a letter to Wuebker’s counsel requesting that Wuebker voluntarily dismiss the Third Party Complaint. A few days later, the parties talked by telephone and Wuebker’s counsel indicated that the Third Party Complaint would not be dismissed.

[¶ 4.] Utne ultimately filed a motion for summary judgment which the trial court granted. The trial court dismissed the Third Party Complaint against Utne on the merits and with prejudice. Utne then made a motion seeking expenses and attorney fees claiming that Wuebker’s complaint and failure to voluntarily dismiss the complaint was frivolous under SDCL 15-17-51. The trial court denied the motion. The court reasoned that it was not frivolous because Gronau’s complaint against Wuebker alleged negligent construction and Wuebker’s allegation merely attributed the responsibility for any negligent construction to Utne. The court concluded that Wuebker’s complaint was not frivolous and therefore Utne was not entitled to expenses and attorney fees under SDCL 15-17-51. Utne appeals claiming that the trial court erred by ruling that Wuebker’s claim was not frivolous and by denying expenses and attorney fees.

Issue

Whether the trial court erred in denying Utne’s motion for costs and attorney fees under the State’s frivolous lawsuit statute where there was no testimony/evidence that Utne’s crew had been negligent.

Standard of Review

[¶ 5.] “We review a trial court’s ruling on the allowance or disallowance of costs and attorney fees under an abuse of discretion standard.” Stratmeyer v. Engberg, 2002 SD 91, ¶ 12, 649 N.W.2d 921, 925 (citations omitted). “ ‘Abuse of discretion’ is discretion not justified by, and clearly against, reason and evidence.” Michlitsch v. Meyer, 1999 SD 69, ¶ 10, 594 N.W.2d 731, 733 (citations omitted).

Definition of Frivolous Lawsuit

[¶ 6.] In our review we look to SDCL 15-17-51 and prior caselaw in which it has been interpreted. SDCL 15-17-51 mandates the court to grant expenses and attorney fees if, (1) the civil action is dismissed and, (2) if the court determines that it was frivolous or, (3) if it was brought for malicious purposes. The statute provides in full:

If a civil action or special proceeding is dismissed and if the court determines that it was frivolous or brought for malicious purposes, the court shall order the party whose cause of action or defense was dismissed to pay part or all expenses incurred by the person defending the matter, including reasonable attorney’s fees.

Id. Our prior interpretations of this statute define a frivolous action as one in which “the proponent can present no rational argument based on the evidence or law in support of the claim.... ” Michlitsch, 1999 SD 69, ¶ 19, 594 N.W.2d at 734. In order “[t]o fall to the level of frivolousness there must be such a deficiency in fact or law that no reasonable person could expect a favorable judicial ruling.” Ridley v. Lawrence County Comm’n., 2000 SD 143, ¶ 14, 619 N.W.2d 254, 259.

Initiating a Frivolous Claim

[117.] The trial court considered the circumstances under which Wuebker originally filed the Third Party Complaint, and determined that it was not frivolous. Wuebker based their claim against Utne on the premise that if Gronau proved negligent construction against them, Utne would be the party ultimately responsible. Had Wuebker not impleaded Utne, Wuebker would not have any recourse against Utne who had performed most of the work.

[¶ 8.] Our rules of civil procedure allow a defendant to implead a third party if the third party could be liable to the defendant for claims made by the plaintiff. SDCL 15-6-14(a) states in part:

At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiffs claim against him.

Id. (emphasis added).

[¶ 9.] The rule does not require the third party plaintiff to show that the third party defendant is actually liable, it only requires that he “may be liable.” Here, the trial court determined that Wuebker did not allege that Utne was negligent but only alleged that if negligence were found as Gronau claimed, that Utne ought to be responsible. It was not unreasonable for Wuebker to “have expected a favorable judicial ruling under the circumstances.” The record supports the trial court’s reasoning and therefore we cannot say that denying Utne’s motion was clearly against reason and evidence or that the trial court abused its discretion.

Dismissing a Frivolous Claim

[¶ 10.] Additionally, Utne requests that the Court expand the definition of frivolous to include a party’s failure to dismiss a claim when it becomes obvious that no evidence supports the claim. Utne claims that Wuebker’s refusal to dismiss the Third Party Complaint was frivolous after discovery produced no evidence of negligence. This is a closer call. We have said however, “[s]imply because a claim or defense is adjudged to be without merit does not mean that it is frivolous.” Rid-ley, 2000 SD 143, ¶ 14, 619 N.W.2d at 259. In this case, Gronau’s negligence claim against Wuebker was still proceeding to trial. As already noted, Utne’s crew performed the majority of the construction, and it was interpleaded only to preserve Gronau’s claim in the event the jury ultimately found negligence. Further, “[a]ny doubt about whether or not a legal position is frivolous or taken in bad faith must be resolved in favor of the party whose legal position is in question.” Id. at ¶ 15, 619 N.W.2d at 260 (quoting Estate of Snover, 4 NebApp. 533, 546 N.W.2d 341, 349) (citations omitted). Continuing a third party action against Utne whose carpenters performed a majority of the work cannot be characterized as a “legal position so wholly without merit as to be ridiculous.” Behrens v. American Stores Packing Co., 236 Neb. 279, 460 N.W.2d 671, 677 (1990). Consequently, we are unable to conclude that the trial court abused its discretion in disallowing expenses and attorney fees for Utne. Under the facts of this case, we decline to expand the definition of a frivolous action to include failure to dismiss a meritless claim. A stronger showing of unreasonableness would be required than is presented here. We affirm.

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

      . The complaint also alleged breach of contract and breach of implied warranty of workmanlike construction and adherence to accepted construction standards.

      . The Third Party Complaint was served on Utne on December 4, 2001. Depositions were taken during April of 2002. The letter requesting dismissal is dated May 6, 2002. The phone conversation took place on or about May 9, 2002. A motion for summary judgment was filed and a hearing was held May 22, 2002.


author: TERNUS, Justice.

text:
    STATE of Iowa, Appellee, v. Brian Edward REYNOLDS, Appellant.
    No. 02-0277.
    Supreme Court of Iowa.
    July 16, 2003.
    Rehearing Denied Oct. 24, 2003.

      Mark J. Neary, Muscatine, for appellant.
    Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant Attorney General, Richard R. Phillips, County Attorney, and Dana Christensen, Assistant County Attorney, for appellee.
   TERNUS, Justice.

The defendant, Brian Reynolds, was convicted of second-degree harassment and tampering with a juror after he stalked a juror who had served in his prior prosecution on a misdemeanor charge. See Iowa Code § 708.7(1)(6) (2001) (harassment); id. § 720.4 (tampering with a juror). He now appeals, claiming there was insufficient evidence to support the jury’s finding of personal contact of a harassing nature, a required element in both crimes. He also contends the trial court failed to ensure that he made a knowing and voluntary waiver of his Fifth Amendment trial rights because the court did not question the defendant on the record with respect to his decision not to testify. See U.S. Const, amend. V. Finally, Reynolds alleges the ineffectiveness of his trial counsel, contending counsel should have objected to the victim’s testimony concerning (1) her fear of the defendant and possible physical harm to her and her family, and (2) Reynolds’ operation of a motor vehicle when he was not supposed to be driving. We affirm.

I. Background Facts and Proceedings.

The present case had its origins in Reynolds’ earlier prosecution on a traffic offense. On November 7, 2001, a jury found Reynolds guilty of a driving-related misdemeanor charge. Tracy Cottrell was a member of the jury that convicted Reynolds. She was not acquainted with him prior to the trial.

After completing her jury service around noon on November 7, Cottrell began her drive home. She lived in a mobile home park several miles from the courthouse and traveled a route that included several short cuts requiring numerous turns. On the way she noticed an unfamiliar black SUV following her, which caused her to feel “a little scared because [she] was all alone.” The SUV had tinted windows, so Cottrell could not see the vehicle’s occupants.

When Cottrell reached the mobile home park, she stopped at her mailbox along the road to pick up her mail and did not see the SUV. She then proceeded to her trailer, making several turns to reach it. Cott-rell entered her home; the black SUV was not in sight. About twenty minutes later, however, she saw the same vehicle driving past her trailer at a very slow speed. The SUV drove by her home three times in this manner. Cottrell was still unable to see who was in the vehicle, but she became “really scared” and told her fifteen-year-old daughter that someone had followed her home.

Later, Cottrell left her home to travel to a nearby Casey’s to buy shampoo. She passed a clearing between the trailer park and Casey’s and noticed the black SUV parked there. She “got a little scared,” but continued to the store. The SUV remained in the clearing, so she parked, got out of her car, and went inside.

Shortly after entering Casey’s, Cottrell noticed the black SUV pull up to the store and park in a no-parking space. As she approached the checkout counter, she saw Reynolds get out of the SUV and enter the store alone. Cottrell recognized him immediately as the defendant in the trial held earlier that day. At this point, she was very frightened. Cottrell saw Reynolds get something to drink and then get in line behind her. He said, “You thought I was guilty, huh?” Shaken, she responded that she was not allowed to talk about the trial. She paid for her purchases and headed for the door. As she left, the defendant said, “[n]o hard feelings,” in a “kind of snotty way.” Cottrell did not take this statement “as a good thing.” Nonetheless, she testified at trial that these words alone were not threatening to her, but the fact that the defendant had followed her and knew where she lived frightened her.

Upon returning home, Cottrell called the sheriff. The deputy who arrived a short time later found her visibly upset over the incident. After talking with Cottrell, the deputy located Reynolds at his residence. When questioned by the officer, Reynolds said he had parked his car to do some job-related paperwork and then had stopped in at Casey’s.

The county attorney charged Reynolds with harassment in the second degree in violation of Iowa Code section 708.7(1)(6), and tampering with a juror in violation of Iowa Code section 720.4. The State’s witnesses testified to the sequence of events recited above. After unsuccessfully moving for a directed verdict of acquittal based on an alleged insufficiency in the evidence, the defendant rested without presenting any testimony. The jury returned a guilty verdict on both charges.

The defendant filed a motion for new trial, claiming his trial counsel was ineffective because he prevented Reynolds from testifying at the trial. He also alleged the trial court should have made a record on the defendant’s waiver of his right to testify. Reynolds was allowed to address the court on this matter. He asserted that he had wanted to testify and that he had wanted his counsel to call witnesses on his behalf, particularly his mother. The trial court overruled the defendant’s motion for new trial, suggesting these matters were more appropriate for a postconviction relief action. At the defendant’s request, the court merged the harassment conviction into the tampering-with-a-juror conviction, sentenced Reynolds to 360 days in the county jail, and imposed a $500 fine.

Reynolds challenges his conviction on three grounds. First, he claims the trial court erred in failing to grant his motion for judgment of acquittal based upon the insufficiency of the evidence showing personal contact of a harassing nature. Second, he challenges the validity of his decision not to testify, contending the court should have addressed him personally with respect to this matter. He claims his trial counsel was ineffective in failing to raise this issue and/or the court erred in fading to sua sponte make inquiry concerning Reynolds’ decision not to testify. Finally, the defendant claims his attorney rendered ineffective assistance when he failed to object to certain testimony by the victim. We will address each issue separately.

II. Sufficiency of the Evidence Showing “Personal Contact. ”

A. Scope of review. We review the trial court’s decision that the evidence was sufficient to support submission of the charges to the jury for correction of errors of law. State v. Walker, 574 N.W.2d 280, 284 (Iowa 1998). If there is substantial evidence in the record to support a finding of the challenged element, the trial court’s denial of a defendant’s motion for judgment of acquittal is proper. State v. Bayles, 551 N.W.2d 600, 608 (Iowa 1996). “Evidence is substantial if it could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.” Id.

B. Discussion. Reynolds contests the sufficiency of the evidence on the element of personal contact of a harassing nature. This element was common to the harassment charge and the tampering-with-a-juror charge. Iowa Code section 708.7(1)(5) states: “A person commits harassment when the person, purposefully and without legitimate purpose, has personal contad; with another person with the intent to threaten, intimidate, or alarm that other person.” Iowa Code § 708.7(1)(&) (emphasis added). A person is guilty of tampering with a juror when that person “in retaliation for anything lawfully done by any ... juror in any case, harasses such ... juror.” Id. § 720.4 (emphasis added).

“Personal contact” is defined in section 708.7(1)(6) to mean “an encounter in which two or more people are in visual or physical proximity to each other.” Id. § 708.7(1)(⅞). The statute specifically provides that “ ‘[pjersonal contact’ does not require physical touching or oral communication although it may include these types of activities.” Id. The defendant claims the only “personal contact” that occurred here was in the convenience store and that contact does not constitute harassment because the victim testified this incident alone was not threatening to her. Reynolds argues the encounters that were alarming to Cottrell — his trailing of her in his SUV — did not constitute personal contact because Cottrell did not know who was following her.

We reject this argument. The statute merely requires visual or physical proximity; it does not require that the victim recognize the offender or know the identity of the person harassing her. In fact, it does not even require that the victim actually feel threatened, intimidated, or alarmed, only that the defendant act with the intent to cause such a reaction. Thus, the fact that Cottrell was not alarmed by her conversation with Reynolds in the convenience store does not mean that conduct could not qualify as harassment. Reynolds was admittedly in physical and visual proximity to Cottrell in Casey’s and if the jury believed he made that contact with an intent to threaten, intimidate or alarm Cottrell, he has violated the statute even though his attempts to frighten her were not successful. Cf. State v. Button, 622 N.W.2d 480, 484 (Iowa 2001) (holding defendant could be guilty of harassment if conduct was intended to threaten the victim even though the defendant was not capable of carrying out his threats when he made them).

Even if we ignore the defendant’s interaction with the victim at Casey’s, there is still substantial evidence to support the jury’s finding of personal contact. The closeness of the defendant’s vehicle to the victim’s car and home satisfies the physical proximity alternative of the personal contact requirement. Cf. State v. Limbrecht, 600 N.W.2d 316, 319 (Iowa 1999) (holding defendant’s acts in driving by the victim’s home satisfied “physical proximity” requirement of Iowa’s stalking statute, Iowa Code section 708.11(2)). So long as the defendant’s physical proximity to Cottrell was intended by him to threaten, intimidate, or alarm her, the necessary personal contact has occurred. The victim’s identification of the defendant as the culprit is not a necessary component of personal contact or physical proximity. Based on the adequacy of the evidence showing personal contact, we conclude the trial court did not err in refusing to direct a judgment of acquittal.

III. Waiver of Right to Testify.

A. Contentions and scope of review. The defendant asserts the trial court had an obligation to determine on the record that he had knowingly and voluntarily relinquished his right to testify at trial. Reynolds claims the trial court erred in failing to conduct such an inquiry sua sponte. We review this claim de novo. See State v. Griffin, 576 N.W.2d 594, 596 (Iowa 1998).

Because Reynolds’ defense attorney did not raise this issue at trial, the defendant makes the related argument that trial counsel was ineffective in failing to require the court to make an inquiry of the defendant concerning his decision not to testify. We review this claim de novo also. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999). To prevail on his ineffective-assistance-of-counsel claim, Reynolds must show that (1) counsel failed to perform an essential duty, and (2) prejudice resulted from this omission. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). The defendant must prove both elements by a preponderance of the evidence. Le-dezma v. State, 626 N.W.2d 134, 141-42, 145 (Iowa 2001).

Generally, ineffective-assistance claims are preserved for posteonviction relief proceedings to afford the defendant an evidentiary hearing and thereby permit the development of a more complete record. State v. Bumpus, 459 N.W.2d 619, 627 (Iowa 1990). This court will, however, consider such claims on direct appeal where the record is adequate to determine as a matter of law that the defendant will be unable to establish one or both of the elements of his ineffective-assistance claim. State v. Williams, 341 N.W.2d 748, 752 (Iowa 1983). Under such circumstances, we affirm the defendant’s conviction without preserving the ineffective-assistance-of-counsel claims. See State v. Harness, 600 N.W.2d 294, 297-98 (Iowa 1999).

The present appeal presents such a situation. Because we determine the trial court had no duty to address the defendant personally concerning his decision not to testify, no additional record is necessary to conclude as a matter of law that trial counsel was not ineffective for failing to raise this meritless issue. See Greene, 592 N.W.2d at 29 (stating counsel does not render ineffective assistance by failing to pursue a meritless issue).

B. Discussion. Although criminal defendants were disqualified from testifying at common law due to their interest in the outcome of the trial, an accused’s privilege to testify is now recognized as a constitutional right. Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 2708-10, 97 L.Ed.2d 37, 44-47 (1987). Like other constitutional rights, the right to testify may be waived if done so “voluntarily, knowingly, and intelligently.” Le-dezma, 626 N.W.2d at 146. Although trial strategy plays a large role in whether a defendant testifies, see State v. Polly, 657 N.W.2d 462, 468 (Iowa 2003), the decision is for the defendant — not defense counsel — to make. Ledezma, 626 N.W.2d at 146. Trial counsel’s role is simply to provide advice to the defendant to enable the accused to make a well-informed decision. Id.

Under the current state of Iowa law, the trial court has no duty to determine on the record that the defendant has made a voluntary, knowing, and intelligent waiver of the right to testify at trial. Schertz v. State, 380 N.W.2d 404, 415 (Iowa 1985). The defendant asks us to reconsider our decision in Schertz in light of authority from other jurisdictions that requires the trial court to make a specific inquiry of the defendant regarding his decision not to testify. E.g., LaVigne v. State, 812 P.2d 217, 222 (Alaska 1991); People v. Curtis, 681 P.2d 504, 512 (Colo.1984), limited by Roelker v. People, 804 P.2d 1336, 1338-39 (Colo.1991); Tachibana v. State, 79 Hawaii 226, 900 P.2d 1293, 1303 (1995); State v. Neuman, 179 W.Va. 580, 371 S.E.2d 77, 81 (1988).

Courts that have concluded a judicial inquiry is necessary in all cases do so on the rationale that the right to testify is so fundamental to a fair trial that a waiver of that right must be examined by the court to ensure that the defendant has voluntarily and knowingly relinquished the opportunity to take the stand in his own defense. E.g., Curtis, 681 P.2d at 511-12; Neuman, 371 S.E.2d at 81. Nonetheless, these courts have not found the requirement of an on-the-record colloquy to be of constitutional dimension. See Hurn v. State, 872 P.2d 189, 198-99 (Alaska Ct.App.1994); Curtis, 681 P.2d at 517.

In Schertz, this court refused to impose a requirement that the court personally address a defendant to ensure a valid waiver of the right to testify because we considered the decision whether to testify to be one of trial strategy, a matter in which the trial court should not be involved, and one “better left to the criminal defendant and his or her counsel.” 380 N.W.2d at 415. Our holding in Schertz remains the rule in the majority of jurisdictions that have considered this issue. See Michele C. Kaminski, Requirement That Court Advise Accused of, and Make Inquiry With Respect to, Waiver of Right to Testify, 72 A.L.R.5th 403, 447-50 (1999) [hereinafter “Annotation”]; see also United States v. Ortiz, 82 F.3d 1066, 1069-70 & n. 82 (D.C.Cir.1996) (citing cases). The Appellate Court of Illinois has aptly summarized the rationale for not requiring an on-the-record inquiry by the court:

There are several reasons why a trial judge is not required to inform a defendant of his right to testify. First, a defendant’s decision as to whether or not to testify is often made as the trial unfolds. By advising a defendant of his right to testify, a court could influence the defendant to waive his right not to testify, “thus threatening the exercise of this other, converse, constitutionally explicit and more fragile right.”
Second, a court could intrude upon the attorney-client relationship by advising a defendant of his right to testify. “A trial judge must take great care not to assume the functions of trial counsel.” It is primarily the responsibility of defense counsel, not the trial judge, to advise a defendant as to whether or not he should testify and to explain the tactical advantages and disadvantages of each option. If a trial judge were to advise a defendant, suei sponte, of his right to testify, such an act could frustrate a decision on the matter made by the defendant and defense counsel who are designing trial strategy.
Finally, a trial judge is not required to inform a defendant of his right to testify because it is difficult for a judge to determine the appropriate time that he should advise a defendant concerning his right to testify, since “the judge cannot know that a defendant has not testified until the defense rests and such a moment is not an opportune time to engage in a discussion with defendant which might lead to a rupture with defense counsel ... or might undo a trial strategy based on the defendant’s not testifying.”

People v. Shelton, 252 Ill.App.3d 193, 191 Ill.Dec. 827, 624 N.E.2d 1205, 1211 (1993) (citations omitted); see also Ortiz, 82 F.3d at 1070 (stating “defense counsel, not the court, has the primary responsibility for advising the defendant of his right to testify and for explaining the tactical implications of doing so or not”); Annotation, 72 A.L.R.5th § 12, at 450-55 (noting courts’ reluctance to require an on-the-record inquiry is based in part on fear that judges would become enmeshed in decisions involving trial strategy). See generally Le-dezma, 626 N.W.2d at 147 (“Generally, the advice provided by counsel [as to whether the defendant should testify] is a matter of trial strategy_”).

We agree with the wisdom of this analysis and decline the defendant’s invitation to retreat from our holding in Schertz. We take no position, however, on whether an in-court colloquy with the defendant might be warranted under circumstances not present here or in Schertz. See, e.g., United States v. Pennycooke, 65 F.3d 9, 12-13 (3d Cir.1995) (suggesting colloquy may be required where it becomes apparent there is some disagreement between the defendant and his attorney over whether the defendant should testify); United States v. Thompson, 944 F.2d 1331, 1345 (7th Cir. 1991) (refusing to mandate an inquiry by the court unless there was some indication that the defendant’s desire to testify was being thwarted by counsel); Winkelman v. State, 498 N.E.2d 99, 101 (Ind.Ct.App. 1986) (holding trial court had an obligation to explain to pro se defendants that they had a right to testify). We simply hold under the facts of this case that the trial court had no obligation to sua sponte confirm on the record that the defendant had knowingly and voluntarily waived his constitutional right to testify. Because the court had no duty to conduct such an inquiry, we conclude Reynolds’ attorney was not ineffective in failing to demand that the court do so.

IV. Counsel’s Failure to Object to Victim’s Testimony.

A. Testimony at issue. The defendant’s final argument on appeal is that his counsel was ineffective in failing to object to two statements made by the victim at trial. During Cottrell’s testimony about her conversation with Reynolds in the convenience store, she was asked what her state of mind was at that point. She responded:

I wanted to get home so I could call the Sheriff, because I was really scared, you know. I mean, now he knows where I live. I got three kids at home, you know? What if he comes-this is like a movie, what if he comes and tries to kill me or something.

Later, when Cottrell was explaining to the jury what happened after Reynolds spoke to her, she testified:

When I was leaving the store, walking to my car, I noticed that once again he was all by himself and he hopped in the driver’s seat, driving, and I thought to myself — didn’t he — didn’t I just do the trial for him? He’s not supposed to be driving and he’s driving anyways. So, I was just thinking to myself, why would he drive right after he just got out of court?

The defendant claims his attorney should have objected to both statements. With respect to the first statement, Reynolds claims it was not relevant to any issue in the case. Even if relevant, asserts the defendant, any relevancy was outweighed by the unfair prejudice generated by the statement. With respect to Cottrell’s testimony concerning the defendant’s driving when he was “not supposed to be driving,” Reynolds claims this information was inadmissible evidence of prior bad acts. He asserts its relevancy, if any, was outweighed by its prejudicial nature.

B. Scope of review. We review ineffee-tive-assistanee-of-counsel claims de novo. Westeen, 591 N.W.2d at 207. The principles governing such claims and our consideration of them have been set out above and will not be repeated here.

C. Applicable evidentiary rules. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Iowa R. Evid. 5.401. Although relevant evidence is generally admissible, see id. 5.402, it may be excluded where “its probative value is substantially outweighed by the danger of unfair prejudice,” id. 5.408.

Evidence of other wrongs or acts may not be used “to prove the character of a person in order to show that he acted in conformity” with such other acts. Id. 5.404(6). This type of evidence is admissible, however, if relevant to another issue in the case. Id. Thus, rule 5.404(6) only “excludes evidence that serves no purpose except to show the defendant is a bad person, from which the jury is likely to infer he or she committed the crime in question.” State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001) (emphasis added); accord State v. Barrett, 401 N.W.2d 184, 187 (Iowa 1987).

Of course, relevant evidence that shows a defendant’s bad character might still be excluded under the balancing analysis required by rule 5.403. Rodriquez, 636 N.W.2d at 239-40. Rule 5.403 requires the trial court to weigh the probative value of relevant evidence against the danger of unfair prejudice. Iowa R. Evid. 5.403. The probative value of evidence is measured by its tendency to make a material fact more or less probable. State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988). Unfairly prejudicial evidence is evidence that

“appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action [that] may cause a jury to base its decision on something other than the established propositions in the case.”

Id. (quoting 1 Jack B. Weinstein et al., Weinstein’s Evidence ¶ 403[03], at 403-33 to 403-40 (1986) (now found at 2 Joseph M. McLaughlin, Weinstein’s Federal Evidence § 403.04[1][cx], at 403-40 to 403-44 (2d ed. 2001))).

D. Discussion of state-of-mind testimony. As noted, Reynolds claims evidence of Cottrell’s fear was irrelevant. The State argues that the victim’s testimony showed the defendant’s actions caused her to be alarmed, a fact relevant to the issue of whether Reynolds acted with an “intent to threaten, intimidate, or alarm” another person. The State reasons that if a person is in fact alarmed by a defendant’s conduct, that fact tends to show the defendant’s intent to cause that effect.

We agree the victim’s reaction to the defendant’s behavior is relevant, but perhaps in a slightly more indirect way. Whether a particular victim was actually alarmed by a defendant’s conduct is probative of whether such a reaction is a natural consequence of that type of conduct. The fact the victim’s alarm is a typical response to such conduct tends to establish that a person acting as the defendant did should expect such a result. It follows that when a defendant acts in a manner that the defendant should expect would alarm another person, a fact finder could infer from this circumstance that the defendant intended to cause alarm. See State v. Chang, 587 N.W.2d 459, 462 (Iowa 1998) (holding jury may presume an actor intends the natural consequences of his or her act). Thus, we think Cottrell’s actual alarm was probative of Reynold’s intent to alarm her. Accordingly, any objection by trial counsel to the admission of this testimony on the basis of relevancy would not have been successful. Therefore, counsel did not render ineffective assistance in failing to make this objection.

Reynolds also claims defense counsel should have requested exclusion of this evidence on the basis of unfair prejudice. Even if we assume a trial court would have properly excluded Cottrell’s testimony on this basis, we do not think Reynolds can establish the prejudice element of his ineffective-assistance-of-counsel claim. In order to prove prejudice as a component of an ineffective-assistance claim, a defendant must show that “the outcome of the proceeding would have been different.” Homess, 600 N.W.2d at 300-01; accord State v. Lambert, 612 N.W.2d 810, 814 (Iowa 2000) (stating “there must be a reasonable probability that, but for counsel’s error, the trial result would have been different”).

Reynolds argues Cottrell’s expression of her fears was highly prejudicial because a juror would think he might have killed or harmed Cottrell. We think the defendant has exaggerated the effect of the victim’s statements. Cottrell testified repeatedly that she was scared by the black SUV following her. Her fear reached a peak when she discovered that the driver of the vehicle was the defendant. Her testimony describing the extent of her alarm was only that — an expression of her fright. Considered in context, we do not think the jury would interpret it as an accusation by or belief of the victim that the defendant had actually come to kill her. Moreover, Cottrell mentioned a fear of Reynolds trying to kill her only once and this testimony was not emphasized or discussed by the prosecution. Given the relative insignificance of this testimony, we- conclude the defendant cannot establish there is a reasonable probability that the exclusion of this evidence would have resulted in acquittal. Therefore, his ineffective-assistance-of-counsel claim based on his attorney’s failure to object to this testimony fails as a matter of law.

E. Discussion of other-bad-acts testimony. Reynolds also criticizes his attorney for failing to object to Cottrell’s testimony that she wondered why the defendant was operating a vehicle when he was not supposed to drive. He claims this evidence was irrelevant to any material issue and it was unfairly prejudicial because it implied that he was “a bad person who breaks the law,” making the jury more likely to convict him based on his character rather than on the basis of any criminal act.

We reach the same conclusion with respect to this testimony as we did with respect to the victim’s testimony concerning her fear of the defendant: as a matter of law, there is no prejudice of a magnitude sufficient to support a claim for ineffective assistance of counsel. Cottrell’s indirect reference to the defendant’s illegal driving was isolated and it was not emphasized by counsel for either party. The jury already knew that Reynolds had been convicted of a driving offense as that prosecution was the event precipitating the offenses charged in the present case. In addition, even if the jury thought the defendant was driving while barred or revoked, this act is a simple misdemeanor, see Iowa Code §§ 321.174A, .218, hardly the type of conduct likely to arouse a sense of horror or to provoke an instinct to punish. We simply do not think a reasonable fact finder would conclude that the outcome of this proceeding would have been different if this testimony had been excluded. Therefore, we hold as a matter of law that the defendant cannot prevail on his ineffective-assistance claim based on counsel’s failure to object to this testimony.

V. Summary and Disposition.

The evidence was sufficient to support a finding that the defendant’s actions constituted personal contact of a harassing nature. Therefore, the trial court did not err in denying the defendant’s motion for judgment of acquittal.

In addition, the trial court did not err in failing sua sponte to question the defendant concerning the defendant’s waiver of his right to testify. An on-the-record colloquy was not required under the circumstances of this case. For the same reason, defense counsel did not perform deficiently by failing to request that the court conduct such an inquiry.

The defendant’s ineffective-assistance claims based on trial counsel’s failure to object to certain testimony of the victim are likewise without merit. As a matter of law the defendant cannot establish that the outcome of his prosecution would probably have been different had this evidence been excluded. Therefore, he cannot show prejudice. Accordingly, we affirm his conviction without preserving his ineffective-assistance-of-counsel claims.

AFFIRMED.


author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. John Nell MITCHELL, Appellant.
    No. 02-0407.
    Supreme Court of Iowa.
    Sept. 4, 2003.
    Rehearing Denied Oct. 30, 2003.

      Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, William E. Davis, County Attorney, and Michael J. Walton, Assistant County Attorney, for appellee.
   CADY, Justice.

This is an appeal by John Nell Mitchell from a conviction for second-degree sexual abuse of a child following a new trial ordered in State v. Mitchell, 633 N.W.2d 295 (Iowa 2001) [hereinafter Mitchell I]. In Mitchell I, we considered Mitchell’s challenge to the admission of the testimony at trial of two girls who testified Mitchell sexually assaulted them. Both girls were acquaintances of the victim, the girl Mitchell was accused of assaulting in both cases, whom we identify as Amy. Ultimately, we concluded the district court had errantly-allowed the admission of the evidence by the other victims. Mitchell I, 633 N.W.2d at 300. In doing so, we accepted Mitchell’s argument that the girls’ testimony was impermissible evidence of his propensity to commit similar acts against Amy while rebuffing the State’s assertion that the testimony was admissible for the alternative purpose of enhancing Amy’s credibility. See id. One of the issues posed in this appeal is whether similar evidence, introduced through the testimony of Amy’s mother, is admissible. We further consider whether Mitchell’s sentencing following his second trial was vindictive and thus unconstitutional. For the reasons that follow, we conclude that the evidence was admissible and the sentencing was proper. We affirm the district court’s judgment and sentence.

I.Background Facts and Proceedings.

Amy was ten at the time Mitchell began living with her mother, Julie, in 1997. At some point during the spring of that year, Julie reported that her ex-husband— Amy’s father — had sexually assaulted Amy. A social worker later took Amy to a doctor to confirm the abuse. While waiting to see the doctor, Amy confided in the social worker that it was Mitchell — not her father — who had abused her.

Amy later described several instances of abuse in a videotaped conversation with a police detective and recounted the abuse in her testimony at trial. The earliest acts of abuse included Mitchell touching Amy’s breast and vaginal areas while she was clothed. This activity escalated to Mitchell touching Amy in the same areas but underneath her clothing. Subsequent acts included Mitchell performing oral sex and inserting his penis into her vagina on more than one occasion. Amy also stated that he ejaculated on one occasion and threatened to kill her if she told anyone about the sexual abuse.

Mitchell was arrested and charged with three counts of sexual abuse in the second degree. After we reversed his conviction in Mitchell /, a second trial was held. Mitchell chose to represent himself in the new trial with stand-by counsel aiding him. After a nearly weeklong trial, the jury-returned a verdict of guilty on all three counts. Mitchell was then sentenced to three consecutive sentences of twenty-five years each, to run consecutive to a preexisting two-year sentence. He challenges the district court’s judgment and sentence with this appeal.

II. Standard of Review.

We review a district court’s decision on the admissibility of evidence for an abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). A claim of vindictiveness in sentencing implicates constitutional guarantees of due process, making our review of that issue de novo. See In re C.M., 652 N.W.2d 204, 209 (Iowa 2002).

III. Evidence of Prior Bad Acts.

Mitchell’s first claim of error centers on the admission of testimony elicited by the State on cross-examination of Amy’s mother. Mitchell called Amy’s mother as a witness in his case in chief, apparently in an effort to establish that she met with the police detective before his interview with Amy in an effort to slant the evidence against Mitchell or otherwise conspire against him. Mitchell’s general defense at trial was that DHS social workers, Scott County law enforcement, and members of Amy’s family conspired to bring about his conviction.

During Mitchell’s direct examination of the mother, the following exchange occurred:

Q. You was interviewed by a Dr.— Michael Venema, a police officer, in May of '98, was you not? A. I think it was around that time. I can’t swear to it.
Q. Okay. I believe his testimony is he interviewed you May of '98, the 8th day of May '98, and I believe he scheduled an appointment with [Amy] to interview her, if you have any knowledge of that I think probably in June '98, the 12th day. Do you have any knowledge of that? A. Of him interviewing her?
Q. Yeah. A. Yes, I gave him her name, so I wasn’t called in on her. I was called in on [Karen] and [Susanna].
Q. Well, I’m asking you about [Amy]. A. Yes.
MR. WALTON [(the prosecutor)]: No. He was asking her about the interview, and she just told him what the interview was about.
THE COURT: She answered your question, Mr. Mitchell.

This exchange prompted the following cross-examination by the State:

Q. Mrs. [C.], Mr. Mitchell asked you about a meeting you had with Detective Venema on May 8 of 1998. A. Yes.
Q. And that meeting had nothing to do with your daughter, [Amy], did it? A. No, it did not.
Q. In fact, in the beginning of that meeting — maybe you know this; maybe you don’t — Detective Venema had no idea that you were the mother of a girl that had lived with John Mitchell. A. No, he was not.
Q. He became aware of that after meeting with you. Is that correct? A. Yes, after the conversation we had about the reason I was there with [Karen] and [Susanna], then I asked him.
Q. Okay. What was the purpose of the meeting you had with Detective Venema on May 8 of 1998? A. Okay. They came up to Mrs. [P’s] and asked me to come to the police station because there had been a report filed from Debbie [F.]—
Q. Who is Debbie [F.]? A. That’s [Karen]—
THE DEFENDANT: Objection, your Honor. That has nothing to do with this.
A. [Karen] and [Susanna’s] mother.
THE DEFENDANT: It has nothing to do with this. I object.
THE COURT: Can you state what your objection is?
THE DEFENDANT: My objection is Mr. Walton trying to bring in other issues that — to mislead the jury totally away from what this case is about. You instructed me not to go beyond a certain scope that he object to, which is I feel exculpatory evidence that this jury should know. If he’s gonna go with that, I will go further.
THE COURT: Mr. Mitchell, based on that objection, that’s overruled. You may answer.
Q. What was the purpose of the meeting with Detective Venema on May 8 of 1998? A. Okay. As I stated, Debbie [F.] made a complaint against John Mitchell — that is [Susanna] and [Karen’s] mother — that he had been sexually abusing them.
Q. Okay. Who is Debbie [F.]? A. That’s [Karen] and [Susanna’s] mother. I lived with her for a time of period [sic].
Q. Are you a friend of Debbie [F.]? A. Yes, I am.
Q. And was John Mitchell a friend of Debbie [F.’s] family? A. Yes.
Q. Okay. Who was [Karen]? A. She’s Debbie’s oldest daughter.
Q. And in 1997, 1998, what was her age, approximately? A. Approximately about 12. I think she was a year older than [Amy].
Q. Okay. And that’s who Detective Venema wanted to talk to you about? A. Yes.
Q. And did he want to talk to you about anything else? A. No. That was— just what knowledge I had of John having contact with these children.
Q. And were — you said children. Were there other children? A. Yes. There was [Karen’s] younger sister, [Susanna], and then I told him maybe he ought to talk to my daughter [Amy] because of the way they were' acting. It was all type of the same over and over-after I sat back and looked at it, each one of the children were acting out the same, throwing fits, tearing things up.
Q. And it was at that point on May 8 of 1998 that you informed Detective Venema that you had a daughter that had also been with Mr. Mitchell. A. Yes, sir.
Q. And was that the first time Detective Venema knew about [Amy]? A. Yes, sir.
Q. As far as you know? A. Yes, sir.
MR. WALTON: Thank you. I have no further questions.

Mitchell alleges that the State’s cross-examination produced indirectly the same evidence of prior bad acts — the alleged sexual abuse of two other girls — which we declared inadmissible in Mitchell I where similar information was introduced directly through the testimony of the victims, Karen and Susanna. See Mitchell I, 638 N.W.2d at 300; Iowa R. of Evid. 5.404(6). The State responds by arguing that Mitchell’s objection to this evidence was insufficient to preserve this issue for appeal and, in the alternative, that the evidence was presented after Mitchell “opened the door” to refute his general conspiracy defense. The State also argues that the testimony was not impermissibly prejudicial, particularly because the prosecutor did not belabor the issue. See Iowa R. Evid. 5.403. Mitchell responds to these arguments by asserting that a fair reading of the record refutes the State’s arguments related to error preservation and invited error. Moreover, even if the evidence was relevant — a point he does not concede — the State simply went too far when eliciting the prejudicial disclosure of Mitchell’s alleged abuse of the other two girls.

Although there may be a question of whether Mitchell adequately preserved error by his objection, we believe this issue is resolved under both of the State’s alternative arguments. See State v. Grosvenor, 402 N.W.2d 402, 406 (Iowa 1987) (“The fact that defendant appeared pro se does not excuse his failure to preserve this claim of error.”). We have long subscribed to the maxim that, “ ‘one who induces a trial court to let down the bars to a field of inquiry that is not competent or relevant to the issues cannot complain if his adversary is also allowed to avail himself of the opening.’” 1 John W. Strong, et al., McCormick on Evidence § 57, at 253 (5th ed. 1999) (quoting Warren Live Stock Co. v. Farr, 142 F. 116, 117 (8th Cir.1905)); see also State v. Spilger, 508 N.W.2d 650, 652 (Iowa 1993); State v. Payton, 481 N.W.2d 325, 328 (Iowa 1992); State v. Finnigan, 478 N.W.2d 630, 631-32 (Iowa 1991); State v. Jones, 471 N.W.2d 833, 835-36 (Iowa 1991); State v. Williams, 195 Iowa 785, 796-98, 192 N.W. 901, 906-07 (1923). In his direct examination of Amy’s mother, Mitchell pursued a line of questioning to inferentially bolster his conspiratorial theory of the case, eliciting testimony that she met with the police prior to the time the police interviewed Amy. The record is replete with instances of Mitchell attempting to establish evidence of an untoward conspiracy, including his opening statement, his examination of Amy, her social worker, and the detective who investigated Amy’s abuse, his closing statement, and elsewhere. We believe Mitchell’s direct examination of Amy’s mother was also in furtherance of this theory of the case and thus opened the door to refutation of that theory in the State’s cross-examination. The questions asked on direct examination by Mitchell did not necessarily open the door, but the inference he sought to draw from the questioning did. Thus, the State was entitled to rebut this conspiracy theory with evidence of the actual facts that caused Amy’s mother to meet with police before the police interviewed Amy.

Moreover, the testimony elicited on cross-examination did not belabor Mitchell’s relationship to the other two girls or go into extensive detail about the alleged acts or any further criminal action taken as a result of those acts. The questions merely revealed that a complaint had been filed against Mitchell involving two other girls and the police sought to interview Amy’s mother to determine if she had any information concerning the complaint. For this reason, we agree with the State that whatever effect was created by the testimony was insufficiently prejudicial to overcome the evidence indicating Mitchell’s guilt. See State v. Knox, 536 N.W.2d 735, 742 (Iowa 1995) (“The only direct evidence is the complainants testimony. But under today’s law, that is sufficient to convict. The law has abandoned any notion that a rape victim’s accusation must be corroborated.”). Ultimately, this incident is distinguishable from Mitchell I, where the inadmissible evidence consisted of the actual testimony of Karen and Susanna and was offered for no legitimate purpose other than to show Mitchell’s propensity to abuse Amy. See Mitchell /, 633 N.W.2d at 300. Additionally, the record in the first case did not disclose the existence of a conspiracy theory involving Amy’s mother, which would have entitled the State to rebut the theory. In this trial, Mitchell opened the door through which the State attempted to undermine his theory of the case by showing the actual circumstances that explained why Amy’s mother spoke with the police detective pri- or to Amy being interviewed. He cannot now complain that the State took advantage of this method of attacking his theory, particularly when the State’s response was not overly prejudicial.

IV. Alleged Vindictiveness in Sentencing.

Mitchell also argues that a disparity in the length of the sentences ordered by the district court in his first and second trials evinces vindictiveness on the part of the court in violation of constitutional due process guarantees. At the end of his first trial, Mitchell was sentenced to two consecutive terms not to exceed twenty-five years each. A third term was ordered to run concurrently with the other two twenty-five-year sentences. A fourth term— for indecent contact with a child — was also ordered to run concurrently with his other sentences. When explaining his reasoning for sentencing Mitchell to what amounted to a period not to exceed fifty years, the district judge explained:

The Court did not have any option as to whether incarceration would be granted or not, but the reason — the reasons for the consecutive sentences are as follows: The Court has reviewed ... the presentence investigation report, including the prior criminal record. And basically the reason for the consecutive sentences are because of the prior criminal record which include prior sexual offenses regarding children. Number two, the seriousness of these offenses. And those are the reasons. Protect the community, seriousness of the offenses, and prior criminal record.

After being convicted of the three counts of sexual abuse in the second degree in his new trial, Mitchell was sentenced by a different district judge to three consecutive terms not to exceed twenty-five years each. His additional sentence for indecent contact with a child was also ordered to run consecutively to his other three sentences, meaning he was sentenced to a total period not to exceed seventy-seven years. In sentencing Mitchell, the court explained:

The reasons for the sentences are— the sentences are mandatory on each count. The reason for the consecutive sentence on each Count and based on the former conviction in 1999 of indecent contact with a child are the facts that you have been convicted of sex abuse charges, one of which was here in Scott County and the other which was in Dade County, Florida in 1986, and also the facts and circumstances surrounding each Count for which you were convicted in this case.

Mitchell is correct in asserting that an increase in sentence length between a first and second trial is a red flag for possible judicial vindictiveness in sentencing. Ordinarily, judges are given broad discretion in sentencing an offender. See State v. Rodenburg, 562 N.W.2d 186, 187 (Iowa 1997). However, because the imposition of “a harsher sentence upon reconviction for the purpose of punishing a defendant for exercising his rights in seeking to have the conviction set aside is a flagrant violation of due process of law,” the utmost scrutiny must be applied to ensure that the second sentence was not the product of vindictiveness. Connelly v. Comm’r of Corr., 258 Conn. 374, 780 A.2d 890, 896 (2001). While we have not had the opportunity to fully develop standards under which a claim of vindictiveness can be examined, the United States Supreme Court’s many statements on this issue provide appropriate guidance for our current and future consideration. See Callender v. Skiles, 591 N.W.2d 182, 187 (Iowa 1999); see also Stephen G. Murphy, Jr., Comment, Limits on Enhanced Sentences Following Appeal and Retrial: Has Pearce Been Pierced?, 19 Conn. L.R. 973, 974-85 (1987) (discussing the progression of the Court’s jurisprudence in the vindictive sentencing area).

The Court’s first pronouncement in this area came in North Carolina v. Pearce, where it laid out the baseline approach to judicial vindictiveness questions:

Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

395 U.S. 711, 725-26, 89 S.Ct. 2072, 2080-81, 23 L.Ed.2d 656, 669-70 (1969) (footnote omitted).

Pearce led most courts that construed it to extend a presumption of vindictiveness in cases in which a sentence increased after a retrial arising from a successful challenge to a prior conviction. See Wasman v. United States, 468 U.S. 559, 565, 104 S.Ct. 3217, 3221, 82 L.Ed.2d 424, 430 (1984). Mitchell claims he was entitled to this presumption in this case. Since Pearce, however, the Court has shaped the contours of this due process protection, clarifying the Pearce rule. See Connelly, 780 A.2d at 896-98 (summarizing Court holdings related to the vindictiveness standard). Most importantly, in Texas v. McCullough, the Court observed:

Beyond doubt, vindictiveness of a sentencing judge is the evil the Court sought to prevent rather than simply enlarged sentences after a new trial. The Pearce requirements thus do not apply in every case where a convicted defendant receives a higher sentence on retrial. Like other “judicially created means of effectuating the rights secured by the [Constitution],” we have restricted application of Pearce to areas where its “objectives are thought most efficaciously served.” Accordingly, in each case, we look to the need, under the circumstances, to “guard against vindictiveness in the resentencing process.”

475 U.S. 134, 138,106 S.Ct. 976, 978-79, 89 L.Ed.2d 104, 110 (1986) (citations omitted); see also Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 2204-05, 104 L.Ed.2d 865, 872-73 (1989). In McCullough, the Court determined that the Pearce presumption was inapplicable, partially “because different sentencers [(a jury and then a judge)] assessed the varying sentences that McCullough received.” Id. at 140, 106 S.Ct. at 979, 89 L.Ed.2d at 111-12.

Subsequent interpretations of the McCullough approach to questions of judicial vindictiveness in sentencing have resulted in the conclusion that “when a different judge sentences a defendant after a retrial, and that judge articulates logical, nonvindietive reasons for the sentence, there simply is no sound basis to presume that the sentence is the product of judicial vindictiveness.” Connelly, 780 A.2d at 901; see also State v. Robbins, 123 Idaho 527, 850 P.2d 176, 180-81 (1993); State v. Colwell, 127 Idaho 854, 908 P.2d 156, 161 (Ct.App.1995); State v. Forsyth, 233 Mont. 389, 761 P.2d 363, 384 (1988), overruled in part by State v. Curtis, 241 Mont. 288, 787 P.2d 306, 313 (1990); People v. Best, 127 A.D.2d 671, 511 N.Y.S.2d 897, 898 (N.Y.App.Div.1987); Commonwealth v. Mikesell, 371 Pa.Super. 209, 537 A.2d 1372, 1380-81 (1988). However, this does not mean that the examination of an increased sentence is toothless, for if a defendant is able to show actual vindictiveness on the part of the second judge, he or she may still prevail on a claim of judicial vindictiveness. See Smith, 490 U.S. at 799-800, 109 S.Ct. at 2205, 104 L.Ed.2d at 873; Connelly, 780 A.2d at 898; Robbins, 850 P.2d at 181; Colwell, 908 P.2d at 161-62; Forsyth, 761 P.2d at 384; Best, 511 N.Y.S.2d at 898; Mikesell, 537 A.2d at 1381.

We believe that the standards elucidated by the Supreme Court and other state appellate courts for cases in which two different judges sentence a defendant accurately balance the due process interests of the criminal defendant and the systemic realities of our court system. Although a defendant must still be protected from vindictiveness in sentencing — a goal achieved by assuring the absence of actual vindictiveness — the type of concerns first identified in Pearce are simply less likely to arise when a different judge sentences a defendant at each stage. To conclude otherwise casts unwarranted opprobrium over our judicial system and implies that a common goal within the judicial ranks is to “save face” at all costs. See McCullough, 475 U.S. at 139, 106 S.Ct. at 979, 89 L.Ed.2d at 111. Although we reserve the right to check the sentencing power of our district courts, we refuse to undermine that power in a case of this type absent the presentation of evidence that actual vindictiveness has already done so.

Mitchell alleged vindictiveness in his sentencing based on the increase between his first and second sentence. As we have already noted, in a case such as this one, in which two different judges have produced the disparity in sentencing, a presumption of vindictiveness does not apply. For that reason, we must further consider whether his second sentence was tainted by actual vindictiveness. Mitchell does little to advance such an argument, but even if he did, we believe the record contains no indication of actual vindictiveness. Instead, the judge posited logical, non-vindictive reasons for his sentence and acted well within the discretion normally accorded the court in sentencing. Connelly, 780 A2d at 901. The mere fact that two judges viewed the situation differently and ordered different sentences does not indicate actual vindictiveness. See id. at 900-01. Thus, Mitchell’s claim of vindictiveness in sentencing fails.

V. Conclusion.

We affirm the decisions of the district court on all challenged issues and therefore affirm its judgment and sentence.

AFFIRMED.

      . As in State v. Mitchell, 633 N.W.2d 295 (Iowa 2001), we have chosen to not use the true names of the victims and instead adopt the aliases used in that opinion.

      . That is what the State is doing here today, and I intend to prove that the police officer, Dawn Sturms [(the social worker in whom Amy confided)], Dr. Ozaki [(the doctor who examined Amy for abuse)], and the investigator all knew that this never happened, but because Department of Human Services job is to keep the family together, what they would do, get me out of the way.
      Well, it still didn’t happen because [Amy’s mother] still didn’t go back, but I got to pay for her leaving her husband. That's what's going on here today, and I'm still paying for it and ain’t did nothing....

      . Q. Well, your dad was accused, right? A. Yeah.
      Q. And now I’m accused, right? Now, could it be that y’all flipped the tables but now they know the truth anyway so you stay with anybody else? A. No. It has nothing to do with this that I don’t live with my dad.
      Q. Get John out of the picture, revenge for your dad. Is that right, [Amy]? A. No. It has nothing to do with any of this that I don’t live with my dad.
      Q. It doesn’t? A. No. None of this has to do with the reason I don’t live with my dad.
      Q. Why the dad was so fussy about getting you to stay with him and now you don’t? A. Because I'm his daughter and I was ten years old and he didn’t want me living [with you and my mother] in a crack house.
      Q. To get you away so he could clear his name and you could point the finger at me. Is that right? A. No. I told the truth — _

      . Q. Okay. And I could tell by this document here that it seems to me that the department goal was — the whole purpose of working with her was to clear the father’s name and then close the case and then reopen the case and put it on Mom's boyfriend about a year and a half later when everybody would possibly done forgot about, oh, this happened and that happened, so if we open the case and just go straight at him, okay, possibly he would be done forgot about all the information that was done earlier. That’s the purpose, wasn’t it? A. No, that was not the purpose. The information that came out regarding that you had sexually abused her was not a year and a half later. It was one month after we began services ....

      . Q. Would you say that if DHS was involved in this thing here, which is the way it look to me — I can’t give statements, but I can ask, but wouldn’t you say DHS was involved and they prepared this case and left it there for you to come pick up as if you got some new information and [Amy] was your prime suspect to go check it out because of John Mitchell and the mother had disagreements with the father, his name had come up, now to clear him, they got to go all out? A. I didn’t hear a question in there anywhere. You said you had a question, and I didn’t hear one.
      Q. Well, my question is, is that did DHS leave this — did DHS leave things unsolved so you could come in and make this look like — to prepare — basically what I’m getting at is, wouldn’t you say that [Amy] — did [Amy] ever tell you that she had been to DHS, the Court had did anything? She never informed you of that? A. No, I had no knowledge of any previous investigation from any person....

      . [Detective Venema] talked to [Amy] on the 12 th. He talked to [her mother] on the 8th, so I’m quite sure she gave him some rundown that possibly maybe if he was messing with [Amy], he used a condom or something. If [her mother] had have said yeah, well, we kept condoms in the house, that would have helped him.
      You understand what I’m saying? But he know that I was gonna defend myself and say, hey, you know what I'm saying? I don’t mess with no condoms, so what he did, he told [Amy], say he didn’t use no condoms. Say some white stuff came out. Okay? Exactly. [Amy’s mother] got up there and said, no, no condoms.
      She know about that tape [of Amy's conversation with Detective Venema] there, but [the prosecutor] will tell you she never seen it, but she knows what’s on that tape. That's why she was so smiley when she say no, no condoms. Believe what [Amy] said on the tape. That's what she getting at. That’s exactly what she getting at....