author: ZINTER, Justice (on reassignment). SABERS, Justice

text:
    2003 SD 129
    STATE of South Dakota, Plaintiff and Appellee, v. Charles CHERNOTIK, Defendant and Appellant.
    No. 22304.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 13, 2003.
    Reassigned May 7, 2003.
    Decided Oct. 22, 2003.

      Lawrence E. Long, Attorney General, Becky Janssen, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Steven R. Smith, Andera & Smith Law Firm, Rapid City, for defendant and appellant.
   ZINTER, Justice (on reassignment).

[¶ 1.] Charles Chernotik was convicted of raping his stepbrother, J.C., in the family hot tub at J.C.’s home in Chamberlain. Chernotik appeals claiming error in (1) amending the complaint after the statute of limitations expired, and (2) in introducing other acts evidence. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] J.C. was interviewed by the Department of Social Services, the Sheriffs office, and the Chamberlain Police Department on April 24, 2001. That interview occurred two days before J.C.’s twenty-fifth birthday, which was also two days before the statute of limitations was to expire on the crime at issue in this case. In the interview, J.C. disclosed a course of sexual molestation perpetrated upon him by Chernotik. The molestation began when J.C. was approximately five years old and continued until he was sixteen.

[¶ 3.] On April 25, 2001, the day before J.C.’s twenty-fifth birthday and the day before the statute of limitations was to expire, the State filed a complaint against Chernotik. Count III alleged the crime of rape in violation of SDCL 22-22-1. Rape can occur under seven different “circumstances” according to this statute. Count III alleged that this rape occurred by fellatio with J.C. under forcible circumstances as described in subdivision (2) of SDCL 22-22-1. Count III specifically alleged that Chernotik:

Did perform sexual penetration on another through the use of force, coercion or threat of immediate and great bodily harm against the victim, to-wit: did perform fellatio upon J.C., date of birth being April 26, 1976, through the use of threat or intimidation during the calendar year 1995 in Chamberlain, South Dakota, in violation of SDCL 22-22-1(2).

The factual incident underlying Count III involved an act of fellatio with J.C. in his parents’ hot tub at their home in Chamberlain. The incident is hereinafter referred to as “the hot tub incident.”

[¶ 4.] On May 30, 2001, about a month after the statute of limitations expired, the State filed two amendments to Count III. The first amendment changed the alleged date of the offense from 1995 to “on or between May 1990.” The second amendment changed the “circumstances” alleged. It still charged rape in the hot tub incident, but it changed the circumstance to that described in subdivision (5) of SDCL 22-22-1. Rape committed under that circumstance is commonly referred to as statutory rape.

[¶ 5.] On June 4, 2001, the court conducted a preliminary hearing. J.C. testified that he was forced to perform the fellatio on Chernotik in the hot tub incident in November 1986. To conform the charge to J.C.’s testimony concerning this date, the State again amended Count III to allege that the date of the offense was “on or about 1986.”

[¶ 6.] Chernotik objected to these amendments and moved to dismiss Count III on the ground that the statute of limitations had expired before the amendments were made. The statute of limitations at issue provided that an action for rape “may be commenced at any time pri- or to the time the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer.” SDCL 22-22-1. Although Cher-notik was originally charged one day before J.C.’s twenty-fifth birthday, Chernotik contends that the charge was not timely because the amendments were made after the statute of limitations had expired on J.C.’s twenty-fifth birthday.

[¶ 7.] Chernotik also objected to “other acts” evidence involving J.C. and another victim. The other victim, C.O., was J.C.’s sister and Chernotik’s stepsister. The acts involving C.O. began in the summer of 1978 when C.O. was seven and Chernotik was twelve. C.O. was awakened during the night to find Chernotik taking off her swimsuit bottom. She disclosed that Chernotik digitally penetrated her, fondled her and himself, put his genitals in her face, and rubbed himself on her. She testified that similar acts occurred for the next seven years. Chernotik was not charged with the offenses against C.O. because the statute of limitations had expired. The trial court allowed the other acts to prove a common plan or scheme, absence of mistake or accident, and proof of motive, intent, opportunity, knowledge, continuing course of conduct and identity.

[¶ 8.] The trial evidence reflected that the hot tub incident occurred in the fall of 1986 when J.C. was ten and Chernotik was nineteen years old. As at the preliminary hearing, J.C. testified that Chernotik undressed and followed J.C. into the hot tub at the family home. Chernotik then stimulated himself and forced J.C.’s mouth on Chernotik’s penis. This continued for several minutes until Chernotik ejaculated into J.C.’s mouth, and Chernotik forced J.C. to ingest the semen. The jury found Chernotik guilty of the hot tub incident involving J.C. and not guilty on five other counts involving D.R., Chernotik’s stepdaughter.

[¶ 9.] Chernotik raises two issues on appeal:

1. Whether the State could amend the complaint after the statute of limitations expired.
2. Whether the trial court erred in admitting other acts evidence.

DECISION

A Complaint, Amended After the Statute of Limitations Has Expired, May Relate Back.

[¶ 10.] Chernotik concedes that filing of the initial complaint on April 25, 2001, timely “commenced” a rape charge against him. See SDCL 23A-42-4 (stating that a charge is “deemed commenced by the filing of a complaint, information or indictment ... ”). The question is whether the amendments of May and June 2001 charged a new offense that was barred by the statute of limitations, or, whether those amendments related back to the time of filing the original complaint. Chernotik argues that the amendments were substantive changes that were substantially different than the original charge. He also argues that original and amended charges were mutually exclusive. He therefore contends that the amendments did not relate back.

[¶ 11.] SDCL 23A-6-19 permits amendments, but does not address the relation back doctrine. It provides in part:

If trial has not commenced, a prosecuting attorney may amend an information to allege, or to change the allegations regarding, any offense arising out of the same alleged conduct of the defendant that gave rise to any offense alleged in the original information. If the change alleges a new offense, the defendant has the right to a preliminary hearing on the new offense.

Id. (emphasis added).

[¶ 12.] Here, the changes in the time and statutory circumstance of the rape arose “out of the same alleged conduct of the defendant,” i.e., the hot tub incident. Moreover, the trial court offered Cherno-tik a continuance of the preliminary hearing. However, that offer was not accepted. Therefore, although Chernotik did not have a new preliminary hearing, he was given that opportunity and declined to exercise that statutory right.

[¶ 13.] Instead of exercising his right to another preliminary hearing, Chernotik argues that the amended complaint was barred by the statute of limitations. The State responds by arguing that the filing of the initial complaint unconditionally tolled the statute of limitations. We do not agree that the filing of the complaint unconditionally tolled the statute of limitations for all amendments. Instead, the statute of limitations is tolled, and amendments relate back to the filing of an initial complaint, if certain conditions are met.

[¶ 14.] Although “relation back” jurisprudence is a question of first impression in this Court, many other jurisdictions have addressed the issue. Those jurisdictions hold that when the government commences a prosecution by filing a timely charging document, the filing of an amendment after the statute of limitations has expired will not divest the court of jurisdiction unless the amendment broadens or substantially amends the original charges. See, e.g., United States v. Schmick, 904 F.2d 936, 940 (5thCir.1990); United States v. Elliott, 849 F.2d 554, 561 (11thCir.1988); United States v. Friedman, 649 F.2d 199, 204 (3dCir.1981); United States v. Grady, 544 F.2d 598, 601-02 (2dCir.l976); State v. Almeda, 211 Conn. 441, 560 A.2d 389, 392 (1989); Benitez v. State, 111 Nev. 1363, 904 P.2d 1036, 1036 (1995). We agree with these authorities.

[¶ 15.] Under this relation back test, we first determine whether these amendments broadened the original charge. SDCL 22-22-1 defines rape as “an act of sexual penetration accomplished with any person under any of [seven] circumstances ....” Id. (emphasis added). Subsection (2) (forcible rape), is the circumstance originally pleaded. Under that circumstance, a rape occurs “[tjhrough the use of force, coercion, or threats of immediate and great bodily harm against the victim.... ” Subsection (5) (statutory rape), is the circumstance alleged in the amendments. Under that circumstance a rape occurs “[i]f the victim is ten years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim.... ” Forcible rape is a Class 2 felony, punishable by up to twenty-five years imprisonment and a fine of $25,000. However, the amended charge of statutory rape is a Class 3 felony, punishable by up to fifteen years imprisonment and a fine of $15,000. SDCL §§ 22-22-1, 22-6-1. Thus, these amendments did not broaden the original charge to a more serious crime, but rather narrowed it to a less serious crime.

[¶ 16.] Moreover, the incident charged in the amendments is not substantially different than that charged in the original complaint. It is not substantially different because, even though the amendments changed the date and statutory circumstances of the rape, the underlying incident of rape remained the same. In point of fact, the rape (occurring by fellatio in the “hot tub incident” in Chamberlain) as alleged in the original complaint, is the same rape (occurring by fellatio in the “hot tub incident” in Chamberlain) for which Chernotik was convicted. Indeed, there is no dispute that: (1) the underlying allegations supporting the original complaint involved the hot tub incident; (2) the evidence introduced at the preliminary hearing related to that hot tub incident; (3) the amendments related to that hot tub incident; and (4) the jury convicted on that same hot tub incident. Under such circumstances, where there was only one hot tub incident ever at issue in the original complaint and all amendments, there was no broadening or substantial amendment of the original charge. The amendments certainly did not broaden or substantially amend any factual aspect of the incident.

[¶ 17.] Consequently, the amendments failed to legally broaden or substantially amend the original charge under both federal and state authority. Relevant federal authorities point out that notice to the defendant of the activities at issue is the central policy underlying relations back and the limitations doctrines. Schmick, 904 F.2d at 940. Therefore, Schmick holds that a complaint is not broadened or substantially amended as long as the defendant is on notice of the activities at issue, and as long as the amendments are substantially the same in the old and new complaints. Schmick reasons:

Notice to the defendant is the central policy underlying the limitations doctrine. Similarly, notice is the touchstone in deciding whether a superseding indictment substantially changes the original charges. A timely, pending indictment serves this purpose by apprising the defendants “that they will be called to account for their activities and should prepare a defense.” If the allegations and charges are substantially the same in the old and new indictments, the assumption is that the defendant has been placed on notice of the charges against him. That is, he knows that he will be called to account for certain activities and should prepare a defense.

Id. at 941 (emphasis added) (internal citations omitted). Thus, the Schmick holding, modified to include the facts of both Chernotik’s and Schmick’s cases, would read:

The appellants were on notice that they were accused of planning to obtain unregistered firearms [in Chernotik’s case, engaging in an act of fellatio with J.C. in the hot tub]. The original [complaint] generally referred to unregistered firearms [in Chernotik’s case, rape by fellation in Chamberlain]; the superseding [complaint] merely further described the unregistered firearms used by the Ban-didos [in Chernotik’s case, it further described the date and statutory circumstance for the act of fellatio in the hot tub in Chamberlain]. Where the facts alleged have not been changed, although additional underlying details have been alleged, a superseding indictment brought outside the statute of limitations is timely.

Id. (emphasis added) (citing Friedman, 649 F.2d at 204).

[¶ 18.] Other federal authorities also support this conclusion. See Elliott, 849 F.2d at 561 (holding that in-a drug smuggling prosecution, even though “additional underlying facts relating to the transportation of marijuana and changes in some time periods and amounts of marijuana [were] involved[, t]he tdtimate acts charged [were] the same in both indictments.” Therefore, the amendments did not broaden or substantially amend the original charges) (emphasis added); Friedman, 649 F.2d at 204 (holding that although additional underlying details were alleged, the basic facts alleged were not changed, thus the primary purpose of the statute of limitations was met); Grady, 544 F.2d at 602 (concluding that to the extent any change of substance was made at all, the charges were narrowed, not broadened).

[¶ 19.] This focus on notice to the defendant of the incident or activities of the defendant, even if the charges change, is also recognized in state courts.

[The] principal purpose [of the statute of limitations] is to ensure “that a defendant receives notice, within a prescribed time, of the acts with which he is charged, so that he and his lawyers can assemble the relevant evidence [to prepare a defense] before documents are lost [and] memories] fade.... ” If, therefore, the facts underlying a superseding information substituting a different charge in a continuing prosecution are substantially similar to the facts underlying a timely filed information, the main purpose of the statute of limitations has been fulfilled, i.e., timely notice to the defendant of the factual allegations against which he will be required to defend. If that aim is accomplished, a previously filed information may toll the statute of limitations.

Almeda, 560 A.2d at 392 (emphasis added) (internal citations omitted). Consequently, even though the original information in Almeda charged that defendant with attempted murder, the statute of limitations was tolled for a prosecution for first-degree assault on a substitute information. It was tolled because the factual allegations underlying the substitute information charging Almeda with assault in the shooting of Ricky Wynn were the same as the facts underlying the original information charging Almeda with the attempted murder of Ricky Wynn. The changes related back because Almeda was not called upon to answer for any activities that he had not been required to defend against in his first trial on the original information. Id. See also Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744, 751 (1984) (ruling that “[t]he only question to be considered in determining the sufficiency of the [amended] complaint is whether the accused was sufficiently informed that he might be put on trial for the crime charged in the indictment”); People v. Whitfield, 19 Cal.App.4th 1652, 24 Cal.Rptr.2d 210, 215 (1993) (holding that because amended prostitution offenses “were based on the same conduct as the rapes for which the defendant was being prosecuted, the filing of the information [on rape] tolled the statute of limitations” for the lesser prostitution offenses); State v. Eppens, 30 Wash. App. 119, 633 P.2d 92, 96 (1981) (holding “an amended pleading relates back to the filing date of its predecessor so long as the claim in the pleading ‘arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading’ ”) (emphasis added).

[¶ 20.] The premise underlying these cases is consistent with our precedent. Generally, the function of a charging document such as a complaint is to “appraise the defendant with reasonable certainty of the charge with which [the defendant] is accused and to allow [the defendant] to plead ... acquittal or conviction as a bar to a subsequent prosecution for the same offense.” State v. Anderson, 1996 SD 46, ¶ 12, 546 N.W.2d 395, 399 (citing State v. Sinnott, 72 S.D. 100, 30 N.W.2d 455, 456 (1947), cert denied, 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768 (1948)). Here, a rape in the hot tub incident involving J.C. in Chamberlain was the only charge in the initial version of Count III as well as all amendments. Moreover, Chernotik has not alleged that he was misled by the amendments. Indeed, the investigative reports as well as the preliminary hearing confirm that Chernotik was aware that the only allegation in Count III involved the hot tub incident. Therefore, Chernotik was on notice of the incident and activities for which he was convicted. Because Chernotik was not required to answer for any new incident that was not alleged in the original complaint, the relation back doctrine applies.

[¶ 21.] Chernotik, however, argues otherwise because he perceives that there are sufficient differences in the charges to support a finding of a substantially new and different offense. Chernotik argues that the following alleged differences exist: (1) forcible rape and statutory rape are mutually exclusive; (2) only forcible rape allowed a consent defense and only statutory rape allowed an age defense; (3) the date of the original charge left open the possibility of an alibi defense because the victim and defendant lived in different cities at the time the act was originally alleged to have occurred; (4) statutory rape is not a lesser included offense of forcible rape; and (5) statutory rape is a time-sensitive charge because it must occur when the victim is between ten and sixteen years of age.

[¶ 22.] Chernotik’s initial assertion of mutual exclusivity is quickly dispatched by the facts of this case. Here, Chernotik’s conduct violated both circumstances of statutory and forcible rape because J.C. was young enough to support a charge of statutory rape and he was also forced to engage in the sexual act. Thus, contrary to being mutually exclusive, the facts of this case reflect that Chernotik’s conduct concurrently violated both the forcible and the statutory circumstances under which fellatio constitutes rape.

[¶ 23.] Moreover, even if mutual exclusivity was present, it is of no legal consequence because the amended charge of statutory rape was merely a different circumstance under which the offense of rape in SDCL 22-22-1 occurs. Under this type of statute (where rape can occur under a number of circumstances) an amendment charging statutory rape in lieu of an initial charge of forcible rape does not charge a different offense for relation back analysis. It does not because each of the subdivisions of the rape statute merely define a different circumstance under which sexual penetration may constitute the crime of rape. State v. LaMere, 103 Idaho 839, 655 P.2d 46, 49 n. 4 (1992).

[¶ 24.] Chernotik next argues that, under his second and third alleged differences, the changes in date and circumstance alleged may have eliminated potential defenses. However, these defenses were never available because the record reflects that the date originally alleged was simply a mistake. Indeed, there can be no dispute that no rape could have occurred as originally alleged in 1995 because J.C. had moved from Chamberlain in 1992. Moreover, no statutory rape could have occurred in 1995 because J.C. was over 16 years of age. Therefore, it appears that when the state filed the initial complaint, the specific date alleged was simply a mistake. Under those circumstances where the offense could not have occurred on the date first alleged, the amended offense is the same as the first for statute of limitations purposes. People v. Suntalski, 394 Ill. 530, 69 N.E.2d 315, 318 (1946). Additionally, it must be remembered that the time of commission of this offense was not material. We have previously held that “[t]he time of the occurrence is not a material element in statutory rape as the elements of that offense are not ‘time dependent.’ ” State v. Floody, 481 N.W.2d 242, 247 (S.D.1992) (citations omitted). Consequently, the amendment changing the date relates back.- See also Elliott, 849 F.2d at 561. Finally, it must be remembered that to the extent that these amendments may have eliminated “possible defenses,” the elimination of a “possible defense” does not by definition broaden or amend “the charge.”

[¶ 25.] Chernotik next observes that statutory rape is not a lesser included offense of forcible rape. However, that difference is of no consequence. Simply stated, none of the authorities discussing this issue require that the amendment be a lesser included offense to relate back. To the contrary, even “[t]he potential for imposition of a greater penalty under a superseding indictment does not render such charges broader than those in the original indictment.” Id. (citing United States v. Sears, Roebuck & Co., Inc., 785 F.2d 777, 779 (9thCir.1986), cert denied, 479 U.S. 988, 107 S.Ct. 580, 93 L.Ed.2d 583 (1986)).

[¶ 26.] Chernotik’s final alleged difference is his contention that unlike forcible rape, statutory rape is a time sensitive charge because it must occur when the victim is between 10 and 16 years of age. Chernotik points out that J.C. did not fall within that time range in 1995. However, as was previously noted, statutory rape is not a time sensitive charge. See supra ¶ 23. Moreover, Chernotik’s acts violated both the forcible and the statutory proscriptions. Therefore, he lost no ability to avoid a rape conviction, and even if he did, the elimination of a defense does not substantially amend the charge. Finally, J.C.’s age at the time of the hot tub incident was fixed, and Chernotik was aware of the statutory rape victim’s age. Because there was no dispute over J.C.’s age, such an amendment was not prejudicial. See LaMere, 655 P.2d at 49.

[¶ 27.] In the final analysis, Chernotik was always on notice of the hot tub incident charged in Count III. Although the amendments changed a date and statutory circumstance of the rape, there was only one incident of rape ever at issue. Therefore, the amendments did not broaden or substantially amend the rape charge: if anything, they narrowed it, and the amendments relate back to the timely filing of the initial complaint.

Other Act Evidence

[¶ 28.] The trial court permitted the other act evidence under SDCL 19-12-5 (Rule 404(b)) not to prove character, but as evidence of Chernotik’s common scheme or plan, motive and intent, continuing course of conduct, and identity. We review the admission of other act evidence under the abuse of discretion standard. State v. Barber, 1996 SD 96, ¶14, 552 N.W.2d 817, 820.

[¶ 29.] Here, the other acts evidence involved Chernotik’s sexual abuse of his younger family members, C.O. and J.C. That conduct was ongoing over a number of years. The prior acts involving C.O. occurred from 1978 through 1986, while the acts involving J.C. occurred from 1980 through 1992. Thus, the pattern of abuse overlapped. It also appears that: (1) the sexual assaults took place in the family home or camper when the victims were isolated from others; (2) the sexual assaults took place while Chernotik was in a caretaking or authoritative role over his victims; (3) Chernotik used a similar pattern of coercive conduct to maintain the silence of J.C. and C.O.; and, (4) the mo-dus operandi of the abuse was similar. With respect to similarity, the evidence reflects that: Chernotik rubbed his genitalia on the bodies of his victims for purposes of self gratification; he forced J.C. to perform fellatio and put his genitalia in the face of C.O.; he was approximately 10 years older than J.C. and five years older than C.O.; he was often left in charge of his younger siblings; he abused family members; he abused the victims in the family areas; he abused the victims when no one else was present or when everyone else was asleep, he used promises and threats to obtain the victims silence; and he committed the abuse over a lengthy period of time including a six-year period in which three family members were abused.

[¶ 30.] We have strongly encouraged trial courts to avoid the “blunderbuss” approach of simply declaring other acts evidence “admissible to prove any issue including motive, identity, absence of mistake, intent, or plan, without independently applying each theory to the facts.” State v. Wright, 1999 SD 50, ¶ 17, n. 6, 593 N.W.2d 792, 800. Here, however, before admitting the evidence, the trial court first identified a number of issues for which the other acts evidence was admissible and then analyzed whether the probative value of that evidence was substantially outweighed by its prejudicial effect. We agree that it was admissible to show Chernotik’s identity, motive, intent, common plan or scheme, and continuing course of conduct. We also agree that the probative value of the evidence was not substantially outweighed by its prejudicial effect. Continuing abuse of children involving a similar modus operand! over a lengthy period of time is admissible as other acts evidence. State v. Werner, 482 N.W.2d 286, 290-91 (S.D.1992). Here, Chernotik began a course of sexual abuse against younger family members in 1978 when he was 12 years old and his stepsister was seven years old. While the abuse of the stepsister was ongoing, it also started with J.C. The sexual abuse of both victims then continued for six years and ended only when Chernotik moved from the State. We find no abuse of discretion in admitting this evidence.

[¶ 31.] Affirmed.

[¶ 32.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 33.] SABERS, and MEIERHENRY, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 34.] I dissent for the following reasons:

[¶ 35.] SDCL 22-22-1, the rape statute, provides in part, “... a charge brought pursuant to this section may be commenced at any time prior to the time the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer.” Defendant concedes that filing the initial complaint “commenced” the charges against him. See also, SDCL 23A-42-4 (providing in part that a charge is deemed commenced “by the filing of a complaint, information or indictment[.]”).

[¶36.] The day the initial complaint was filed was the last day the State could have criminally charged Defendant for his offenses against J.C. in the hot tub incident. The State amended the complaint on May 24, 2001 and June 4, 2001. Both of the amendments took place after the statute of limitation had expired. Defendant argues that these amendments were substantive changes as the original charge substantially differed from the amended charge and that the charges are mutually exclusive and barred.

[¶ 37.] SDCL 23A-6-19 provides in part:

If trial has not commenced, a prosecuting attorney may amend an information to allege, or to change the allegations regarding, any offense arising out of the same alleged conduct of the defendant that gave rise to any offense alleged in the original information. If the change alleges a new offense, the defendant has the right to a preliminary hearing on the new offense.

(Emphasis supplied.) The State did change the allegations regarding an offense “arising out of the same alleged conduct of the defendant,” e.g., the hot tub incident. The court offered a continuance of the preliminary hearing, but that offer was not accepted. The parties briefed the issue and the court heard arguments at a subsequent motion hearing. Defendant repeatedly raised objections based on the statute of limitation through the end of trial. He does not seek to have a new preliminary hearing. Instead, he argues that his conviction should be reversed because the prosecution was untimely. The State responds that the filing of the initial complaint served to toll the statute of limitation, in essence, allowing the amendments to the complaint to “relate back” to the date of the first complaint.

[¶ 38.] Although this is a question of first impression for this Court, other jurisdictions have addressed analogous issues. Many courts have held that where the State commences a prosecution by filing a timely information or indictment, the filing of an amendment after the statute of limitation has expired will not divest the court of jurisdiction unless the amended information broadens or substantially amends the original charges. See e.g., United States v. Schmick, 904 F.2d 936, 940 (5th Cir.1990); United States v. Elliott, 849 F.2d 554, 561 (11th Cir.1988); United States v. Friedman, 649 F.2d 199, 203 (3d Cir.1981); United States v. Grady, 544 F.2d 598, 601 (2d Cir.1976); Benitez v. State, 111 Nev. 1363, 904 P.2d 1036, 1037 (1995); State v. Almeda, 211 Conn. 441, 560 A.2d 389, 392 (1989). I believe that this is the appropriate test.

[¶ 39.] A determination whether the amended complaint broadened or substantially amended the original complaint requires comparison of the facts of the crime originally charged with the facts of the crime supporting the conviction. SDCL 22-22-1 provides, “[r]ape is an act of sexual penetration accomplished with any person under any of the following circumstances[.]” Subsection (2) (forcible rape), the section Defendant was originally charged with, provides, “[t]hrough the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim’s presence, accompanied by apparent power of execution[.]” Subsection (5) (statutory rape), the charge supporting the conviction, provides, “[i]f the victim is ten years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim[J” Subsection (5) is rape in the third degree, a Class 3 felony, whereas subsection (2) is rape in the second degree, a Class 2 felony. Both subsections are subject to the statute of limitation cited above. This amendment did not broaden the original charge to a more serious crime but narrowed it to a less serious crime.

[¶ 40.] Defendant argues that the original and amended charges are substantially different, and based on those differences, the statute of limitation should bar prosecution on the amended charge. Specifically, he argues that the difference between forcible rape (the original charge) and statutory rape (the charge supporting the conviction) are mutually exclusive in that: 1) forcible rape allows for the defense of consent whereas statutory rape does not; 2) the original charge left open the possibility of an alibi defense because the victim and defendant lived in different cities at the time the alleged act occurred; 3) statutory rape cannot be considered a lesser included offense of forcible rape because of its differing elements; and 4) statutory rape is a time-sensitive charge because it must occur between the time the victim is ten and sixteen years old. This analysis of legal factors supports a finding of a substantially new and different offense.

[¶ 41.] SDCL 23A-6-19 may require an analysis from a factual standpoint. SDCL 23A-6-19 permits an amendment to “amend [] or change the allegations regarding any offense arising out of the same alleged conduct of the defendant that gave rise to any offense alleged in the original information.” Arguably, that is what was done here. However, the fatal defect in this factual analysis is that the statute deals specifically with amending and amending to a new charge but says nothing about permitting an amendment after the statute of limitations expired on a new charge.

[¶ 42.] The State would not be entitled to charge, through an amendment to a complaint, an offense that does not arise out of the same alleged conduct that gave rise to the original information either before or after the statute of limitation expired.

[¶ 43.] Statutes of limitation are created by the Legislature and become the public policy of the State of South Dakota. Statutes of limitation serve two primary purposes; they avoid unfair proceedings against defendants caused by the use of stale evidence and encourage prompt investigation by the government in criminal cases. United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed.2d 627, 632 (1966). Here, neither purpose was fulfilled. Through the amended complaint, the evidence to support the charge was fifteen years old and despite knowledge by the State as of 1992, there was no prompt investigation of the offenses by the government.

[¶ 44.] A criminal statute of limitation acts as a jurisdictional bar to prosecution. This is a limitation on the power of the State to act against an accused. State v. Glover, 25 Wash.App. 58, 604 P.2d 1015, 1016 (1979) (additional citations omitted). SDCL 22-22-1 provides in part that the statute of limitation on a charge of rape will expire seven years after commission of the crime or when the victim turns twenty-five years old, whichever is longer. The South Dakota Legislature has spoken on this issue and criminal statutes of limítation are construed liberally in favor of the Defendant. See e.g., State v. Hirsch, 245 Neb. 31, 43, 511 N.W.2d 69, 78 (1994) (additional citations omitted). Therefore, even though the amended complaint did not broaden the charge, it substantially amended it to the prejudice of the Defendant.

[¶ 45.] We should not accept the State’s argument that the mere filing of the criminal complaint tolled the statute of limitation without exception. See e.g., SDCL 23A-8-11 (providing in part that although an order regarding a defect in an indictment or information is not a bar to subsequent prosecution on the same charge, the order will not affect the provisions of “any statute relating to periods of limitation”). When an amendment to a charging document affects the substantive rights of the accused, courts must inquire into the sufficiency of the document. See generally, Sehmick, 904 F.2d at 940; Elliott, 849 F.2d at 561; Friedman, 649 F.2d at 203; Grady, 544 F.2d at 601; Almeda, 560 A.2d at 392; Benitez, 904 P.2d at 1037. The changes to this criminal complaint were not mere changes in form. The record reveals that at the time the State filed the original complaint, it was based on the mistaken belief that Defendant committed forcible rape against J.C. in 1995. Changing the date to 1986 and the offense to statutory rape were substantive changes requiring that the Defendant be entitled to a new preliminary hearing according to SDCL 23A-6-19. The fact that he was entitled to a new preliminary hearing gives credence to Defendant’s argument that the amended complaint alleged a new and different offense for which the State should have been required to file a new complaint. Had the State filed a new complaint, clearly it would have been barred by the statute of limitation. Thus, the act of amending the original complaint could not operate to extend the statute of limitation and preserve the untimely prosecution on this charge. Defendant was prejudiced by being prosecuted on a crime that was juris-dictionally barred.

[¶46.] We have held that the State may amend an indictment when the amendment does not surprise, prejudice, or have an effect on the defendant’s substantial rights. State v. Timperley, 1999 SD 75, ¶¶ 8-9, 599 N.W.2d 866, 867-868. Furthermore, a charging document should advise the defendant of the charge with reasonable sufficiency, cite the appropriate statute and subsection and contain the material elements of the offense. See generally, State v. Boutchee, 406 N.W.2d 708 (S.D.1987). The amendment to this complaint does not overcome the barriers erected for the protection of defendants by our laws of criminal procedure as enacted by the South Dakota Legislature. Those barriers operate to ensure that defendants only face timely charges. They should not be circumvented so easily. Because the Defendant was tried and convicted of a crime upon which the statute of limitation expired, his substantial rights were prejudiced. The amendments to the complaint were substantial and the court was divested of jurisdiction over this Defendant as to this charge. The conviction should be reversed.

[¶ 47.] I dissent on Issue 2 also because the other act evidence received under SDCL 19-12-5 (Rule 404(b)) was clearly offered to prove bad character and was substantially outweighed by its prejudicial effect. Once that evidence was offered and received, Defendant had little chance for a fair trial. The majority opinion relies heavily on the claim that this “other act evidence” was offered only as evidence of the Defendant’s common scheme or plan, motive and intent, continuing course of conduct and identity. None of these factors were really in issue and are more pretextual than real. I submit that the State will continue to use this “laundry list” as long as the trial courts and this Court accept the same. This practice prevents meaningful review of the issues and permits highly prejudicial evidence to be admitted with no clear showing of its probative value. In light of the judiciary’s duty to provide fair criminal trials, this Court should require the State to stop this practice now.

[¶ 48.] To say this laundry list of “bad acts” and its probative value was not substantially outweighed by its prejudicial effect is a real stretch and also prevents meaningful review. The exceptions to SDCL 19-12-5 continue to swallow the rule. For these and the reasons I have stated in my previous writings on this issue, I dissent. See e.g. State v. Wright, 1999 SD 50, 593 N.W.2d 792 (Sabers, J., dissenting); State v. Loftus, 1997 SD 94, 566 N.W.2d 825; State v. Werner, 482 N.W.2d 286 (S.D.1992).

[¶ 49.] MEIERHENRY, Justice, joins this dissent.

      . See infra note 4.

      . SDCL 22-22-1(5) provides that statutory rape occurs if: "the victim is ten. years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victimf.]" In November, 1986, J.C. was age 10 and Chernotik was age 19.

      . J.C. also indicated that the molestation was "a norm" that "escalated with each incident." He stated that he "remember[ed] [Chernotik] having taken my underwear off before, him being naked, stimulating himself in front of me, putting my hand onto his genital area ... putting my head onto his penis ... incidents like that.”

      . SDCL 22-22-1 provides:
      Rape is an act of sexual penetration accomplished with any person under any of the following circumstances:
      (1) If the victim is less than ten years of age; or
      (2) Through the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim's presence, accompanied by apparent power of execution; or
      (3) If the victim is incapable, because of physical or mental incapacity, of giving consent to such act; or
      (4) If the victim is incapable of giving consent because of any intoxicating, narcotic or anesthetic agent or hypnosis; or
      (5) If the victim is ten years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim; or
      (6) If persons who are not legally married and who are within degrees of consanguinity within which marriages are by the laws of this state declared void pursuant to § 25-1-6, which is also defined as incest; or
      (7)If the victim is ten years of age but less than eighteen years of age and is the child of a spouse or former spouse of the perpetrator.
      A violation of subdivision (1) of this section is rape in the first degree, which is a Class 1 felony. A violation of subdivision (2), (3), or (4) of this section is rape in the second degree, which is a Class 2 felony. A violation of subdivision (5), (6), or (7) of this section is rape in the third degree, which is a Class 3 felony. Notwithstanding § 23A-42-2 a charge brought pursuant to this section may be commenced at any time prior to the time the victim becomes age twenty-five or within seven years of the commission of the crime, whichever is longer.

      . We do note, however, that the seriousness of the amended crime is not dispositive. See infra ¶ 24.

      . In determining whether Chernotik's conviction was for the same incident alleged in the initial complaint, it is highly significant that there was only one incident of fellatio that ever allegedly occurred in the family hot tub at their home in Chamberlain. The day before the original complaint was filed, J.C. and other witnesses were interviewed about Cher-notik's abuse. Although J.C. described an ongoing pattern of sexual abuse, he only described two specific incidents that became charged conduct in this case. One incident involved an attempted anal penetration, but that count of the complaint (Count IV) was ultimately dismissed. The hot tub incident (Count III) was the only other specific incident mentioned. J.C. indicated in that April 24, 2001 interview that the hot tub incident occurred when he lived in Chamberlain between 1983 and 1986. He remembered the incident because it was the first time Cherno-tik ejaculated into J.C.’s mouth. Because J.C. did not relate any other specific incidents, there is nothing in the record to suggest that the amendments broadened or substantially changed the incident originally charged.

      . A "new and different offense” does not necessarily preclude relation back. As previously noted, substantive changes in charges may relate back. See Grady, 544 F.2d at 602; Almeda, 560 A.2d at 392; see also Whitfield, 24 Cal.Rptr.2d at 215.

      . Section 18-6101 of the Idaho statute is analytically the same as SDCL 22-22-1. The Idaho statute provided:
      Rape is an act of sexual intercourse accomplished with a female under either of the following circumstances:

      1. Where the female is under the age of eighteen (18) years.
      2. Where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent.

        3. Where she resists but her resistance is overcome by force or violence.
      4. Where she is prevented from resistance by threats of immediate and-great bodily harm, accompanied by apparent power of execution; or by any intoxicating narcotic, or anaesthetic [sic] substance administered by or with the privity of the accused.
      5. Where she is at the time unconscious of the nature of the act, and this is known to the accused.
      6. Where she submits under the belief that the person committing the act is her husband, and the belief is induced by artifice, pretense or concealment practiced by the accused, with intent to induce such belief.

        LaMere, 655 P.2d at 48 n. 1 (emphasis added). Like the Idaho statute, SDCL 22-22-1 provides:
      Rape is an act of sexual penetration accomplished with any person under any of the following circumstances:

      (1)If the victim is less than ten years of age; or
      (2) Through, the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim’s presence, accompanied by apparent power of execution; or
      (3) If the victim is incapable, 'because of physical or mental incapacity, of giving consent to such act; or
      (4) If the victim is incapable of giving consent because of any intoxicating, narcotic, - or anesthetic agent or hypnosis; or
      (5) If the victim is ten years of age, but less than sixteen years of age, and the perpetrator is at least three years older than the victim; or
      (6) If persons who are not legally married and who are within degrees of consanguinity within which marriages are by the laws of this state declared void pursuant to § 25-1-6, which is also defined as incest; or
      (7) If the victim is ten years of age but less than eighteen years of age and is the child of a spouse or former spouse of the perpetrator. ...

      . Under this amended charge, Chernotik was actually subject to a lesser penalty. See supra ¶ 15.

      . Defendant's alleged misconduct against this victim and C.O. was initially reported by their parents to the Department of Social Services and the State's Attorney in 1993, eight years before the statute of limitation expired and eight years before the State’s Attorney eventually took action on the case in April, 2001.


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    Lee BAKER, Kathy Baker, Porter Williams, Beverly Williams, Ron Onnen, Phyllis Onnen, Robert Britson, and Barbara Britson, Appellees, v. The BOARD OF ADJUSTMENT OF THE CITY OF JOHNSTON, IOWA, The City of Johnston, Iowa, A Municipal Corporation, Dallas E. Patterson, Connie A. Patterson, Wesley D. Jordan, Lynne M. Jordan, Lonnie E. Smith and Paula L. Smith, Appellants.
    No. 01-1380.
    Supreme Court of Iowa.
    Sept. 4, 2003.
    As Amended on Denial of Rehearing Nov. 25, 2003.

      J. Russell Hixson of Hixson Law Firm, P.C., Clive, for appellant, Board of Adjustment of the City of Johnston and the City of Johnston.
    William J. Lillis and Daniel L. Manning of Connolly, O’Malley, Lillis, Hansen & Olson, L.L.P., Des Moines, for appellants, Dallas E. Patterson, Connie A. Patterson, Wesley D. Jordan, Lynne M. Jordan, Lonnie E. Smith and Paula L. Smith.
    Jeffrey L. Goodman of Jeffrey L. Goodman, P.C., West Des Moines and Kurt S. Peterson of Pingel & Templer, P.C., West Des Moines, for appellees.
   LAVORATO, Chief Justice.

The petitioners filed a writ of certiorari against the City of Johnston Board of Adjustment (Board) in the district court challenging the Board’s grant of a variance regarding property owned by respondents Dallas E. Patterson and Connie A. Patterson. The Pattersons sought the variance before submitting to the Johnston City Council a plat covering the property in question.

Later, the petitioners joined several other individuals and the City of Johnston as respondents. Pursuant to a writ issued by the clerk of the district court, the Board filed a return on the writ. See Iowa R. Civ. P. 1.1404; Iowa Code § 414.17 (1997). Following a number of pretrial rulings, the district court agreed with the petitioners and ruled, among other things, that the Board could not grant the variance.

The respondents appealed raising a number of issues. One of those issues is whether the Pattersons were required to obtain the variance before submitting the plat for approval to the city council. We conclude they were not. For that reason, the case should have ended at the pretrial stage on the respondents’ first motion to adjudicate law points. Accordingly, we reverse the judgment of the district court and vacate all the rulings beyond the respondents’ first motion to adjudicate law points. We remand the case with directions.

I. Background Facts and Proceedings.

The Pattersons owned a 2.985 acre residential lot in an R-l (single family residential) zoning district in the City of Johnston, Iowa. A private drive created by a fifty-foot wide ingress/egress and utility easement provides access to the property. Thomas and Kristine Flynn granted the easement to the Pattersons, Robert and Barbara Britson, Kirby and Sharon Wil-more, and Ronald and Phyllis Onnen in 1988. At the time, the Britsons, Wilmores, and Onnens owned property adjoining the Pattersons’ property. The Wilmores sold their property to Lee and Kathy Baker in 1995. The Britsons, Onnens, and Bakers owned their adjoining property at the time this action was commenced.

In 1995 the Pattersons granted a second ingress/egress and utility easement — thirty feet in width — to Lawrence and Linda Marsell, who owned property to the north of the Pattersons’ property but not adjoining it.

The Pattersons wanted to create two lots, one on each side of the thirty-foot easement that severed the existing lot. They intended to sell the lot to the east of the easement, approximately 2.270 acres, on which their homestead was located. On the proposed new lot, approximately .715 acres, they planned to construct a new residence.

In 1996 the Pattersons began the process of creating a minor subdivision, splitting the one lot into two lots. The city’s planning and zoning commission recommended to the city council approval of “Patterson Place Plat 2” minor subdivision.

Thereafter, the then city attorney informed the city that he believed the final plat should go to the Board. In accordance with that opinion, a city official notified the Pattersons by letter that before the proposed plat could be placed on the city council’s agenda for action, the Board would have to grant a variance, as outlined in section 17.04.230 of the city’s ordinances. That ordinance provided in relevant part:

Street Frontage Required. Except as herein provided, no lot shall contain any building used for residential purposes unless such lot abuts for at least forty (⅛0) feet on a public street. In situations of hardship, the Board of Adjustment may grant a variance from the minimum forty (40) feet frontage requirement, if an exclusive unobstructed private easement of access or private right-of-way of at least forty (40) feet wide to a street is provided for no more than one (1) single family detached dwelling, and if a common easement of access or right-of-way of at least fifty (50) feet wide is provided for two (2) or more single family dwellings....

Johnston Municipal Ordinance § 17.04.230 (emphasis added).

In the letter, the city official explained to the Pattersons:

The lots you proposed have at least 40 feet on frontage on the public access easement. However, the question was raised whether the public access easement is a “public street” as required [by section 17.04.230].... This easement is too limited to be considered a public street. Under the circumstances, this would not constitute a lawful subdivision.

The official, however, did advise the Pat-tersons that they could seek a variance from the Board based on hardship as provided in the ordinance. The Pattersons first sought a variance from the Board in 1996. They withdrew their request for a variance before the Board could take action on it, because of a staff recommendation that the Board deny the request. The Pattersons’ second request, made in 1997, was denied by the Board.

In the interim, a new city attorney was appointed who, contrary to the former city attorney, believed no variance was required. However, the new city attorney advised that “in all fairness,” because Mr. Patterson was now the mayor and to avoid the appearance of impropriety, the plat should go to the Board for its review.

In 1999 the Pattersons again sought a variance. On April 29, 1999, at a hearing before the Board on the Pattersons’ variance request, counsel for the Bakers, Porter and Beverly Williams (owners of property southwest of, but not adjacent to, the Pattersons’ property), the Onnens, and the Britsons (hereinafter “Petitioners”) appeared to oppose the request.

According to city ordinance 17.04.210(E)(2), the Board has authority to grant a variance provided the conditions upon which the request is based “are not the result of actions of the property owner” and enforcement of the ordinance would result in “unnecessary hardship.” The Board passed a motion “to approve the creation of a new lot on a private easement, 50 feet in width, based upon a hardship that the property is severed by the private drive.”

This Board action prompted the petitioners to file on June 18 a petition for writ of certiorari and declaratory judgment against the Board. The petitioners alleged that the Board acted illegally in approving the Pattersons’ variance request primarily because the fact relied upon by the Board to establish hardship as required by the ordinance (section 17.04.210(E)(2)) was a condition predating the Pattersons’ purchase of the property and was the result of the Pattersons’ own actions. The clerk issued the writ and the Board filed its return on the writ.

Meanwhile, on July 19, the city council approved the final plat for Patterson Place Plat 2 (plat 2). None of the petitioners appealed from, or otherwise challenged, in the district.court, the city council’s action approving the plat.

On October 20 the Pattersons sold the new lot (Lot 2 of plat 2) lying west of the access easement to Wesley and Lynne Jordan. Later, the Pattersons sold their resL dence and all land lying east of the access easement (Lot 1 of plat 2) to Lonnie and Paula Smith.

On October 29 the district court heard the petitioners’ request for stay to restrain the city from issuing any building permits for Lot 2. Because the city was not yet a party to the present action, the court did not issue a stay against the city, but did enjoin the Board from granting the variance until further order of the court.

On November 5 the city issued a building permit to the Jordans. The city attorney notified the petitioners’ attorney about the permit, but the petitioners did not appeal or otherwise contest the issuance of the permit.

On November 29 the petitioners filed an amended writ of certiorari and for declaratory judgment, adding as respondents the city, the Pattersons, the Jordans, and the Smiths. (Hereinafter, the Board and the city are referred to collectively as “municipal respondents” and the Pattersons, Jor-dans, and Smiths as “individual respondents.”) The amended petition contained the same allegations regarding the illegality of the Board’s decision to grant the variance. Additional allegations centered on the Jordans’ building permit and a request for temporary injunction to restrain the individual respondents from taking any further action regarding the property. Thereafter the district court issued a temporary restraining order as requested.

In March 2000 the individual respondents filed a request for adjudication of law points. The municipal respondents filed a joinder in the motion. The request asked the district court to determine that the Board lacked authority to decide whether a lot should or should not be created. Additionally, the request asked the court to determine that the Pattersons were not required to submit their proposed minor subdivision plat to the Board before action by the city council on the plat.

During the hearing on the motion, both sides introduced exhibits, and the individual respondents made an oral motion for summary judgment, which the petitioners resisted. The individual respondents made the motion for summary judgment on the expectation that a favorable ruling on its motion for adjudication of law points would resolve all the issues in the case. The petitioners made a cross-motion for summary judgment.

Following the hearing, the district court found, in a ruling dated April 11, 2000, that the Pattersons’ claimed hardship was self-created and for that reason the Board acted illegally by granting a variance on the basis of hardship. The court entered judgment in favor of the petitioners and did not address the motion to adjudicate law points. The court ruled that “[a]ny building permit or subdivision approved in reliance on the variance granted by the [Board] on April 29, 1999, is also illegal and void.”

The individual respondents filed a motion pursuant to Iowa Rule of Civil Procedure 179(b) (now rule 1.904(2)) and a request for new trial. The individual respondents alleged that the court at the hearing on the motion to adjudicate law points led them to believe that it would rule favorably on the motion and for that reason they did not introduce evidence on the merits. These respondents contended that the court had a duty to rule on the motion to adjudicate law points and asked for a new trial based on irregularities in the proceedings. The petitioners’ attorney filed an affidavit disputing that the district court had committed itself to ruling in favor of the motion to adjudicate law points.

The municipal respondents filed a motion requesting the court vacate its ruling on the merits and rule on the issues raised in the individual respondents’ motion to adjudicate law points.

On August 10 the court granted the motion for adjudication of law points, concluding that a variance by the Board was not required before submission of the proposed plat to the city council for approval. However, the court denied the motion for summary judgment, concluding that a variance may have been required based on other issues of non-conformity raised both at the April 29, 1999 Board meeting and as outlined in the petition for writ of certiora-ri.

On August 15 the district court granted the motion for new trial. The court concluded that because of irregularities in the proceedings, including the issuance of its April 12 ruling prior to issuance of a ruling on the motions to adjudicate law points and for summary judgment, it was granting a new trial to allow all parties to introduce additional evidence.

In the meantime, on August 7 the city council passed Ordinance No. 579, amending section 17.04.230. The amendment in effect removed the requirements of a variance for approval of a residential building lacking street frontage but provided other conditions that had to be met.

In January 2001 the city passed Ordinance No. 595, which deleted section 17.04.230 from the zoning code and added it, in its entirety, to the subdivision regulations. The new ordinance is now section 16.20.065.

On April 9 the individual respondents filed a second motion to adjudicate law points. This time these respondents asked the court to determine as a matter of law that (1) the Board’s actions and the subsequent certiorari petitions were moot because of the repeal of section 17.04.230 and the adoption of Ordinance No. 595 and (2) the time-of-decision rule applied so that the relevant ordinance was new section 16.20.065, not section 17.04.230. These respondents also alleged that the city had rescinded the building permit it had earlier granted for Lot 2.

The petitioners resisted the motion, alleging that the time-of-decision rule was inapplicable because of the municipal respondents’ bad faith and that the amendments were invalid. Petitioners also filed a request for discovery sanctions against the municipal respondents because of their alleged failure to supplement petitioners’ request for production of documents with the amendments to the ordinance at issue.

The municipal respondents filed a response to the individual respondents’ second motion for adjudication of law points and to the petitioners’ response to the motion. The municipal respondents concurred with the individual respondents that all issues were moot. They also asserted that the amended ordinance was valid and there was no bad faith on the part of the municipal respondents. Attached to the response were several affidavits from city council members averring that they did not believe the passage of the amended ordinances would affect any ongoing litigation. The petitioners moved to strike the affidavits.

On July 31 the district court ruled on the individual respondents’ second motion to adjudicate law points and the motions for sanctions and to strike affidavits. As to the second motion to adjudicate law points, the court concluded that (1) changes to the ordinance and revocation of the budding permit for Lot 2 did not render the certiorari petition moot, (2) Ordinance No. 595 was void for lack of required notice, (3) Ordinance No. 579 was invalid to the extent it conferred the power to grant a special exception to the city council, and (4) the bad faith exception to the time-of-decision rule applied to the municipal respondents. The court therefore determined that the original, unamended section 17.04.230 applied to the case.

As to the motion for sanctions, the court concluded that the bad faith on the part of the municipal respondents coupled with the failure to comply with court orders supported an entry of default judgment against all the respondents. In granting the default, the court included the individual respondents because these respondents failed to supplement the record with additional evidence, which was the basis of the individual respondents’ request for new trial. The court found that the request for new trial was a ruse to gain more time for the new ordinances to pass.

The court then concluded:

[W]ithout additional evidence, the findings of fact and the basis for the original ruling stand and should be reinstated without further wasting of the time and resources of the judicial system and the parties involved.
Therefore, the court finds that ... Johnston City Ordinance 17.04.230 in effect at the time of the filing of this action applies]. The court further finds no hardship existed other than that of the making of the owners of the property, the Pattersons, and no basis for a variance exists. In addition, the court finds that approval of the plat would create a lot of a size not in conformity with the Comprehensive Plan. Although the zoning ordinance in effect at all times at issue in this action permitted lots of a smaller size than those permitted by the Comprehensive Plan, the court finds that it is the Comprehensive Plan which must be controlling in the present case. No variance may be granted by the Johnston Board of Adjustment for approval of the proposed plat and the plat may not be approved.

In addition, the court concluded “[n]o building permit may be issued for the proposed lot and any building permit previously issued is illegal and void.” In effect, the district court reversed the Board’s decision. See Iowa Code § 414.18 (providing that district court “may reverse or affirm, wholly or partly, or may modify the decision of [the board of adjustment] brought up for review”). Finally, the court granted the motion to strike affidavits.

II. Issues.

In their appeals, the municipal and individual respondents raise similar issues. The municipal respondents contend the district court (1) exceeded its authority by ruling on issues not addressed by the Board, (2) erred in addressing the merits of the case after deciding a variance was not required from the Board, (3) improperly applied the bad faith exception to the time-of-decision rule, (4) applied an incorrect legal standard when reviewing the city council’s actions in amending its ordinance, (5) improperly struck city council members’ affidavits, (6) erred in finding the comprehensive plan controlled the city’s consideration of the plat, (7) erred in finding the city failed to publish Ordinance No. 579, and (8) erred in imposing the sanction of default upon the municipal respondents.

The individual respondents contend the district court erred in (1) reviewing and deciding this case after it was clear the Board exceeded its jurisdiction, (2) determining the court had jurisdiction to determine the validity of plat 2, (3) treating the Pattersons’ request under section 17.04.230 as a request for a variance when it was actually a request for special exemption, (4) determining the city acted in bad faith when it amended section 17.04.230, (5) determining the actions of the Board in April 1999 were not moot and in failing to apply the time-of-decision rule to the amended ordinance, and (6) imposing sanctions upon the individual respondents.

III. Applicable Law and Scope of Review.

To guide us in resolving the procedural nightmare this record presents, we must review pertinent statutory and case law in the area of city zoning. Iowa Code section 414.15 permits any person aggrieved by any decision of the board of adjustment under Iowa Code chapter 414 (city zoning) to

present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of illegality.

Iowa Code § 414.15.

Once the petition is presented, the court may allow a writ of certiorari directed to the board of adjustment to review such decision of the board of adjustment and shall prescribe therein the time within which a return thereto must be made....

Iowa Code § 414.16.

The Board must then “return certified or sworn copies” of the original papers upon which the Board acted and “the return shall concisely set forth such other facts as may be permitted and material to show the grounds of the decision appealed from and shall be verified.” Iowa Code § 414.17.

Iowa Code section 414.18 provides how the certiorari action is to be tried:

If upon the hearing which shall be tried de novo it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with the referee’s findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

Iowa Code § 414.18 (emphasis added).

Our case law has established the following standard of review for the district court under section 414.18:

[I]n a certiorari proceeding in a zoning case the district court finds the facts anew on the record made in the certiora-ri proceeding. That record will include the return to the writ and any additional evidence which may have been offered by the parties. However, the district court is not free to decide the case anew. Illegality of the challenged board action is established by reason of the court’s findings of fact if they do not provide substantial support for the board decision. If the district court’s findings of fact leave the reasonableness of the board’s decision open to a fair difference of opinion, the court may not substitute its decision for that of the board.

Lauridsen v. City of Okoboji Bd. of Adjustment, 554 N.W.2d 541, 543 (Iowa 1996) (citation omitted) (emphasis added); see also Weldon v. Zoning Bd., 250 N.W.2d 396, 400 (Iowa 1977) (“The term ‘de novo’ as used in [section 414.18] does not bear its equitable connotation. It authorizes the taking of additional testimony, but only for the submission and consideration of those questions of illegality raised by the statutory petition for writ of certiorari.” (Citation omitted.)); Anderson v. Jester, 206 Iowa 452, 463, 221 N.W. 354, 359 (1928) (“If one of the grounds of alleged illegality is arbitrary, unreasonable or discriminatory action on the part of the board, and on the facts the reasonableness of the board’s action is open to fair difference of opinion, there is, as to that, no illegality. The court is not, in such case, authorized to substitute its judgment for that of the local board.”)

In Anderson, this court determined what effect the statutes have on the district court’s mode and scope of review when one raises an issue of sufficiency of the evidence to support the board’s decision:

The statute [Iowa Code section 414.18] does not require the board of adjustment to return findings of fact, nor does it, expressly or by implication, limit review to questions of illegality or jurisdiction or other questions appearing upon the face of the record anterior to the filing of petition in certiorari. On the contrary, it expressly declares that the “hearing” (cause) shall be tried de novo. If all the material facts appear in the record, or are not disputed, or only questions arising upon the record are presented, the taking of evidence is not necessary. Questions likely to arise in such cases are of such great importance that the Legislature appears to have had in mind that the parties should, on the question of the legality of the board’s action, be entitled to a full and complete hearing before a proper court of record and according to accepted judicial method of ascertaining facts. The parties are not on certiorari bound by the finding or opinion of the local board on the facts, or by the evidence offered there, or by knowledge outside of the evidence on which the board may have acted, but, ordinarily at least, are entitled to take testimony when a determinative issue of fact is raised.

Id. at 461-62, 221 N.W. at 359 (emphasis added).

On the question of what use the district court may make of the factual record in the certiorari proceeding, the court in Anderson was very specific:

It is for illegality, therefore, and only on a petition setting forth illegality, that the writ may be allowed.... The trial de novo permitted the determination of whether testimony is necessary, and the admission of such testimony, or the reference permitted by section [414.18], should be confined to the questions of illegality raised by the petition for the unit. Arbitrary and unreasonable action or proceedings, not authorized by, or contrary to, the terms or spirit and purpose of the statute creating and defining the powers of the board, or contrary to, or unsupported by, facts on which power to act depends, or within which the power must be exercised, are illegal. If one of the grounds of alleged illegality is arbitrary, unreasonable or discriminatory action on the part of the board, and on the facts the reasonableness of the board’s action is open to fair difference of opinion, there is, as to that, no illegality. The court is not, in such case, authorized to substitute its judgment for that of the local board.

Id. at 463, 221 N.W. at 359 (emphasis added).

Iowa Rule of Civil Procedure 1.1412 governs our review from the district court’s judgment. That rule provides that “[a]ppeal to the supreme court lies from a judgment of the district court in the certio-rari proceeding, and will be governed by the rules applicable to appeals in ordinary actions.” Iowa R. Civ. P. 1.1412. Our review is therefore the same as from judgment founded on a special verdict by a jury, that is, on assigned errors only. Lamidsen, 554 N.W.2d at 543. We are bound by the district court’s findings if supported by substantial evidence. Chrischilles v. Arnolds Park Zoning Bd. of Adjustment, 505 N.W.2d 491, 493 (Iowa 1993). However, we are not bound by erroneous legal rulings that materially affect the court’s decision. Id.

IV. Analysis.

The first step in our analysis of the issues is to determine exactly what the Board decided. The return on the writ indicated that the Board voted on a motion “to approve the creation of a new lot on a private access easement, 50 feet in width, based upon a hardship that the property is severed by the private drive.”

The second step in our analysis requires us to view the petition for certiorari and determine what the petitioners are alleging the Board did that was illegal. The primary allegation of illegality boils down to this: the Board had authority according to ordinance 17.04.210(E)(2) to grant a variance provided the conditions upon which the request is based are not the result of actions of the property owner and enforcement of the ordinance would result in unnecessary hardship. According to the petition, substantial evidence does not support a finding that both conditions were met. Rather there was substantial evidence that the hardship created by the ordinance predated the Pattersons’ purchase of the property and was the result of Pattersons’ own action. Additionally, according to the petition, there was substantial evidence that enforcement of the ordinance did not result in unnecessary hardship. These allegations of illegality established the parameters of the district court’s review.

Given the parameters of the district court’s review, we think one of the issues the individual and municipal respondents raise is dispositive of this appeal. That issue centers on whether a variance from the Board was required before the city council’s consideration and approval of plat 2.

As mentioned, in 1996 the city attorney advised the Pattersons that before their proposed plat could be placed on the city council’s agenda, the Board would have to grant a variance pursuant to section 17.04.230. Contrary to this advice, a new city attorney believed that no variance was required but advised the matter should go to the Board to avoid the appearance of impropriety because Mr. Patterson was now the mayor of Johnston.

The individual respondents raised the issue in their first motion to adjudicate law points in March 2000 when they requested the court to determine as a matter of law that the Pattersons were not required to submit their proposed plat to the Board under section 17.04.230 before submitting the plat to the Johnston City Council for approval. The municipal respondents joined in this motion. The return indicates that the Board voted to grant a variance to “create” a new lot. That variance only pertained to Lot 2, the lot that had no residential building on it. Section 17.04.230 required that “no lot shall contain any building used for residential purposes” unless the street frontage requirements were met. Because Lot 2 had no residential building on it, the individual and municipal respondents contended no variance was required.

In its ruling on the first motion to adjudicate law points, the district court agreed with the individual and municipal respondents:

City ordinance section 17.04.230 deals specifically with lots which contain a residential building. The approval of the proposed plat would create two lots, one lot containing a residential building and one which would not. Only Lot 1, the lot containing the building is addressed by city ordinance section 17.04.230. There are no allegations that proposed Lot 1 is not in conformity with city ordinance section 17.04.230. It is only Lot 2 which is at issue. At the time of the approval of the proposed plat, Lot 2 did not contain a residential building and would not be impacted by any requirements of sectionl7.04.230. A variance by the Board of Adjustment based on the provision of section 17.0j.2S0 ivas not required prior to submission of the proposed plat to the city council for approval.

(Emphasis added.)

However, in its ruling on the individual respondents’ oral motion for summary judgment, the court stated that its ruling on the motion to adjudicate law points was not dispositive of the case. The court proceeded to deny the motion for summary judgment, concluding that “a variance may have been required based on other issues of non-conformity” raised before the Board and in the petition for writ of certiorari.

The court did not elaborate on what these other issues of non-conformity were.

However, a review of the hearing before the Board and the petition for writ of certiorari makes clear that those issues included the petitioners’ claim the variance request was inconsistent with the “Johnston Comprehensive Plan” in several respects. The petitioners argued at the hearing and alleged in their petition that the variance was inconsistent with the plan because the variance created a lot smaller than one acre, allowed development on steep slopes on a Hayden soil site, required an additional on-site septic system, created additional traffic, and did not promote harmony within the neighborhood because neighboring property owners strongly opposed it.

The district court’s ruling on the first motion to adjudicate law points became a basis for the court’s conclusions in its ruling on the individual respondents’ second motion to adjudicate law points. In the second motion, these respondents asked the district court to rule that all issues raised in the certiorari petition were moot because of the court’s previous determination that it was unnecessary for the Pat-tersons to obtain a variance before submitting the plat to the city council. In their response to the second motion to adjudicate law points, the municipal respondents also argued the issues were moot.

In its ruling on the second motion to adjudicate law points, the court explained its previous ruling:

The previous ruling [on the first motion to adjudicate law points] addressed the narrowly tailored question of whether “city ordinance section 17.04.230 requires approval of a variance prior to submission of the proposed plat to the city council.” The court noted the ordinance “deals specifically with lots which contain a residential building,” and found since no building existed on the proposed Lot 2, the proposed plat was not impacted by the then existing section 17.04.230 and no variance [was] required by section 17.04.230. The court did not rule that no variance was required but only that the then existing section 17.04.230 did not require a variance for the creation of Lot 2. In fact, the court further noted “a variance may have been required based on other issues of non-conformity raised both at the April 29, 1999 Board of Adjustment meeting and outlined in the petition for writ of certiorari filed by the petitioners.

The court went on to rule that the issues raised in the certiorari petition were not moot.

The respondents contend the district court’s ruling granting the respondents’ first motion to adjudicate law points should have been the end of the case. We agree.

Interpretation of section 17.04.230 is a question of law and is for us to decide. Lauridsen, 554 N.W.2d at 543. We apply the general rules of construction for statutes when interpreting ordinances. Id. We therefore look first to the ordinance’s language. Bernau v. Iowa Dep’t of Transp., 580 N.W.2d 757, 761 (Iowa 1998). We do not search for meaning beyond the express terms of an ordinance when the ordinance is plain and its meaning is clear. State v. Snyder, 634 N.W.2d 613, 615 (Iowa 2001). Legislative intent is shown by what an ordinance says, rather than what it should or might have said. City of New Hampton v. Blayne-Martin Corp., 594 N.W.2d 40, 46 (Iowa 1999).

Section 17.04.230 requires that “no lot shall contain any building used for residential purposes” unless the street frontage requirements are met. Lot 2— the proposed lot for which the variance was requested — did not contain a “building used for residential purposes.” Therefore, no Board action was necessary before the city council could approve the plat. The city council, not the Board, has the authority to approve a plat. See Iowa Code §§ 354.2(7), .8; see also Oakes Constr. Co. v. City of Iowa City, 304 N.W.2d 797, 798-99 (Iowa 1981). In short, any ruling by the Board on the variance request before city council approval of the plat was premature.

The ultimate issue before the Board was whether to grant a variance as to Lot 2 from the terms of section 17.04.230. Any “other issues of non-conformity” that arose during the hearing must have been ultimately related to whether the variance should be granted under the terms of section 17.04.230 once action by the Board was required. The court therefore, should have granted the individual respondents’ oral motion for summary judgment because the fact that no variance was required left no issues for the court to decide.

Because no variance as to Lot 2 pursuant to section 17.04.230 was required before submission of the proposed plat to the city council for approval, the council’s approval of plat 2 is unrelated to the grant of a variance. No appeal was taken from the city council’s decision to approve plat 2. Therefore, the approval of plat 2 stands, and the district court acted beyond its jurisdiction in ruling otherwise.

The decision we reach means the district court should not have addressed the merits of the petition for certiorari. Rather, after granting the first motion to adjudicate law points, the court should have granted the oral motion for summary judgment. The court erred in failing to grant the oral motion for summary judgment. Additionally, our decision renders moot all of the district court rulings beyond the ruling on the first motion to adjudicate law points. Accordingly, we reverse the judgment of the district court and vacate all its rulings beyond its ruling on the first motion to adjudicate law points. We remand for a dismissal of petitioner’s petition as to all respondents with costs taxed to the petitioners.

JUDGMENT OF THE DISTRICT COURT REVERSED IN PART, VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS.