author: TERNUS, Justice.

text:
    STATE of Iowa, Appellant, v. Kelly Jay McCOY, Appellee.
    No. 99-1152.
    Supreme Court of Iowa.
    Oct. 11, 2000.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Richard Crowl, County Attorney, and Jon J. Jacobmeier, Assistant County Attorney, for appellant.
    Tim Markel, Public Defender’s Office, Council Bluffs, for appellee.
   TERNUS, Justice.

The defendant was charged with carrying a concealed weapon after he was found in possession of a sword cane — a cane that held the blades of two knives in its shaft. See Iowa Code § 724.4(l)-(3) (1999) (defining the crime of carrying a concealed weapon). The trial court acquitted the defendant, holding that the knives were “inside a closed and fastened container,” and therefore fell within an exception to the criminal offense of carrying a concealed weapon. See id. § 724.4(4)(e) (setting forth an exception to the prohibition of carrying a concealed weapon). We granted the State’s application for discretionary review, and now hold that the trial court erred in ruling that the exception applied.

I.Background Facts and Proceedings.

During a routine traffic stop, a police officer found the defendant, Kelly McCoy, in possession of a black cane. The top of the cane unscrewed to reveal a 5 1/4 inch sharpened metal blade. The other end also unscrewed, revealing an 18 1/4 inch sharpened metal blade. McCoy was arrested for carrying a concealed weapon in violation of Iowa Code section 724.4(3)(a).

McCoy pleaded not guilty and, by agreement of the parties, the case was submitted on a stipulated record. The sword cane was introduced as an exhibit. It is a black, enamel-finished walking stick, with a rubber tip at one end. The cane is approximately 36 inches long and one inch in diameter. It is hollow and has three joints. When unscrewed at the first joint, the top of the cane becomes a handle for a 5 1/4 inch blade. When unscrewed at the middle joint, an 18 1/4 inch blade is exposed with a portion of the cane again serving as the handle.

McCoy argued at trial that the sword cane fell within an exception to section 724.4(3)(a) for weapons “inside a closed and fastened container.” See id. § 724.4(4)(e). The State argued that the walking stick was not a container, but rather a disguise for the knives. The trial court ruled that the knives were in a closed and fastened container and, therefore, the cane satisfied the exception. The court found the defendant not guilty of carrying a concealed weapon. This court granted the State’s application for discretionary review.

II. Scope and Standard of Review.

The sole issue raised in the State’s application for discretionary review concerns the district court’s interpretation and application of the statutory exception to the undisputed facts. “Issues of statutory interpretation and application are reviewed for errors at law.” State v. Eickelberg, 574 N.W.2d 1, 3 (Iowa 1997). See generally Iowa R.App. P. 4. This court is not bound by the trial court’s determinations of law. See Eickelberg, 574 N.W.2d at 3.

The primary purpose of statutory construction is to determine legislative intent. See State v. Dann, 591 N.W.2d 635, 638 (Iowa 1999). This intent is gleaned from the words used by the legislature. See Lockhart v. Cedar Rapids Community Sch. Dist., 577 N.W.2d 845, 847 (Iowa 1998). Words are given their usual and ordinary meaning absent an express legislative definition or a particular meaning in law. See State v. White, 545 N.W.2d 552, 555 (Iowa 1996).

III. Did the District Court Err in Determining that the Sword Cane Fell Within the Exception for Weapons Carried in a “Closed and Fastened Container”?

Iowa Code section 724.4(3)(a) provides that a person who “goes armed with a knife concealed on or about the person” is guilty of an aggravated misdemeanor if the knife has a blade exceeding eight inches in length. This section does not apply, however, to

[a] person who for any lawful purpose carries an unloaded pistol, revolver, or other dangerous weapon inside a closed and fastened container or securely wrapped package which is too large to be concealed on the person.

Iowa Code § 724.4(4)(e) (emphasis added).

The dispute in this case centers on whether the walking stick is a “closed and fastened container ” within the meaning of the exception. The State argues that the cane is merely a means of disguising the knives and does not constitute the type of container envisioned by the statute.

The legislature did not define the word “container.” This court has, however, considered whether a glove compartment is a “container” for purposes of applying a different, yet similar, exception to the carrying-a-concealed-weapon offense. See State v. Walton, 429 N.W.2d 133, 133 (Iowa 1988) (interpreting Iowa Code section 724.4(6) (1985), which excludes firearms “inside a closed and fastened container” from the prohibitions of section 724.4). In Walton, we held that “a glove compartment, unlike an ordinary container such as a jar or box, is a specialized structure unique to a vehicle” and does not constitute a “container” under the statute. 429 N.W.2d at 134.

Our reference in Walton to a jar or box is consistent with the dictionary definition of “container.” The word “container” is defined as “one that contains!,] ... a receptacle (as a box or jar).” Webster’s Third New International Dictionary 491 (unabr. ed.1993). A “receptacle” is “one that receives and contains something.” Id. at 1894. The verb “contain” is defined in relevant part as “to have within,” “to have capacity for ... be able to hold.” Id. The dictionary gives the following synonyms for “contain”: enclose, include and bound. See id.

Based on the common meaning of the word “container,” we think the sword cane was not a container for the 18 1/4 inch knife. The facts of this case show that the knife consisted of a blade fastened to a handle. See generally id. at 1249 (defining “knife” as “a simple instrument used for cutting consisting of a sharp-edged usu. steel blade provided with a handle”). Although the cane provided a covering for the blade, it did not “hold” or “have within” it the handle. See id. at 491 (defining “contain” as “to have within” or “be able to hold”); cf. New York v. Belton, 453 U.S. 454, 461 n. 4, 101 S.Ct. 2860, 2864 n. 4, 69 L.Ed.2d 768, 775 n. 4 (1981) (in context of Fourth Amendment search and seizure provision, holding that a “[container here denotes any object capable of holding another object”). Therefore, the cane did not “contain” or “enclose” the knife, but only the blade of the knife. In other words, the cane functioned as a sheath for the blade of the knife, not as a container for the weapon itself. See generally Commonwealth v. Walton, 252 Pa.Super. 54, 380 A.2d 1278, 1279 n. 1 (1977) (“A sword cane looks like an ordinary cane but is in fact a sword with a sheath made to look like the lower part of a cane.”). We agree with the State’s observation that the cane was not designed or intended to “contain” or hold the knife, but rather to disguise the knife.

IV. Conclusion and Disposition.

In conclusion, we hold that the cane did not function as a “container” for the knife. Therefore, the trial court erred in holding that the concealed weapon was in a “closed and fastened container” so as to fall within the statutory exemption. We reverse the trial court on this issue, but do not remand because the defendant has already been once put in jeopardy for this offense. See State v. Schmitz, 610 N.W.2d 514, 515 (Iowa 2000) (stating that Double Jeopardy Clause protects against a second prosecution for an offense of which the defendant has been previously acquitted).

REVERSED.

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


source: Caselaw Access Project

author: LAVORATO, Justice. CARTER, Justice

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Stanley L. REED, Appellant.
    No. 99-0947.
    Supreme Court of Iowa.
    Oct. 11, 2000.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, and Michael P. Short, County Attorney, for appellee.
   LAVORATO, Justice.

A jury convicted Stanley L. Reed of violating several drug statutes and a statute prohibiting ongoing criminal conduct through specified unlawful activity. He challenges the ongoing-criminal-conduct statute on the grounds of overbreadth and vagueness under the Federal Constitution. He also contends the district court violated his double jeopardy rights when the court sentenced him for both the drug convictions and the ongoing-criminal-conduct conviction. Finally, he contends the court should have merged the sentence for these convictions pursuant to Iowa Code section 701.9. We affirm.

I. Background Facts and Proceedings.

Steve Austin, a confidential informant, agreed with the Lee County drug task force to buy drugs from Reed. Acting under the supervision and monitoring of drug enforcement agents, Austin bought crack cocaine from Reed on three different occasions: November 23, 1998; December 11, 1998; and January 14,1999.

On January 15, 1999, the police executed a search warrant at Reed’s residence. They seized marijuana, cocaine, scanners, cash, food stamps, and a pistol. Police officers arrested Reed at another location. When the officers arrested Reed, they seized from him a bag of crack cocaine, a sum of money, and a pager.

After arresting Reed, the police contacted Renita Hill, Reed’s girlfriend. While they were talking to Hill, Lamont Walker, a friend of Reed’s, arrived at her residence. The police interrogated Walker about the location of Reed’s stash of drugs. Walker agreed to cooperate with the police and led them to the home of Adraine Bradley. Bradley is Walker’s sister. Reed and Walker had been paying Bradley $30 per month to store the drugs in her apartment.

Before the police arrived at Bradley’s apartment, she had learned about Reed’s arrest. Fearing that the police would arrest her next, she convinced a neighbor friend, Tonya Wilson, to take Reed’s stash of drugs. The drugs were in a bag, and Bradley concealed the fact that the bag contained drugs. Bradley told Wilson that the bag contained a present for Bradley’s boyfriend who was getting out of jail. Wilson asked her stepfather, Charles Edward Stepp, Jr., to take the bag and hold it for her. Stepp took the bag to his home. He was unaware the bag contained drugs.

A short time later, Walker called Bradley and learned that Bradley had gotten rid of the drugs. Walker told Bradley to retrieve the drugs. Bradley then told Wilson what was in the bag and told her to call her parents to tell them to bring the drugs back. Wilson called her parents, told them what was in the package, and asked them to return it. Walker and two police officers were waiting at Wilson’s apartment when Wilson’s parents brought the drugs back.

Walker took the bag containing the drugs from the trunk of the Stepps’ car and handed the bag to the police officers who were present. The bag contained thirteen bags of marijuana and a sock containing a bag of cocaine.

The State charged Reed with two counts of delivery of a cocaine base, in violation of Iowa Code section 124.401(l)(c)(3) (1997); delivery of cocaine, in violation of Iowa Code section 124.401(l)(c)(2)(b) (1999); possession with intent to deliver more than five grams of cocaine or cocaine base, in violation of Iowa Code section 124.401(l)(b)(3); possession with intent to deliver marijuana, in violation of Iowa Code section 124.401(l)(d); ongoing criminal conduct through specified unlawful activity, in violation of Iowa Code sections 706A.2(4) and 706A.4 (1997); two counts of failure to affix a tax stamp for marijuana and cocaine, in violation of Iowa Code section 453B.12 (1999); and possession of a firearm by a felon, in violation of Iowa Code section 724.26. The State also alleged that Reed was subject to the habitual offender provisions of Iowa Code section 902.8 for all charges and that Reed was also subject to the “second or subsequent offense” enhancement provisions of Iowa Code section 124.411. (Though the crimes were alleged to have occurred prior to July 1, 1999, the effective date of the 1999 Iowa Code, Reed did not object to being charged under that edition of the Code.)

A jury found Reed guilty on all «ounts except the marijuana charges. The State also agreed to dismiss the possession-of-a-firearm charge in exchange for Reed’s admitting to the factual basis for the sentencing enhancements.

Pursuant to Iowa Code section 124.411, the district court imposed enhanced, indeterminate sentences and $1000 fines for each of the cocaine and cocaine-base delivery charges. The court additionally sentenced Reed to a term not to exceed seventy-five years plus a $5000 fine for his conviction of possession with intent to deliver. The court ordered these sentences to be served concurrently.

The court further sentenced Reed to twenty-five years for his conviction of ongoing criminal conduct through specified unlawful activity. Finally, the court imposed a sentence not to exceed five years for the tax stamp violation, plus a $1000 fine. The court also ordered these sentences to be served concurrently, but consecutively to the delivery and possession convictions.

On appeal, Reed contends that the term “specified unlawful activity” used in the ongoing-criminal-conduct statute is over-broad and vague. He further contends the district court violated his double jeopardy rights when the court sentenced him for both delivery of a controlled substance and ongoing criminal conduct. He also contends the district court erred in failing to merge these sentences pursuant to Iowa Code section 701.9. Finally, Reed contends the district court erred in concluding there was evidence corroborating two accomplices’ testimony pertaining to his possession and drug tax stamp charges.

II. The Overbroad and Vagueness Issue.

During trial, Reed moved unsuccessfully to dismiss the charge of ongoing criminal conduct on the basis of over-breadth and vagueness. Because Reed raises constitutional issues, our review is de novo. State v. Ryan, 501 N.W.2d 516, 517 (Iowa 1993).

Iowa Code section 706A.2(4) provides that “[i]t is unlawful for a person to commit specified unlawful activity as defined in section 706A.1.” Iowa Code section 706A.1(5) defines “specified unlawful activity” to mean “any act, including any preparatory or completed offense, committed for financial gain on a continuing basis, that is punishable as an indictable offense under the laws of the state in which it occurred and under the laws of this state.”

Reed contends that the terms “preparatory” and “continuing basis,” as used in section 706A.1(5), are both constitutionally overbroad and vague.

A. Overbreadth. A statute is overbroad in violation of the Fourteenth Amendment to the Federal Constitution “ ‘if it attempts to achieve a governmental purpose to control or prevent activities constitutionally subject to state regulation by means which sweep unnecessarily broad and thereby invade the area of protected freedoms.’ ” Ryan, 501 N.W.2d at 517 (quoting City of Maquoketa v. Russell, 484 N.W.2d 179, 181 (Iowa 1992)). The overbreadth analysis is confined to an alleged violation of First Amendment rights. Id. at 518.

The problem with Reed’s over-breadth claim is that, while he does attempt to show how Iowa Code section 706A.1(5) is overbroad, he fails to adequately explain what First Amendment right is violated, or at the very least, to make a First Amendment connection. For this reason, we have nothing further to review. We therefore consider Reed’s overbreadth argument waived. See id.

B. Vagueness.

1. The void-for-vagueness doctrine. Under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution, “ ‘the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ ” State v. Hunter, 550 N.W.2d 460, 463 (Iowa 1996) (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983)).

In Hunter, we noted that the void-for-vagueness doctrine protects several important values:

“First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked.’ ”

Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972)).

2. Standing. When the State charges a defendant with violating a statute, the defendant has standing to claim the statute is unconstitutionally vague as applied to him or her. Id. This does not mean, however, that the defendant necessarily has standing to claim, in addition, that the statute is unconstitutional as applied to others, i.e., a facial challenge. Id. If the statute is constitutional as applied to the defendant, the defendant lacks standing to<*iake a facial challenge to the statute unless a recognized exception applies. Id. In Hunter, we recognized that “a facial challenge is permitted if a statute reaches a ‘substantial amount’ of protected conduct” under the First Amendment. Id. at 464.

Here, as the State correctly notes, Reed does not contend that Iowa Code chapter 706A reaches any protected conduct under the First Amendment. We therefore analyze this issue on an “as applied” basis only.

3. Vagueness as applied. As mentioned, “specified unlawful activity” means “any act, including any preparatory or completed offense, committed for financial gain on a continuing basis, that is punishable as an indictable offense under the laws of the state in which it occurred and under the laws of this state.” Iowa Code § 706A.1(5) (emphasis added). As we said, Reed contends the terms “preparatory” and “continuing basis” are vague and have no fixed and understandable meaning in relation to the activity sought to be outlawed by the statute.

a. Preparatory: Does the word “preparatory” refer to “act” or “completed offense”? As to the word “preparatory,” Reed argues that it is not clear whether the term refers to “act” or “completed offense.” He asks whether the legislature intended the word “preparatory” to encompass any act that is done in preparation for the commission of an indictable offense or any completed offense. He concludes that, if the legislature was not speaking of completed offenses, there remains no guidance to inform the individual as to what acts are covered by this statute.

In support of his argument, Reed points out that Iowa Code section 706A.1(5) is based upon the Model Ongoing Criminal Conduct Act [hereinafter Model Act] presented by the President’s Commission on Model State Drug Laws. As he correctly notes, section 706A.1(5), unlike the Model Act, fails to include a listing of inclusive predicáte offenses. See State v. Olsen, 618 N.W.2d 346 (Iowa 2000). Such a listing in the Model Act, Reed argues, makes clear that the definition of “specified unlawful activity” refers to completed offenses — the identified predicate offenses that represent key components of ongoing criminal networks. Reed concludes that the absence, however, of such a listing in section 706A.1(5) leaves the statute open to argument that the term “preparatory” need not refer to offenses and may well refer to the word “act.”

Reed argues that if “preparatory” refers to “act” a person of ordinary intelligence would have no guidance as to what conduct is prohibited by section 706A.1(5). He contends that any act could be viewed as preparatory to the commission of an offense. He points out, for example, that the purchase of dark clothing could be viewed as preparatory to the commission of a burglary.

We reject Reed’s argument. The word “preparatory” clearly refers to “offenses” rather than to “acts.” Additionally, the “preparatory” offense referred to in section 706A.1(5) is limited to those offenses committed for financial gain on a continuing basis and that are punishable as an indictable offense. See Model Act § 4 cmt.

It is true that the Model Act limits the “preparatory or completed offenses” to “trafficking in controlled substances, homicide, robbery, extortion, extortionate extensions of credit, trafficking in explosives or weapons, trafficking in. stolen property, or obstruction of justice.” Model Act § 4(e)(1). It is also true that section 706A.1(5) does not similarly limit “preparatory or completed offenses.” We view this omission as legislative intent to make our statute more inclusive. See Olsen, 618 N.W.2d at 350. However, as we noted, the preparatory or completed offenses in section 706A.1(5) are still limited to those offenses committed for financial gain on a continuing basis and that are punishable as an indictable offense.

We conclude the word “preparatory” is not unconstitutionally vague on this ground.

b. Whether the words “preparatory” and “continuing basis” are unconstitutionally vague. Reed alternatively argues that the words “preparatory” and “continuing basis” lack a clearly definable meaning. Therefore, he argues, the words offer no guidance to the individual or to the officials charged with enforcing the laws. For reasons that follow, we reject Reed’s argument that the words “preparatory” and “continuing basis” are unconstitutionally vague.

As the State points out, statutory terminology provides a defendant fair warning if the meaning of such terminology is “ ‘fairly ascertainable by reference to similar statutes, prior judicial determinations, reference to the dictionary, or if the questioned words have a common and generally accepted meaning.’ ” Hunter, 550 N.W.2d at 465 (quoting State v. Kueny, 215 N.W.2d 215, 217 (Iowa 1974)).

i. “Preparatory.” The dictionary meaning of the word “preparatory” is “preparing or serving to prepare for something.” Webster’s Third New International Dictionary 1790 (unabr. ed.1993). Earlier we noted that the Model Act limits “preparatory or completed offenses” to “trafficking in controlled substances, homicide, robbery, extortion, extortionate extensions of credit, trafficking in explosives or weapons, trafficking in stolen property, or obstruction of justice.” Model Act § 4(e)(1). The comment to this section states that “specified unlawful activity” in section 4(e)(1) of the Model Act “should include not only the core offenses, such as offenses related to the provision of illicit goods and services such as drugs, fraud, theft, gambling, prostitution, child pornography, etc. but also offenses related to support services such as violence, corruption, obstruction of justice, money laundering and fencing.” Model Act § 4(e)(1) cmt. (emphasis added). These latter offenses are considered “preparatory” because they prepare or serve to prepare for the core profit-making criminal offenses.

In the same vein, we think the Iowa legislature intended the term “preparatory” in section 706A.1(5) to extend the reach of unlawful activity beyond core offenses in criminal networks and enterprises such as narcotics trafficking and theft to offenses related to support services such as violence, corruption, obstruction of justice, money laundering and fencing. See Iowa Code § 706A.1(1) (defining criminal network), (2) (defining enterprise).

ii. “Continuing basis.” We note that, unlike section 706A.1(5), the Model Act does not contain the language “on a continuing basis.” “Continue” means “to be steadfast or constant in a course or activity.” Webster’s Third New International Dictionary 493. As the State suggests, “continuing basis” in section 706A.1(5) requires proof of a course of criminal activity as opposed to an isolated or one-time act. But as we shall explain, we think “continuing basis” means more than that.

We recently considered the concept of continuing criminal activity in Midwest Heritage Bank, FSB v. Northway, 576 N.W.2d 588 (Iowa 1998). In Midwest, we had before us a claim of racketeering in violation of 18 U.S.C. § 1962(c) (1995) of the Racketeer Influenced and Corrupt Organizations Act (RICO). That statute makes it unlawful

for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.

18 U.S.C. § 1962(c) (emphasis added).

We were considering in Midwest what constitutes a “pattern of racketeering.” The statute expressly required at least two acts of racketeering. Midwest, 576 N.W.2d at 590, 591. In addition to the two acts, however, we noted that there must also be a

“showing of a relationship between the predicates [acts of racketeering] and the threat of continuing activity. It is this factor of continuity plus relationship which combines to produce a pattern. RICO’s legislative history reveals Congress’ intent that to prove a pattern of racketeering activity a plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to or pose a threat of continued activity.”

Midwest, 576 N.W.2d at 591 (quoting H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 2900, 106 L.Ed.2d 195, 208 (1989)).

We also noted in Midwest that “[t]he relationship element of a pattern can be shown if the predicate acts ‘have the same or similar purposes, results, participants, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events.’ ” Id. (quoting H.J., 492 U.S. at 240, 109 S.Ct. at 2901, 106 L.Ed.2d at 208).

We further noted in Midwest that, as to the continuity element, H.J. said:

“ ‘Continuity’ is both a closed- and open-ended concept, referring either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition. It is, in either case, centrally a temporal concept — and particularly so in the RICO context, where what must be continuous, RICO’s predicate acts or offenses, and the relationship these predicates must bear one to another, are distinct requirements. A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement: Congress was concerned in RICO with long-term criminal conduct. Often a RICO action will be brought before continuity can be established in this way. In such cases, liability depends on whether the threat of continuity is demonstrated. Whether the predicates proved establish a threat of continued racketeering activity depends on the specific facts of each case.

Id. (quoting H.J., 492 U.S. at 241-42, 109 S.Ct. at 2902, 106 L.Ed.2d at 209) (emphasis added).

Given the similarity between the undér-lying purposes of RICO and Iowa Code chapter 706A, we think the interpretation given to “pattern of racketeering activity” by the United States Supreme Court in H.J. is a reasonable one for “continuing basis” in section 706A.1(5). Applying that interpretation here, we conclude Reed’s conduct falls squarely within the conduct targeted by the Iowa legislature. The relationship element is easily met: the predicate acts — at least three completed offenses of dealing drugs over a two-month period — have the same or similar purpose. That purpose, of course, was to make a profit by dealing drugs.

The predicate acts and the circumstances surrounding those acts also established a threat of continued drug dealing. The “stash” of drugs recovered, the evidence of numerous past drug sales, and the payment of $30 per month to store the “stash” all indicate that Reed (1) had an ongoing business in dealing drugs and (2) intended to continue such business in the future.

III. Double Jeopardy and Merger Pursuant to Iowa Code Section 701.9.

Reed contends that the district court violated his double jeopardy rights under the Fifth Amendment to the Federal Constitution when the court sentenced him for both ongoing criminal conduct and the separate instances of delivery of cocaine that the State used to prove the ongoing-criminal-conduct charge. In support of his contention, Reed argues that delivery of cocaine is a lesser included offense of ongoing criminal conduct, and because the district court sentenced him for both offenses, the sentence violated the prohibition against multiple punishments for the same offense. Reed further argues that because (1) delivery is a lesser included offense of ongoing criminal conduct and (2) the legislature never intended double punishments, the court should have merged his convictions and sentences for delivery with his conviction and sentence for ongoing criminal conduct under Iowa Code section 701.9.

Because Reed’s double jeopardy challenge raises a constitutional issue, our review is de novo. See State v. Perez, 563 N.W.2d 625, 627 (Iowa 1997). We review Reed’s challenge that the sentences imposed violate section 701.9 for correction of errors at law. Id.

A. Double jeopardy. The Double Jeopardy Clause of the Federal Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. This constitutional provision is binding on the states through the Fourteenth Amendment to the Federal Constitution. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 716 (1969). The Double Jeopardy Clause provides protection against (1) successive prosecutions after acquittal, (2) successive .prosecutions after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969). This appeal involves protection against punishments for the same offense.

The Double Jeopardy Clause is limited in its application in those instances in which, as here, multiple punishments are imposed pursuant to a single prosecution. Perez, 563 N.W.2d at 627. This is because the multiple-punishment prohibition “does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535, 542 (1983). Therefore, as we have observed, “the question of what punishments are constitutionally permissible is no different from the question of what punishments the legislature intended to be imposed.” State v. McKettrick, 480 N.W.2d 52, 57 (Iowa 1992). The courts, however, must presume that “ ‘in the absence of a clear indication of contrary legislative intent,’ ” the legislature ordinarily does not intend cumulative punishment. Hunter, 459 U.S. at 366, 103 S.Ct. at 678, 74 L.Ed.2d at 542 (quoting Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 1437-38, 63 L.Ed.2d 715, 724 (1980)).

The issue here is whether Reed can be sentenced both for the separate instances of delivery of cocaine and for ongoing criminal conduct. Because Reed’s double jeopardy challenge arises from convictions in a single prosecution, our analysis begins with a search for legislative intent. See Perez, 563 N.W.2d at 628. In determining that intent, we first look to the face of the statute. See id. If, after considering the language of the statute, there is an absence of clear legislative intent for cumulative punishment, we then resort to the “same elements” test — a rule of statutory construction — articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). See id.

We need not resort to the same-elements test here because, for reasons that follow, we think the legislature intended cumulative punishment. In Iowa Code section 706A.5(1), the legislature has made clear its intent to punish as a class “B” felony both preparatory and completed offenses that are committed on an ongoing basis for profit and that are indictable offenses. Had the legislature intended to prohibit cumulative punishments for indictable-offense convictions as part of the specified unlawful activity, we think it would have done so directly as it did for conspiracies in Iowa Code section 706.4. Section 706.4 expressly prohibits multiple punishments for a conspiracy to commit a public offense and any public offense that might be committed pursuant to such conspiracy.

Additionally, we may consider whether the statutes that were violated serve differing purposes. See State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995). Here, as the State suggests, the ongoing-crimi- ' nal-conduct statute focuses on reducing the economic power of those who engage in ongoing illegal business for profit. See 1996 Iowa Acts ch. 1133. The provisions of Iowa Code section 124.401, on the other hand, focus on curtailing the trafficking of controlled substances. This distinction in purpose is evidence that the legislature intended to punish both offenses.

As mentioned, our ongoing-criminal-conduct statute and RICO serve similar purposes. On an issue like the one confronting us, the eighth circuit held:

We see “nothing in the RICO statutory scheme which would suggest that Congress intended to preclude separate convictions.” Instead, we conclude that Congress clearly intended to permit, and perhaps sought to encourage, the imposition of cumulative sentences for RICO offenses and the underlying crimes.

United States v. Kragness, 830 F.2d 842, 864 (8th Cir.1987) (citations omitted); see also United States v. Truglio, 731 F.2d 1123, 1129 (4th Cir.1984); United States v. Sutton, 700 F.2d 1078, 1081 (6th Cir.1983), overruled on other grounds by United States v. Burgos, 94 F.3d 849, 861-62 (4th Cir.1996); United States v. Rone, 598 F.2d 564, 571 (9th Cir.1979). We likewise see nothing in our ongoing-criminal-conduct statute that suggests our legislature intended to preclude separate convictions and sentences for the ongoing criminal conduct and underlying crimes used to establish such conduct. We too think the Iowa legislature sought to encourage the imposition of such cumulative sentences.

B. Merger pursuant to Iowa Code section 701.9. Iowa Code section 701.9 — Iowa’s merger statute — provides:

No person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted; If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, thé court shall enter judgment of guilty of the greater offense only.

Our resolution of Reed’s double jeopardy claim renders this section inapplicable. See Halliburton, 539 N.W.2d at 344 (holding that, if Double Jeopardy Clause is not violated because legislature intended double punishment, section 701.9 is not applicable and merger is not required).

IV. Corroboration of Accomplices’ Testimony.

The last issue Reed raises is that the district court erred in concluding there was substantial evidence corroborating two accomplices’ testimony pertaining to his possession and drug tax stamp charges. We decline to address this issue because Reed failed to properly preserve the issue for our review. See State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997) (holding that issues not raised before the district court cannot be asserted for the first time on appeal).

V. Disposition.

In sum, we conclude that Iowa Code section 706A.1(5) is not unconstitutionally vague. We further conclude the district court did not violate Reed’s double jeopardy rights when the court sentenced him for both delivery of a controlled substance and ongoing criminal conduct. Finally, we conclude the district court did not err in failing to merge these sentences pursuant to Iowa Code section 701.9.

AFFIRMED.

All justices concur except CARTER, J., who concurs in part and dissents in part, and TERNUS, J., who takes no part.

CARTER, Justice

(concurring in part; dissenting in part).

I concur with all of the opinion except the merger analysis in Division IIIB. On the merger issue, I believe that under the analysis of lesser included offenses applied in State v. Turecek, 456 N.W.2d 219, 223 (Iowa 1990), the offense of delivery of cocaine was a lesser included offense within the ongoing-criminal-conduct charge. For the reasons stated in my special concurring opinion in State v. Daniels, 588 N.W.2d 682, 685 (Iowa 1998), that circumstance requires merger of the two offenses pursuant to section 701.9.


author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Carlos Fontez CALHOUN, Appellant.
    No. 99-0911.
    Supreme Court of Iowa.
    Oct. 11, 2000.

      Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, and Carlos Calhoun, Newton, pro se, for appellant.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.
   CARTER, Justice.

Defendant, Carlos Fontez Calhoun, appeals from his conviction of four counts of forgery. He contends that his conduct did not meet the statutory definition of that crime. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

The evidence reveals that Calhoun opened a checking account at Norwest Bank in the name of a fictitious business, Midwest Security Service. In opening the account, he used the name of William Scott. In another transaction he opened a joint checking account at John Deere Credit Union in the names of Andrea Anderson and William Lee Johnson. The purpose of opening the credit union account was to facilitate the cashing of checks at offices of the credit union. Calhoun drew checks on the Norwest account denominated as payroll checks of Midwest

Security Service. These checks were made payable to William Lee Johnson. He then endorsed the checks as William Lee Johnson and cashed them at four different John Deere Credit Union outlets. Because there were insufficient funds in the account, all of these checks were dishonored by Norwest Bank.

The statute under which defendant is charged provides:

A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that the person is facilitating a fraud or injury to be perpetrated by anyone, the person does any of the following:
b. Makes, completes, executes, authenticates, issues, or transfers a writing so that it purports to be the act of another who did not authorize that act, or so that it purports to have been executed at a time or place or in a numbered sequence other than was in fact the case, or so that it purports to be a copy of an original when no such original existed.
c. Utters a writing which the person knows to be forged in a manner specified in paragraph “a” or “b”.

Iowa Code § 715A.2(l)(b), (c) (1997) (emphasis added).

Seizing on the language of the statute that we have italicized, Calhoun argues that his conduct in issuing the four checks did not purport to be the act of another who did not authorize the act. He urges that the checks were authentic instruments because he was the person who created and controlled the account on which they were written. Although this argument gives us pause with respect to whether his actions in drawing the checks amounted to forgery, we are convinced that his actions in endorsing the checks did constitute forgery.

The drafters of the Model Penal Code, on which the Iowa forgery statute is patterned, recognized that a substantial overlap exists between the crime of forgery and theft by misrepresentation. Model Penal Code § 224.1 cmt. 2, at 283 (1980). The comments to the Code even suggest that the crime of forgery might be redundant because acts that constitute forgery may also be punished as theft. Id. In opting to retain forgery as an independent crime, the drafters admit that they were motivated largely by the extent to which the crime has become historically embedded in popular understanding. Id. at 284.

The Model Penal Code drafters endeavored to draw the line between forgery and other fraudulent uses of documents that do not constitute forgery based on whether the act affects the genuineness of the instrument. Model Penal Code § 224.1 cmt. 4, at 289. Calhoun argues that the checks at issue in the present case were genuine because they would have been honored had there been sufficient funds in the account. That argument has some merit with respect to the obligation created by drawing the checks.

In discussing the problems arising from the use of fictitious names, the Code commentary seeks to illustrate the issue by reference to the decision in Hubsch v. United States, 256 F.2d 820 (5th Cir.1958). The defendant in that case was prosecuted on two counts of forgery. The first involved a check given to a Florida hospital in which he was registered under a fictitious name. When he left the hospital, he paid his bill with a check that he signed with the same fictitious name under which he was registered. The second count involved the purchase of a Masonic ring at a Florida jewelry store. The defendant had produced several Masonic cards containing a fictitious name and purporting to show that he, acting under that name, was a member of the Masons in Atlanta, Georgia. The store accepted his check, which he signed using the same name. In both instances, the checks were worthless and were issued for fraudulent purposes.

The court in Hubsch held that the defendant should have been acquitted on the hospital transaction but not on the jewelry store transaction. Its reasoning was that, with respect to the hospital check, there was no reliance by the hospital on the name used by the defendant nor upon the character or personality associated with that name. The check would have been accepted, so far as it appeared, even if the defendant had signed his own name. With respect to the jewelry store check, on the other hand, the defendant sought to create a fictitious personality of a Mason from Atlanta interested in purchasing a Masonic ring. Because the check was accepted in reliance upon those misrepresentations, the court found that a forgery prosecution was appropriate.

If we follow the reasoning of the federal court in Hubsch, we must affirm defendant’s convictions. In so doing, we can disregard the circumstances surrounding the drawing of the check on the fictitious account and uphold the prosecution based on the endorsement of the check, in a fictitious name. That name corresponded with the false identity Calhoun had established by opening an account in that name with the credit union. So, just as in the Hubsch case, the check was accepted in reliance on a fictitious personality.

The comments accompanying the Model Penal Code suggest that the hospital transaction in the Hubsch scenario also constituted a forgery. In analyzing how the statutory reference to a writing “that purports to be the act of another who did not authorize that act” is to be applied to fictitious names, the Code commentary states as follows:

The case would turn on the meaning of the words “so that it purports to be the act of another who did not authorize that act.” These words could be taken to embrace the distinction advanced in the Hubsch case, ie., to turn liability on whether the defendant’s signature “purported” to be his own or whether he created an independent personality and “purported” to be that person. It does not unduly strain the language, however, to conclude that any use of a fictitious name necessarily “purports” to be the act of another who, by definition, could not have authorized the act. The misrepresentation necessarily encompassed by the word “purports” is adequately supplied by the fraudulent intent that must, of course, independently be shown.

Model Penal Code § 224.1 cmt. 4, at 297 n. 61. The concept that forgery may occur when one signs a fictitious name to a check is not novel. It has been recognized in a prior decision of this court. See State v. Meeks, 245 Iowa 1231, 1236, 65 N.W.2d 76, 79 (Iowa 1954). However, this court has not dealt with a situation in which the drawer of a check used a fictitious name on an account opened by drawer and subject to the drawer’s control. A New. Jersey court has held based on a slightly different statute that in such a circumstance the use of a fictitious name in the drawing of the check is not forgery. State v. Berko, 75 N.J.Super. 283, 183 A.2d 118, 123-24 (Ct.App.Div.1962).

In State v. Brooks, 555 N.W.2d 446 (Iowa 1996), we observed the fact that Iowa’s forgery statute is identical to section 224.1 of the Model Penal Code. Based on that circumstance, we declared that, “[b]ecause the Iowa legislature chose to adopt the Model Penal Code language, we presume it intended section 715A.2 to have the meaning explained in the comments to the model forgery provision.” Brooks, 555 N.W.2d at 450. However, in the model code’s reference to Hubsch and in the other examples given in the comments on the use of fictitious names, the names had not been attached to an instrument drawn on an account opened by and subject to the control of the drawer of the instrument.

In endorsing the check, Calhoun was assuming a new legal obligation to the credit union separate and apart from the obligation of the drawer of the check. With respect to the obligation of the endorser, the instrument was not genuine. In State v. Czarnecki, 615 N.W.2d 672 (Wis.Ct.App.2000), the court upheld a forgery conviction based on endorsing a check with a fictitious name. In so doing, the court stated:

Because Czarnecki adopted his assumed name to further his confidence scam, the purpose the assumed name served was to avoid responsibility for his illegal acts by hindering and delaying his identification once the scam was revealed. Using an assumed name to endorse the checks was a false act because it purported to be what it was not.

Czarnecki, 615 N.W.2d at 677. Similar considerations exist with respect to Calhoun’s endorsement of the checks at issue in the present case.

Because we are convinced that Calhoun was guilty of forgery in endorsing the four checks at issue in the present case, we need not consider whether his drawing of those instruments also constituted forgery. For the reasons stated, the judgment of the district court is affirmed.

AFFIRMED.

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


author: McGIVERIN, Chief Justice.

text:
    Pamela D. KERSHNER, Appellant, v. CITY OF BURLINGTON, Iowa, Appellee.
    No. 99-0450.
    Supreme Court of Iowa.
    Oct. 11, 2000.

      Thomas T. Skewes of Johnson & Skewes, Fort Madison, for appellant.
    Robert A. Engberg of Aspelmeier, Fisch, Power, Warner & Engberg, P.L.C., Burlington, for appellee.
   McGIVERIN, Chief Justice.

Plaintiff Pamela D. Kershner sued defendant City of Burlington, alleging that the Burlington city fire department was negligent in responding to a fire at plaintiff Kershner’s residence. The district court granted the city’s motion for summary judgment and dismissed the case, concluding that plaintiffs negligence claim was based on an act or omission of the city in connection with an emergency response and that plaintiffs claim was therefore barred by the immunity provision of Iowa Code section 670.4(11) (1995) (Tort Liability of Governmental Subdivisions).

Upon our review, we agree with the district court’s conclusion and affirm its judgment in favor of defendant city.

I. Background facts and proceedings.

On January 25, 1996, plaintiff Kershner was the owner of a home in Burlington, Iowa, and owned and operated a business out of the home. On that day, Kershner discovered a fire in the clothes dryer located in the enclosed back porch of the home. She tried to put the fire out, but was unsuccessful. She then placed a 911 telephone call to the Burlington fire department, stating she had a dryer fire in her home.

In response to Pamela’s call, battalion chief Larry Werner dispatched only one fire truck and three firefighters (two firefighters and one officer) to the fire at plaintiffs address.

Upon arriving at plaintiffs home, the firefighters observed that the fire was contained to the back porch of the home. The general firefighting technique used to approach a fire in this type of situation was for the firefighters to enter the front part of the home and fight the fire from the interior. However, since only three firefighters initially responded to the fire, entry of the home could not be made at that time due to safety reasons. A call was then made for more fire personnel and equipment to respond. Additional fire personnel and equipment arrived approximately three to five minutes later. Despite efforts of the firefighters, the fire spread and eventually consumed the entire home, destroying the structure and contents.

On September 30, 1997, plaintiff Pamela Kershner filed a petition in district court against the defendant City of Burlington, alleging that the Burlington fire department was negligent in failing to follow its written service response policy in that it did not dispatch a sufficient number of fire trucks and personnel in response to plaintiffs fire.

After filing an answer, the city filed a motion for summary judgment, contending that the city was immune from liability under Iowa Code section 670.4(11) because the defendant’s allegedly negligent acts or omissions occurred in connection with an emergency response. After a hearing, the court sustained the city’s summary judgment motion and dismissed plaintiffs petition, based on its conclusion that plaintiffs negligence claim against the city was barred by the emergency response provision of Iowa Code section 670.4(H).

Plaintiff appeals.

II. Standard of review.

Our review of a grant or denial of summary judgment is at law. Iowa R.App. P. 4. Summary judgment is only appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 237(c); Sampson v. American Standard Ins. Co., 582 N.W.2d 146, 149 (Iowa 1998). “Where the only dispute concerns legal consequences flowing from undisputed facts, our review is limited to whether the district court correctly applied the law.” Kulish v. Ellsworth, 666 N.W.2d 885, 889 (Iowa 1997). “If the conflict in the record concerns only the legal consequences flowing from undisputed facts, entry of summary judgment is proper.” Thompson v. City of Des Moines, 564 N.W.2d 839, 841 (Iowa 1997).

The summary judgment record here consists of the pleadings, summary judgment motions and resistance, depositions, exhibits, and answers to interrogatories. See Iowa R. Civ. P. 237(c).

III. Did the district court properly conclude that plaintiffs negligence claim was barred by Iowa Code section 670.4(H)?

The district court concluded that plaintiffs negligence claim against the city was barred by the immunity provisions of Iowa Code section 670.4(11). Plaintiff contends this was error.

A. Immunity under Iowa Code section 670.4(11), the emergency response exemption to municipal liability.

Iowa Code chapter 670 establishes the parameters of a municipality’s liability for the negligent acts or omissions of its officers and employees. Keystone Elec. Mfg. v. City of Des Moines, 586 N.W.2d 340, 345-46 (Iowa 1998). Pursuant to chapter 670, every city is subject to liability for the torts of its officers and employees unless such torts fall within one of the exemptions listed in section 670.4. Baker v. City of Ottumwa, 560 N.W.2d 578, 582 (Iowa 1997). The present case involves the “emergency response” exemption found in Iowa Code section 670.4(11), which provides immunity to a municipality for

[a] claim based upon or arising out of an act or omission in connection with an emergency response including but not limited to acts or omissions in connection with emergency response communications services.

In Kulish, 566 N.W.2d at 890, we concluded that the emergency response provision is reasonably related to a legitimate government interest and that the immunity provision therefore does not violate the equal protection clauses of either our federal or state constitutions. See U.S. Const, amend. XIV; Iowa Const, art. I, § 6. In doing so, we articulated the justification for the rule as follows:

A local government has a strong interest in providing rescue services for citizens involved in accidents and who' — day or night — need immediate response. The statutory exemption from tort liability allows municipal providers of emergency care to render necessary medical aid in dire situations free from distractions or concerns over potential lawsuits.

Kolish, 566 N.W.2d at 890.

B. The city’s fire department service response policy and plaintiffs contentions.

The Burlington fire department service response policy outlines the department’s proposed responses to various fire situations and lists the minimum equipment and personnel to be dispatched to a particular type of fire. At the time of plaintiffs fire, the service response policy for a residential fire stated the following:

E-l [engine truck with three firefighters], S-15 [fire truck with three firefighters], C-16 [fire command vehicle with two firefighters], and E-2 [engine with two firefighters]
T-13 (fire truck) and/or amb. [ambulance] shall respond at Incident Commander discretion.

The service response policy also contains the following statement:

It is understood that on occasion extenuating circumstances may arise that will not permit responses exactly as outlined herein. The Shift Command Officer will however do the absolute best to comply with these minimum requirements.

The record shows that three firefighters and one fire truck (S-15 type) were dispatched to plaintiffs residence as directed by battalion chief, Larry Werner, in response to plaintiffs 911 emergency call. No reason was given by defendant in the record as to why the written service response policy was not followed and there were no apparent extenuating circumstances or other emergencies that prevented the fire department from following its service response policy.

Plaintiffs theory was that the damage to her home and property could have been reduced if the fire department had followed its service response policy and immediately dispatched the proper equipment and personnel upon learning of the fire. Plaintiff further contends that responding to an emergency does not permit municipal officials or employees to ignore laws or policies that are established for the safety of all citizens. Additionally, plaintiff argues that a fact question remains concerning whether her damages were a result of the defendant’s alleged negligence for failing to follow the fire department service response policy. In essence, plaintiffs contention is that the immunity provisions of chapter 670 do not apply when a governmental subdivision fails to follow written policies governing the conduct and actions of its officers and employees in carrying out their official duties.

C. Relevant Iowa authorities.

In Cerro Gordo Hotel v. City of Mason City, 505 N.W.2d 509 (Iowa App.1993), our court of appeals examined a governmental subdivision’s immunity for acts or omissions related to an emergency response. In that case, city officials ordered the demolition of two adjacent buildings owned by plaintiff after the roof of one of the buildings partially collapsed. Cerro Gordo Hotel, 505 N.W.2d at 510. The order to demolish the buildings was based on the conclusion of city officials that the possibility of further collapse created an emergency. Id. At the time of the partial collapse, plaintiff and the city had entered into a stipulated agreement that plaintiff had to take down the two buildings by a certain date. Id. This agreement was the result of a prior nuisance action initiated by the city. Id. Plaintiff sued the city of Mason City and city officials for damages associated with the demolition of the buildings. Id.

At trial, the district court refused to submit to the jury plaintiffs claim that defendants were negligent in determining an emergency existed and in deciding that the situation required demolition of the buildings. Id. at 511. On review, the court of appeals concluded that the district court did not commit any reversible error in refusing to submit plaintiffs negligence theory to the jury in view of the jury’s finding that an emergency response complete defense existed in connection with plaintiffs other liability theories that were submitted to the jury. Id. at 512.

We also addressed the emergency response provision in Kulish, 566 N.W.2d at 890. We concluded that plaintiffs’ medical malpractice claim against the county, county ambulance service, and emergency personnel, concerning medical treatment given to a motor vehicle accident victim, who later died from a heart attack, arose out of the alleged negligent acts or omissions that began with the response of emergency medical personnel dispatched to the scene of a car accident. Id. at 891. We therefore held as a matter of law that defendants were immune from liability under the emergency response exemption to liability. Id. at 891-92. In doing so, we noted that the “broad language of section 670.4(11) — ‘in connection with an emergency’ and ‘included but not limited to’ — conveys a legislative intent to encompass situations like those described here.” Id. at 891.

We also addressed the emergency response exemption to the statutory waiver of sovereign immunity in Keystone, 586 N.W.2d at 349-50. In Keystone, a case involving combined appeals, plaintiffs sued the city of Des Moines arguing that city officials were negligent in failing to close a railroad opening in a levee during the flood of 1993. The city argued that it was immune from liability under Iowa Code section 670.4(11) because its decision not to close the railroad opening in the levee was made in response to an emergency, the unprecedented flood. Id. at 349. A district court ruled that the city was immune from liability under the emergency response provision.

On appeal, we concluded that a fact question existed concerning whether the city’s omission or failure to close the railroad opening in the levee was made in response to an emergency. Id. at 350. We based our conclusion on the fact that the' record contained evidence that Des Moines city officials received information that the water levels were actually going to be higher than those predicted by the Weather Bureau, which was the source that city officials relied upon in deciding how to fight the flood, but that city officials took no action to close the railroad opening in the levee. Id. Thus, a fact question was generated concerning when an emergency actually occurred due to the flood waters and the time the city had for a response thereto. Id. Consequently, it could not be determined as a matter of law whether the city was immune from liability under the emergency response exception, Iowa Code § 670.4(11).

D. Application of law to facts.

Plaintiff does not dispute that defendant city made a response to plaintiffs emergency call concerning the fire at her residence. Plaintiff says that defendant’s response was inadequate and did not follow defendant’s service response policy. We do not have a situation where the defendant made no response to plaintiffs emergency call.

The undisputed facts in the record show that plaintiffs negligence claim is directed at the fire department’s allegedly negligent conduct in deciding the proper equipment and number of firefighters to dispatch in response to plaintiffs 911 call reporting a fire in her home. Clearly, the decision concerning the type of equipment and number of personnel to dispatch to a fire qualifies as an “an act or omission in connection with an emergency response.” Iowa Code § 670.4(11). Consequently, the city has met its burden of showing that the emergency response exemption applies in this case. Cf. Kulish, 566 N.W.2d at 891-92 (concluding that district court properly granted summary judgment in favor of defendants concerning plaintiffs’ negligence claim which was directed at acts and omission of emergency medical personnel dispatched to scene of car accident). See 18 Eugene McQuillin, The Law of Municipal Corporations § 53.82, at 59 (3d ed. rev.vol.1993) (stating'general rule that unless liability is expressly imposed by statute or the act complained of is expressly authorized or ordered by the municipal government, no action lies against a city for the negligence or improper conduct of its firefighters while discharging their official duties); id. § 53.53, at 385 (“In the absence of a special relationship, a municipality is not hable for failure to supply general fire protection. A municipality is not constitutionally required to provide adequate fire protection even where the municipality has undertaken such service.”).

The more narrow question we must decide is whether this immunity provision in chapter 670 applies in this case even though the fire department may have failed to follow written policies or rules governing the actions of its officers and employees in carrying out its official duties. In other words, would the fact that the fire department failed to follow its own written service response policy be a factor in analyzing whether the city can avail itself of the immunity provisions of section 670.4(11)?

We turn to the language of the statute. We note that Iowa Code section 670.4(11) makes no reference to whether any existing operational guidelines or rules, in effect at the time of the alleged act or omission, are followed. Additionally, nothing in our prior case law speaks directly to this issue. We also find no convincing argument as to why the immunity provisions of chapter 670 should not apply in this case even though the fire department may not have followed its written service response policy in dispatching fire equipment and personnel to plaintiffs fire. We also find no evidence that the city, by adoption of the written fire department service response policy, intended to impose on itself or its employees a mandatory duty of care toward persons within the city so as to provide a basis of civil liability for damages, or otherwise intended a waiver of the immunity granted by section 670.4(11). Cf. New Hampshire Ins. Co. v. City of Madera, 144 Cal.App.3d 298, 306, 192 Cal.Rptr. 548, 554 (1983) (stating that by adopting provisions of Uniform Fire Code governing maintenance of fire hydrant systems, city did not intend to impose upon itself a mandatory duty of care to persons and property in city; holding that city was immune from liability for plaintiffs’ claim that city negligently maintained city water system and that fire department made inadequate response to fire on plaintiffs’ property); Young v. Forgas, 308 Ill.App.3d 553, 241 Ill.Dec. 905, 720 N.E.2d 360, 369 (1999) (holding that plaintiffs negligence claim for damages, received when driver of fire truck collided with plaintiffs car, was barred by tort immunity statute; fire truck driver’s failure to follow fire .department’s written operating procedures governing operation of emergency vehicle did not amount to waiver of immunity and did not impose legal duty upon municipal entities and their employees).

We therefore believe that the language of section 670.4(11) plainly states that the only relevant inquiry in determining whether the city has immunity under the emergency response provision is whether plaintiffs claim is “based upon or arising out of an act or omission in connection with an emergency response” by officers or employees carrying out their official duties. Our only task, therefore, is to apply the language of section 670.4(11) as written. See Drahaus v. State, 584 N.W.2d 270, 274 (Iowa 1998) (when text of. statute is plain and its meaning clear, court will apply the language of the statute as written and will not search for meaning beyond express terms of statute or resort to rules of statutory construction). Because the undisputed facts in the record show that plaintiffs claim is based on conduct of the defendant in connection with an emergency response, the immunity provision of section 670.4(11) applies and plaintiffs claim cannot go forward.

IV. Disposition.

We conclude that the district court properly determined that plaintiffs negligence claim against the city was barred under Iowa Code section 670.4(11), the emergency response exemption which caused defendant city to be immune from liability to plaintiff. The district court’s ruling, sustaining defendant’s motion for summary judgment and dismissing plaintiffs claim, is affirmed.

AFFIRMED.

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

      . Although the city alleged in its answer that it was immune from liability under both the discretionary function, Iowa Code § 670.4(3), and emergency response provisions, Iowa Code § 670.4(11), the city only cited the emergency response provision in its motion for summary judgment. The district court’s summary judgment ruling does not address section 670.4(3). Accordingly, our analysis on appeal will only consider the city’s immunity under the emergency response provision, Iowa Code section 670.4(11).


author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Mark Douglas OLSEN, Appellant.
    No. 99-367.
    Supreme Court of Iowa.
    Oct. 11, 2000.

      Linda Del Gallo, State Appellate Defender, and John P. Messina, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Denver D. Dillard, County Attorney, and Jerry Vander Sanden, Assistant County Attorney, for appellee.
   CADY, Justice.

This appeal requires us to determine if a home repair scam involving repeated acts of theft by deception over an extended period of time violates Iowa’s ongoing criminal conduct statute. We conclude it does and affirm the judgment and sentence of the district court.

I. Background Facts and Proceedings.

Mark Olsen operated a home improvement business in Cedar Rapids. He was assisted by his live-in girlfriend, Jennifer Wagner. In September 1996, Olsen contacted Virginia Detlefs to solicit work. Detlefs invited Olsen to her home to determine if it needed repair. Detlefs was eighty-one years old. She lived by herself in a small ranch-style home in the southeast part of Cedar Rapids. She was susceptible to suggestion and influence.

Olsen initially agreed to paint the interi- or of the house, finish the woodwork and wood floors, clean the carpet, and wash the windows. He estimated the work would cost $6000. That initial job, however, was only a beginning.

Over the next nineteen months, Olsen and Wagner convinced Detlefs to pay them more than $200,000, ostensibly for performing work on her home. There was, however, little or no work performed.

A neighbor became suspicious after repeatedly observing Olsen and Wagner going to Detlefs’ house several times a week for short periods of time. The neighbor was unable to observe any new construction on the house or any signs of home improvement work. The neighbor eventually contacted the police after viewing Det-lefs’ check register and finding numerous checks and cash -withdrawals to Olsen.

Olsen confessed to deceiving Detlefs by-operating a scam in response to questioning by police. He admitted that he had received between $35,000 and $50,000 from Detlefs from September 1996 to April 1998 for work he never performed and supplies he never used. A police investigator later determined Detlefs wrote checks to Olsen and Wagner, or gave them cash, on more than ninety occasions totaling $201,628.40. Olsen used the money to support his cocaine habit and for living expenses.

The State charged Olsen with the offense of ongoing criminal conduct under Iowa Code section 706A.2(4) (1997), based on the predicate offense of theft by deception under section 714.1(3). He was found guilty of the crime following a bench trial. The district court determined Olsen acted in concert with another person to commit theft by deception for financial gain on a continuing basis. Olsen was sentenced to an indeterminate term of incarceration not to exceed twenty-five years. He was also ordered to make restitution.

Olsen appeals. He challenges the sufficiency of the evidence to support the conviction. Specifically, he claims the ongoing criminal conduct statute was intended to apply to racketeering crimes only and there was no evidence presented by the State to show he was part of a criminal network or engaged in an illegal enterprise for financial gain within the contemplation of the statute.

II. Scope of Review.

We review a challenge to the sufficiency of the evidence for correction of errors at law. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Similarly, issues of statutory interpretation are reviewed for correction of errors at law. State v. Kotlers, 589 N.W.2d 736, 738 (Iowa 1999).

III. Ongoing Criminal Conduct Statute.

We have not previously had an opportunity to consider Iowa’s ongoing criminal conduct statute, which was enacted by our legislature in 1996. See 1996 Iowa Acts ch. 1133, §§ 26-30 (codified at Iowa Code ch. 706A (1997)). It was patterned after the Model Ongoing Criminal Conduct Act, which was part of the Report of the President’s Commission on Model State Drug Laws in 1993. Consequently, it is appropriate to look to the model act to help construe our Iowa statute. See State v. Hogrefe, 557 N.W.2d 871, 877 (Iowa 1996) (Model Penal Code properly considered in interpreting state criminal statute patterned after model code).

The model act was a product of a series of findings relating to the vast adverse economic impact on legitimate commerce and society as a whole of ongoing criminal activity or crimes conducted as a part of a continuing business. See Model Ongoing Criminal Conduct Act § 2 (1993) [hereinafter Model Act], The basic goal of the model act was to defend legitimate commerce from organized criminal activity and remedy the economic effects of crime. See Model Act § 3. While primarily concerned with civil penalties, forfeitures, and civil damages, the model act also criminalizes certain conduct. See 4 Robert R. Rigg & B. John Burns, Iowa Practice, Criminal Law and Procedure § 120, at 43 (Supp. 2000). It is the criminal violations that lie at the heart of the dispute in this case.

The model act establishes five categories of violations. These five categories are: (1) specified unlawful activity influenced enterprises; (2) facilitation of a criminal network; (3) money laundering; (4) acts of specified unlawful activity; and (5) negligent empowerment of specified unlawful activity. See Model Act § 5. The model act then creates civil remedies and actions based on the violations, and provides for civil penalties, forfeitures, and civil damages. See id. § 6. Additionally, the model act imposes criminal sanctions for three of the five categories of violations, including acts of specified unlawful activity. See id. § 7. The act also includes comprehensive definitions for five important terms or phrases used in the act, including “specified unlawful activity.” See id. § 4.

Our Iowa statute was enacted without the benefit of any stated legislative findings or purpose. However, it establishes the same five categories of violations as the model act. See Iowa Code § 706A.2. It also creates civil remedies similar to the model act, see id. § 706A.3, and imposes criminal sanctions for the same three categories of violations as the model act. See id. § 706A.4. Under section 706A.4, a “person” whose conduct falls within one of these three categories commits a class “B” felony. Finally, the Iowa statute defines the same five terms and phrases used in the statute as the model act. See id. § 706A.1.

Although similar in scope and design, there is one critical distinction between the model act and Iowa’s ongoing criminal conduct statute. While four of the five statutory definitions in chapter 706A are substantially similar, if not identical, to the definitions in the model act, the phrase “specified unlawful activity” is more broadly defined in chapter 706A than in the model act. This distinction significantly impacts the issue presented in this case.

The drafters of the model act defined a “[s]peeified unlawful activity” as “any act, including any preparatory or completed offense, committed for financial gain” punishable under state law by incarceration for more than one year, but limited to the following:

(1) trafficking in controlled substances, homicide, robbery, extortion, extortionate extensions of credit, trafficking in explosives or weapons, trafficking in stolen property, or obstruction of justice.
(2) reference to grades of offenses or to other appropriate specified state offenses.
(3) reference to predicate offenses to the racketeering offenses and to the racketeering offenses, such as illegal investment in an enterprise, illegal control of an enterprise, illegal conduct of an enterprise.

See Model Act § 4(e).

The comment to the model act refers to “specified unlawful activity” as the predicate offenses to racketeering and suggests that states adopting the act should select those “state offenses that represent the key components of ongoing criminal networks.” See id. § 4 cmt.

By contrast, our Iowa legislature defined “specified unlawful activity” as:

[A]ny act, including any preparatory or completed offense, committed for financial gain on a continuing basis, that is punishable as an indictable offense under the laws of the state in which it occurred and under the laws of this state.

Iowa Code § 706A.1(5). Unlike the model code, the definition does not include any further limitation to racketeering offenses or offenses that represent the key components of ongoing criminal networks. Instead, the phrase “specified unlawful activity” applies to any indictable offense, limited only to those offenses “committed for financial gain on a continuing basis.” Id. The “on a continuing basis” language is also found in the definition of “criminal network,” but the definition of “specified unlawful activity” does not contain the further requirement of a criminal network that a “combination of persons” be engaged in the prohibited conduct. See id. § 706A.K1).

Although we use a model act for guidance in interpreting our statutes which are patterned after such an act, when our legislature has varied our statute from portions of a model act, the statute cannot be interpreted consistently with the model act in its entirety. See Henriksen v. Younglove Constr., 540 N.W.2d 254, 260 (Iowa 1995). The definition of “specified unlawful activity” adopted by our legislature is clearly broader than the model act definition, and extends beyond the concept of a criminal network or enterprise. See State v. Reed, 618 N.W.2d 327, 333-34 (Iowa 2000).

Notwithstanding, Olsen argues our legislature could not have intended for the ongoing criminal conduct statute to apply to criminal acts that are not part of a criminal network or enterprise because the overall purpose of the model act was to target conduct in the nature of racketeering. Thus, Olsen asks us to interpret the word “person” in section 706A.2(4) in light of the alleged overall purpose of this statute to combat criminal networks or enterprises, so that it applies only to persons who are part of a criminal network or enterprise.

Our task in construing statutes is “to look at what the legislature said,” not at “what it should or might have said.” Branson v. Municipal Fire & Police Retirement Sys., 591 N.W.2d 193, 197 (Iowa 1999). Moreover, it is the prerogative of the legislature to define its statutory language. Hawkeye Bancorporation v. Iowa College Aid Comm’n, 360 N.W.2d 798, 802 (Iowa 1985); see Henriksen, 540 N.W.2d at 259 (noting that when the legislature has defined a statutory term, “[t]he court cannot ... apply a definition it finds more to its liking”). When this is done, the definition used by the legislature is binding on us. Cedar Mem’l Park Cemetery Ass’n v. Personnel Assocs., Inc., 178 N.W.2d 343, 346 (Iowa 1970). We will not undermine a policy decision by our legislature “by ignoring the plain language of the statute.” State v. Palmer, 554 N.W.2d 859, 865 (Iowa 1996).

We have no doubt that the paramount purpose of Iowa’s ongoing criminal conduct statute is, like the model act, to combat criminal networks and enterprises. This is evident from the overall framework of the statute. Additionally, two of the three categories of criminal violations under the statute apply to criminal networks and enterprises. See Iowa , Code §§ 706A.2(1) (specified unlawful activity influenced enterprises), 706A.2(2) (facilitation of a criminal network). However, the plain language of the third category of criminal violations under section 706A.2(4), “acts of specified unlawful activity,” clearly expresses the legislative intent to include all types of indictable offenses when committed “for financial gain on a continuing basis,” without regard to the other aspects of the operation of a criminal network or enterprise. Our legislature could have limited “specified unlawful activity” to specific offenses indicative of criminal networks, but clearly did not do so. There is no support from the language of the statute that the “specified unlawful activity” violation applies only to a person engaged in a criminal network or enterprise.

Olsen further attempts to limit the “specified unlawful activity” violation to criminal networks by arguing that the “for financial gain” requirement of section 706A.2(4) does not apply to financial gain that is merely personal to the offender, but applies only to financial gain which facilitates a criminal network. If not, Olsen argues, nearly all indictable serial thefts would constitute “specified unlawful activity.” Olsen does not believe the legislature could have intended to make multiple acts of theft into the crime of ongoing criminal conduct because section 714.3 already permits multiple acts of theft from the same person to be considered a single offense, using the total value of all of the stolen property to enhance the degree of the crime. See id. § 714.3.

Our legislature imposed a “financial gain” element in defining both “criminal networks” and “specified unlawful activity.” See id. § 706A.1(1), (5). However, this common element does not change the character of the separate violations. The “specified unlawful activity” violation under section 706A.2(4) is not limited to conduct involving a combination of persons as is the facilitation of a “criminal network” violation under section 706A.2(2), but applies without regard to the existence of a criminal network. Likewise, the financial gain requirement under the “specified unlawful activity” violation is unrelated to the activities that make up a criminal network. Furthermore, it is of no consequence that Olsen’s acts could constitute both “ongoing criminal conduct” and a single theft. See State v. Peters, 525 N.W.2d 854, 859 (Iowa

1994) (when defendant’s criminal act(s) implicates more than one statute, prosecutor decides which charge to file).

We are obligated to ascertain the intent behind criminal statutes by examining what the legislature said, without speculation as to the probable intent beyond the words used in the statute. State v. Adams, 554 N.W.2d 686, 689 (Iowa 1996). In doing so in this case, we realize the ongoing criminal conduct statute includes crimes committed “for financial gain on a continuing basis” that are unrelated to the general notion of racketeering activity. This is derived from the clear language of the statute and it is not for us to search for a meaning more compatible with portions of the model act which the legislature did not adopt. See State v. Wagner, 596 N.W.2d 83, 87 (Iowa 1999) (“principles of statutory construction prevent us from reading into the statute something the legislature has not included”). We also realize harsh criminal penalties are associated with violations of the statute, which can be much more severe than the penalties associated with the underlying predicate offense. Yet, “[o]nee the legislature has spoken, [our] role is to give effect to the law as written,” not to rewrite it to reflect a policy different from that language. Id. at 88. Nevertheless, we do not consider it unreasonable for our legislature to punish nonracketeering crimes to the same degree as racketeering crimes when those activities, although not part of organized crime, are committed on a continuing basis for financial gain.

IV. Conclusion.

We conclude section 706A.2(4) does not require the indictable offense to be committed as part of a criminal network or enterprise. Consequently, we reject the claim by Olsen that there was insufficient evidence of a criminal network to support the conviction. This evidence was not required to support the conviction.

AFFIRMED.

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

      . Iowa is the only state in the nation to enact an ongoing criminal conduct statute. Although some states have enacted money laundering and racketeering acts with definitions similar to*7 those found in the model act, no other state has enacted the comprehensive substantive provisions of the model act as a separate ongoing criminal conduct statute.

      .We recognize that the preamble to this act indicates Iowa’s ongoing criminal conduct statute was enacted for the purpose of "establishing economic and other penalties for certain criminal activity.” 1996 Iowa Acts ch. 1133 (codified at Iowa Code ch. 706A (1997)). The statute was enacted along with several other acts promoting the same purpose, including the Iowa Forfeiture Reform Act (Chapter 809A), the Iowa Money Laundering Act (Chapter 706B), and the Iowa Financial Transaction Reporting Act (Chapter 529). Id. atch. 1133, §§ 1-37.

      . Iowa Code section 706A.4 provides: "A person who violates section 706A.2, subsection 1, 2, or 4, commits a class ’B’ felony.” Section 706A.2(1) makes "specified unlawful activity influenced enterprises” a violation. Section 706A.2(2) makes “facilitation of a criminal network” a violation. Section 706A.2(4) makes "acts of specified criminal activity” a violation.

      . Iowa Code section 706A.2(4) provides: "It is unlawful for a person to commit specified unlawful activity as defined in section 706A.1.”

      . A legislative explanation attached to the bill states that Iowa Code § 706A.2(4) provides for the liability of those committing "specified unlawful activity under circumstances in which the acts are for financial gain.” S.F. 482, 76th G.A. (1996). However, the explanation further states that those conducting an enterprise by engaging in specified unlawful activity will be guilty of violating Iowa Code section 706A.2(1). Id.

      . For example, theft in the first degree is a class "C” felony, Iowa Code § 714.2(1), with a maximum term of incarceration of not more than ten years. Id. § 902.9(3). By contrast, a violation of ongoing criminal conduct is a class "B" felony, id. § 706A.4, with a maximum term of incarceration of not more than twenty-five years. Id. § 902.9(1).