author: PER CURIAM.

text:
    2008 SD 21
    STATE of South Dakota, Plaintiff and Appellee, v. Curtis Allen DOSCH, Defendant and Appellant.
    No. 24499.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 7, 2008.
    Decided March 19, 2008.

      Lawrence E. Long, Attorney General, Andrew Knecht, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Gina J. Rogers, Aberdeen, South Dakota, Attorney for defendant and appellant.
   PER CURIAM.

[¶ 1.] Curtis Dosch (Dosch) appeals his convictions for one count of third degree burglary, one count of grand theft and ten counts of unauthorized possession of a controlled substance. We affirm.

FACTS

[¶ 2.] Sometime during the night of September 23, 2005, an individual broke through a window in Jones’ Drug Store in Aberdeen, South Dakota and stole various schedule two controlled prescription drugs from a locked drawer inside the business. Prescription drugs that were taken included: oxycodone; demerol; methadone; morphine; and adderall.

[¶ 3.] Sometime during the evening of November 20, 2005, an individual entered an access panel in the roof of the Medical Center Pharmacy in Aberdeen and stole various schedule two controlled prescription drugs from that business. Prescription drugs that were taken included: adde-rall; methadone; lorazepam; morphine; and, oxycodone.

[¶ 4.] The investigation of these incidents led to Dosch who was indicted for: two counts of third degree burglary; two counts of grand theft; and, ten counts of unauthorized possession of a controlled substance. The State also filed a part two habitual offender information alleging Dosch had a prior felony conviction for possession of a controlled substance.

[¶ 5.] Dosch’s three day jury trial took place in March 2007. At the conclusion of the trial, the jury returned verdicts finding Dosch guilty of one count of burglary, one count of grand theft and ten counts of unauthorized possession of a controlled substance. Dosch admitted the allegations of the habitual offender information and was sentenced to: twelve years in the penitentiary for burglary; ten years, with thirty-two months suspended, for grand theft; and two years for each unauthorized possession count. All sentences were ordered to be served consecutively. Dosch appeals.

ISSUE

[¶ 6.] Did the trial court abuse its discretion in admitting testimony on population studies from the State’s DNA expert?

[¶ 7.] During the investigation of the Jones’ Drug burglary, law enforcement discovered several blood stains close to the burglar’s point of entry and the drawer from which controlled substances were stolen. A sample of each blood stain was taken and, pursuant to a warrant, a buccal swab was also obtained from Dosch. The various samples were submitted to the State Forensic Laboratory in Pierre for comparison and analysis and the criminalist who performed the study appeared as the State’s DNA expert witness at trial.

[¶ 8.] The criminalist testified that the DNA from the blood stains was consistent with the DNA in the swab obtained from Dosch and further testified concerning the probability of recurrence of the DNA profile in the general population. In that regard, the criminalist read into the record the conclusion from her written report that, “[t]he male DNA profile obtained from ... the stains from Jones Drug would not be expected to occur more than once among unrelated individuals in the world population.” Dosch’s counsel objected to this testimony on grounds of lack of foundation and the objection was overruled. On cross-examination, the criminalist testified that population studies provided the statistical basis for her opinion but that she had no expertise in population studies, statistics or population genetics. On appeal, Dosch argues that the trial court erred in admitting the criminalist’s testimony because she was not qualified as an expert in population studies, statistics or genetics and because her conclusion was based solely on information received from the expertise of others.

Admission of expert testimony is governed by SDCL 19-15-2 (Rule 702):

If scientific, technical, or otherwise specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Trial courts retain broad discretion in ruling on the admissibility of expert opinion. Decisions to admit or deny opinion evidence will not be reversed absent a clear showing of abuse of discretion.

State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 414-415 (citations omitted). SDCL 19-15-3 (Rule 703) on the factual basis for expert opinions provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence, (emphasis added).

[¶ 9.] An argument over admission of expert testimony similar to that presented here was raised in State v. Edelman, 1999 SD 52, 593 N.W.2d 419. The defendant in Edelman was charged with multiple counts of sexual contact with a minor and rape. During trial, a criminalist specializing in serology provided expert testimony linking the defendant to the crimes. As part of the State’s case, the criminalist testified from a book concerning the rate of occurrence of a rare blood type in the Caucasian population. The criminalist also testified that she had not personally conducted any statistical studies in that area. On appeal, the defendant argued that there was no foundation to qualify the criminalist as a statistical expert on population genetics or blood type percentages. This Court concluded:

“the trial court has broad discretion in determining the qualifications of expert witnesses and in admitting expert testimony.” We find no abuse of discretion by the trial court in allowing this testimony. [The criminalist] did establish expert qualifications in serology. Her expertise in serology would include a knowledge of blood types and their general distribution throughout the population. We affirm.

Edelman, 1999 SD 52, ¶ 38, 593 N.W.2d at 425 (citations omitted).

[¶ 10.] A similar result was reached by the Virginia Court of Appeals in Funderburk v. Commonwealth of Virginia, 6 Va.App. 334, 368 S.E.2d 290 (Va.App.1988). During the defendant’s murder trial in Funderburk, a forensic serologist testified for the state that blood stains found on the defendant’s clothing were consistent with the victim’s blood. Over the defense’s objections, the trial court allowed the serologist to testify concerning the statistical prevalence in the general population of persons with the victim’s blood characteristics. As foundation for her testimony, the serologist stated that she had consulted published studies to determine the percentage of each blood type in the general population, but admitted that she was unable to specifically identify by name which studies or tables she had relied upon. The defendant argued on appeal that because the serologist relied on unidentified studies not in evidence and because she was not an expert in statistics the trial court erred in allowing her to testify on statistical matters. The Virginia Court disagreed, concluding:

[T]he studies or tables consulted by [the serologist] to arrive at the statistical prevalence of [the victim’s] blood type are of a type customarily relied upon and consulted by those in her field. Such information and knowledge is within the expertise of the forensic serologist, and the court did not err [in admitting] her testimony when the studies or tables [were] not in evidence or not identified.

Funderburk, 368 S.E.2d at 292 (emphasis added) (citations omitted).

[¶ 11.] A DNA case more analogous to this matter was considered by the Indiana Court of Appeals in Patterson v. State of Indiana, 729 N.E.2d 1035 (Ind.Ct.App.2000). The defendant in Patterson was charged with attempted burglary. During trial, the State presented testimony from a DNA expert affirmatively comparing DNA markers extracted from blood stains found at the crime scene with markers found in the defendant’s blood sample. Relying on statistics about the general population, the expert testified to the rate of occurrence of these common DNA markers in the Caucasian and Black populations. The expert derived her statistics from a published study developed by a company that had sampled a randomly selected group of individuals from around the country. As to the defendant’s contention on appeal that the trial court erred in admitting the statistical analysis due to lack of an adequate foundation, the Indiana court held:

Because the statistical analysis was based on published, empirical scientific data, and not mere speculation or unsubstantiated estimates, the trial court did not abuse its discretion in finding the evidence reliable and admissible. See [Davis v. State, 476 N.E.2d 127, 135 (Ind.Ct.App.1985) ](no foundational error in admitting probability calculation[s] where they were based not on speculation, but upon accepted scientific tables reporting the frequency of each genetic marker in the Caucasian population in Indiana).

Patterson, 729 N.E.2d at 1040. (emphasis added).

[¶ 12.] The criminalist in this case provided foundation testimony very much like that provided by the DNA expert in Patterson. The expert testified concerning her educational background, job experience, specialized training and membership in various professional organizations. She further testified regarding her qualification as an expert in serology and DNA in prior criminal cases. With regard to her work in this case, the expert testified to the techniques, protocols, procedures, safeguards and controls employed in performing her DNA analysis and to their general acceptance in the scientific community. With specific regard to her statistical analysis, the criminalist testified that her information was based upon population studies conducted by the FBI and other laboratories and DNA profiling performed on hundreds of samples from various ethnic groups within the population. The crimi-nalist testified that the FBI had published its data in several peer review journals and made it a part of a computer program used by most forensic labs across the country in calculating frequency of occurrence of certain DNA markers.

[¶ 13.] Given the detailed foundation testimony provided by the criminalist, the fact that her statistical analysis was based upon published, empirical scientific data and not on mere speculation or unsubstantiated estimates, and the fact that the studies or tables she relied upon were of a type customarily consulted by those in her field, the trial court committed no abuse of discretion in ruling that her testimony was admissible.

[¶ 14.] Affirmed.

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

      . Dosch was acquitted of the burglary and grand theft charges relating to the Medical Center Pharmacy.

      . The defendant in Patterson was of African American heritage.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee v. Richard Leroy PARKER, Appellant.
    No. 05-0588.
    Supreme Court of Iowa.
    Feb. 8, 2008.
    Rehearing Denied April 2, 2008.

      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant State Appellate Defender, and Richard Leroy Parker, Anamosa, pro se, for appellant.
    Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Christine O. Corken, Assistant Dubuque County Attorney, for appellee.
   CADY, Justice.

In this appeal from a conviction for second-degree robbery as an habitual offender, we review a variety of claims of error at trial and at sentencing. We conclude error occurred at trial, but it did not affect the outcome of the trial and did not otherwise result in the type of prejudice to justify a reversal of the conviction. We vacate the decision of the court of appeals and affirm the district court judgment and sentence.

I. Background Facts and Proceedings.

Richard Parker was convicted by a jury of second-degree robbery and sentenced as an habitual offender. The crime involved a bank robbery that took place at American Trust and Savings Bank in Dubuque shortly after 3 p.m. on July 14, 2004. The evidence at trial was sufficient to establish that Parker entered the bank, handed a bank teller a note, and demanded money. The teller described Parker as a black man wearing a hat, wig, and latex gloves, with a distinctive mark on his cheek. She gave Parker money from the counter drawer, which he placed in a black bag with green lettering on it.

The branch manager of the bank witnessed the robbery from her office. She observed the robber leave the bank, enter a blue Chevrolet Celebrity four-door sedan, and drive away. She recorded the make, model, and license plate number of the vehicle.

A customer located at the drive-through area of the bank recognized the situation as a robbery and attempted to follow the blue getaway vehicle. His pursuit, however, was short-lived. Just as the customer pulled out of the drive-through area of the bank, a red Chevrolet Blazer pulled out in front of him and impeded his travel. The driver of the red Blazer then removed the keys of the vehicle from the ignition and exited her vehicle. Consequently, the customer’s pursuit ended almost as quickly as it began.

A short time later, law enforcement officers stopped a red Blazer driven by Inger Hall-Smith. A package of latex gloves similar to the gloves worn by the robber was found in the vehicle. During the stop, Hall-Smith was questioned by an officer about her role in obstructing the pursuit by the customer. Hall-Smith responded by describing the event as a “bank robbery,” even though the officer had not referred to the incident as a bank robbery.

Sometime prior to 4 p.m., a Dubuque homeowner was mowing her lawn when Parker drove by in a vehicle matching the description of the getaway car. He stopped to ask for directions out of the subdivision in which the homeowner resided. There was only one road in and out of the subdivision, and the homeowner gave Parker the directions. The homeowner noticed a dark mark on Parker’s face.

Shortly before 4 p.m., a man who lived on a farm outside of Dubuque noticed Parker near a disabled blue car on the side of the road near his farm. The car had steam coming from the engine. Parker approached the farmer and asked for a ride. The farmer declined to help. However, another man driving a truck soon came upon the scene and gave Parker a ride into Dubuque. The driver of the truck noticed the man had makeup on his face and carried a black bag with green lettering.

Later that afternoon, police located the blue Celebrity getaway vehicle near the farm outside of Dubuque. They also found a marked $100 bill from American Trust and Savings Bank inside the vehicle.

On the evening of August 26, approximately six weeks following the robbery, Parker appeared unannounced at the Waterloo residence of James Hall, Jr., an attorney and brother of Hall-Smith, the driver of the red Blazer who prevented the witness from pursuing Parker as he drove away from the bank. Hall was acquainted with Parker and was aware his sister had been arrested for her participation in the robbery. Hall had represented Parker in the past regarding some speeding violations.

During the course of the evening of socialization and conversation, Parker detailed his participation in the bank robbery to Hall and apologized for involving Hall’s sister. He also told Hall he had committed other bank robberies in the past and had plans to rob a bank in Chicago. Parker also made other incriminating statements.

Parker spent the night at Hall’s house. The next day, Hall left his house and informed police that Parker could be found at his residence. He told police that Parker was not his client. Parker was subsequently arrested by police at Hall’s residence.

Prior to trial, Parker filed a motion with the district court to exclude from evidence at trial the incriminating statements made to Hall. Parker claimed he formed an attorney-client relationship with Hall and all the statements made to Hall were privileged communications. The district court held a hearing on the motion. Parker testified to the discussions with Hall and further testified that Hall said he would look into the status of the robbery investigation. Hall testified the two men talked and socialized well into the evening, drank alcoholic beverages, and even used illegal drugs. Hall said Parker never asked him to be his lawyer after he arrived at the house and he never had any conversation with Parker that could have led Parker to believe that Hall was representing him. He further testified he told Parker he was not getting involved in the matter and that Parker knew he was not his attorney. The district court determined no attorney-client relationship existed and denied the motion to exclude Hall as a witness.

At trial, the various witnesses to the facts and circumstances surrounding the robbery testified. The bank teller, the homeowner who was mowing the lawn, and the Good Samaritan truck driver all positively identified Parker. Hall also testified to the incriminating statements made by Parker.

Parker testified in his defense and advanced an alibi defense. He claimed he was in Chicago visiting his family on the day of the bank robbery. Parker also testified during direct examination, without elaboration, that he had never been charged with the crimes of theft, robbery, or burglary. No family members testified in support of his alibi.

On cross-examination, the State elicited from Parker that he had actually been charged with first-degree burglary in 1993. After Parker explained the offense involved an incident in which he broke the window of a vehicle, the prosecutor asked if he had any other convictions on his record. Following a prompt objection by Parker’s attorney, the following exchange occurred:

STATE: I believe it falls clearly within the rules, Your Honor, when there are felony convictions, not to mention the fact that he opened the door by describing that he hadn’t been charged with previous particular crimes. I don’t believe he can be allowed to mislead the jury otherwise. The rules are very clear, but the procedure is for felony convictions.
THE COURT: I agree. Go ahead.
DEFENSE COUNSEL: Your Honor, then I wish to simply remind the Court of the motions prior to the case, and I wish to remind the Court of the rules of evidence, and particularly, I believe it’s 603.
STATE: I believe its Rule 5.609(a)(1).
THE COURT: The Court is well acquainted with that, and you’ve opened the door and asked him questions pertaining to his prior history. I believe the State has the right to go into that subject, especially if it’s a felony or anything related to an untruthful matter.
DEFENSE COUNSEL: Your Honor, my client was asked specific questions.
THE COURT: And gave very specific answers. That opens the door to this inquiry. Go ahead.
DEFENDANT: Okay. Repeat your question.
Q: Could you read the question back please? (Whereupon, the requested portion of the proceeding was read back by the court reporter.) A: Yes.
Q: You have convictions for possession of a schedule I substance? A: Yes. Thirteen years ago, I was charged with, you know, you know, I believe it was aiding and abetting or delivery of a controlled substance, yes.
Q: Delivery of a schedule II controlled substance within a thousand feet of a school and delivery of a schedule II controlled substance; do you recall that, sir? A: I just said I did, yes.
Q: And you were convicted of it? A: Yes, I was.
Q: And you went to prison? A: Yes, I did.

The jury convicted Parker of second-degree robbery. The district court sentenced Parker as an habitual offender after he was found to be an habitual offender at the enhancement phase of the trial.

Parker appealed, and asserted five claims of error: (1) the conversations with Hall should have been excluded as privileged attorney-client communications, (2) the evidence of his prior drug convictions should not have been admitted, (3) his attorney rendered ineffective assistance of counsel, (4) his sentencing as an habitual offender was illegal, and (5) prosecutorial misconduct. We transferred the case to the court of appeals. The court of appeals held the district court abused its discretion by admitting evidence of defendant’s prior drug convictions and remanded for a new trial. The court of appeals did not address Parker’s other claims of error. The State sought, and we granted, further review.

II. Standards of Review.

We review each issue presented according to its appropriate standard. Regarding the admission of the prior crimes evidence,

[t]his court “generally review[s] eviden-tiary rulings for abuse of discretion.” Williams v. Hedican, 561 N.W.2d 817, 822 (Iowa 1997); accord State v. Bugely, 562 N.W.2d 173, 177 (Iowa 1997) (applying abuse of discretion standard in reviewing admission of other crimes evidence). An abuse of discretion occurs when the trial court exercises its discretion “on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997). “A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law.” Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).

State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001).

Whether an attorney-client relationship existed is a preliminary question to be determined by the trial court. Iowa R. Evid. 5.104. When the preliminary question is one of fact, “we give deference to the district court’s factual findings and uphold such findings if they are supported by substantial evidence.” State v. Long, 628 N.W.2d 440, 446-47 (Iowa 2001).

“Where a defendant alleges ineffective assistance of counsel, our standard of review is de novo.” State v. Tejeda, 677 N.W.2d 744, 754 (Iowa 2004). We generally reserve ineffective-assistance-of-counsel claims for postconviction relief. Id.

We may correct an illegal sentence at any time, State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000), but our review of the district court’s sentence is limited to errors at law. Iowa R.App. P. 6.4; State v. Morris, 416 N.W.2d 688, 689 (Iowa 1987).

III. Discussion.

A. Attorney-Client Privilege. Parker claims the statements he made to Hall were privileged attorney-client communications and should not have been admitted into evidence by the district court at trial. An attorney-client privilege arises only if an attorney-client relationship has been created. Thus, the first task is to determine if an attorney-client relationship existed at the time the statements were made.

We have adopted a three-part test to determine the existence of an attorney-client relationship. The relationship exists when: “(1) a person sought advice or assistance from an attorney, (2) the advice or assistance sought pertained to matters within the attorney’s professional competence, and (3) the attorney expressly or impliedly agreed to give or actually gave the desired advice or assistance.” Comm. on Prof'l Ethics & Conduct v. Wunschel, 461 N.W.2d 840, 845 (Iowa 1990).

This standard is compatible with the Restatement (Third) of the Law Governing Lawyers, which provides, in relevant part, that a relationship of lawyer and client arises when:

(1) A person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either
(a) the lawyer manifests to the person content to do so: or
(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services....

Restatement (Third) of the Law Governing Lawyers § 14 (2002). Thus, the relationship rests on contract, but may be implied from the conduct of the parties. Healy v. Gray, 184 Iowa 111, 115,168 N.W. 222, 224 (1918). The burden of proof is on the party seeking to establish the privilege. Bailey v. Chicago, Burlington & Quincy R.R., 179 N.W.2d 560, 564 (Iowa 1970). Comments to the Restatement reveal the “client’s intent may be manifest from surrounding facts and circumstances,” but recognize “a lawyer may answer a general question about the law, for instance in a purely social setting, without a client-lawyer relationship arising.” Restatement § 14 cmt. c. Likewise, “a lawyer may manifest consent to creating a client-lawyer relationship in many ways,” including when a lawyer reasonably should know a person reasonably relies on the lawyer to provide services and “does not inform the person that the lawyer will not do so.” Id. § 14 cmt. e.

In this case, the district court determined no attorney-client relationship existed between Hall and Parker. We give deference to the preliminary findings by the district court used to reach this ruling. The district court found Parker did not go to Hall’s residence to obtain his legal services, but contacted Hall to apologize for involving Hall’s sister in the robbery. In doing so, Parker talked about his participation in the robbery, as well as other crimes he had committed. In response to a discussion about the status of the criminal investigation into the robbery, Hall indicated he would look into the matter generally and report back. Parker also asked Hall at one point about the statute of limitations for robbery. The conversations were rambling at times and continued long into the evening. The evening included the consumption of alcoholic beverages and the use of illegal drugs. There was no discussion at any time between the two men about Hall representing Parker, and no strategy or advice about any course of action Parker should pursue was discussed. Parker never expressed a desire to turn himself over to police, but instead told Hall he was on his way to Chicago to rob a bank in order to provide financial assistance to Hall’s sister.

The district court also found Hall contacted the police the following day because he did not feel an attorney-client relationship existed. The evidence also showed that Parker waived his Miranda rights and agreed to talk to police after his arrest. Parker did ask the police if Hall could be present during the interview, but was told potential witnesses were not permitted to be present. Parker never told police Hall was his attorney and never indicated at any other time during the arrest process that Hall was his attorney.

We first examine the evidence of an intent by Parker for Hall to provide legal services to him. Parker never asked Hall to represent him, and the two men never verbally explored the possibility of representation. See Restatement § 14 cmt. c. Thus, Parker’s intent to create an attorney-client relationship can only arise by implication from the conversations that occurred during the evening and the surrounding circumstances.

While some of the conversations could have been consistent with Parker’s claim that he intended for Hall to represent him, it is clear the conversations took place in the context of a larger conversation unrelated to legal services during an evening of socialization between the men. A discussion of legal matters in a social setting does not necessarily give rise to an attorney-client relationship. Id. Moreover, a person seeking to establish an attorney-client relationship must manifest the intent to the attorney. In this case, Hall never felt Parker was asking him to be his attorney at any point during the course of the evening.

The same conversations relied upon by Parker to establish his intent for Hall to represent him were also used by Parker to show Hall’s intent to represent him. In particular, Parker claims the promise by Hall to check out the status of the robbery investigation made it reasonable for him to believe Hall would be representing him regarding his concerns over his participation in the robbery.

An attorney-client relationship can arise when the person seeking to establish the relationship “reasonably relies upon the attorney to provide legal services, even when the attorney has not communicated a willingness to represent” the person. Restatement § 14 cmt. e. However, “in appraising whether a person’s reliance was reasonable, courts consider that lawyers ordinarily have superior knowledge of what representation entails and that lawyers often encourage clients ... to rely upon them.” Id. In this case, Hall did not encourage Parker to rely upon him.

As confirmed by Hall’s actions in going to the police the day following the conversations, Hall never believed the circumstances established an attorney-client relationship. Additionally, Parker could not have reasonably relied upon Hall to provide legal services based merely on Hall’s willingness to check into the status of the criminal investigation and the limited questions he propounded pertaining to the robbery. Without any discussion about the specific need for representation or the nature of legal services to be provided, Parker could not have reasonably relied upon Hall to protect his legal interests through an attorney-client relationship. We conclude the findings of the trial court support the conclusion that no attorney-client relationship arose between Hall and Parker. Thus, the trial court did not err in admitting the incriminating statements made to Hall by Parker.

B. Prior Convictions.

1. Propriety of the State’s cross-examination. The district court permitted the State to introduce evidence of Parker’s prior convictions under the theory that defense counsel “opened the door” by asking Parker on direct examination whether he previously had been charged with theft, robbery, or burglary. On appeal, Parker concedes the State was appropriately permitted to ask him about the prior burglary charge on cross-examination, but he argues that evidence of his prior drug convictions should have been excluded as prejudicial under Iowa Rule of Evidence 5.609.

We begin the resolution of this issue by recognizing that defendants in criminal cases who take the stand and testify in their defense place their credibility in issue and are typically subject to cross-examination the same as any other witness. State v. Bauer, 324 N.W.2d 320, 323 (Iowa 1982). Thus, the credibility of a criminal defendant who testifies at trial can generally be attacked by evidence of a conviction of a crime when the crime is punishable by more than one year imprisonment or involves dishonesty or a false statement. Iowa R. Evid. 5.609(a). The rationale behind this general impeachment rule is that evidence of the moral qualities of a witness can cast light on the probability of the truthfulness of the testimony. State v. Hackney, 397 N.W.2d 723, 726 (Iowa 1986).

The general rule of impeachment by pri- or convictions is limited, however, due in part to a “danger that the jury will view evidence of a past conviction as evidence of present guilt, or as reason to convict with little concern for present guilt.” Id. To guard against this danger, trial courts are required to employ a strenuous balancing test and admit evidence of a crime only if “the probative value of admitting this evidence outweighs its prejudicial effect to the accused.” Iowa R. Evid. 5.609(a)(1).

The State seeks to avoid the scrutiny of this balancing test by arguing that the impeachment rule was never implicated in this case because the evidence of prior crimes was not elicited on cross-examination by the State for the purpose of attacking Parker’s credibility as a witness. Instead, the State claims Parker projected the false impression to the jury on direct examination that he had no prior record and was an honest, law-abiding person; and consequently “opened the door” for the State to correct the false impression by presenting evidence of his true criminal background on cross-examination. Thus, the State argues rule 5.609 does not apply because Parker “opened the door” for the admission of his prior criminal record.

Our prior cases recognize an “opening the door” principle of evidence. This rule pertains to the ability of a party to rebut inadmissible evidence offered by an adversary and provides 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.’ ” State v. Mitchell, 670 N.W.2d 416, 420 (Iowa 2003) (quoting 1 John W. Strong, et al., McCormick on Evidence § 57, at 253 (5th ed. 1999) [hereinafter McCormick on Evidence]). The rule is also known as “fighting fire with fíre.” 1 McCormick on Evidence § 57, 252. Yet, it is not applicable until one party injects an incompetent, irrelevant, or inadmissible matter into trial. See James A. Adams & Joseph P. Weeg, Iowa Practice: Evidence § 5.103:8, at 38 (2007).

In this case, the testimony by Parker on direct examination that he had never been charged with three types of crimes implied he was an honest, law-abiding person and had no criminal record involving dishonesty. On its face, this evidence and its implication were neither immaterial nor irrelevant. If true, it casts light on Parker’s moral qualities for truthfulness as a witness.

More importantly, there is no “open the door” principle of evidence that permits the State to engage in unrestricted cross-examination of a defendant once it believes the defendant has presented false and misleading testimony on direct examination. The State correctly observes that a defendant who testifies at trial should not be permitted to resort to perjury or false characterization on direct examination without fear of being exposed by the State on cross-examination. Like all witnesses, a defendant is subjected to procedures that exist to provide an assurance of accuracy in testimony. 1 McCormick on Evidence § 129, at 489 (addressing a criminal defendant’s privilege against self-incrimination and explaining a defendant who waives the privilege must submit to cross-examination to provide the prosecution an opportunity to test the defendant’s assertions); see also Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). Yet, the State can only test the accuracy of the testimony as provided by the governing rules. The rules of evidence open the door for the State to expose false statements and claims, but only as far as specifically provided by the rules.

The credibility of a witness can be attacked in a variety of ways. These methods of impeachment may occur at trial either on cross-examination of the witness or by the presentation of extrinsic evidence. 1 McCormick on Evidence § 34, at 124.

In this case, the State sought to impeach Parker on cross-examination by asking him to acknowledge the inaccuracy of the criminal history he recounted on direct examination. It then continued in cross-examination by asking Parker to acknowledge the existence of two drug-related convictions.

Cross-examination can be a powerful elixir for the truth, and our rules permit cross-examination as a means to both delve into the story told by the witness on direct examination by testing such matters as partiality, memory, and perception, and to challenge credibility. Iowa R. Evid. 5.611 (providing cross-examination should generally “be limited to the subject matter of the direct examination and matters affecting the credibility of the witness”). The nature and scope of cross-examination is governed by the sound discretion of the trial court. State v. Martin, 385 N.W.2d 549, 552 (Iowa 1986).

Once Parker testified he had never been charged with burglary, the State was permitted to impeach Parker’s assertion by asking him about his prior charge for burglary. See United States v. Valencia, 61 F.3d 616, 619 (8th Cir.1995) (allowing cross-examination of the facts of a specific prior conviction in which the defendant previously attempted to minimize his guilt as to the prior conviction); United States v. Amahia, 825 F.2d 177, 179-80 (8th Cir.1987) (same); United States v. Babbitt, 683 F.2d 21, 25 (1st Cir.1982) (affirming admission of defendant’s remote arrest to rebut defendant’s claim that he had no prior record). However, the impeachment was accomplished once Parker admitted the prior burglary-charge on cross-examination, and the falsehood, and false impression, given by Parker to the jury on direct examination was exposed. At this point, any further impeachment by cross-examination would be limited to other prior crimes of theft, robbery, or burglary or perhaps other crimes involving dishonesty. See Amahia, 825 F.2d at 180 (limiting cross-examination to those “facts which are relevant to the direct examination”). Importantly, Parker did not testify that he never committed any crimes. Under the circumstances, additional cross-examination with evidence of prior drug convictions was beyond the scope of direct examination. It would have been an abuse of discretion for the trial court to admit the prior drug convictions on cross-examination because it was not within the scope of the subject matter of the direct examination. We therefore proceed to consider whether the prior drug convictions were admissible on cross-examination to impeach the credibility of Parker as a witness. See State v. McCowen, 297 N.W.2d 226, 227 (Iowa 1980) (“[W]e will uphold a ruling of the court on the admissibility of evidence on any ground appearing in the record, whether urged below or not.”).

As previously mentioned, a defendant who testifies at a criminal trial can be impeached by evidence of a conviction of a crime, subject to certain limitations. Iowa R. Evid. 5.609. In this case, the drug convictions were serious enough to qualify as impeachable crimes under rule 5.609, but were more than ten years old. For convictions more than ten years old, rule 5.609(b) provides, in pertinent part:

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

Rule 5.609(b) “creates a rebuttable presumption that convictions over ten years old are more prejudicial than probative and are therefore inadmissible.” State v. Roby, 495 N.W.2d 773, 775 (Iowa Ct. App.1992). Thus, convictions falling under rule 5.609(b) “should be admitted only in exceptional circumstances.” Id. Clearly, however, rule 5.609(b) is not “an absolute bar to the admission of evidence of convictions which are over ten years old.” Id. at 776.

In applying the balancing test, we first consider the circumstances of the prior crimes. We have previously stated that drug possession convictions have little bearing on veracity. Id. A conviction for delivery of a controlled substance is likewise distinguishable from crimes we have previously found to be probative of credibility, like perjury and theft offenses. Compare, e.g., State v. Zaehringer, 325 N.W.2d 754, 755-58 (Iowa 1982) (holding delivery-of-marijuana offense inadmissible under common-law impeachment rule because that crime does not involve dishonesty or false statement), with Roby, 495 N.W.2d at 775 (finding perjury offense highly probative), and State v. Latham, 366 N.W.2d 181, 184 (Iowa 1985) (holding robbery involves “ ‘stealing in an elemental sense’ and so involves dishonesty” (quoting Zaehringer, 325 N.W.2d at 756)).

The two prior drug convictions not only potentially cast Parker as a drug dealer, but one conviction involved dealing drugs near schools. An obvious danger exists that a jury may convict such an individual with little concern for his actual guilt as to the crime in question. See United States v. Ong, 541 F.2d 331, 339-40 (2d Cir.1976) (stating “there are few subjects more potentially inflammatory than narcotics”); State v. Liggins, 524 N.W.2d 181, 188-89 (Iowa 1994) (finding admission of evidence of cocaine delivery inherently prejudicial because “[i]t appeals] to the jury’s instinct to punish drug dealers”). These circumstances reveal a clear danger of prejudice. Moreover, there were no circumstances presented to reveal the two convictions had any particular probative value to aid the jury in assessing Parker’s credibility as a witness. It would have been an abuse of discretion for the trial court to determine, in the interest of justice, that the probative value of the prior convictions substantially outweighed their prejudicial effect. The prior drug convictions were inadmissible under rule 5.609(b), and it is unnecessary to further consider their admissibility under rule 5.609(a). The State does not argue the prior convictions were admissible under any other theory or rule of evidence, and we find no other grounds to support the admission of the evidence. The trial court erred in admitting the prior drug convictions into evidence at trial.

2. Harmless error. In reviewing trial court error on appeal, we follow the rule that an “[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.... ” Iowa R. Evid. 5.103(a). Thus, error in an evi-dentiary ruling that is harmless may not be a basis for relief on appeal. See State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004). We presume prejudice under this approach, unless the contrary is affirmatively established. Id. When a nonconstitutional error is claimed, as in this case, the test is whether the rights of the objecting party have been “injuriously affected by the error” or whether the party has “suffered a miscarriage of justice.” Id. (quoting State v. Trudo, 253 N.W.2d 101, 107 (Iowa 1977)).

We have already concluded the district court erred by admitting the prior drug-conviction evidence, based on our determination that the probative value of the evidence did not substantially outweigh its prejudicial effect. See Iowa R. Evid. 5.609(b). However, this analysis differs from the separate analysis we make under rule 5.103(a). See Sullivan, 679 N.W.2d at 30. The prejudice test under rule 5.609 is only used to determine the admissibility of the evidence and our conclusion in this case that the district court did not properly apply the test reveals an abuse of discretion in admitting the evidence. Id. Yet, it is another question whether the erroneous evidence prejudiced the rights of the defendant to a fair trial. Thus, the rule 5.103(a) harmless-error analysis is a broader test. It accepts that error has seeped into the trial, but does not allow the error to serve as grounds for reversal of the conviction or other relief if the overall circumstances affirmatively establish the error did not affect the substantive rights of the defendant. Id.

We have previously acknowledged the prejudicial impact of impeachment by prior convictions on the trial of an accused who testifies in the case. See id. (citing cases and studies supporting the likely use of evidence of impeachment by prior convictions by jurors as substantive proof of guilt). Particularly, when the prior convictions are for crimes that are similar to the crime for which the defendant is on trial, there is an obvious danger that

despite instructions, the jury might misuse the evidence and give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime charged, or even that he ought to be imprisoned without too much concern for present guilt or innocence, than they will to the legitimate bearing of the past convictions on credibility.

1 McCormick on Evidence § 42, at 168-69.

Notwithstanding, we consider a variety of circumstances in determining the existence of harmless error, including the existence of overwhelming evidence of guilt. State v. Martin, 704 N.W.2d 665, 673 (Iowa 2005). Moreover, we have relied on the existence of overwhelming evidence in finding harmless error despite the existence of error based on prior-conviction evidence. See State v. Holland, 485 N.W.2d 652, 656 (Iowa 1992) (holding defendant could not show prejudice due to admission of evidence suggesting defendant had previously been convicted of a crime “because of the overwhelming evidence, albeit much of it circumstantial, connecting [the defendant] with the charged crimes”).

In this case, the conviction was clearly based on overwhelming evidence of Parker’s guilt. Parker was positively identified as the bank robber by the bank teller, and two witnesses positively identified him as driving the getaway car during his circuitous escape from the bank. Money from the bank was also found in the car. Although Parker attempted to disguise his appearance during the robbery, none of the witnesses had any difficulty identifying him as the bank robber and driver of the getaway car. Moreover, Parker admitted to Hall that he committed the robbery. Additionally, he failed to produce any witness to corroborate his alibi defense. The improper prior-conviction evidence admitted at trial was also dissimilar to the robbery charge for which Parker was on trial. See State v. Martin, 704 N.W.2d 674, 676 (Iowa 2005) (attributing the prejudicial nature of admission of prior convictions “first and foremost” to their similarity to the crime at issue). Under all the circumstances, we conclude the error in admitting the prior conviction was harmless.

C. Ineffective Assistance of Counsel and Prosecutorial Misconduct.

When “an ineffective assistance of counsel claim is raised on direct appeal from the criminal proceedings the court may decide the record is adequate to decide the claim or may choose to preserve the claim under chapter 822 [postconviction proceedings].” Iowa Code § 814.7(3). Yet, “[o]rdinarily, we do not decide ineffective-assistance-of-counsel claims on direct appeal.” State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). When the district court record is sufficient to evaluate the claim, however, we will resolve it on direct appeal. Id.

A claim of ineffective assistance of counsel must be supported by evidence that (1) “counsel failed to perform an essential duty, and (2) prejudice resulted.” Id. However, “[i]f sufficient prejudice is not shown, we need not address whether counsel breached an essential duty.” State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995).

Parker argues his trial counsel was ineffective in two separate instances. First, he asserts counsel was ineffective for failing to object to the admission of his prior drug convictions. Second, he argues counsel was ineffective for failing to object to references made during the State’s case in chief and closing argument and during the State’s cross-examination of him during presentation of his case, suggesting he was in possession of a stolen vehicle. This claim was the basis for a pretrial motion in limine filed by Parker to exclude evidence that he was driving a stolen vehicle when he visited Hall in Waterloo. The State agreed with the motion, and it was granted by the district court. During Hall’s direct examination by the State, however, Hall answered a question by the prosecutor by mentioning that Parker told him he drove a stolen car to his house. Defense counsel made no objection to the testimony and did not request to strike it from the record. In addition to claiming these incidents amounted to ineffective assistance of counsel, Parker asserts prosecutorial misconduct as a separate ground for error.

While we agree with Parker that evidence was improperly admitted at trial, the trial court record supports a finding that no prejudice occurred. The prejudice component of an ineffective-assistance-of-counsel claim requires a showing of a reasonable probability that the result of the trial would have been different but for counsel’s error. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999).

Our review of the trial record convinces us that the evidence of Parker’s prior drug convictions and evidence he possessed a stolen car did not affect the outcome of the trial. As we have previously observed, the evidence of guilt was overwhelming. See State v. Casady, 597 N.W.2d 801, 806 (Iowa 1999) (concluding no prejudice from improper admission of other crimes when the case against the defendant was “very substantial”). Moreover, any prejudice visited on Parker by evidence that he possessed a stolen car when he visited Hall was diminished by Hall’s testimony that Parker admitted that he stole the car that he used to commit the bank robbery. We reject Parker’s claim of ineffective assistance of counsel on the basis that Parker cannot establish prejudice.

We also reject the separate claim of prosecutorial misconduct asserted by Parker. First, the stolen-car testimony during the State’s case in chief was nonre-sponsive to the question propounded by the prosecutor. Additionally, the references to the stolen car during cross-examination of Parker and the State’s closing argument were not pervasive, and the stolen-car evidence at issue was far removed from the central issue in the case involving the bank robbery. See State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (listing the pervasiveness of the misconduct and its significance to the central issues in the case as important factors when considering prosecutorial misconduct). Finally, the evidence of guilt was overwhelming. See id. (citing factors to use to analyze prejudice). No prejudice occurred that entitled Parker to a new trial.

D. Sentencing as an Habitual Offender. Parker claims the district court erred by sentencing him as an habitual offender. Under our law, an habitual offender is “any person convicted of a class ‘C’ or a class ‘D’ felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States.” Iowa Code § 902.8. We have held this definition requires “each succeeding conviction must be subsequent in time to the previous convictions, both with respect to commission of the offense and to conviction.” State v. Hollins, 310 N.W.2d 216, 217 (Iowa 1981). Consequently, the habitual offender statute only applies when conviction for the first predicate offense occurs before commission of the second predicate offense and conviction of the second predicate offense occurs before commission of the primary offense.

At the habitual-offender stage of the trial, the jury found Parker was an habitual offender based on the following:

1. The defendant was convicted on or about October 4, 1993, in the Iowa District Court for Dubuque County of delivery of cocaine within 1000 feet of a public school while being an habitual offender.
2. Defendant was convicted on or about October 4, 1993, in the Iowa District Court for Dubuque County of delivery of cocaine.

Based on these findings by the jury, the district court sentenced Parker as an habitual offender.

On appeal, Parker claims the sentence imposed was illegal because the two convictions used by the jury were entered on the same day and constitute only one predicate offense. See Hollins, 310 N.W.2d at 217-18 (holding defendant was not habitual offender where he pled guilty to two putative predicate offenses on the same day). The State acknowledges the two prior convictions used to support the habitual-offender status occurred on the same date, but argues the statutory requirement of two separate prior convictions to support the habitual-offender status was satisfied by the prior conviction for delivery of cocaine because it was enhanced as “an habitual offender.” In other words, the State argues that a prior habitual-offender conviction satisfies the statutory definition of an habitual offender for enhancement of a current conviction because it necessarily means the person “has twice before been convicted” of the predicate felonies. See Iowa Code § 902.8.

This issue arises for the first time at this stage of the proceedings because a defendant is permitted to challenge an illegal sentence at any time. State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000). An illegal sentence is void, which permits an appellate court to correct it on appeal without the necessity for the defendant to preserve error by making a proper objection in the district court. Id.

When faced with a claim of an illegal sentence, we must first consider whether the sentence was illegal. An illegal sentence is one not permitted by law. Id. The law does not permit a defendant to be sentenced as an habitual offender if the prior convictions relied upon are not felonies or do not occur in the required sequence. If the record in a case shows the prior convictions are not convictions that meet the required predicate conditions, the imposition of a sentence as an habitual offender is illegal.

While Parker raises a substantial argument as a response to the procedure used and actions taken by the district court in finding him to be an habitual offender, we cannot conclude as a matter of law, on this record, that the sentence was illegal. By failing to object to the use of a prior habitual-offender conviction as underlying evidence to support the habitual-offender status of the felony that is the subject of the sentencing, Parker consented to the method used by the district court to determine his habitual-offender status. The evidence before the district court revealed Parker was an habitual offender at the time he committed the burglary. Consequently, unlike other cases in which we can examine the record on appeal to discern the absence of two qualifying prior convictions, the record in this case shows Parker was an habitual offender. Therefore, we cannot declare as a matter of law that Parker’s sentence was illegal. In the event Parker did not actually have two qualifying prior felonies to support enhancement as an habitual offender, relief would be available through a postconviction-relief claim based on ineffective assistance of counsel for failing to object to the underlying trial procedure used to determine the enhancement of the sentence. On this record, we find the sentence imposed was not illegal.

IV. Conclusion.

We vacate the decision of the court of appeals and affirm the judgment and sentence of the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT AFFIRMED.

      . It has been suggested that, under certain circumstances, the introduction of an attorney-client communication could violate the Fifth Amendment privilege against self-incrimination or the Sixth Amendment right to effective assistance of counsel. See Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Smith v. State, 394 Md. 184, 905 A.2d 315, 325 (2006); B. John Burns, Iowa Practice: Criminal Procedure § 26:3, at 423 (2006). Parker’s claim on appeal is confined to a violation of the statutory attorney-client privilege.

      . When a witness other than the accused testifies, rule 5.609 allows evidence of past serious crimes subject only to rule 5.403. Iowa R. Evid. 5.609. As such, prior convictions of a witness are to be admitted unless their probative value is substantially outweighed by unfair prejudice. Id. r. 5.403. In contrast, “evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect.” Id. r. 5.609. Further, when the later of the conviction or the accused’s release from confinement is more than ten years past, such evidence is not admissible unless "the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Id.

      . Generally, there are five methods of attack upon the credibility of a witness. 1 McCormick on Evidence § 33, at 123-24. First is by evidence that the witness has made statements inconsistent with the present testimony on a prior occasion. Id. § 33, at 124. Second is by evidence that the witness is not impartial. The third method is by an attack on the witness' character. Id. The fourth method involves an attack on the inability of the witness to properly observe or recount matters that were the subject of direct examination. Id. The last method is by proof through other witnesses that the material facts were not as testified to by the witness. Id.

      . This type of impeachment requires a good faith basis for the inquiry and is limited to intrinsic evidence when the matter inquired into is collateral to the historical merits of the case; i.e. the cross-examiner cannot challenge the witness’ answer with extrinsic evidence but is "stuck” with it. 1 McCormick on Evidence § 33, at 124.

      . Parker makes no claim of constitutional error. See 1 McCormick on Evidence § 42, at 155 ("The suggestion has also been made that impeachment of the accused by showing prior convictions is unconstitutional, but to date, no federal or state court has embraced the suggestion.’’). The test for constitutional error is slightly different. See State v. Simmons, 714 N.W.2d 264, 275 (Iowa 2006).


author: LARSON, Justice.

text:
    Floyd WRIGHT, Appellant, v. IOWA DEPARTMENT OF CORRECTIONS, Fifth Judicial District, Appellee.
    No. 06-0863.
    Supreme Court of Iowa.
    April 11, 2008.

      John P. Roehrick of Roehrick Law Firm, P.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Forrest Guddall, Assistant Attorney General, for appellee.
   LARSON, Justice.

Floyd Wright, who was convicted of a sexual offense against a minor in 1977, challenges the district court’s ruling that he was subject to the residency restrictions of Iowa Code section 692A.2A (2005), which prohibits sex offenders from residing within two thousand feet of certain facilities such as schools. Wright contends that he is not subject to the statute because he was not a “registered” sex offender. Even if the statute were applicable, Wright contends it would violate his equal protection and substantive due process rights and would be invalid as a bill of attainder. The district court rejected his arguments, and so do we.

I.Facts and Prior Proceedings.

Floyd Wright was recently forced to move from his residence in Des Moines due to a change in ownership of the building where he lived. Wright had been convicted of statutory rape in 1977 and had completed his sentence at the time he was forced to move. Wright was never required to register as a sex offender because his statutory rape conviction predated the effective date of the sex offender registry statute in 1995. At the time of Wright’s move, he was on probation for driving while barred, and as a condition of his probation, he was required to notify the Fifth Judicial District Department of Correctional Services of his intended move. Wright’s probation officer informed him that his status as a sex offender prohibited him from moving to his proposed new location because it was within two thousand feet of a protected facility. See Iowa Code § 692A.2A.

Wright petitioned for a declaratory judgment that application of the residency restriction to him was invalid, and he also requested an injunction against enforcement of the restriction. He argued: the residency restrictions did not apply to him because he was not a registered sex offender, section 692A.2A violates his equal protection and substantive due process rights, and the minimum-distance statute constitutes a bill of attainder. The district court disagreed, concluding the language of section 692A.2A unambiguously applied to all sex offenders, not just those who were registered. Further, the district court rejected Wright’s constitutional challenges, relying largely on this court’s ruling in State v. Seering, 701 N.W.2d 655 (Iowa 2005).

II. Does Iowa’s Residency-Restricting Statute Apply Only to Registered Sex Offenders?

Iowa Code section 692A.2A provides, in pertinent part:

1. For purposes of this section, “person ” means a person who has committed a criminal offense against a minor, or an aggravated offense, sexually violent offense, or other relevant offense that involved a minor.
2. A person shall not reside within two thousand feet of the real property comprising a public or nonpublic elementary or secondary school or a child care facility.
3. A person who resides within two thousand feet of the real property comprising a public or nonpublic elementary or secondary school, or a child care facility, commits an aggravated misdemean- or.

It is undisputed that “statutory rape” under Iowa Code section 698.1 (1975) qualifies as a “relevant offense” under section 692A.2A.

Wright argues that the residency restriction applies only to “registered” sex offenders, based largely on the fact that this statute is included in the chapter entitled “sex offender registry.” Before we engage in statutory construction, we must determine whether the statute is ambiguous. State v. Spencer, 737 N.W.2d 124, 129 (Iowa 2007). “A statute is ambiguous ‘if reasonable persons could disagree as to its meaning.’ ” Id. (quoting IBP v. Harker, 633 N.W.2d 322, 325 (Iowa 2001)). Ambiguity may arise in two ways: from the meaning of particular words or from the general scope and meaning of the statute when all of its provisions are examined. Id.

In this case, the legislature specifically set the parameters of section 692A.2A by stating it applies to a “person.” Had the legislature failed to define “person,” the statute might arguably be ambiguous. However, it did define the term. Specifically, it is “a person who has committed a criminal offense against a minor, or an aggravated offense, sexually violent offense, or other relevant offense that involved a minor.” Iowa Code § 692A.2A(1). This definition is not ambiguous; the legislature did not limit the application of section 692A.2A to registered sex offenders, as Wright argues. Rather, it chose to make the residency restrictions applicable to a broader category of persons — those who have committed certain criminal offenses against minors. This definition clearly makes section 692A.2A applicable to Wright since he is a person convicted of statutory rape — a criminal offense against a minor. Further, the only reason Wright is not a registered sex offender is that he had completed his sentence prior to July 1, 1995, when the registry statute became effective. See Iowa Code § 692A.16(1).

Simply including the residency-restriction statute in the chapter entitled “sex offender registry” does not mean the legislature intended to limit application of that statute to those persons subject to the registry requirements. In fact, it clearly showed a contrary intent. The legislative bill that later became section 692A.2A was originally proposed in the more restrictive form. The original bill provided:

A person required to register under this chapter shall not reside within two thousand feet of the real property comprising a public or nonpublic elementary or secondary school or a child care facility-

S.F. 2197, § 3 (original bill language) (emphasis added). The legislature struck the language that would have limited the statute to registered sex offenders in favor of the language that applied it to all “persons.” We conclude Wright is subject to the restrictions of section 692A.2A.

III. Does Application of Section 692A.2A Offend Wright’s Constitutional Rights?

We review constitutional challenges to a statute de novo. Seering, 701 N.W.2d at 661. A statute is presumed to be constitutional, and the party challenging its constitutionality bears the burden to rebut this presumption. In re Det. of Betsworth, 711 N.W.2d 280, 288 (Iowa 2006); Seering, 701 N.W.2d at 661.

A. The Equal Protection Argument. The Fourteenth Amendment to the United States Constitution and article I, section 6 of the Iowa Constitution provide individuals equal protection under the law. This principle requires that “similarly situated persons be treated alike under the law.” In re Det. of Williams, 628 N.W.2d 447, 452 (Iowa 2001). The first step in determining whether a statute violates equal protection is to determine whether the statute distinguishes between similarly situated persons. Id. If the statute treats similarly situated persons differently, the court must then determine what level of review is required — strict scrutiny or rational basis. Id. A statute is subject to strict-scrutiny analysis — the state must show the classification is narrowly tailored to a compelling state interest — when it classifies individuals “in terms of their ability to exercise a fundamental right or when it classifies or distinguishes persons by race or national origin.” Id. All other statutory classifications are subject to rational-basis review in which case the defendant must show the classification bears no rational relationship to a legitimate government interest. Id.

Wright contends section 692A.2A violates his right to equal protection by treating him — a sex offender currently on probation — differently from a sex offender who is not currently on probation. However, these two groups are not similarly situated. The first group, which includes Wright, is currently on probation and subject to state monitoring, and the second group is not currently on probation and not subject to monitoring. We agree with the district court that Wright is not similarly situated to sex offenders not currently on probation. Thus, an equal-protection challenge is not viable.

Even if sex offenders currently on probation and those not on probation are considered to be similarly - situated, Wright has not shown that section 692A.2A treats the classes differently. The residency restrictions apply equally to all sex offenders meeting the definition in the statute, not just those on probation. Although it may be true, as Wright argues, that section 692A.2A is more likely to be enforced against sex offenders on probation because the state actively monitors probationers, he has not shown that sex offenders not on probation escape prosecution for violating section 692A.2A.

We have held, in the context of a substantive due process challenge, that section 692A.2A is not subject to review under strict scrutiny, but only under a rational-basis analysis. Seering, 701 N.W.2d at 665. Applying that rationale to this case, we believe that application of section 692A.2A to Wright does not offend his equal-protection rights. Any distinction in the treatment of persons currently on probation does not create equal-protection complications. We reject Wright’s equal-protection argument.

B. The Substantive Due Process Argument. Wright contends that section 692A.2A violates his right to substantive due process guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 9 of the Iowa Constitution. We considered, and rejected, that argument in Seering, 701 N.W.2d at 665, and that case controls here. Without any evidence that would cause us to retreat from our decision in Seering, Wright’s due-process claim must fail. See State v. Groves, 742 N.W.2d 90, 93 (Iowa 2007).

C. The Bill of Attainder Argument. Both the United States Constitution and the Iowa Constitution prohibit the legislative enactment of bills of attainder. U.S. Const, art. I, § 9; Iowa Const, art. I, § 21.

A bill of attainder is a legislative determination that metes out punishment to a particular individual or a designated group of persons without a judicial trial. The danger of such a law is that it deprives the accused of the protection afforded by judicial process.

State v. Swartz, 601 N.W.2d 348, 351 (Iowa 1999) (citations omitted).

There are three requirements for establishing a bill-of-attainder claim: “specificity as to the target of the legislation, imposition of punishment, and the lack of a judicial trial.” State v. Phillips, 610 N.W.2d 840, 843 (Iowa 2000). In Phillips, the defendant argued that a statute requiring that a person convicted of certain offenses must serve 100% of the sentence was invalid for several reasons, including a claim it amounted to a bill of attainder. We rejected that argument, as the sentence was not imposed without judicial process. Id. We cited United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965), as an illustration of what did constitute a bill of attainder. In Brown, a statute simply declared it a crime for a member of the Communist Party to serve as an officer or employee of a labor union. The Supreme Court held this was an illegal bill of attainder. Brown, 381 U.S. at 449-50, 85 S.Ct. at 1715-16, 14 L.Ed.2d at 492. The difference between Brown and this case is obvious: the statute in Brown, unlike the statute in the present case, did not require judicial involvement.

In Swartz, the defendant claimed a statute making it a crime for a convicted felon to possess a firearm was an illegal bill of attainder. 601 N.W.2d at 351. We rejected that argument because the restriction on the right to carry firearms did not constitute punishment so as to qualify it as a bill of attainder. Id. Rather, denying the right to possess firearms was “ ‘designed to accomplish some other legitimate governmental purpose [which is] the regulation of guns in the hands of those previously convicted of felonies.’ ” Id. (quoting United State v. Donofrio, 450 F.2d 1054, 1055-56 (5th Cir.1971)). In Wright’s case, as in Swartz, an underlying conviction was established prior to imposition of the restrictions. Here, Wright had been afforded a criminal trial in 1977 on the charge of statutory rape. Section 692A.2A applies to him only because of this conviction, and imposition of this restriction does not constitute a bill of attainder.

D. The Banishment Argument. In connection with Wright’s bill-of-attainder argument, he contends that the statute in question effectively banishes him from places of reasonable residency and, therefore, constitutes punishment. In Seering, we rejected the banishment argument, saying

[historically, banishment has been considered to be punishment. Yet, while Seering may have a sense of being banished to another area of the city, county, or state, true banishment goes beyond the mere restriction of “one’s freedom to go or remain where others have the right to be: it often works a destruction on one’s social, cultural, and political existence.” Section 692A.2A, to the contrary, only restricts sex offenders from residing in a particular area. Offenders are not banished from communities and are free to engage in most community activities. The statute is far removed from the traditional concept of banishment.

701 N.W.2d at 667-68 (quoting Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 897 (2d Cir.1996)) (other citation omitted). Wright adds another dimension in this case by contending that other communities in the area of Des Moines, where he resides, have municipal ordinances that also impose residency restrictions. He contends that the cumulative effect of these ordinances is to banish him. However, even if we assumed that is so, this circumstance does not affect the rationale of Seering. He is still free to engage in most community activities and free to live in areas not covered by the residency restrictions. We reject the banishment argument.

Because we find no error in the trial court’s application of section 692A.2A, we affirm.

AFFIRMED.


text:
    STATE PUBLIC DEFENDER, Plaintiff, v. IOWA DISTRICT COURT FOR PLYMOUTH COUNTY, Defendant.
    No. 05-1145.
    Supreme Court of Iowa.
    April 11, 2008.

      Thomas G. Becker, State Public Defender, and Julie A. Miller, Assistant State Public Defender, for plaintiff.
   CADY, Justice.

In this certiorari action, we review a district court order that directs the State Public Defender to pay from the indigent defense fund a fee claim submitted by an attorney for services rendered in a child-in-need-of-assistance proceeding. We conclude the decision of the district court is not supported by substantial evidence. We sustain the writ of certiorari.

I. Background Facts and Proceedings.

David Nicks is a member of the Iowa National Guard. He was deployed to Afghanistan in 2004. At the time of his deployment, he was separated from his wife, and a dissolution-of-marriage action was pending. The Nickses have two children, Madison and K.C.

While Nicks was serving in Afghanistan, the state filed a child-in-need-of-assistance proceeding in Plymouth County District Court concerning Madison and K.C. Nicks was notified of the proceedings and filed a form affidavit and application for appointment of counsel to represent him in the proceedings. The information to support the affidavit and application was supplied by Nicks through a telephone conversation with court staff who completed the form on behalf of Nicks. The affidavit and application indicated Nicks had annual income of $86,000. His monthly debt was limited to a $400 mortgage payment, and he listed a 1988 Oldsmobile vehicle as an asset. The form was not signed by Nicks.

Based on the affidavit and application, the district court entered an order on February 16, 2005, finding Nicks was eligible for court-appointed counsel and further finding that the failure to appoint counsel “would constitute substantial hardship, considering income, assets, and the nature of the proceedings.” The district court order indicated Nicks was “in [the] military in Afghanistan.” Attorney Scott Bix-enman from LeMars was appointed to represent Nicks.

Bixenman performed legal services for Nicks relating to the CINA proceedings during the period from February 24, 2005, to March 1, 2005, and submitted a claim for fees of $125 to the office of the State Public Defender. The State Public Defender denied payment of fees from the indigent defense fund because: (1) Nicks did not sign the application, and (2) Nicks did not qualify as an indigent person based on his level of income because the payment of the attorney fees would not result in a substantial hardship to him.

Bixenman filed a motion for review of the decision of the State Public Defender with the district court. Following a hearing, the district court ordered payment of the claim. It found: (1) good cause to appoint Bixenman, and (2) Nicks was indigent under the guidelines applicable for a family of four and needed counsel based on the nature of the proceedings and his military status.

The State Public Defender filed a petition for writ of certiorari. We granted the petition and now consider the writ.

II. Standard of Review.

“A writ of certiorari lies where a lower board, tribunal, or court has exceeded its jurisdiction or otherwise has acted illegally.” State Pub. Defender v. Iowa Dist. Ct. for Black Hawk County, 633 N.W.2d 280, 282 (Iowa 2001). Therefore, our review in an original certiorari action is for correction of errors at law. Id. We examine the jurisdiction of the lower tribunal and the legality of its actions. Id. “Illegality exists when the court’s findings lack substantial evidentiary support, or when the court has not properly applied the law.” Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998).

III. Payment of Attorney-Fee Claim.

The district court is authorized to appoint an attorney to represent an indigent person in a multitude of proceedings, including juvenile proceedings. See Iowa Code § 815.10 (2005). An indigent person is defined under section 815.9. The costs incurred by court-appointed attorneys for indigent persons in juvenile cases are then payable by the State Public Defender from the indigent defense fund. Id. § 815.11. The State Public Defender’s Office is charged with the administration of the indigent defense fund and the payment of legal fees incurred in juvenile proceedings on behalf of indigent persons. See id. § 815.10A.

Under section 815.9, a person with an income at or below 125% of the poverty level is entitled to a court-appointed attorney unless the court makes a finding the person is able to pay for the cost of an attorney. Id. § 815.9(a). A person with an income between 125% and 200% of the poverty level is not entitled to an attorney unless “the court makes a written finding that not appointing counsel on the pending case would cause the person substantial hardship.” Id. § 815.9(6).

To determine the poverty line, section 815.9 refers to the poverty income guidelines published by the United States Department of Health and Human Services. Under those guidelines, the poverty level is determined with reference to family size and gross income.

The district court found Nicks was a member of a family of four and would qualify as indigent under the poverty guidelines. The State Public Defender asserts Nicks was not a member of a family of four since he was separated from his wife, and even if he was a member of a family of four, he would not suffer a substantial hardship if required to pay for an attorney.

Under the guidelines for a family of four, $36,000 is greater than 125% of the poverty line but less than 200% of the poverty line. A person at this level of income is only entitled to court-appointed counsel under section 815.9 — i.e., is only indigent — if the person would suffer substantial hardship if counsel were not appointed. Thus, even if we assume substantial evidence supports the district court’s finding that Nicks was a member of a family of four, substantial evidence must also exist in the record to support the district court’s finding that Nicks would suffer substantial hardship if counsel was not appointed.

In determining whether a person would suffer substantial hardship for purposes of section 815.9, the district court must consider the person’s income, any assets subject to execution, and “the seriousness of the charge or the nature of the case.” Id. § 815.9. This standard reflects a pragmatic approach and requires courts to balance financial factors with the nature of the legal proceedings to determine if a substantial hardship will result if counsel is not appointed at public expense.

The district court relied on Nicks’ military status and his status as a member of a family of four, together with the nature of the proceedings, to find a substantial hardship would result if he was required to pay the attorney fees. While Nicks’ deployment to Afghanistan creates an array of hardships and sacrifices, the income derived from military service in a combat zone is not reduced by taxation. See 26 U.S.C. § 112. Additionally, his affidavit and application reveals he incurs no expenses while in Afghanistan other than a monthly mortgage payment. There is no indication he pays any form of support to his family. Thus, military status and size of family identified by the district court as circumstances to support its decision do not demonstrate Nicks will suffer substantial hardship if required to pay for the attorney fees incurred in this case.

We also observe there is no evidence that the CINA proceeding will be prolonged or complex so that the amount of legal services ultimately needed in the case will be substantial. The fee claim of $125 submitted by Bixenman reveals an adjudicative hearing has been held and a disposi-tional hearing has been scheduled. The dispositional hearing could conclude the legal representation, which would minimize the total legal services. We also observe that the maximum attorney fee for CINA proceedings is ordinarily set at $1100. Iowa Admin. Code r. 493-12.6.

On our review of the record, we fínd no substantial evidence to support the decision of the district court that the failure to appoint counsel for Nicks would cause him substantial hardship. Consequently, the costs incurred by his court-appointed counsel are not payable from the indigent defense fund. See generally State Pub. Defender v. Iowa Dist. Ct. for Polk County, 721 N.W.2d 570, 574 (Iowa 2006) (discussing the statutory mechanism to submit a claim to be paid from the general fund).

IV. Conclusion.

The district court acted illegally by ordering the State Public Defender to pay the attorney-fee claim. We sustain the writ.

WRIT SUSTAINED.

      . The State Public Defender also argues the application for appointment of counsel and accompanying affidavit were not signed by Nicks under penalty of perjury, as required by Iowa Code section 815.9(2). It is unnecessary to address this issue based on our resolution of the question of indigency.

      . While we refrain from addressing this question, we do note only one reference to Nicks’ family size appeared in the record before the trial court at the time of the June 14, 2005 review of the State Public Defender’s action denying the attorney-fee claim. In his application for appointment of counsel, Nicks reported he did not live with his spouse or children.

      . The State Public Defender is charged with establishing fee limitations for court-appointed attorneys. Iowa Code § 13B.4(4)(a). However, a court-appointed attorney is entitled to reasonable compensation, id. § 815.7, and the fee limitations can be exceeded in certain circumstances, id. § 815.10A.