author: KONENKAMP, Justice. SABERS, Justice

text:
    2006 SD 63
    STATE of South Dakota, Plaintiff and Appellee, v. John TOFANI, Defendant and Appellant.
    No. 23418.
    Supreme Court of South Dakota.
    Argued on Nov. 8, 2005.
    Decided July 12, 2006.

      Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Donna Bucher of Tinan, Smith & Bucher, Mitchell, South Dakota, Attorneys for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] It is one thing to carelessly reveal details that a criminal might later use to commit a crime. It is another thing to divulge facts with the purpose of promoting or facilitating the commission of a crime. In this appeal, we are called upon to distinguish the difference. John E. To-fani was convicted of aiding and abetting Wade Reiner in the rape and aggravated assault of Tofani’s fiancée, C.M. While accepting Reiner’s largesse in the form of money, beer, and food, Tofani and his friend told Reiner about how they were “sick of’ C.M. Their discussion proposed that she should be “roughed up and sent out of town.” Someone remarked that “a woman like that” should be beaten and raped. Reiner said he could do it, but after he did, Tofani claimed that he never took their discussion seriously. Reiner confirmed that he only “assumed” this was what Tofani wanted. He also confirmed that he was never specifically asked to commit these crimes against C.M. Nonetheless, before it happened, Tofani pointed out C.M.’s motel room to Reiner, gave Reiner the key to C.M.’s room and then took it back before Reiner could use it, told Reiner that C.M. was a drug user wanted in Florida, and had Reiner drive him to another town before Reiner returned to commit the crimes. On appeal, Tofani challenges the denial of his motion to exclude evidence, his motion to suppress, and his convictions. We affirm in all respects.

Background

[¶ 2.] Tofani was living in Florida when he decided to travel north after a friend of his died. He wanted to “relocate.” Tofa-ni’s fiancé, C.M., also decided to leave Florida because she “wanted to get a fresh start as her past was terrible.” In C.M.’s van, she and Tofani first went to Daytona, where they picked up Tim Stone, someone Tofani knew but C.M. did not. The three headed to South Dakota, funding their trip by panhandling and obtaining local community services along the way. They arrived in Mitchell, South Dakota on March 2, 2004, and rented a room at the Corn Palace Motel.

[¶ 3.] On March 5, 2004, while still at the same motel, Tofani and Stone left, telling C.M. “they would be back with beer and pizza for dinner.” They went to the Sudz Bar-Laundromat-Casino, where they met Wade Reiner. Reiner, a resident of Hanson County, was having a bad day. He thought his wife was having an affair and was about to leave him. That morning, he got fed up with his work after being demoted. He walked off the job and then worked on fixing his truck. He was unsuccessful. He tried to do laundry at Sudz, but the machines were out of service. So he went to the bar portion of the establishment, ordered a beer, and began playing video lottery.

[¶ 4.] Tofani and Stone did not know Reiner before that day. Stone approached Reiner after noticing that Reiner hit a big payout on the video lottery machine. He won $180. Stone struck up a conversation with Reiner, which led Reiner to move to a video lottery machine closer to Tofani and Stone. Reiner joined in their conversation and continued to play video lottery. He bought them beer and, because he “felt sorry for their situation,” he gave Tofani and Stone twenty dollars each from his recent winnings. Throughout the afternoon they continued to drink and talk, consuming an estimated eight to ten beers.

[¶ 5.] According to Reiner, Tofani and Stone’s conversation revolved mostly around C.M. and how they were “sick of [her] and wanted to leave her.” Their complaints ran the gamut: she nagged, she wanted only the best for herself, and she threatened to report Tofani to the authorities if he ever tried to leave her. Reiner later testified that Tofani and Stone blamed their troubles on C.M., and Tofani referred to her “as a crack whore who would give everybody in the bar a blow job for a line.” In Reiner’s view, the conversation “was not just two men venting a little steam.” Reiner recalled that they said C.M. “should be roughed up and sent out of town, sent back home.” Reiner had the impression that he “could do whatever he wanted to with [C.M.] ” because Tofani told him he had “paid for her.” Unknown to Tofani or Stone, but judging from the rape and bondage themes in the lewd photographs later found in his possession, Reiner had fantasies about beating and raping women.

[¶ 6.] In contrast to Reiner’s account of the conversation at Sudz, a defense witness would later testify that she overheard Tofani and Stone, but they were not badmouthing C.M. This witness, Michele Schulte, a legal secretary from Salem, South Dakota, was at Sudz while waiting to meet a friend. She was about ten feet from Tofani and Stone. She described Sudz as a small bar where you could hear almost everything. From eavesdropping, Schulte heard Tofani and Stone speak about C.M.: Tofani only referred to her as his “old lady,” and he wanted to leave her. Schulte described Reiner, Tofani, and Stone as belligerent; every other word out of their mouths was f — k. But she heard nothing about raping, beating, or harming C.M. Before Schulte left Sudz, she heard Reiner say that he was going back to the laundromat to get his clothes. The other two were getting ready to go to Sioux Falls.

[¶ 7.] Tofani later confirmed to police that he told Reiner that he wanted to get away from C.M. He also admitted that the terms “beaten” and “raped” were used regarding C.M. during their conversation, although he denied using them himself. Reiner’s contribution to the conversation was that “there should be a place that you could take 'em and have that done.’ ” In response to interrogation, Tofani also confirmed that Reiner said that he “had no problem doing it,” he “would take care of it” — he would go over to her motel room and “take care of it.” Saying that he himself thought it was all a joke, Tofani later conjectured in hindsight that it was surely Stone and Reiner who had seriously conspired to have C.M. taken care of.

[¶ 8.] According to Reiner’s trial testimony, Stone coaxed Tofani into going to Sioux Falls. Reiner claimed that Tofani was reluctant at first because he had just gotten a job in Mitchell. Nevertheless, Tofani agreed to go and Reiner said he would drive them there. They even discussed whether Reiner would drive them all the way back to Florida, but Reiner would only take them as far as Sioux Falls. Before they left, Stone went to the motel room and grabbed his belongings. When Stone entered the room, C.M. was there. Stone told her that he needed his things to prove to someone that he was homeless so the person would give him money. Tofani did not come to the room or attempt to gather his belongings.

[¶ 9.] Back together, Tofani, Stone, and Reiner went to another Mitchell bar, TLC, where they “had a couple more beers and bought a twelve pack for the road.” Rein-er testified that while they were heading out of Mitchell they drove past the Corn Palace Motel and Tofani and Stone pointed out C.M.’s van and her room. Reiner also said that Tofani threw the room key onto the center console telling Reiner to return it to the motel. A short time later, however, Stone got the key back from him because, according to Tofani, both he and Stone were concerned about Reiner’s trustworthiness and the possible danger to C.M. if Reiner had a key to her room. According to Tofani, to get the key back, he and Stone contrived a story about Stone wanting the key as a souvenir.

[¶ 10.] Eventually, Tofani, Stone, and Reiner arrived at the Pilot Truck Stop in Sioux Falls. Reiner and Tofani went inside where Reiner bought the two of them a meal. Stone remained in the vehicle and drank what beer was left. After Reiner and Tofani finished eating, Reiner gave both men another twenty dollars each and then said he was leaving. Tofani asked for a ride to the nearby Flying J Truck Stop, but Reiner refused. Reiner testified that his plan was to head back to his home in rural Alexandria, South Dakota.

[¶ 11.] Rather than going home, however, Reiner went to the Corn Palace Motel, walked up to C.M.’s room, and knocked on the door. When C.M. answered, she was on the phone with a local pastor. She had already called the police when her companions failed to return that evening. Now she was seeking advice from the pastor. Standing at the door, Reiner told C.M. that he knew where Tofani and Stone were, and he was there “to get her to bring them back to the hotel.” Hearing of this proposal, the pastor warned her not to go with the stranger. She declined the advice and left with Reiner.

[¶ 12.] Reiner drove C.M. towards Alexandria and then pulled up along a country road in rural Hanson County, where he struck her, pulled her from his car, and forced her to perform oral sex on him. It began when Reiner suddenly struck her without provocation. After he stopped the car, he dragged her out the driver’s door towards the rear of the car. He then forced her onto the ground, straddled her, and began choking her. C.M. pretended to pass out and Reiner eventually eased his grip. But then Reiner grabbed her and pulled her head to his midsection and forced his penis into her mouth. When he was finished, he dragged her towards the trunk. C.M. thought Tofani was going to be in the trunk either dead or tied and gagged. C.M. later recounted that Reiner said to her “that money was exchanged for him to do this” or that “money was given to him to do this to me.”

[¶ 13.] Reiner opened the trunk of his car. It was empty. He told C.M. to get in. She pleaded with him — she would not tell anyone; she did not know who he was. Reiner said something to indicate that he knew about her: she was from Florida and was in trouble there. He told her he knew about her past and he could get ransom from her mother in Florida. C.M. told him that she and her mother were not on good terms and Reiner would not get a dime from her. Reiner agreed to take her back to Mitchell, but told her “he could take her towards the motel, but she would have to walk the rest of the way on her own.” On the drive back, Reiner stopped to relieve himself and C.M. took the opportunity to run to a nearby farmhouse. The homeowners let C.M. inside and called the police. When law enforcement officers responded, C.M., who appeared beaten and bruised, was taken to Avera Queen of Peace Hospital in Mitchell.

[¶ 14.] In the meantime, Tofani and Stone hitchhiked back to Mitchell. According to Tofani, they arrived back at the Corn Palace Motel at 12:38 a.m. About an hour later, C.M. called the motel from the hospital and told Tofani that she had been raped. C.M. testified that after she told him this the line went silent and she heard what sounded like the phone dropping. Thereafter, Stone got on the line and told C.M. Tofani was in shock and could not talk.

[¶ 15.] C.M. described her attacker to Sheriff Mark Kessler. Wade Reiner’s name immediately came to mind. Reiner was soon arrested and charged with kidnapping, rape, and aggravated assault. Tofani and Stone were brought to the Mitchell Police Department on the morning of March 6, 2005. Neither was under arrest. Tofani was placed in an interrogation room.

[¶ 16.] After Tofani had been in the room for ninety minutes, Detective Toby Russell came in and read Tofani his Miranda rights. Tofani signed a Miranda card, acknowledging that he was aware of his rights and was knowingly waiving them. Thereafter, Russell listened to To-fani’s explanation of the night’s events. Tofani began by describing how he met Reiner and how the three of them ended up in Sioux Falls. He also told Russell that he had a receipt from the truck stop in Sioux Falls, but it was at his motel room.

[¶ 17.] In probing for information, Russell told Tofani that Reiner claimed that C.M. was sold to him. Tofani insisted on taking a lie detector test, claiming he would never sell anyone or put anyone in a situation like that. Russell then asked about the call C.M. made to Tofani from the hospital. Tofani said that C.M. told him it was the guy from the laundromat who raped her. Russell asked how C.M. knew who it was if she was not at the laundromat. Tofani responded that C.M. said Reiner told her that he knew Tofani and Stone from the laundromat. Tofani again asked if he could see C.M. Russell ended the interview and left the room.

[¶ 18.] The facts in the next two paragraphs were considered for the suppression hearing, but were not admitted as evidence during Tofani’s trial to the court. Tofani was in the room alone for approximately forty minutes before he knocked on the window to ask to use the restroom. Afterwards, Tofani returned with Detective Russell. Russell asked Tofani about the discussion he had with Detective Chris Konrad while in the bathroom, specifically asking Tofani to give a rendition of his statements at Sudz. Tofani agreed with Russell that he said he was sick of C.M. and wanted to leave her. Russell also asked Tofani why only Stone went back to the motel to gather his belongings. Tofani responded that he did not go because he would not be able to explain to C.M. that he was leaving, but if he thought for a second that Reiner was going to go back to C.M.’s room he would have never left her.

[¶ 19.] Russell asked about the receipt Tofani said he left at the motel and asked if he would be willing to retrieve it. Tofa-ni agreed and Russell left the room, but before he exited Tofani asked about C.M. again. Thereafter, Tofani, Detective Konrad, and Sheriff Kessler left for the motel and recovered the receipt from Tofani’s room. When they returned to the Mitchell Police Department, Konrad placed Tofani back in the interrogation room.

[¶ 20.] The remainder of the fads were offered both in the suppression hearing and at trial. Detectives Konrad and Russell returned with the receipt. Tofani was asked if he had anything else to tell them now that he had had time to think. Tofani repeated the same statements, that Reiner and Stone talked about how a “bitch like that should be beaten up.” When Konrad suggested to Tofani that Reiner said he would take care of that for Tofani, Tofani denied anything of the sort, but he did admit that Reiner told him that he would “take care of it.” Tofani claimed he had nothing to hide and that he just did not understand how serious everything was. Then he asked to see C.M. again and Russell told him he did not know when he would get to see her. The interrogation ended.

[¶ 21.] Tofani was subsequently arrested on March 8, 2004, and indicted on four counts: kidnapping, rape, attempted aggravated assault, and aggravated assault, all as an accessory before the fact. At the arraignment, Tofani’s attorney moved for discovery and inspection of the videotapes of Tofani’s interview at the Mitchell Police Department. His motion was granted and the State delivered a copy of the interview on seven CDs. When Tofani’s attorney attempted to view the CDs, “it was discovered that these disks were incomplete in that some of them would not operate on his computer system or in any other system he attempted to use them on.” He immediately informed the State and the Sheriffs office, but was never given a workable CD with Tofani’s interview. However, the court permitted counsel to hire an expert to address the problem, if counsel so desired.

[¶ 22.] Tofani sought to exclude the evidence. The motion was denied. He also moved to suppress any statements he made to law enforcement officers because the officers used undue influence. This motion was also denied. Through plea negotiations, Reiner pleaded guilty to rape and an unrelated drug charge and was sentenced to the penitentiary. As part of his agreement, he would testify against Tofani and Stone. Tofani waived a jury trial and was found guilty by the court of aiding and abetting Reiner in the rape and aggravated assault of C.M. In finding him guilty on two of the charges, the judge declared, “the court will state for the record that this is a close call, very close, and I would expect you to order a transcript and appeal.... ” Tofani was sentenced to twenty years for the rape and ten years for the aggravated assault, with both sentences to run concurrently. Stone’s charges were later dismissed by the prosecutor.

[¶ 28.] On appeal, Tofani asserts that (1) the trial court erred when it denied his motion to exclude evidence, (2) the trial court erred in denying the motion to suppress his statements, and (3) there was insufficient evidence to support a guilty verdict and therefore the court erred in denying defense counsel’s motion for judgment of acquittal.

Standard of Review

[¶ 24.] We review a trial court’s decision to deny a motion to exclude evidence under the abuse of discretion standard. State v. Moran, 2003 SD 14, ¶ 10, 657 N.W.2d 319, 323 (citation omitted). All factual findings we examine under the clearly erroneous standard, but “[a] motion to suppress for an alleged violation of a constitutionally protected right raises a question of law, requiring de novo review.” State v. Hess, 2004 SD 60, ¶ 9, 680 N.W.2d 314, 319 (citations omitted).

The denial of a motion for judgment of acquittal presents a question of law, and thus our review is de novo. See United States v. Staula, 80 F.3d 596, 604 (1st Cir.1996). We must decide anew whether the evidence was sufficient to sustain a conviction. SDCL 23A-23-1 (Rule 29(a)); State v. Guthrie, 2001 SD 61, ¶ 47, 627 N.W.2d 401, 420-21; see also 2 Steven Alan Childress & Martha S. Davis, Federal Standards of Review § 9.10 (3ded 1999) (citing United States v. Scott, 437 U.S. 82, 100, 98 S.Ct. 2187, 57 L.Ed.2d 65 n. 13 (1978)). In measuring evidentiary sufficiency, we ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

State v. Disanto, 2004 SD 112, ¶ 14, 688 N.W.2d 201, 206.

Analysis and Decision

1. Motion to Exclude Evidence

[¶ 25.] Tofani’s interview with the Mitchell Police Department was recorded by video camera. In accord with a discovery order, the prosecutor gave a copy of the interview to Tofani’s counsel on seven CDs. But not all the CDs worked properly on defense counsel’s computer system and counsel notified the state’s attorney. Counsel subsequently viewed the interrogation when the CDs were played at Tofa-ni’s hearing on his motion to suppress.

[¶ 26.] Still, Tofani contends he was prejudiced because the State failed to produce playable CDs. Moreover, he claims that the opportunity to hire an expert to assist with the troubles and the chance to view the original on the sheriffs computer did not eliminate the prejudice Tofani experienced because counsel did not have adequate time to prepare a defense concerning the statements. Counsel argues that the existence of prejudice is further supported by the fact that the trial court ultimately placed significant weight on To-fani’s statements when it announced its guilty verdict.

[¶ 27.] Tofani has not established prejudice. See State v. Smiley, 2004 SD 119, ¶ 5, 689 N.W.2d 427, 429 (citation omitted). The record reflects that the State initially complied with the discovery order. Once Tofani’s counsel apprised the prosecutor of the problem, the state’s attorney attempted to assist him by making the original recording available for viewing on the sheriffs computer system. As allowed by the circuit court, counsel also could have hired an expert to remedy the problem with the CDs. Rather than availing himself of the chance to view the CDs before the suppression hearing, counsel moved to exclude the evidence. Even though the court denied his motion, it provided one additional remedy, explaining, “If as a result of any particular tape or whatever or statement defense may desire or need additional time to do anything, I will be most inclined to grant it.”

[¶ 28.] The sole claim that the CDs did not work properly on defense counsel’s computer does not establish prejudice. Counsel could have viewed the originals, or could have hired an expert to assist with the technical problems. Further, after To-fani examined the CDs at the suppression hearing, counsel could have requested additional time to prepare. Consequently, we conclude that Tofani suffered no prejudicial error, and the trial court did not abuse its discretion when it denied Tofani’s request to exclude the evidence.

2. Motion to Suppress Statements

[¶ 29.] It is undisputed that Tofa-ni was subjected to a custodial interrogation at the Mitchell Police Department on March 6, 2004. Tofani acknowledged his Miranda rights and waived them when he signed a Miranda warning acknowledgement card. Nevertheless, Tofani contends that his statements should be suppressed because they were not given voluntarily, but were the product of undue influence.

[¶ 30.] When reviewing the voluntariness of a confession, we consider the totality of the circumstances, giving deference to the trial court’s factual findings, but performing a de novo review of the record, and making “an independent determination of the ultimate issue of vol-untariness.” State v. Tuttle, 2002 SD 94, ¶ 20, 650 N.W.2d 20, 30 (quoting Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1, 8 (1976) (additional citations omitted)). Police deception or misrepresentation will be duly weighed; however, “police may use some psychological tactics when interrogating a suspect.” State v. Frazier, 2001 SD 19, ¶ 20, 622 N.W.2d 246, 255 (quoting State v. Darby, 1996 SD 127, ¶ 31, 556 N.W.2d 311, 320). If the defendant’s will was overborne so that the admissions were a direct result of law enforcement overreaching, then the confession must be deemed involuntary. Tuttle, 2002 SD 94, ¶ 20, 650 N.W.2d at 30. In the totality of the circumstances, we review “(1) the defendant’s age; (2) the defendant’s lack of education or low intelligence; (3) the absence of any advice to the defendant of [his or her] constitutional rights; (4) the length of detention; (5) the repeated and prolonged nature of the questioning; and (6) the use of physical punishment such as deprivation of food or sleep.” Frazier, 2001 SD 19, ¶ 20, 622 N.W.2d at 255 (quoting State v. Smith, 1999 SD 83, ¶ 36, 599 N.W.2d 344, 352).

[¶ 31.] At the time of his arrest, Tofani was thirty-one and had a high school education. Even though Tofani claims he was intoxicated, his video-recorded statements reveal that he understood the questions and provided intelligible answers. In addition, Tofani was informed of his constitutional rights before the questioning began. According to the record, Tofani was not a stranger to the criminal justice system. Furthermore, he was not subjected to a lengthy detention, prolonged questioning, or deprivation of food or sleep. He was placed in a locked interrogation room with cigarettes and a cola. He was permitted to sleep and use the restroom.

[¶ 32.] Tofani contends that his will was overborne because the detectives used C.M. as bait in order to elicit information. Specifically, Tofani claims that while they were driving to the motel to retrieve the receipt, Detective Konrad told Tofani he could not see C.M. “until they got the information they wanted.” Other than To-fani’s allegation, the record does not reflect such coercion.

[¶ 33.] The trial court found that “at no time during the interview process was undue influence used by the [police] for obtaining the [statements] and the length of time under the circumstances herein did not reflect an improper utilization of the interrogation techniques.” From our review of the record and the videos, we cannot say that the trial court erred: the statements were voluntary under the totality of the circumstances.

3. Sufficiency of the Evidence

[¶ 34.] Tofani argues that the trial court erred when it found beyond a reasonable doubt that he aided and abetted Reiner in his crimes against C.M. In his appellate brief, Tofani asserts that “the evidence was insufficient to show that there was any common design or purpose” and the “testimony of Reiner at the trial clearly indicated that he acted alone and failed to show any sharing of the criminal intent between Tofani and Reiner.” The State, on the other hand, urges that the conviction should be affirmed because “the trial court found a meeting of the minds between Tofani and Reiner. Tofani, who admitted to wanting to ditch [C.M.], essentially set these crimes up to escape.”

[¶ 35.] Tofani moved for a judgment of acquittal, which was denied. We will not reverse the trial court’s denial of a motion for judgment of acquittal or reverse the guilt determination of the trier of fact if we conclude that “the State presented sufficient evidence on which the [court] could reasonably find the defendant guilty of the crime charged.” Guthrie, 2001 SD 61, ¶ 47, 627 N.W.2d at 420 (citation omitted). Our review of the sufficiency of the evidence is de novo. Disanto, 2004 SD 112, ¶ 14, 688 N.W.2d at 206.

[¶ 36.] The crime of aiding and abetting is set out in SDCL 22-3-3:

Any person who, with the intent to promote or facilitate the commission of a crime, aids, abets or advises another person in planning or committing the crime, is legally accountable, as a principal to the crime. (Emphasis added).

To be guilty of aiding and abetting, “the evidence must show the principal offender committed all the elements of the underlying offense.” State v. Shearer, 1996 SD 52, ¶ 29, 548 N.W.2d 792, 798 (citing Graham v. State, 346 N.W.2d 433, 435 (S.D.1984)). Because, under SDCL 22-3-3, aiding and abetting requires “the intent to promote or facilitate” the crime, the evidence must show that Tofani “knowingly did something to assist” in its commission. State v. Brings Plenty, 490 N.W.2d 261, 268 (S.D.1992) (quoting State v. Schafer, 297 N.W.2d 473, 476 (S.D.1980)).

[¶ 37.] Here, the trial court concluded beyond a reasonable doubt that the principal offender, Reiner, committed the offenses of kidnapping, rape, and aggravated assault, a conclusion not challenged in this appeal. On Tofani’s charges, the court found him not guilty of aiding and abetting the kidnapping, but found him guilty of aiding and abetting Reiner in the crimes of rape and aggravated assault. We must decide whether there was sufficient evidence to sustain Tofani’s convictions. Guthrie, 2001 SD 61, ¶ 47, 627 N.W.2d at 421. “[A]ll of the evidence is to be considered in the light most favorable to the prosecution.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original). There must be substantial evidence to support the conviction. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), superseded on other grounds, Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). The “inquiry does not require [an appellate] court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (emphasis in original) (quoting Woodby v. Immigration and Naturalization Serv., 385 U.S. 276, 282, 87 S.Ct. 483, 486, 17 L.Ed.2d 362 (1966)). “Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. Evidence is insufficient, and therefore not substantial, when no rational trier of fact could find guilt beyond a reasonable doubt. Id.

[¶ 38.] The record before the trial court included testimony from the law enforcement officers involved, the victim, Wade Reiner, Reiner’s spouse, and a witness from Sudz, and physical evidence such as the photographs of C.M.’s injuries, the motel room key, as well as the CDs containing the video recordings of Tofani’s interrogation. Tofani did not testify. In its oral findings, the court began by summarizing the evidence it considered relevant. First, the court found that Reiner knew detailed information about C.M., information he could not have learned without Tofani. Then, the court concluded that Reiner knew there was a plan to leave C.M. in Mitchell. The court further found that Tofani made derogatory remarks about C.M. in Reiner’s presence. Finally, the court stated that Reiner not only knew what motel C.M. was at, but exactly which room she was staying in. Based on this, the court concluded:

I don’t think I have any doubt in my mind whatsoever at the time of leaving, at the time of leaving the Sioux Falls Pilot that Mr. Tofani, the defendant, became aware of and part of this gal’s gonna get disciplined. Period. I think he formed that intent that Wade Reiner would commit an unlawful act or a wrong, to-wit, criminal offense, upon [C.M.].
I further find specifically that after he left Mitchell, when apparently he thought it was okay for her to get batted around a little bit and maybe even screwed without her consent from that standpoint, but that while traveling with Mr. Reiner he became very uneasy.... I don’t trust him anymore. Things are getting out of hand. And I think that beyond a reasonable doubt from that moment on he was trapped.
Now, at some point between leaving Mitchell and arriving in Sioux Falls Mr. Tofani is worried about Mr. Reiner. And has made up his mind that he is returning. And the court can find beyond a reasonable doubt that he’s guilty of the offense of aiding and abetting aggravated assault. I have no problems with that.

[¶ 39.] With respect to the rape charge, the court found:

Now as concerns the aiding and abetting as far as the rape is concerned, the court finds the defendant guilty beyond a reasonable doubt. Basically speaking I think it became apparent to Mr. Tofani what was taking place sometime during the ride over to Sioux Falls and during his subsequent supper with the defendant, Mr. Reiner, from that standpoint and he became very concerned and by his own testimony he desired to return as quickly as possible to Mitchell. And that desire was out of fear for his fian-cée’s safety. Things had gotten out of hand.
The distinction I want to make is this. I don’t think that it’s necessary when they left Sioux Falls, that is Mr. Tofani and Mr. Reiner, that the plan to abet the commission of a criminal offense or a wrongdoing may have been fully formed.[] I think it became apparent to the defendant at some time, that is Mr. Tofani, that this was a serious matter and no longer fun and games. Now he has testified himself by virtue of the statement that he thought these matters were fun and games. However, during the course of the trip it became apparent to him in this court’s opinion that Reiner was far more than appeared on the surface.... [B]efore he returned he made no effort to extract himself from the anticipated wrongdoing. There’s no evidence that [C.M.] was ever called or warned. He was aware of where she was located. She’s in the motel room. Got a telephone number.
* * *
And I do believe to one extent that Mr. Tofani may have gotten cold feet, I think at that stage of the proceedings that he has aided, two-wit, he has abandoned the victim to the motel....
And so as concerns the charge of aiding and abetting the rape count in count two, I find the defendant guilty.

[¶ 40.] Concededly, some of the judge’s remarks are contradictory, but the overall conclusions the court reached are consistent. To put it in the judge’s blunt idiom, he found that at some point while Reiner and Tofani were together, they reached an understanding — Tofani was “pari of this gal’s gonna get disciplined” — and that C.M. was going to be “batted around a little bit and maybe even screwed without her consent.” (Emphasis added). The court reasoned that Tofani’s “plan to abet the commission of a criminal offense or a wrongdoing” may not have been fully formed before they left Mitchell, but Tofa-ni became increasingly aware that “Reiner was far more than appeared on the surface,” and even though he “may have gotten cold feet,” Tofani persisted in the plan. He did nothing to “extract himself from the anticipated wrongdoing” or warn C.M.

[¶ 41.] Now the question becomes whether the evidence adduced at trial was sufficient to sustain the convictions. In reviewing the record, we must draw all reasonable inferences from the evidence in favor of the verdict. Undoubtedly, Tofani and Stone discussed C.M. in unwholesome terms while at Sudz with Reiner. Tofani and Stone made repeated derogatory remarks about her. Tofani admitted that they were sick of her, that they wanted to leave her, and that she should go back to Florida. There was also discussion between the three that she should be “roughed up” and that a woman like her should be raped, beaten, and killed.

[¶ 42.] When Tofani was asked about these remarks during his interrogation, he explained that it was Stone who said that a woman like that should be beaten, raped, and killed. Reiner responded with, “there should be a place you could take ‘em and have that done.” But Reiner went further, saying that he “had no problem doing it,” he “would take care of it”; he would go over to her motel room and “take care of it.” Tofani confirmed to police that Reiner made these remarks to him. And sometime later that day, although he minimizes its significance, Tofani showed Reiner what room C.M. was staying in. At one point, Tofani even gave Reiner C.M.’s room key. He later told police he did this so that Reiner could turn it in at the motel office. Stone took the key back because, according to Tofani, he and Stone became concerned about C.M.’s safety.

[¶ 43.] Reiner’s testimony on Tofani’s participation was inconsistent. On the one hand, Reiner stated many times that there was no specific conversation where he was asked to harm C.M., but that it was his “assumption” that his attack on C.M. was what Tofani wanted. Nonetheless, on direct examination, he testified that Tofani said to him that he had “paid for her.” Reiner emphasized: “I mean, we talked about that in the bar that I’d paid for her.” The court found that Reiner was a liar, but nonetheless did not discount all his testimony.

[¶ 44.] Did Tofani have the intent to promote or facilitate the assault and rape of C.M.? Criminal intent describes a condition of the mind. Those who unwittingly aid a perpetrator do not become aiders and abetters when they later learn of the perpetrator’s criminal purpose. People v. Nguyen, 21 Cal.App.4th 518, 26 Cal. Rptr.2d 328, 336 (1993). Did Tofani unwittingly reveal information about his fiancée that later exposed her to harm?

[¶ 45.] Circumstantial evidence is critically important in these types of cases because a state of the mind is rarely proved by direct evidence. United States v. Smallwood, 443 F.2d 535, 541 (8thCir.1971); United States v. Prionas, 438 F.2d 1049, 1053 (8thCir.1971), cert. denied, 402 U.S. 977, 91 S.Ct. 1683, 29 L.Ed.2d 144 (1971). Viewed in a light most favorable to the prosecution, the evidence revealed that Tofani not only knew of Reiner’s criminal purpose, he instigated it. From Tofani and Stone, Reiner learned that C.M. was alone and vulnerable. And they said much more. Tofani told Reiner that he wanted to rid himself of his fiancée, that she was a “crack whore” available for easy sex, someone to be “roughed up and sent out of town.” Tofani admitted that terms such as “beaten” and “raped” were used, although they did not come from his mouth. Reiner responded by saying that he “had no problem doing it,” and he “would take care of it.” Reiner testified that Tofani told Rein-er that he had “paid for her.” Thereafter, Tofani showed Reiner where C.M. was staying and even momentarily gave Reiner her room key. Although Reiner testified that Tofani never directly told him to do anything, and he only “assumed” that what he did was what Tofani wanted, the court was not bound to accept Reiner’s testimony undigested. It could use its judgment and experience in concluding that no explicit direction was necessary, that what was to be done was understood.

[¶ 46.] We conclude, based on all the evidence, both circumstantial and direct, that a rational trier of fact could reasonably infer that Tofani knowingly assisted in the commission of these crimes. Brings Plenty, 490 N.W.2d at 268; Schafer, 297 N.W.2d at 476. Giving due deference to the trial court’s credibility findings, and considering the proof in a light favorable to the State, there was sufficient evidence to sustain the guilty verdicts for aiding and abetting aggravated assault and rape.

[¶ 47.] Affirmed.

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

[¶ 49JSABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 50.] I dissent because there is no evidence in the record which, even “if believed by the [trial court], is sufficient to sustain a finding of guilt beyond a reasonable doubt.” State v. Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d 301, 305. In fact, the majority uses Tofani’s distasteful and derogatory comments as sufficient evidence of guilt beyond a reasonable doubt of aiding and abetting aggravated assault and rape.

[¶ 51.] The evidence in this case proved that Tofani and Stone made distasteful and derogatory remarks about C.M. to a stranger they met at a bar. Little did they know, the stranger (Reiner), fantasized about committing violent sexual acts against women. By the time Tofani became suspicious of Reiner, Reiner was already on his way back to Mitchell. While this evidence shows Tofani’s conduct was lewd and careless, it is not sufficient to sustain a finding of guilt beyond a reasonable doubt that he intended to “promote or facilitate the commission of a crime.” See SDCL 22-3-3.

[¶ 52.] The majority supports much of its decision with the testimony of Reiner, who the trial court found was not credible and a very sick man. In addition to Rein-er’s inability to tell the truth, the State offered no evidence that Tofani made any statements with the intent that Reiner rape and assault C.M. Instead, Reiner testified on cross-examination:

Q: John Tofani never specifically asked you to harm [C.M.] in any way, did he?
A: That is correct.
Q: And Tim Stone never specifically asked you to harm [C.M.] in any way, did he?
A: That is correct.

As to Tofani pointing out the motel room where he and C.M. were staying, Reiner testified that they were driving past the motel and Tofani “might of said they were in the last room.... ”

[¶ 53.] As the majority recognizes, the trial court’s findings are contradictory. Majority Opinion ¶ 40. The definition of aiding and abetting requires a defendant to act with the intent of promoting or facilitating the commission of a crime. See SDCL 22-3-3. The acts the State alleged constituted aiding and abetting were Tofa-ni’s statements about C.M. and his divulging certain facts, all of which occurred in Mitchell. However, the trial court found that Tofani did not become aware that Reiner was “serious” until sometime during the trip to Sioux Falls. Majority Opinion ¶ 39. This finding completely contradicts the State’s allegation that Tofani made these comments and divulged these facts with the intent to aid and abet or facilitate Reiner in the rape and assault of C.M.

[¶ 54.] More importantly, the evidence at trial was clear that Reiner did not form the intent to commit the offenses until after he left Tofani and Stone in Sioux Falls and began traveling home to Alexandria. How could Tofani be guilty beyond a reasonable doubt for aiding and abetting a crime Reiner had not contemplated until after he left Tofani and Stone?

[¶ 55.] Another defect in the State’s case is that the trial court dismissed the charge against Tofani for aiding and abetting the crime of kidnapping. As a practical matter, the evidence for aiding and abetting the crime of kidnapping was comparable to the evidence of aiding and abetting the crimes of aggravated assault and rape. The fact is that the evidence on all three crimes was insufficient to prove guilt beyond a reasonable doubt for any of the three crimes.

[¶ 56.] A fair review of the evidence, even under the most deferential standard of review, shows the State failed to prove every element of the crimes beyond a reasonable doubt, especially when, according to the trial court, Reiner was not a credible witness.

[¶ 57.] The fact that Tofani was coarse and careless in his comments concerning C.M. is not sufficient evidence of guilt beyond a reasonable doubt for aiding and abetting. Likewise, the fact that Tofani eventually became suspicious about Reiner is insufficient to prove that Tofani had the requisite knowledge or intent to support convictions of aiding and abetting. Rather than parse selected facts from the testimony of a liar and rapist, or attempt to make sense of the trial court’s contradictory findings, we should reverse Tofani’s convictions for aiding and abetting aggravated assault and rape. State v. Motzko, 2006 SD 13, ¶ 26, 710 N.W.2d 433, 441 (Sabers, J., dissenting) (when the evidence falls short of sustaining a finding of guilt beyond a reasonable doubt, “we should not hesitate to reverse”).

      . This receipt would establish that Tofani was in Sioux Falls at the time C.M. was kidnapped and raped. In closing argument, the state's attorney argued that Tofani’s keeping this receipt was a conscious effort to build an alibi for himself.

      . At the suppression hearing the State represented that video disk six was forty-five minutes of silence because the defendant and the officers were retrieving the receipt from his motel room. Defense counsel stipulated to this, and the court never listened to disk six. Unknown to the court, the State, or the defense, disk six actually contains about fourteen minutes of interrogation. The interrogation began when Detective Konrad brought Tofani back after retrieving the receipt. But, we find nothing exculpatory or indicative of coercion by the police evidenced by the information on disk six.

      . Indeed, we needed the assistance of our technical staff to get the CDs to work.

      . It was during this hearing that the State requested permission to move ahead through the parts of the recording that were mere silence. Tofani's counsel agreed as long as the times this happened were stipulated to. As a result, when the State said that disk six was forty-five minutes of silence, the defense so stipulated and disk six was not played for the court. The existence of information on disk six does not result in an abuse of discretion by the trial court. It was Tofani’s counsel who chose not to take advantage of the opportunity to hire an expert or view the originals.

      . Even though all seven CDs were entered into evidence for the suppression hearing, only CD three (from twelve minutes through thirty-seven minutes) and CD seven (from four minutes and thirty-six seconds up through ten minutes and fifty-one seconds) were entered into evidence in the trial. There were other exhibits offered by the State and the defense, however, they are not pertinent to the court’s verdict.

      . For example, Reiner knew C.M. was from Florida, had a terrible past there, and was fearful of returning. Reiner also had reason to believe C.M.’s mother had money and would pay a ransom if Reiner demanded.

      . From reading the entirety of the court’s findings, it is apparent that he meant to say “when they left for Sioux Falls” not "left Sioux Falls” because Tofani and Reiner did not leave Sioux Falls together.

      . Defense counsel argued at trial that Reiner's testimony required corroboration. SDCL 23A-22-8 provides:
      A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.
      We think that Tofani’s admissions provided sufficient corroboration.

      . Direct examination Reiner:

      Q: Did you ever get the perception you were dealing with any con men?
      A: Did I have that perception, yes, I do believe I did. But I thought I was smarter than that, so.

      Q: Does either Mr. Tofani or Mr. Stone ever make any statements to you about doing whatever you wanted with [C.M.]?

      A: It came up once before in the Sudz bar, but I hadn’t, I hadn’t paid a whole lot of mind to a lot of the conversation that was going on because, like I said, I was pretty down on myself and drinking, and somebody else had it worse than I did, I thought, you know. My intentions were to help these two guys out. Not to — not this, okay.

      Q: Would it be fair to say the stop back at the motel and picking up [C.M.] and events that followed that be part of helping them out?
      A: I believe it would have helped them out, yes. 'Cause I believe they wanted her run out of town. I mean they wanted her back in Florida. That was the opinion I had gained through the night, okay.

        Q: John Tofani ever make any statements to you alluding to or hinting at any future activities or interaction you might have with [C.M.]?

      A: Everything that I was on assumption, okay. I assumed that it was—
      THE COURT: That’s a yes-or-no question.
      THE WITNESS: Yes.
      Q: And what statement did he make to you, Wade.
      A: That I had paid for her. I mean, we talked about that in the bar that I’d paid for her.
      On cross examination, Reiner testified:

      Q: And there were no strings attached to you giving them a ride to Sioux Falls; is that correct?
      A: That’s correct too. My intent was to help 'em out. I had' — they had nothing to give back in return, so I was just helping.
      Q: And in fact, you never bought [C.M.] from them, did you.
      A: No.

      Q: John Tofani never specifically asked you to harm [C.M.] in any way, did he?
      A: That is correct.
      Q: And Tim Stone never specifically asked you to harm [C.M.] in any way, did he?
      A: That is correct.
      Q: And isn't it true that [Tofani] never paid you to harm [C.M.]?
      A: That is correct also.
      Q: And [Stone] never paid you to harm [C.M.] too?
      A: That’s correct also.
      Q: In fact, there was never any specific discussion with [Tofani or Stone] regarding paying them — them paying you or you paying them to do anything with [C.M.]?
      A: That is correct.

      Q: In fact, you had no intentions of even returning to Mitchell that day, did-you?
      A: That is correct.

      Q: But somehow you ended up in Mitchell, is that right?
      A: That's correct.
      Q: But you really cannot explain why?
      A: No, I can't explain why. I ask myself that question every day how I ended up there.”
      On redirect examination, Reiner testified:
      Q: Mr. Tofani's statement to you on the way to Sioux Falls that you'd paid for it, you can do anything you wanted with it was not as a result of this transaction or anything—
      A: That's correct.
      Q: Or anything that you expected; right? A: That is correct.
      Q: Or offered by him?
      A: That is correct. Not accepted.
      Q: Was there any doubt in your mind after that is five hours of — or so of conversation with Mr. Tofani and Mr. Stone that they intended to have something done with [C.M.]?
      * * *
      A: That was my assumption, but like I said there was a lot of alcohol involved— Q: Sure.
      A; — at the time so it was my assumption. Q: And that something was to be done was to ensure that she did not accompany them further; is that right?
      A: That was also my assumption.
      Q: Based on the way the conversation went—
      A: Based on the conversation.
      Q: And based on Mr. Tofani's statements in part?
      A: Yes. And Mr. Stone’s.

      . Police recovered pornographic images from Reiner depicting a woman bound at her wrists and ankles.

      . On direct examination by the State, Reiner testified:
      Q: What brought you back to Mitchell?
      A: What brought me back to Mitchell, I’m still trying to figure that one out myself. Similarly, on cross-examination Reiner testified:
      Q: In fact, you had no intentions of even returning to Mitchell that day, did you?
      A: That is correct.


source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    In the Matter of S.P., Alleged to Be a Chronic Substance Abuser, S.P., Appellant.
    No. 05-0980.
    Supreme Court of Iowa.
    June 9, 2006.

      Stuart G. Hoover of Blair & Fitzsim-mons, P.C., Dubuque, for appellant.
   STREIT, Justice.

Even though the court interceded with an effort at finding the truth, it improperly adopted an adversarial role in the proceedings. S.P. appeals from the district court order finding she was a chronic substance abuser and placing her in a residential treatment facility. She contends her due process rights were violated because the referee and district court judge took adversarial roles in the proceedings, and because the district court ordered her attorney to subpoena witnesses adverse to her interests. She also claims the court erred in finding she met the statutory definition of a chronic substance abuser. Because we find the district court assumed an adversarial role in the proceeding, we reverse the decision of the district court and do not address S.P.’s other arguments.

I. Background Facts and Proceedings

S.P. is a forty-five year old female with serious health problems. She has had one heart attack and suffers from coronary artery disease, hypertension, diabetes, and obesity. She also suffers from severe respiratory problems that make her dependent on oxygen. On March 15, 2005, her brother and sister-in-law (hereinafter “applicants”) filed an application under Iowa Code section 125.75 (2005) alleging S.P. was a chronic substance abuser who needed to be taken into immediate custody for her cocaine addiction. A substance abuse commitment hearing was held before a hospitalization referee on March 18, 2005. The applicants were not represented by counsel at the hearing, and no member of the Dubuque County Attorney’s office attended the hearing. The referee questioned the two applicants and the examining physician. S.P.’s attorney cross-examined each witness. S.P. also testified, but was not cross-examined by the referee. At the end of testimony, the hospitalization referee found that S.P. met the criteria for chronic substance abuse with a crack cocaine addiction. The referee ordered that she reside at the Julien Care Facility for complete evaluation and appropriate treatment.

S.P. appealed the referee’s decision to the district court. At the district court hearing, S.P. demanded a “trial de novo” pursuant to Iowa Code section 229.21(3)(c), instead of a review based upon the transcripts of the referee’s hearing. The district court judge ordered that a new hearing be scheduled so that the witnesses could be re-examined.

At the start of the second hearing, S.P.’s attorney objected and made a motion to dismiss based on the fact that there was no one to “prosecute” the ease. The judge denied this motion. The district court judge proceeded to question the two applicants and, via telephone, the examining physician who had testified at the hearing before the hospitalization referee. S.P.’s attorney cross-examined each witness. S.P. also testified, but was not cross-examined by the judge. On May 10, 2005, the court issued an order affirming the ruling of the hospitalization referee.

S.P. appeals, contending her right to due process was violated because the referee and district court judge became the applicants’ attorneys and presented evidence in their stead. No person or party has filed a brief opposing this appeal.

In June of 2005, S.P.’s commitment was changed from inpatient to outpatient status. S.P. soon suffered a relapse, and a new hearing was held before a hospitalization referee on July 11, 2005. Once again, a referee concluded S.P. was a chronic substance abuser and ordered her back to inpatient status. This appeal concerns only the May 10, 2005 initial commitment order.

II. Mootness

An appeal “ ‘is moot if it no longer presents a justiciable controversy because [the contested issue] has become academic or nonexistent.’ ” In re D.C.V., 569 N.W.2d 489, 494 (Iowa 1997) (quoting In re Meek, 236 N.W.2d 284, 288 (Iowa 1975)). We do not decide cases when there is no longer any actual controversy, unless we exercise our discretion and decide the case under an exception to the mootness doctrine. Rhiner v. State, 703 N.W.2d 174, 176-77 (Iowa 2005). The factors we consider to determine whether we will review a moot action are:

(1) the private or public nature of the issue; (2) the desirability of an authoritative adjudication to guide public officials in their future conduct; (3) the likelihood of the recurrence of the issue; and (4) the likelihood the issue will recur yet evade appellate review.

In re T.S., 705 N.W.2d 498, 502 (Iowa 2005) (citing State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002)).

The conduct of the court in an involuntary civil commitment hearing is of public importance. Because such hearings are a daily occurrence, questions about the proper procedures to be followed when the applicant is not represented by counsel are likely to reoccur. Also, given the time elements involved in processing an appeal, and the strong probability that the commitment will not continue for the length of the appeal process, such appeals will often be moot before the appeal can be decided. In re M.T., 625 N.W.2d 702, 705 (Iowa 2001); see also Tyars v. Finner, 709 F.2d 1274, 1280 (9th Cir.1983) (holding court would review case despite appellant’s discharge from hospital because involuntary civil commitments “ ‘do not last long enough for complete judicial review of the controversies they engender’ ” (quoting Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 126, 94 S.Ct. 1694, 1700, 40 L.Ed.2d 1, 10 (1974))). Therefore, we exercise our discretion to reach the merits of one issue raised in this appeal.

III. Merits

A. Standard of Review

A civil commitment requires due process because it constitutes a significant deprivation of personal liberty. In re M.T., 625 N.W.2d at 706 (citing Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323, 330-31 (1979)). We review constitutional claims de novo. In re Cubbage, 671 N.W.2d 442, 444 (Iowa 2003).

B. Procedural Process in a Civil Commitment Hearing

Chapter 125 of the Iowa Code addresses the issue of chemical substance abuse. Under our statutory scheme, any interested person may commence commitment proceedings by filing an application for the involuntary commitment or treatment of an alleged chronic substance abuser. Iowa Code § 125.75. Upon the filing of the application, the clerk of court dockets the case and immediately notifies a district court judge, a district associate judge, or magistrate who is admitted to the practice of law. Id. § 125.77. The court then schedules a hearing not less than forty-eight hours after notice of the application is served upon the respondent. Id. § 125.78(3)(a.). If the applicant requests a court-appointed attorney, the court is required to appoint one at the county’s expense so long as it determines the applicant is financially unable to employ an attorney and a court-appointed attorney “is necessary to assist the applicant in a meaningful presentation of the evidence.” Id. § 125.78(2).

Section 125.82(4) sets forth the procedures for the commitment hearing:

The respondent’s welfare is paramount, and the hearing shall be tried as a civil matter and conducted in as informal a manner as is consistent with orderly procedure. Discovery as permitted under the Iowa rules of civil procedure is available to the respondent. The court shall receive all relevant and material evidence, but the court is not bound by the rules of evidence. A presumption in favor of the respondent exists, and the burden of evidence and support of the contentions made in the application shall be upon the person who filed the application. If upon completion of the hearing the court finds that the contention that the respondent is a chronic substance abuser has not been sustained by clear and convincing evidence, the court shall deny the application and terminate the proceeding.

(Emphasis added.)

In order to commit someone as a chronic substance abuser, the referee or district court has to find by clear and convincing evidence that the person:

a. Habitually lacks self control as to the use of chemical substances to the extent that the person is likely to seriously endanger the person’s health, or to physically injure the person’s self or others, if allowed to remain at liberty without treatment.
b. Lacks sufficient judgment to make responsible decisions with respect to the person’s hospitalization or treatment.

Id. § 125.2(4).

In the present case, the applicants completed a fill-in-the-blank application form alleging chronic substance abuse. The applicants signed the application and attached statements and affidavits corroborating their allegations.

Upon reviewing the application, the district court judge issued an order that S.P. be taken into immediate custody. The judge also appointed counsel for S.P., ordered a physician to examine her, and set the date and time for a commitment hearing before a hospitalization referee.

The applicants did not hire an attorney to assist them at the hearing. Likewise, the Dubuque County Attorney’s office did not participate in either hearing and did not present evidence on behalf of the applicants. Not surprisingly, the co-applicants did not take an active role at the hearing. They simply stood silent as the referee took charge of the proceeding.

C. Were S.P.’s Procedural Due Process Rights Violated?

S.P. contends her right to due process was violated because the district court judge took on an adversarial role when questioning the witnesses, in effect becoming the applicants’ attorney and presenting evidence in their stead. She argues her due process rights were violated because the nature and extent of the court’s questions rose to the level of advocacy.

The issue of a referee taking on an adversarial role during an involuntary commitment hearing was brought before this court in In re R.P., 606 N.W.2d 15 (Iowa 2000). In R.P., the applicant was not represented by counsel and the trier of fact examined the witnesses on the applicant’s behalf. 606 N.W.2d at 15-16. Similar to the case at hand, the respondent appealed the referee’s civil commitment finding to this court, claiming he was denied due process because the referee took on an adversarial role by questioning the witnesses. Id. at 16. We disagreed, finding the respondent was not denied due process because “the referee did not display any evidence of becoming an advocate by such actions as extensive questioning, leading of the witness, or cross-examination of the respondent.” Id. at 17.

The record in the present case simply does not display what Edmund Burke described as “the cold neutrality of an impartial judge.” See State v. Glanton, 231 N.W.2d 31, 35 (Iowa 1975). Instead, we have a district court judge trying to elicit testimony that will support the applicants’ burden of proof. While we empathize with the court’s strong desire to aid the unrepresented applicants and do what is best for S.P., it is, as we stated in State v. Glanton, “ordinarily a dangerous practice for a presiding judge to contribute his efforts in an attempt to equalize what he perceives to be disparity in the trial ability of opposing counsel.” Id. Even though the court did not become a cheerleader or partisan for the applicants, the court assumed an adversarial role in the process by picking and choosing which evidence would come in on behalf of the applicants. In the process of searching for such evidence, the court marshaled the evidence towards the definition of a chronic substance abuser. This focused questioning changed the court’s role from an impartial decision-maker to an advocate.

We hold today that an analysis based solely upon the nature of the questions asked by the referee or district court judge is not wholly determinative of the issue of advocacy. We cannot provide the trial court a cookbook of right or wrong questions, but merely observe that any effective questioning will inevitably lead to the heart of the case. When the court itself directs the ease in this way it is marshaling or assembling the evidence. Artfully crafted questions will not hide the court’s role in the proceedings at that point — the role of deciding what evidence is needed to prove the case and steering the case down that road.

R.P. exemplified the rare situation where witnesses, answering a few open-ended questions with narrative testimony, were able to articulate enough clear and convincing evidence to convince the court that a civil commitment was necessary. But in many cases the applicant’s narrative testimony, along with the unguided narrative testimony of the examining physician, will be insufficient for a civil commitment. In those situations the court is prohibited from assuming the role of an advocate. As noted above, when the court takes an active role by examining witnesses on the applicant’s behalf, it begins to take on the attributes of an advocate. Therefore, when faced with pro se applicants in a civil commitment proceeding, the referee or district court is advised to either appoint an attorney at the county’s expense under the guidelines of Iowa Code section 125.78(2) or warn the applicant at the outset that the applicant will have to prove his or her case without assistance from the court.

IV. Disposition

The trial court tried to do what was best for the health and well-being of S.P. However, S.P. was denied due process when the court became an advocate for the applicants. Although we reverse, we do not remand for a new hearing since S.P. is no longer subject to the May 10, 2005 inpatient order. Any subsequent substance abuse commitment orders pertaining to S.P. remain unchanged by this decision.

REVERSED.

      . An order of a magistrate or judicial hospitalization referee finding that a person is a chronic substance abuser may be appealed to the district court. Iowa Code § 229.21. "When appealed, the matter shall stand for trial de novo,” and the court shall schedule the hearing before a district judge at the earliest practicable time. Id. § 229.2 l(3)(c ).
      There are significant differences between a "trial de novo” and a "de novo review.” See In re Huston, 263 N.W.2d 697, 699 (Iowa 1978). Generally, in a "de novo review” proceeding, the reviewing court is restricted to the record made in the lower tribunal. Sieg v. Civil Serv. Comm’n, 342 N.W.2d 824, 828 (Iowa 1983); Mason v. World War II Serv. Compensation Bd., 243 Iowa 341, 344, 51 N.W.2d 432, 434 (1952). On the other hand, "in a trial de novo, the court hearing the case anew is permitted to receive evidence additional to that presented” in the earlier hearing. Dolan v. Civil Serv. Comm'n, 634 N.W.2d 657, 662 (Iowa 2001); Mason, 243 Iowa at 344-45, 51 N.W.2d at 434. Therefore, a statute providing for a "trial de novo” in the district court contemplates a trial in the general meaning of the term, not merely a review of the agency proceeding. Dolan, 634 N.W.2d at 662.

      . The application form filled out by the applicants did not contain a box requesting that the court appoint an attorney for the applicants. See Iowa Code § 125.78(2) (outlining procedures whereby an applicant can request the court to appoint an attorney, at the county’s expense, for the applicant).

      . Because the district court held a trial de novo in this case, we focus our attention solely on the district court proceeding.

      . The authority of a judge to question witnesses is well established. See, e.g., Fed. R.Evid. 614(fc); Iowa R. Evid. 5.614(⅛). "The authority is, of course, abused when the judge abandons his proper role and assumes that of advocate.” Fed.R.Evid. 614 advisory committee’s note to subdivision b.

      . Of course, a third option would be for the county attorney to join in the application as a co-applicant. See In re T.S., 705 N.W.2d at 504. Also, as of July 1, 2006, Iowa Code section 125.82 has been modified to provide "evidence in support of the application may be presented by the applicant, or by an attorney for the applicant, or by the county attorney.” 2006 Iowa Legis. Serv. S.F. 2362 (West) (emphasis added).


author: LARSON, Justice.

text:
    James PARISH II, Individually and as Parent and Next Friend of James Parish III, a Minor Child, Appellant, v. ICON Health & Fitness, INC. Defendant, JUMPKING, INC., Appellee.
    No. 04-1544.
    Supreme Court of Iowa.
    July 21, 2006.

      Martin A. Diaz, Iowa City, for appellant.
    Michael D. Ensley of Hanson, Bjork <& Russell, L.L.P., Des Moines, for appellee.
   LARSON, Justice.

James Parish was severely injured while using a trampoline manufactured by the defendant, Jumpking, Inc. Parish sued Jumpking on theories of defective design of the trampoline and negligence in failing to warn of the danger in using it. The defendant moved for summary judgment, which was granted, and the plaintiff appealed. We affirm.

I.Facts and Prior Proceedings.

In June of 1999, Delbert Parish (the plaintiffs brother) and Shelley Tatro purchased a Jumpking fourteen-foot trampoline for use in their backyard. They set up the trampoline, and Delbert tried it out by attempting a somersault. He nearly fell off the trampoline, prompting Delbert and Shelley to purchase a “fun ring” — a netlike enclosure with one entry point onto the trampoline. While the plaintiff was visiting his brother on September 11, 1999, he attempted to do a back somersault on the trampoline, but he landed on his head and was rendered a quadriplegic. In August 2001 Parish filed suit, on his own behalf and on behalf of his minor son, against Jumpking, as designer and manufacturer of the trampoline and its enclosure.

II. The Issues.

The district court entered summary judgment against the plaintiff on all claims, and he argues on appeal that this was error because there were genuine issues of material fact on his design-defect claim and on the adequacy of Jumpking’s warnings. He also contends that the “open and obvious” defense is not applicable to a design-defect case, and in any event, there was an issue of material fact as to its application here.

III. Principles of Review.

We review the granting of a motion for summary judgment for correction of errors at law. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000). Summary judgment is appropriate when there is no genuine issue of material fact, and the burden of showing the lack of a genuine issue is on the moving party. Fischer v. UNIPAC Serv. Corp., 519 N.W.2d 793, 796 (Iowa 1994). A fact is material if it will affect the outcome of the suit, given the applicable law. Id. An issue of fact is “genuine” if the evidence is such that a reasonable finder of fact could return a verdict or decision for the non-moving party. Junkins v. Bmnstad, 421 N.W.2d 130, 132 (Iowa 1988). The evidence is viewed in the light most favorable to the nonmoving party. Fischer, 519 N.W.2d at 796. If the moving party can show that the nonmoving party has no evidence to support a determinative element of that party’s claim, the moving party will prevail in summary judgment. The nonmoving party in a summary judgment motion “may not rest upon the mere allegations or denials in the pleadings.” Iowa R. Civ. P. 1.981(5). In a nutshell, the summary judgment procedure does not contemplate that a district court may try issues of fact, but must determine only whether there are issues to be tried.

IV. The Defective Design Claim.

In Wright v. Brooke Group Ltd., 652 N.W.2d 159 (Iowa 2002), we adopted sections 1 and 2 of the Restatement (Third) of Torts: Products Liability [hereinafter Restatement]. Section 2 of the Restatement recognizes three types of product defect:

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:
(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe[.]

The plaintiffs first argument is that the district court erred in granting summary judgment on his design-defect claim under section 2(b). Under a design-defect claim, a plaintiff is essentially arguing that, even though the product meets the manufacturer’s design specifications, the specifications themselves create unreasonable risks. To succeed under section 2(b), a plaintiff must ordinarily show the existence of a reasonable alternative design, Wright, 652 N.W.2d at 169, and that this design would, at a reasonable cost, have reduced the foreseeability of harm posed by the product. Restatement § 2 cmt. d.

The Restatement recognizes exceptions to the requirement of a reasonable alternative design, but the plaintiff relies on only one: that the design was “manifestly unreasonable” under Restatement section 2(b) comment e. Under that comment,

the designs of some products are so manifestly unreasonable, in that they have low social utility and high degree of danger, that liability should attach even absent proof of a reasonable alternative design.

The plaintiff concedes that he has not offered an alternative design; rather, he argues a trampoline is so inherently dangerous that a reasonable design alternative is not available. He contends there is no safe way to use a trampoline in a backyard, and it must be used only by properly trained and qualified participants under supervision.

The Restatement provides this illustration of a manifestly unreasonable product under comment e:

ABC Co. manufactures novelty items. One item, an exploding cigar, is made to explode with a loud bang and the emission of smoke. Robert purchased the exploding cigar and presented it to his boss, Jack, at a birthday party arranged for him at the office. Jack lit the cigar. When it exploded, the heat from the explosion lit Jack’s beard on fire causing serious burns to his face. If a court were to recognize the rule identified in this Comment, the finder of fact might find ABC liable for the defective design of the exploding cigar even if no reasonable alternative design was available that would provide similar prank characteristics. The utility of the exploding cigar is so low and the risk of injury is so high as to warrant a conclusion that the cigar is defective and should not have been marketed at all.

Restatement § 2(b) cmt. e, illus. 5.

Application of the “manifestly unreasonable” exception presents an issue of first impression in Iowa. However, the wording of section 2(b) and virtually all commentary on it suggest that this exception should be sparingly applied. In fact, such exceptions to the requirement of a reasonable alternative design were “grudgingly accepted by the Reporters,” Keith C. Miller, Myth Surrenders to Reality: Design Defect Litigation in Iowa, 51 Drake L.Rev. 549, 564 (2003), suggesting that the drafters did not intend for there to be any exceptions to this requirement. One of the reporters to the Restatement agrees:

[Bjear in mind that our comment e talks about extremely dangerous products with very low social utility. It substitutes for the qualitative problem in the general design area, a kind of quantitative solution. We admit that there may be times, and I think they’d be rare, probably non-existent, when a product might come to court, to you, that was so bad, so very outloud bad, so very antisocial, that it would tug against the very grain of the way you were raised.

James A. Henderson, Jr., The Habush Amendment: Section 2(b) comment e, 8— Fall Kan. J.L. & Pub. Pol’y 86, 86 (1998).

Suits involving common and widely distributed products are more likely than others to require the showing of a reasonable alternative. According to the Restatement,

[cjommon and widely distributed products such as alcoholic beverages, firearms, and above-ground swimming pools may be found to be defective only upon proof of [a reasonable alternative design]. If such products are [ ] sold without reasonable warnings as to their danger ... then liability under §§ 1 and 2 may attach. Absent proof of defect under those Sections, however, courts have not imposed liability for categories of products that are generally available and widely consumed, even if they pose substantial risks of harm.

Restatement § 2(b) cmt. d.

While comment e recognizes the possibility that egregiously dangerous products might be held defective for that reason alone, the Restatement has noted that “a clear majority of courts that have faced the issue have refused so to hold.” Restatement § 2, American Case Law and Commentary on Issues Related to Design-Based Liability, at 87. In this commentary, the Restatement discussed several cases imposing liability under comment e but observed that “[e]aeh of these judicial attempts at imposing such liability have either been overturned or sharply curtailed by legislation.” Id. at 89.

Under our summary judgment rules,

[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials in the pleadings, but the response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so_ respond, summary judgment, if appropriate, shall be entered.

Iowa R. Civ. P. 1.981(5) (emphasis added). As previously noted, a genuine issue of fact is presented if a reasonable fact finder could return a verdict or decision for the nonmoving party based upon those facts. Junkins, 421 N.W.2d at 132. By adopting section 2 of the Restatement in Wright, we also adopted comment e. In the present case, the issue is whether a reasonable fact finder could conclude the trampoline was manifestly unreasonable in its design within the meaning of comment e as interpreted by the commentary surrounding it and the cases applying it.

In cases involving common and widely distributed products,

courts generally have concluded that legislatures [] and administrative agencies can, more appropriately than courts, consider the desirability of commercial distribution of some categories of widely used and consumed, but nevertheless dangerous, products.

Restatement § 2(b) cmt. d.

It is undisputed that trampolines are common and widely distributed’ products. In fact, the evidence showed approximately fourteen million people use them. Even data produced by the plaintiff in his resistance to summary judgment showed that in 2002 only 2.1% of trampolines were associated with injuries, and only one-half of one percent of jumpers were injured. The Consumer Product Safety Commission, based on 1997 and 1998 injury data, concluded trampolines ranked twelfth among recreational use products in terms of injuries. They rated below such common activities as basketball, bicycle riding, football, soccer, and skating.

The benefits of trampolining include use in cardiovascular workouts and other medical treatments, including “bouncing” therapy for children with cystic fibrosis. Trampolining obviously provides valuable exercise and entertainment.

We conclude that the plaintiff has failed to generate a genuine issue of fact sufficient to except this product from the alternative-design requirement of section 2(b), and the plaintiffs design-defect claim under that section must therefore be rejected.

Y. The Warnings.

The plaintiff also claims the trampoline did not incorporate adequate warnings and- that a genuine issue of fact was generated on that issue.

Under the Restatement, a product
is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

Restatement § 2(c).

The trampoline in this case, and its surrounding fun ring, together provide numerous warnings. Three warnings are placed permanently on the pad of the trampoline and advise the user:

WARNING
Do not land on head or neck.
Paralysis or death can result, even if you land in the middle of the trampoline mat (bed).
To reduce the chance of landing on your head or neck, do not do somersaults (flips).
Only one person at a time on trampoline. Multiple jumpers increase the chances of loss of control, collision, and falling off.
This can result in broken head, neck, back, or leg.
This trampoline is not recommended for children under 6 years of age.

These warnings also include nationally recognized warning symbols cautioning against those activities. During manufacture, Jumpking also places one warning on each of the eight legs of the trampoline, and the design is such that the only way to assemble the trampoline is to have these warnings facing out so they are visible to the user. Jumpking further manufactures two printed (nonpictorial) warnings that are sewn onto the trampoline bed itself. It also provides a warning placard for the owner to affix to the trampoline that contains both the pictorial warning and the language regarding safe use of the trampoline, and it provides an owner’s manual that contains the warnings as found on the trampoline as well as additional warnings regarding supervision and education. It is undisputed that these warnings exceed the warnings required by the American Society for Testing and Material (ASTM).

Warnings are also provided with the fun ring. Jumpking provides eight warning stickers to be placed on the legs of the fun ring during assembly, and Shelley Tatro recalls installing them as directed. Jumpking provided extra warnings on the fun ring because it was aware that the fun ring may partially cover warnings on the legs of the trampoline. It also provides a warning placard with the fun ring to be placed at the door of the fun ring containing the pictorial warnings and additional language required by the ASTM. The fun ring comes with a separate owner’s manual that provides additional warnings.

The Restatement recognizes that users must pay some attention for their own safety:

Society does not benefit from products that are excessively safe — for example, automobiles designed with maximum speeds of 20 miles per hour — any more than it benefits from products that are too risky. Society benefits most when the right, or optimal, amount of product safety is achieved. From a fairness perspective, requiring individual users and consumers to bear appropriate responsibility for proper product use prevents careless users and consumers from being subsidized by more careful users and consumers, when the former are paid damages out of funds to which the latter are forced to contribute through higher product prices.

Restatement § 2 cmt. a (emphasis added).

In this case, it is undisputed that the three warnings affixed to the pad of the trampoline and the placards that came with both the trampoline and the fun ring warned against the specific conduct in which the plaintiff was engaged at the time of his injury, i.e., attempting somersaults or flips. We conclude that a reasonable fact finder could not conclude that the defendant’s warnings were inadequate, and we affirm the district court’s summary judgment on that claim.

Because we find summary judgment was properly ordered on the grounds discussed, we do not address the plaintiffs “open and obvious” argument.

AFFIRMED.

      . Parish alleges that ICON and Jumpking are affiliated in business with the design, manufacture, advertising, sale, and distribution of trampolines under the name of Jumpking and enclosures under the name of "Fun Ring.” Jumpking denies that ICON is in the business of manufacturing or designing trampolines and states that ICON was not involved in the manufacture or design of the trampoline or trampoline enclosure involved in the present incident. In view of our disposition of the case, we need not determine the extent of ICON'S involvement. Parish also sued Delbert Parish and Shelley Tatro, but those claims were dismissed prior to the summary judgment.

      . The plaintiff states in a footnote that, although he argues design defect, the facts alleged would fit manufacturing defect as well and that he merely describes them collectively as a design defect "without waiving the manufacturing defect claim.” Design and manufacturing defects are, of course, significantly different, and the plaintiff argues only the design-defect ground of liability. He has, therefore, waived any argument concerning a manufacturing defect. See Iowa R.App. P. 6.14(l)(c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed [a] waiver of that issue.”).

      . New Jersey recognizes by statute an action for an egregiously dangerous product. However, it has done so in a very limited manner. The official commentary by the New Jersey Senate Judiciary Committee indicates just how limited that exception was intended to be. The commentary notes: "It is intended that such a finding [under the exception] would be made only in genuinely extraordinary cases — for example, in the case of a deadly toy marketed for use by the young children, or of a product marketed for use in dangerous criminal activities.” N.J. Senate Judiciary Committee Statement, No. 2805-L. 1987, cl. 197.


text:
    STATE of Iowa, Appellee, v. Jimmy Dean STEVENS, Appellant.
    No. 04-2066.
    Supreme Court of Iowa.
    Aug. 4, 2006.
    Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Ann E. Brenden, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and James Katcher, Assistant County Attorney, for appellee.
   LARSON, Justice.

Jimmy Dean Stevens has appealed his conviction for criminal transmission of HIV under Iowa Code section 709C.1 (2003), alleging that the district court erred in denying his motion for judgment of acquittal. We affirm.

I. Facts and Prior Proceedings.

The evidence, when viewed in the light most favorable to the State, reveals the following facts. Stevens, the defendant, was thirty-three years old at the time of the offense. The victim, J.B., was fifteen years old. Both are homosexual and met in an internet chat room for gay men. They exchanged photographs, and according to J.B., he and Stevens engaged in some chat about their sexual preferences.

The two arranged to meet in person that night. JJB.’s mother, believing that Stevens was somehow connected with a university and could assist J.B. in getting into college, consented to Stevens’ visit. After Stevens arrived at J.B.’s house, he talked with J.B. and his mother for some time. J.B. and Stevens then went to get fast food. On the way, Stevens stopped at a Kwik Star to use the ATM machine. When he returned to the car, he said he was sexually aroused and wished someone would perform oral sex on him. Stevens drove to a dark location on a street in Waterloo where J.B. and Stevens performed oral sex on each other. Stevens ejaculated into J.B.’s mouth.

Afterwards, J.B. asked Stevens if he was clean, i.e., free from sexually transmitted diseases. Stevens represented that he was clean, and offered to pay for testing if J.B. so wished. The pair then got some food, and Stevens took J.B. home.

Upon returning home, J.B.’s mother, recognizing that they had been gone longer than necessary, informed J.B. that Stevens “looked like he was a good candidate for AIDS.” J.B. again became concerned about sexually transmitted diseases. He made himself vomit and then called Stevens, once more questioning him as to whether he was “clean.” Again, Stevens responded that he was.

In reality, Stevens was HIV positive and had been aware of this since 1990. The parties stipulated that,

[t]he Defendant, Jimmy Dean Stevens, has known since being diagnosed in 1990 that Ms human immunodeficiency virus (HIV) status is positive.

On the night of his sixteenth birthday, J.B. learned that Stevens was in fact HIV positive. J.B. eventually informed someone of his situation, pressed charges and, at the time of trial, had been tested twice for the HIV. Both results were negative.

Stevens was charged with two offenses: criminal transmission of HIV in violation of Iowa Code section 709C.1 and sexual abuse in the third degree in violation of Iowa Code section 709.4(2)(c)(4). Stevens admitted at trial that he had met J.B. online, that he sent nude pictures of himself to J.B., and that he met J.B. in person on the evening in question. He also admitted that he did not tell J.B. about his HIV positive status, as he did not see the need to. However, he denied that he knew J.B. was only fifteen years old when he emailed the nude photographs of himself, that he and J.B. talked online about their sexual preferences, and that he intended to or had any sexual encounter with J.B.

When the State rested, and again at the conclusion of the trial, Stevens moved for judgment of acquittal, alleging insufficient evidence to support both counts. The motion was denied. The jury subsequently found Stevens guilty of both charges, and he was sentenced to twenty-five years on the criminal-transmission-of-HIV charge and ten years on the sexual-abuse charge. They were ordered to run consecutively. Stevens now appeals his conviction for the criminal transmission of HIV, again arguing that insufficient evidence exists to support the conviction.

II. Scope of Review.

We will affirm the denial of a motion for judgment of acquittal if substantial evidence in the record supports each element of the offense challenged by the defendant. State v. Sayles, 662 N.W.2d 1, 3 (Iowa 2003). Evidence is substantial if it would convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. Id. In making this assessment, this court considers all the evidence and views it in the light most favorable to the State. Id.

III. Analysis.

The sole issue on this appeal is the sufficiency of the evidence to support a conviction of criminal transmission of HIV. Specifically, Stevens challenges the evidence supporting the element of the charge, which requires that he engaged in “intimate contact” with another person. See Iowa Code § 709C.l(l)(a). Stevens characterizes the issue as presenting two questions:

1. May fellatio (oral sex) be performed “in a manner that could result in the transmission” of HIV? and
2. Did the State prove that fellatio was so performed in this case beyond a reasonable doubt?

Under Iowa law, a person who knows that he or she is HIV positive commits a crime when that person engages in intimate contact with another person. See Iowa Code § 709C.l(l)(a). “Intimate contact” is defined as,

the intentional exposure of the body of one person to a bodily fluid of another person in a manner that could result in the transmission of the human immunodeficiency virus.

Iowa Code § 709C.1(2)(6).

The jury was instructed as follows:
The State must prove all of the following elements of Criminal Transmission of Human Immunodeficiency Virus (HIV) as alleged in Count I:
1. Between July 1, 2003, and September 11, 2003, the defendant engaged in intimate contact with [J.B.].
2. At that time the Defendant’s HIV status was positive.
3. The defendant knew his human immunodeficiency virus (HIV) status was positive.
4. At the time of the intimate contact, [J.B.] did not know that the defendant had a positive HIV status.
If the State has proved ... all of these elements, the defendant is guilty of Criminal Transmission of Human Immunodeficiency Virus. If the State has failed to prove any one of the elements, the defendant is not guilty.

The jury instruction defining intimate contact mirrored the legislative definition and informed the jury that the State need not prove that the person exposed actually became infected with the HIV.

It is well established that the State bears the burden of proving beyond a reasonable doubt every element of the crime charged. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970) (“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”); accord State v. McMullin, 421 N.W.2d 517, 519 (Iowa 1988). The jury was instructed on this principle. Thus, the State was required to prove, as an element of the crime charged, that “intimate contact” took place, i.e., that (1) there was an intentional exposure of the body of one person to a bodily fluid of another person, and (2) this occurred in a manner that could result in the transmission of the HIV.

Stevens acknowledges that, in State v. Keene, 629 N.W.2d 360 (Iowa 2001), this court took judicial notice of the fact that the HIV can be transmitted through bodily fluids. See Keene, 629 N.W.2d at 365. However, he argues that Keene can be distinguished because Keene involved a guilty plea and therefore relieved the State of its burden of proof in that case. See State v. Young, 293 N.W.2d 5, 7 (Iowa 1980) (“A plea of guilty, if voluntarily and intelligently made, relieves the prosecution of the burden of proving any facts necessary to support the conviction.”) (citation omitted). Given that this relief was not available to the State in the present case, as Stevens denied that “intimate contact” took place, Stevens argues that Keene does not apply and that the State was required to introduce evidence on the “intimate contact” element.

The State argues that the significance of Keene, in taking judicial notice of the methods of transmission of the HIV, is in giving voice to what is common knowledge — that the HIV can be transmitted via semen and other bodily fluids and that sexual intercourse is a common method of transmitting the virus. The existence of this common knowledge is not dependent upon a guilty plea/nonguilty plea distinction. The State believes that, in light of Keene and its conclusion that the statute was sufficient to give notice of what acts were prohibited, the jury can be assumed to have the knowledge, common sense, and collective intelligence to know that oral sex resulting in ejaculation could result in the transmission of the HIV.

The district court reasoned as follows:

Further, then, with respect to the suggestion that there must be causative proof, the Court looks to the decision of the Supreme Court in State vs. Keene .... On page 365 the Court, among other things, states: We take judicial notice of the fact that the HIV may be transmitted through contact with an infected individual’s blood, semen or vaginal fluid, and that sexual intercourse in that case is one of the most common methods of passing the virus.

We agree with the State’s position and the conclusion of the district court. In Keene we took judicial notice of “the fact that the HIV may be transmitted through contact with an infected individual’s blood, semen or vaginal fluid, and that sexual intercourse is one of the most common methods of passing the virus.” Keene, 629 N.W.2d at 365. “To be capable of being judicially noticed, a matter must be of common knowledge or capable of certain verification.” Motor Club of Iowa v. Dep’t of Transp., 251 N.W.2d 510, 517 (Iowa 1977); see also 22A C.J.S. Criminal Law § 658, at 302 (1989) (“Courts take judicial notice of facts within the common experience or knowledge of every person of ordinary understanding and intelligence, and of such things as are, or generally should be, known in their respective jurisdictions. A fact may be judicially noticed where it is so universally and commonly known as to carry its own indicia of correctness .... ”). Therefore, only facts to which sufficient notoriety attach so as to make it safe and proper to assume their existence without specific proof should be judicially noticed. State v. Ladd, 252 Iowa 487, 490 106 N.W.2d 100, 101 (1960). By taking judicial notice in Keene that certain bodily fluids can transmit the HIV and that sexual intercourse is a manner of transmission of the HIV, we acknowledged what is, in fact, common knowledge. Therefore, the significance of Keene lies not in the underlying basis of the case, i.e., whether a plea of guilty or not guilty was entered, but in its recognition of what is clearly common knowledge in today’s society. See Keene, 629 N.W.2d at 365 (“any reasonably intelligent person is aware it is possible to transmit HIV during sexual intercourse, especially when it is unprotected”).

Admittedly, Keene referenced “sexual intercourse” as the manner of transmission of the virus, as the case involved potential transmission via vaginal intercourse. “Sexual intercourse” has not been defined by our legislature. In that situation, we look to the common meaning of the phrase. State v. Tesch, 704 N.W.2d 440, 451 (Iowa 2005). “The dictionary provides a ready source for the common meaning of a word or phrase.” Id. Webster’s dictionary defines “sexual intercourse” as:

1: heterosexual intercourse involving penetration of the vagina by the penis: coitus 2: intercourse involving genital contact between individuals other than penetration of the vagina by the penis.

Webster’s Third New International Dictionary 2082 (unabridged 1986). Under this definition, Keene should be read as taking judicial notice of the very issue before this court, i.e., sexual intercourse may be committed through oral sex. In any event, oral sex is a well-recognized means of transmission of the HIV. See People v. Russell, 158 Ill.2d 23, 196 Ill.Dec. 629, 630 N.E.2d 794, 795 (1994) (court took judicial notice that intimate sexual contact whereby blood or semen of an infected person is transferred to an uninfected person is a primary method of spreading the infection); People v. Dempsey, 242 Ill.App.3d 568, 182 Ill.Dec. 784, 610 N.E.2d 208, 223 (1993) (“In the instant case, defendant placed his penis in the mouth of the victim and ejaculated semen. Defendant acknowledged that semen is a bodily fluid well known as a transmitter of the HIV. Oral sexual intercourse is a penetrative sexual contact which is recognized as allowing transmission of the virus. Thus, defendant clearly exposed the body of another to his bodily fluid in a manner that could result in the transmission of HIV.” (Emphasis added.)); Recreational Devs. of Phoenix, Inc. v. City of Phoenix, 83 F.Supp.2d 1072, 1101 (D.Ariz.1999), aff'd, 238 F.3d 430 (9th Cir.2000) (“It is common knowledge that engaging in sexual intercourse and oral sex without the use of condoms place people at risk for sexually transmitted diseases, including HIV/ AIDS.”); see also Alan Stephens, Annotation, Transmission or Risk of Transmission of Human Immunodeficiency Virus (HIV) or Acquired Immunodeficiency Syndrome (AIDS) as Basis for Prosecution or Sentencing in Criminal or Military Discipline Case, 13 A.L.R.5th 628 (1993) (It is “generally known” that the HIV is “spread by the transfer of bodily fluids such as blood, genital secretions, and perhaps saliva.”).

In addition to courts accepting as common knowledge methods of transmission of the HIV, the legislature has also done so. See Iowa Code § 915.40(11) (presumption of significant exposure to the HIV when infected individual engages in sexual intercourse, including oral sex); id. § 709C.1(1)(6) (recognizing semen and blood as potentially infectious bodily fluids).

By recognizing that it is common knowledge that oral sex is a manner of transmission of the HIV, we find that the State did not fail to meet its burden of proof. Importantly, “ ‘[jjurors are not expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but may give effect to such inferences as common knowledge or their personal observation and experience may reasonably draw from the facts directly proved.’ ” State v. Manning, 224 N.W.2d 232, 236 (Iowa 1974) (quoting 75 Am.Jur.2d Trial § 1019, at 860); see also State v. Post, 286 N.W.2d 195, 203 (Iowa 1979) (history, common sense, and experience are factors to be considered in determining whether there is a rational connection between basic facts that the prosecution has proved and the ultimate fact presumed).

This is not the first time we have determined that jurors could rely on their common knowledge to support a conviction. See State v. Theodore, 260 Iowa 1038, 150 N.W.2d 612, 616 (Iowa 1967) (jurors could find from common knowledge and experience that ninety-one boxes of loins, five boxes of cooked hams, three boxes of smoked hams, and one box of shankless hams, which allegedly were subject of conspiracy to commit felony larceny and/or embezzlement, were worth more than $20, even though no evidence had been presented on the value of the meat).

We conclude that the State produced substantial evidence to support a finding of “intentional exposure of the body of one person to a bodily fluid of another person .... ” We therefore affirm.

AFFIRMED.

      . The fact that the victim does not actually contract HIV does not impact on the charge, as the statute does not require that HIV actually be transmitted, only that the circumstances were such that it could have been transmitted. See Iowa Code § 709C.l(2)(b) and (4).

      . Notably, we took judicial notice of these matters in Keene when considering Keene’s constitutional challenge to the statute, not only in analyzing the existence of a factual basis for his guilty plea.