author: R.A. RANDALL, Judge

text:
    STATE of Minnesota, Respondent, v. Gerald James GREENFIELD, Appellant.
    No. C7-00-811.
    Court of Appeals of Minnesota.
    Feb. 20, 2001.

      Ronald I. Meshbesher, Jonathan M. Peck, Meshbesher & Spence, Ltd., Minneapolis, MN, (for appellant).
    Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Minneapolis, MN, (for respondent).
    Considered and decided by KALITOWSKI, Presiding Judge, RANDALL, Judge, and CRIPPEN, Judge.
   OPINION

R.A. RANDALL, Judge

Appellant Gerald J. Greenfield appeals his conviction for felony sports bookmaking, arguing that the evidence is insufficient to prove that he accepted a bet, as statutorily defined, because he did not stand to gain or lose anything by the transactions and did not charge the caller for more than the amount of the wager. Appellant also argues that the district court erred in allowing the state to introduce into evidence a false identity card seized from appellant’s home when appellant offered to stipulate to identity. We affirm.

FACTS

Appellant was charged with felony sports bookmaking in violation of Minn. Stat. § 609.76, subd. 2 (1994). Following a jury trial, Greenfield was found guilty of felony sports bookmaking; gross misdemeanor receiving, recording or forwarding a bet; and misdemeanor'making a bet. Greenfield filed a motion for judgment of acquittal or for a new trial. The district court denied Greenfield’s motion, entered judgment, and sentenced him for felony sports bookmaking.

In April 1996, the Minnesota Department of Safety’s Alcohol and Gambling Enforcement Division (the Department) was contacted by the New York State Police with information acquired through legal wiretaps and pen registers regarding an illegal bookmaking operation in New York connected to Minnesota. New York provided the Department with two Minnesota phone numbers and copies of the Minnesota conversations from their investigation.

Investigation of the Minnesota phone numbers revealed Greenfield set up an elaborate phone system using landlines and cell phones registered to two different addresses of adjoining townhouses. Greenfield owned one townhouse, and the other townhouse, although actually owned by a couple who lived out of state during the winter, had a post office box registered to that address by a J.P. Field for purposes of setting up a cell phone. Surveillance of the two properties revealed a high probability that Greenfield and J.P. Field was .the same person.

Investigators executed a search warrant for Greenfield’s townhouse. They noticed, before entering, Greenfield sitting at a desk where they later found betting sheets, a cellular phone directory, phone bills for J.P. Field, a cellular phone registered to J.P. Field, tout service books, and various other items commonly used in gambling. In a floor safe in Greenfield’s bedroom closet, police found approximately $87,000 cash in marked envelopes, an envelope with J.P. Field written on it, and two I 94 identification cards under the name of John Patrick Field with Greenfield’s picture. Possession of false I 94 identification cards is not illegal. ’

The cellular phone directory contained coded names arid numbers that coincided with column headings on the betting sheets. The initials MA and the corresponding coded phone number in the phone directory coincided with Melvin Am-iel’s New York phone number. Amiel was the subject of the New York investigation. Further, the recorded conversations between Amiel and Greenfield corresponded closely with the data in the column marked MA on the betting sheets. The March 31, 1996, betting sheet showed that Greenfield received $18,300 in wagers, “passed off’ a bet of $10,000 to a bookie in Ohio, and retained $8,300 for himself.

ISSUES

1. Was there sufficient evidence to sustain appellant’s conviction?

2. Did the district court err in admitting the false identification cards into evidence?

ANALYSIS

I. Sufficient Evidence

In considering a claim of insufficiency of the evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow a jury to reach its verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn.1989). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn.1989). The reviewing court will not disturb the jury’s verdict, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, the jury could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn.1988).

Greenfield argues the evidence was legally insufficient to support his conviction for sports bookmaking, and therefore he is entitled to have his conviction vacated. He argues that he did not actually participate in any bets, except on one occasion, but was rather a “beard,” which falls outside the scope of the sports bookmaking statute. A beard is someone who places wagers for other individuals without revealing the true identity of the person responsible for the wager.

Greenfield focuses his argument on what constitutes a bet, and stresses that to have betting, which is part of the statutory language for sports bookmaking, there must be self-defeating wagers. He claims he never stood to gain or lose anything from the bets placed on behalf of others. He argues that passing bets on behalf of other bettors as a beard does not constitute bookmaking. Greenfield asserts he cannot be both a beard and a bookie. Greenfield concedes that the taped telephone conversations appear to show Amiel placing bets with Greenfield; however, he argues that careful analysis of the contents of the conversations in conjunction with inspection of the betting sheets demonstrates that he had no risk of loss with Amiel.

The interpretation of a statute is a question of law, and thus this court reviews it de novo. Lolling v. Midwest Patrol, 545 N.W.2d 372, 375 (Minn.1996). The purpose of statutory interpretation is to ascertain the effective legislative intent. Minn.Stat. § 645.16 (2000). If statutory language is plain and unambiguous, the court must give it its plain meaning. Turna v. Commissioner of Econ. Sec., 386 N.W.2d 702, 706 (Minn.1986). The rule of strict construction of criminal statutes guards against creating additional criminal offenses not intended by the legislature to be part of the statute. State v. Soto, 378 N.W.2d 625, 628 (Minn.1985).

Sports bookmaking is defined as the activity of intentionally receiving, recording or fm'warding within any 30-day period more than five bets, or offers to bet, that total more than $2,500 on any one or more sporting events.

Minn.Stat. § 609.75, subd. 7 (1994) (emphasis added). A “bet” or “offer to bet” is part of an element of sports bookmaking; therefore, the meaning of a bet is at issue. A “bet” under Minn.Stat. § 609.75, subd. 2, is

a bargain whereby the parties mutually agree to a gain or loss by one to the other of specified money, property or benefit dependent upon chance although the chance is accompanied by some element of skill.

Greenfield argues that the definition for “bet” states that a gain or loss is experienced by one of the parties by mutual agreement. But “forwarding” a bet, by definition, means that someone else, even if not the forwarder himself, will have a gain or a loss. Greenfield argues that there is nothing in the record to prove he took “vigorish” or “vig,” the bettor’s/bookie’s term for a fee to bet that is often paid by the loser in a sports bookmaking situation, over and above the amount of the wager. There is, however, nothing in the definition of a bet or sports bookmaking requiring a showing of the bettor’s fee, or vigorish, to constitute a bet within the meaning of bookmaking.

Applying the plain meaning of a bet to the facts of this case, the people in the telephone conversations with Greenfield and on the betting sheets stood to lose money they placed on various sports games through Greenfield. If the bettor were to lose the bet, he would lose his money either to Greenfield or the person to whom Greenfield forwarded the bet for final determination (final determination simply meaning the ultimate person who accepted the bet, and, thus, stood to collect if the bettor lost or had to pay up if the bettor won). In every instance, either Greenfield or a bookie down the road would gain money or lose money.

It is apparent from the definition of sports bookmaking that the intent of the statute is to encompass a broad range of transactions dealing with bets. Sports bookmaking does contain the word “bet”; however, the definition of sports bookmaking also includes “receiving, recording, or forwarding” a bet or an offer to bet. Thus, anyone receiving, recording, or forwarding a bet or offer to bet can be convicted of sports bookmaking under the statute (assuming the other elements are present; i.e., 30 day period, six or more bets or offers to bet, $2,501 total or more) whether they choose to call themselves a bookie, a beard, or just a bettor. The offense of forwarding bets would have no teeth and the statute would be worthless for that activity if a complete defense was, as Greenfield argues, that he merely bet for someone else and personally did not stand to gain or lose. A beard, even one claiming that he does not stand to gain or lose anything from the deal, acts as an intermediary by forwarding the bet to a bookmaker. The language of the statute shows the legislature intended that statute to cover transactions involving persons who receive, record, or forward bets.

Greenfield conceded that he was at least a beard. In addition, he agreed that if MA won a bet Greenfield placed as a beard, MA would look to Greenfield for his winnings, and if MA lost, Greenfield would receive the lost bet from MA and forward it to the person with whom Greenfield placed the bet. On March 31, 1996, Greenfield forwarded $10,000 to a bookmaker in Ohio. Whether this was laying off bets as a bookie or placing the bet as a beard so that another bettor could remain anonymous, both come under the statute. Both transactions are acts of forwarding. The recorded telephone conversations between Amiel and Greenfield establish that Greenfield committed an offense outlined in sports bookmaking. The record bolsters this conclusion. He had tout service books; coded names and phone numbers, a common practice in gambling for bookies; dozens of betting sheets; $87,000 cash, along with false identification cards and an envelope marked for J.P. Field in a floor safe; and phone records and bills for both Greenfield and J.P. Field. In addition, the record shows Greenfield took complicated steps to set up a post office box so he could register a cell phone to J.P. Field in order to conceal his operation.

Reading the definition of sports bookmaking in Minn.Stat. § 608.75, subd. 7, and giving it a plain meaning, sports bookmaking includes the actions of beards, bookies, and bettors involving both bets and offers to bet, providing all other essential elements of the statute have been established by proof beyond a reasonable doubt. Viewing the evidence in the light most favorable to the state, we conclude the evidence sufficiently supported Greenfield’s conviction of felony sports bookmaking.

II. Admissibility of Evidence

Greenfield argues, under Minn.R.Evid. 403 and 404(b), that the district court committed prejudicial error by admitting the false identification cards into evidence. Greenfield was willing to stipulate that he and J.P. Field was the same person, argu-' ing that the false identification cards would imply other wrongdoing and unfairly prejudice Greenfield if admitted into evidence. He asks that this court reverse his conviction and remand for a new trial without introduction of the false identification cards.

We understand appellant’s argument that defendants and defense counsel have the right to offer to stipulate to certain facets of the state’s case for the purpose of admitting the obvious and holding down unwarranted prejudicial overtones. But a defendant’s offer to stipulate does not always take away the state’s right to offer evidence on the point. State v. Davidson, 351 N.W.2d 8, 10 (Minn.1984); see also Old Chief v. United States, 519 U.S. 172, 186-87, 117 S.Ct. 644, 653, 136 L.Ed.2d 574 (1997) (recognizing criminal defendant may not stipulate his way out of full evidentiary force of case as Government chooses to present it). In assessing the potential prejudicial impact of admitting stipulated evidence, the court must also look at the relevance of the stipulated evidence to additional issues that would be addressed by admitting the evidence. Davidson, 351 N.W.2d at 11-12.

Stipulations are mainly allowed when criminal status is an element of the crime at issue. See State v. Clark, 375 N.W.2d 59, 62 (Minn.App.1985) (holding aggravated DWI defendant should be allowed to stipulate prior DWI conviction and driver’s license revocation, which are elements of aggravated DWI); see also State v. Allen, 375 N.W.2d 82, 85 (Minn.App.1985) (reversing decision where district court refused to accept defendant’s offer to stipulate to felony status where status was element of charged crime), review denied (Minn. Dec. 19, 1985). Old Chief states that the “holding is limited to cases involving proof of felon status.” 519 U.S. at 183, n. 7, 117 S.Ct. at 651, n. 7. This case is distinguishable on that point. Greenfield had no prior felony conviction. Allowing the false identification cards into evidence does not show criminal activity above and beyond the crime of sports bookmaking. Further, courts have not allowed stipulations by defendants in nonstatus cases where the state successfully argued to the court that they needed the evidence to go to the jury as part of the state’s chain of proof that defendant committed the crime at issue. See State v. Durfee, 322 N.W.2d 778, 786 (Minn.1982) (affirming district court’s decision to admit photographs, despite defendant’s offer to stipulate that victim suffered great bodily harm, because photographs were relevant on issue of whether defendant intentionally caused harm).

Greenfield, in trying to show why this evidence was prejudicial, draws analogies to cases involving admitting evidence of prior bad acts, such as a felon charged with possession of a weapon. Greenfield borrows the reasoning from Davidson and Old Chief, both dealing with a felon in possession of a weapon, to argue that introduction of the false identification cards implies criminal activity above and beyond the crime that is charged. Greenfield argues that granting the stipulation in his case would have been the correct ruling, as was stipulating felony status in the cases of Davidson and Old Chief. Finally, Greenfield asserts that the false identification cards created a substantial risk that the jury convicted Greenfield “based not on the relevant evidence in the record, but rather on [Greenfield’s] perceived bad character,” inferred from his possessing the false identification cards.

The State offered the false identification cards for two purposes: first, to show that Greenfield and J.P. Field was the same person; and second, to use as part of its chain of proof to show the extent to which Greenfield used the false identification cards to conceal his operation. If the parties had agreed to the stipulation that J.P. Field was Greenfield and the identity cards were not admitted, the state would not have been able to show that the false identity cards were an integral part of Greenfield’s efforts to obtain telephone service used for the sole purpose of the bookmaking operation.

The false identification cards show that Greenfield created a false identity and that he did it in order to apply for a post office box so he could register for a cell phone and regular phone line to use in his bookmaking operation. The identification cards were part of the sequence of steps Greenfield took to conceal his operation. Because the false identification cards were part of Greenfield’s concealment of identity, it could be inferred by a jury that, from their use, in combination with the other evidence, Greenfield had the intent to and did receive, record, or forward bets or offers to bet. We cannot conclude that the district court erred in admitting the false identification cards.

DECISION

There was sufficient evidence to sustain appellant’s conviction under the sports bookmaking statute. The district court did not err in admitting the false identification card into evidence.

Affirmed.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    ALUMINUM COMPANY OF AMERICA, Appellee, v. Joseph J. MUSAL, Appellant.
    No. 99-0326.
    Supreme Court of Iowa.
    Feb. 14, 2001.

      Michael W. Liebbe of Law Office of M.W. Liebbe, Davenport, for appellant.
    Thomas N. Kamp and Gregory C. Gui-ney of Lane & Waterman, Davenport, for appellee.
   CADY, Justice.

In this appeal we review a ruling by the district court which vacated a decision by the Iowa Industrial Commissioner in an appeal and cross-appeal from an arbitration decision by a deputy industrial commissioner in a workers’ compensation proceeding. The district court determined the industrial commissioner was not authorized to review the decision by the deputy after the parties failed to file briefs following the filing of their notices of appeal and cross-appeal from the decision of the deputy, and reinstated the deputy’s decision. On our review, we find the district court correctly held the commissioner was not authorized to review the decision of the deputy without providing notice and an opportunity to file briefs, but granted improper relief by reinstating the deputy’s arbitration decision.

I. Background Facts and Proceedings.

Joseph Musal fractured his right clavicle on February 26, 1994, while employed at Aluminum Company of America (ALCOA). Musal’s injury occurred in the course of his employment.

Two doctors evaluated Musal to calculate his permanent impairment rating. One doctor found four percent impairment, while the other found two percent impairment. An arbitration hearing was eventually held before a deputy commissioner to resolve the disability benefits claim. The deputy found Musal suffered a two percent industrial disability from the 1994 injury, and ordered ALCOA to pay permanent partial disability benefits for a prescribed period.

Musal filed a notice of appeal with the industrial commissioner, as well as a certificate ordering a copy of the transcript of the hearing before the deputy. ALCOA filed a notice of cross-appeal. However, no additional filings were made by either party. In particular, Musal failed to file a brief containing a statement of the issues appealed and ALCOA failed to file a brief in support of its cross-appeal.

After the appeal sat dormant for more than a year, the industrial commissioner filed an appeal decision modifying the deputy’s finding of industrial disability from two to four percent. The commissioner acknowledged the inactivity in the case, and indicated it was being “considered generally and without regard to particular issues.”

ALCOA filed a petition for judicial review. It claimed the commissioner did not have the power to review the decision because Musal failed to file a brief setting forth the issues to be decided on appeal. The district court reversed and vacated the decision of the industrial commissioner, and reinstated the deputy’s arbitration decision.

Musal appeals. He claims the procedural rules governing appeals to the industrial commissioner from a decision by a deputy commissioner do not require, but only permit, briefs to be filed. Consequently, he claims a notice of appeal authorizes the commissioner to generally review a deputy’s decision if briefs are not filed. ALCOA contends both the Iowa administrative rules and principles of due process require the issues in an appeal to be identified before the industrial commissioner is authorized to enter a decision.

II. Scope of Review.

Our review of decisions of the industrial commissioner is governed by Iowa Code chapter 17A. Squealer Feeds v. Pickering, 530 N.W.2d 678, 681 (Iowa 1995); Mortimer v. Fruehauf Corp., 502 N.W.2d 12, 14 (Iowa 1993). We limit our review “to the correction of errors at law made by the industrial commissioner and the district court.” Walsh v. Schneider Nat’l Carriers, 497 N.W.2d 895, 897 (Iowa 1993).

III. Failure of the Parties to File Briefs.

The Iowa Administrative Code identifies two methods for a decision by a deputy industrial commissioner to be reviewed by the industrial commissioner. The first method is through an appeal filed by a party following the deputy’s decision. See Iowa Admim.Code r. 876—4.27 (1998). The second method permits the commissioner to review a decision sua sponte. Id. r. 876 — 4.29. Under both methods, the notice of appeal by a party or the motion to review by the commissioner must be filed within twenty days following the deputy’s decision. Id. r. 876 — 4.27, r. 876—4.29. Under each method of review, the rules clearly contemplate that the issue or issues for review will be identified. When review is sought by a party filing a notice of appeal, the rules provide for the issues to be identified in the briefs filed by the parties. See id. r. 876—4.28(1) (requiring appellant and appellee to serve their briefs within specific periods of time); id. r. 876 — 4.28(4)(b) (requiring briefs to include a statement of the issues on appeal). Similarly, when review is on motion by the commissioner, the commissioner is required to identify the issues to be reviewed in a notice mailed to each of the parties. Id. r. 876 — 4.29. These rules reflect the general statutory principles governing review of proposed decisions of an agency. See Iowa Code § 17A.15(3) (1999) (commissioner permitted to limit issues to be reviewed by notice or rule).

In this case, both parties failed to adhere to the procedural scheme following the filing of a notice of appeal. Consequently, the question turns to the course of action available to the commissioner to dispose of the appeal.

The rules specifically provide that the commissioner may impose sanctions for the failure of a party to comply with the rules, including dismissal of the action. See Iowa Admin. Code r. 876—4.36 (2000); Walsh, 497 N.W.2d at 897. On the other hand, there is no rule specifically authorizing the commissioner to proceed to decide an appeal without briefs. Moreover, the discretion given to the commissioner under rule 876—4.29 to review decisions sua sponte is predicated upon timely notice given by the commissioner following the deputy’s decision. Clearly, the rules do not address the procedural backdrop of this case.

Nevertheless, section 17A.15(3) provides that an “agency has all the power which it would have in initially making the final decision” in an appeal from or review of a proposed decision. Iowa Code § 17A.15(3). Thus, we do not believe the failure of the parties to file briefs and define the issues on appeal precludes the commissioner from proceeding to review the appeal. Nor do we believe that the lack of a procedural rule to govern a specific procedure limits the exercise of authority granted by statute. Once a case comes before the commissioner by notice of appeal or sua sponte review, the commissioner is empowered to make the final decision. Id. Thus, we conclude the commissioner was authorized in this case to enter a decision even though the parties did not file briefs or identify issues for review. The fighting question turns to the procedural requirements the commissioner may be required to follow under such circumstances.

Although section 17A.15(3) gives agencies broad power to decide proposed decisions within the agency, it also provides that parties must be given an opportunity “to file exceptions, present briefs and, with the consent of the agency, present oral arguments,” whether the case is on appeal or review. Id. In this case, the parties may have abandoned their opportunity to present briefs by failing to comply with the rules following the notice of appeal. However, once the appeal was transformed into a review by the commissioner, the procedural opportunities which attend a review must be observed. If the statute and accompanying procedural rules mandate certain procedural requirements under both types of review, the decision by the parties to abandon one type of review would not constitute an abandonment of the .procedural opportunities under the other type of review. Section 17A.15(3) requires these procedural opportunities under both types of review.

This approach is not only compatible with section 17A.15(3) and the accompanying procedural rules, but it is also consistent with the notion of due process. We have previously held that parties to administrative agency proceedings are entitled to due process of law. See, e.g., Alfredo v. Iowa Racing & Gaming Comm’n, 555 N.W.2d 827, 833 (Iowa 1996); Wedergren v. Bd. of Dirs., 307 N.W.2d 12, 16 (Iowa 1981); Carr v. Iowa Employment Sec. Comm’n, 256 N.W.2d 211, 214-15 (Iowa 1977); Cedar Rapids Human Rights Comm’n v. Cedar Rapids Cmty. Sch. Dist., 222 N.W.2d 391, 401 (Iowa 1974). The two fundamental principles of due process are (1) notice and (2) the opportunity to defend. Carr, 256 N.W.2d at 214; Cedar Rapids Human Rights Comm’n, 222 N.W.2d at 401. Mere notice of the commencement of the action is insufficient. To comply with the notice requirement of due process, the appealing party must present the issues to be addressed to provide the opposing party an opportunity to adequately defend. Wedergren, 307 N.W.2d at 16; see Cedar Rapids Human Rights Comm’n, 222 N.W.2d at 402 (agencies must adopt a process that “affords the parties a fair opportunity to be apprised of what they are to meet”). In determining whether an agency proceeding comported with due process, our benchmark is fundamental fairness. Wedergren, 307 N.W.2d at 16.

In this ease, ALCOA was never afforded an opportunity to know what issues would be decided on appeal. Musal failed to provide notice to ALCOA by filing a brief, and the commissioner failed to provide notice prior to filing its decision. Notice could only come from Musal or the commissioner. Neither source provided such notice. Moreover, the lack of notice to ALCOA was unaffected by its own failure to pursue its cross-appeal. It could abandon its cross-appeal without abandoning its right to notice of the contested issues by Musal or the commissioner.

The procedural requirements of notice and opportunity to defend are also consistent with the traditional principles of appellate procedure. It is a well-established rule of appellate procedure that “[t]he scope of appellate review is defined by the issues raised by the parties’ briefs.” In re Dull’s Estate, 303 N.W.2d 402, 407 (Iowa 1981); see Penn Mut. Life Ins. Co. v. Doyen, 211 Iowa 426, 428-29, 233 N.W. 790, 791 (1930) (refusing to consider appeal when “no list of errors relied upon for reversal, [and] no brief points of law” were filed); Gouge v. McNamara, 586 N.W.2d 710, 713 (Iowa Ct.App.1998). Issues not raised in the appellate briefs cannot be considered by the reviewing court. See Hubby v. State, 331 N.W.2d 690, 694 (Iowa 1983) (issues not stated in an appellate brief are deemed to be waived or abandoned); Dull’s Estate, 303 N.W.2d at 407 (same). Thus, if the parties fail to raise any issues by not filing any briefs, the reviewing court has nothing to consider.

We conclude the district court was correct in ruling the commissioner must provide a statement of the issues subject to review when the commissioner reviews the deputy’s decision on its own motion or on appeal once the parties fail to submit briefs. The commissioner’s statement must also provide the parties an opportunity to submit briefs. However, the district court was incorrect in reinstating the deputy’s decision. The district court should have remanded the case to the industrial commissioner, and given the industrial commissioner the option of imposing sanctions or notifying the parties of the review to be taken. This case should therefore be remanded for further proceedings in accordance with this opinion.

IV. Conclusion.

We conclude the district court correctly held the industrial commissioner did not have the power to review the deputy commissioner’s arbitration decision without providing a statement of the issues and an opportunity to submit briefs. However, the district court should have remanded the case to the industrial commissioner to exercise its power of review consistent with the due process principles of notice and an opportunity to be heard.

DECISION OF THE DISTRICT COURT REVERSED AND CASE REMANDED TO THE INDUSTRIAL COMMISSIONER FOR FURTHER PROCEEDINGS.

      . The arbitration hearing before the deputy commissioner was a review-reopening hearing. In addition to seeking an award of disability benefits for the 1994 injury, Musal was attempting to review a prior settlement between him and ALCOA for a 1990 injury. The deputy commissioner rejected Musal’s contention that he was entitled to additional disability benefits due to a change in his condition not contemplated by the parties at the time of settlement. That portion of the arbitration decision is not at issue in this appeal.


author: SNELL, Justice.

text:
    STATE of Iowa, Appellee, v. Dennis E. BUTTON, Appellant.
    No. 99-1200.
    Supreme Court of Iowa.
    Feb. 14, 2001.

      Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Denise A. Timmins, Assistant Attorney General, John P. Sarcone, County Attorney, and Susan Cox, Assistant County Attorney, for appellee.
   SNELL, Justice.

Defendant appeals his conviction for two counts of harassment in the second degree. He claims there was insufficient evidence to prove intent. He also claims his attorney was ineffective for failing to assert certain arguments. We find no error in the trial court proceedings and affirm the conviction.

I. Factual Background and Proceedings

This case directly questions the scope of the harassment statute. Iowa Code § 708.7(l)(b) (1997). The challenged portions are emphasized below:

b. A person commits harassment when the person, purposefully and without legitimate purpose, has personal contact with another person, with the intent to threaten, intimidate, or alarm that other person. As used in this section, unless the context otherwise requires, “personal contact” means an encounter in which two or more people are in visual or physical proximity to each other. “Personal contact” does not require a physical touching or oral communication, although it may include these types of contacts.

Id. (emphasis added).

Dennis E. Button arrived at Prairie Meadows Casino one night in a drunken state. This prompted a security guard to detain him and eventually summon the police. Initially, police sought to secure Button a ride home. However, he was uncooperative to such an extent that he was placed under arrest. Following his arrest, Button made two threatening statements to the arresting officer. Specifically, he told Sergeant Routson that he would have “blown [Routson’s] brains out” if they were out pheasant hunting. As Button was in handcuffs, this did not give Routson cause for much concern, although he testified that he did take it as a threat. Button also made a derogatory reference to Rout-son’s sons. Button’s next shooting statement escalated the effect of the first statement. Button slurred, “If you get me in my car, I’ll shoot you.” It was after this statement that Routson testified he began to fear for his and his family’s safety.

Button used profane language and was generally argumentative throughout their conversation. Button went from idle slumber to asking about Rgutson’s football team preferences, to questioning Routson’s occupational choice, to arguing about not being able to gamble, and to insulting members of police in general. The shooting comments were mingled amid his other ramblings. Many of Button’s responses to questions posed by Routson were belligerent taunts to kiss his or Routson’s ass. Given the entire conversation, Button argues that at the most, the shooting comments show an intent to annoy Routson, not the specific intent to threaten, intimidate, or alarm.

Button also claims that at no time were his actions menacing in any way. However, there is contrary evidence that Button tried to strike at Routson by kicking him from across the desk that separated them during their encounter. This attempt at physical abuse came directly after a second shooting statement made by Button. The jury was able to watch this entire exchange on videotape.

At trial, the jury returned a verdict for the State. Button was convicted of two counts of harassment in the second degree. Id. § 708.7(l)(b), (3). Button immediately moved for a judgment of acquittal arguing that the jury’s verdict was not supported by substantial evidence. This motion was denied, and the present appeal followed. On appeal, Button alleges: (1) The jury’s verdict was not supported by substantial evidence of specific intent; (2) His counsel was ineffective for failing to address that a defendant cannot commit purposeful contact when he is being held against his will; and (3) His counsel was ineffective for failing to challenge the constitutionality of the statute as it applied to Button.

II. Preservation of Error/Scope and Standard of Review

In order for this court to review alleged deficiencies in the trial proceedings, these errors must be preserved for review. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). The only issue preserved for error is the sufficiency of the evidence to support a jury verdict. This question was preserved by Button’s timely motion for judgment of acquittal. State v. Walker, 574 N.W.2d 280, 283 (Iowa 1998). The purposeful contact and constitutional violation arguments were not made to the trial court. However, this is not fatal when failure to preserve error on these issues is the fault of trial counsel. See State v. Gant, 597 N.W.2d 501, 504 (Iowa 1999). Ineffective assistance claims operate as an exception to our error preservation requirements. State v. Rubino, 602 N.W.2d 558, 563 (Iowa 1999). Therefore, we will review the three issues.

A. Jury Verdict

We review a jury verdict for substantial evidence. “In deciding whether the evidence is substantial, we view the evidence in the light most favorable to the State and make all reasonable inferences that may fairly be drawn from the evidence.” State v. McPhillips, 580 N.W.2d 748, 753 (Iowa 1998); accord State v. Arne, 579 N.W.2d 326, 328 (Iowa 1998) (“Our review of the evidence is made in a light most favorable to the jury’s verdict.”). As such, a challenge of the sufficiency of the evidence is for correction of errors at law. McPhillips, 580 N.W.2d at 753. “Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence.” State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). Consequently, where the record contains substantial evidence, “we are bound by the jury’s finding of guilt.” State v. Romeo, 542 N.W.2d 543, 545 (Iowa 1996).

B. Ineffective Assistance of Counsel

The question of counsel’s performance is a constitutional claim which this court reviews de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999). The defendant must prove that counsel failed to perform an essential duty and that prejudice was the result. Id. Unless the defendant can show both by a preponderance of the evidence, we will affirm. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). To the extent counsel’s performance hinges on the interpretation of a statute, our review is for correction of errors at law. State v. Vargason, 607 N.W.2d 691, 695 (Iowa 2000).

III. Issues on Appeal

A. Substantial Evidence of Intent

Harassment is a specific intent crime. Iowa Code § 708.7(l)(b). Button argues he lacked the requisite mental state so that there was not substantial evidence for a jury to find intent. Intent is an elusive element of a crime. Walker, 574 N.W.2d at 289. Often, it can be proved only by circumstantial evidence. Id. Here, we have a statement from Button’s own mouth that he meant what he said. When Button made his first statement regarding blowing Routson’s brains out while pheasant hunting, Sergeant Routson responded, “You’re threatening me, huh?” Button answered, “Yeah, I would’ve tried to.” Button went further and later told Routson: “I’m gonna remember you.” This statement was followed by his second reference to shooting Routson.

The jury was able to watch the videotape of this encounter and hear Button’s statements in context. The jury heard Button express an extreme dislike for police officers in general. The jury also, heard that all Button really wanted was to be free to gamble. At some point in the conversation, Button became very displeased that he was being held against his will and lashed out. The jury witnessed Button attempt to kick Sergeant Routson. Given this context, it was reasonable for the jury to conclude that Button’s menacing statements evidenced an attempt to intimidate Sergeant Routson. Routson testified that he did indeed fear for his safety.

Button argues that because he could not have carried out the threats, ie., because he was in handcuffs, this fact negates their meaning. Section 708.7 does not require that the harasser have the present apparent ability to carry out the threats. Further, on this type of charge, Button would likely secure bond easily. His statement, “I’m gonna remember you,” suggests a plausible future, violent action against Routson.

We have recognized that threats of future violence over the telephone can constitute criminally punishable language. See State v. McGinnis, 248 N.W.2d 583, 588-89 (Iowa 1976). Clearly, regarding a threat over the telephone, there is no immediate ability to carry out the threat when the speaker is not even physically present. Similarly, in State v. Fratzke, we recognized that harassment of an officer could occur by the mere mailing of an insulting letter. State v. Fratzke, 446 N.W.2d 781, 783-85 (Iowa 1989) (reversing the harassment conviction because, although the language fell under the statute, it could be construed to have a “legitimate purpose”). The instant case is even more compelling because Button was nearly able to physically kick Routson after making his threatening statements.

Because we review the evidence in the light most favorable to the jury’s verdict, looking at the totality of the evidence, it was reasonable for the jury to find that Button intended to threaten, intimidate, or alarm Sergeant Routson. Therefore, the intent element was supported by substantial evidence.

B. Ineffective Assistance of Counsel

1. Purposeful Personal Contact

Purposeful is described as: “Having a purpose; intentional.” American Heritage Dictionary 1006 (2d ed.1985). Personal contact is described by the statute as: “[A]n encounter in which two or more people are in visual or physical proximity to each other ... [including, but not limited to,] physical touching or oral communication .... ” Iowa Code § 708.7(l)(b) (emphasis added). This element of harassment goes more toward Button’s control of his own actions than it does to who sought out the interaction. Button was the master of his threatening statements, and he controlled his conduct at all times. He could have chosen to remain silent or speak about innocuous subjects, yet he chose to be aggressive and threatening. Button purposefully expanded his detention into a threatening encounter.

Still, Button questions how a harasser’s actions can be purposeful when he is being held against his will. It is true that Button came to Prairie Meadows to gamble. However, once there, he was immediately detained because of his drunken state but not arrested. Sergeant Routson questioned him for several minutes to try to obtain his name and address or a number he could call to secure a ride home for Button. Button had the choice to either answer Routson’s questions and be allowed to leave or continue to be argumentative and be forced to stay in Routson’s company. His fate was in his own hands. Button purposefully chose to be abusive and uncooperative, which ultimately led to his arrest and the detention where he made his threatening statements.

Button argues it was Routson who made purposeful contact, not Button. We are persuaded, however, that Button did commit purposeful acts when: (1) He chose to make the threats, turning the communication into harassment, and (2) He chose to be uncooperative leading to his detention and placing him in a position to make the threats. Because Button’s argument has no merit, his counsel was not ineffective for failing to make this challenge. See Greene, 592 N.W.2d at 29; State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999).

2. Freedom of Speech

Ordinarily we will not pass upon constitutional arguments if there are other grounds - on which to resolve the case. Fratzke, 446 N.W.2d at 783 (“[C]ourt has duty to avoid constitutional questions if merits of a case may be fairly decided without addressing them.” (citing State v. Truche, 410 N.W.2d 242, 243 (Iowa 1987))). Because Button is not entitled to relief under the above arguments, we will address his constitutional claim. The Fratzke court recognized that the harassment statute contains a “constitutional safety valve” so as to not punish mere unpopular speech. Id. That safety valve is the requirement that the threat be “without legitimate purpose” to be actionable as harassment. Iowa Code § 708.7(l)(b).

Button made two threats with the intent to intimidate and alarm Routson. Statements about blowing another’s brains out and the desire to shoot the object of the threat certainly have no legitimate purpose. In this regard, we have recently concluded: “[T]he First Amendment does not protect speech that constitutes a true threat.” State v. Milner, 571 N.W.2d 7, 14 (Iowa 1997). It does not matter that the threats were conditional. United States v. Bellrichard, 994 F.2d 1318, 1322 (8th Cir. 1993) (“A threat may be considered a ‘true threat’ even if it is premised on a contingency.”).

Button argues that in this context, only fighting words deserve no constitutional protection. The Milner holding invalidates that argument. A statute which punishes speech amounting to a true threat also carries no constitutional impediments. Milner, 571 N.W.2d at 13-14. In Milner, we held that the threat of placing a bomb outside a business where the hearer is present constitutes a true threat. Id. at 14 (interpreting the threat of arson statute, Iowa Code section 712.8 (1995)). “A ‘true threat’ is a statement that an ordinary, reasonable person, familiar with the context in which the statement was made, would interpret as a threat.” Id. at 13.

We employ a totality of the circumstances analysis “to distinguish true threats from crude hyperbole.” Id. at 15 (citation omitted); accord McGinnis, 243 N.W.2d at 589 (regarding threats of physical harm, “[w]hat is controlling is whether a recipient of the communication would interpret it as a threat of injury”). There is evidence that Routson was becoming extremely agitated by Button’s behavior. Routson testified that he interpreted both statements made by Button to be threats directed toward him. Routson indicated that following the second threat he felt Button’s comments escalated beyond the hyperbole of a drunken individual into a situation of real concern for himself and his family. This second threat also made the first threat seem more serious and plausible.

In Milner, we found that the defendant’s threatening statements deserved no constitutional protection even though the defendant

relie[d] on our decision in Fratzke, in which we held the State could not constitutionally punish an individual for criticizing the conduct of a state trooper, even when that criticism was offensive. In Fratzke, we concluded the defendant’s statements were not “fighting words,” but protected criticism of -the government.
In relying on Fratzke, Milner overlooked] that the statements of dissatisfaction made in that case contained no fighting words or threats. In contrast, Milner’s statements were not mere expressions of dissatisfaction with government employees; they were, as the trial court found, threats to place an explosive device in or near the DES building. Milner’s statements transcended mere criticism and threatened the personal safety of the DES employees.

Milner, 571 N.W.2d at 14 (citations omitted) (distinguishing Fratzke, 446 N.W.2d at 784-85). Button attempts to make the same arguments in regard to Fratzke that were unsuccessful in Milner. We hold that Fratzke is equally distinguishable in Button’s case.

Further, in McGinnis, we held that although the speaker’s language did not fall within the unprotected class of obscene language, but were mere threats of physical harm, this language alone was criminally punishable. McGinnis, 243 N.W.2d at 589 (interpreting an earlier derivation of the present harassment statute). Conversely, the defendant in Fratzke was making political speech and exercising his right to speak against the system. Fratzke, 446 N.W.2d at 784-85. No statements Button is charged with saying deserve any protection as political opinion. Threatening to kill another is not political expression. Because there is no legitimate purpose behind the true threats in these circumstances, the fact that the words may not fall under the category of fighting words is of no consequence.

In summary, the threats made by Button had no legitimate purpose. True threats are not protected speech even if they do not rise to the level of fighting words. Button’s counsel was not ineffective for failing to challenge the statute as it applied to Button because any challenge would have failed. See Greene, 592 N.W.2d at 29; Westeen, 591 N.W.2d at 207.

AFFIRMED.


author: TERNUS, Justice.

text:
    Dianna M. CATO, Appellee, v. AMERICAN SUZUKI MOTOR CORPORATION, a California Corporation, Appellant.
    No. 99-0254.
    Supreme Court of Iowa.
    Feb. 14, 2001.

      Daniel P. Chesire and Frederick T. Harris of Lamson, Dugan & Murray, Omaha, Nebraska, for appellant.
    Philip Willson of Willson & Pechacek, P.L.C., Council Bluffs, and James Polack of Bradford, Coenen and Welsh, Omaha, Nebraska, for appellee.
   TERNUS, Justice.

The appellee, Dianna M. Cato, sued the appellant, American Suzuki Motor Corporation, seeking to recover damages under Iowa’s Defective Motor Vehicle Act. See Iowa Code ch. 322G (1997). After a jury trial, the district court entered judgment for Cato. Suzuki appeals, claiming the trial court erred in denying its motion for summary judgment and its motion for judgment after trial based on the jury’s answers to special interrogatories. Alternatively, Suzuki requests a new trial based on error in the court’s instructions to the jury. We conclude that the trial court did not err in refusing to enter judgment for Suzuki on its summary judgment motion and after the jury returned its verdict. We also hold, however, that the trial court erred in failing to instruct the jury that Cato was required to give Suzuki written notification of the nonconformity in her car and a final opportunity to repair the nonconformity prior to filing suit. Accordingly, we reverse and remand for a new trial.

I. Iowa Code Chapter 322G-Iowa’s Lemon Law.

In order to appreciate the significance of the factual history of this case, it is helpful to review the statutory framework that will guide our consideration of the legal issues. Chapter 322G is entitled “Defective Motor Vehicles”; it is commonly known as a lemon law. The purpose of this statute is to provide a remedy to consumers who purchase a motor vehicle that cannot be brought in compliance with the manufacturer’s warranty. See Iowa Code § 322G.1. The statute imposes a duty upon manufacturers and their authorized service agents to “make repairs as necessary to conform the vehicle to the warranty,” provided the consumer reports the nonconformity to the manufacturer or its authorized service agent “during the lemon law rights period.” Id. § 322G.3(3); see also id. § 322G.2(8) (defining “lemon law rights period”). If the manufacturer or its agent has not repaired or corrected a nonconformity “that substantially impair[s] the motor vehicle after a reasonable number of attempts,” the manufacturer must replace or repurchase the vehicle. Id. § 322G.4(2).

To assist the consumer in proving that the manufacturer or its agent has had “a reasonable number of attempts” to repair the vehicle, the statute creates a presumption “that a reasonable number of attempts have been undertaken” if one of three sets of circumstances exists during the lemon law rights period. See id. § 322G.4(3). One scenario involves a nonconformity “likely to cause death or serious bodily injury.” Id. § 322G.4(3)(&). Cato did not claim that this alternative applied in the present case. Cato did, however, rely on the other two alternatives to obtain the statutory presumption. These alternatives are stated in the statute as follows:

3. It is presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the warranty if, during the lemon law rights period, any of the following occur:
a. The same nonconformity that substantially impairs the motor vehicle has been subject to examination or repair at least three times by the manufacturer or its authorized service agent, plus a final attempt by the manufacturer to repair the motor vehicle if undeHaken as provided for in subsection 1, and such nonconformity continues to exist.
c. The motor vehicle has been out of service by reason of repair by the manufacturer, or its authorized service agent, of one or more nonconformities that substantially impair the motor vehicle for a cumulative total of thirty or more days, exclusive of down time for routine maintenance prescribed by the owner’s manual.

Id. § 322G.4(3)(a), (c) (emphasis added). The final attempt to repair “as provided for in subsection 1” refers to section 322G.4(1), which states:

1. After three attempts have been made to repair the same nonconformity that substantially impairs the motor vehicle, or after one attempt to repair a nonconformity that is likely to cause death or serious bodily injury, the consumer may give written notification, which shall be by certified or registered mail or by overnight service, to the manufacturer of the need to repair the nonconformity in order to allow the manufacturer a final attempt to cure the nonconformity. The manufacturer shall, within ten days after receipt of such notification, notify and provide the consumer with the opportunity to have the vehicle repaired at a reasonably accessible repair facility and after delivery of the vehicle to the designated repair facility by the consumer, the manufacturer shall, within ten days, conform the motor vehicle to the warranty. If the manufacturer fails to notify and provide the consumer with the opportunity to have the vehicle repaired at a reasonably accessible repair facility or perform the repairs within the time periods prescribed in this subsection, the requirement that the manufacturer be given a final attempt to cure the nonconformity does not apply.
After twenty or more cumulative days when the motor vehicle has been out of service by reason of repair of one or more nonconformities, the consumer may give written notification to the manufacturer which shall be by certified or registered mail or by overnight service. Commencing upon the date such notification is received, the manufacturer has ten cumulative days when the vehicle has been out of service by reason of repair of one or more nonconformities to conform the motor vehicle to the warranty.

Id. § 322G.4(1).

In the event the nonconformity is not repaired and the manufacturer refuses to replace or repurchase the vehicle pursuant to section 322G.4(3), the consumer has two potential remedies. First, if the manufacturer has established a certified dispute resolution program, the consumer may file a claim with the program. See id. §§ 322G.6-.7. If the consumer is not satisfied with the decision rendered in the certified program or is dissatisfied with the manufacturer’s performance as directed in the decision, the consumer may appeal the decision to the district court or ask the court to direct the manufacturer to fulfill the terms of the decision. See id. § 322G.8(2), (4). If a decision is not rendered in the certified program within the time frames provided in the statute or if the manufacturer has no certified program, the consumer may file an action in the district court, provided “the consumer has notified the manufacturer pursuant to section 322G.4, subsection 1.” Id. § 322G.8(1).

With this statutory framework in mind, we now turn to the facts of this case.

II. Background Facts and Proceedings.

On May 30, 1996, Cato leased a new 1996 Suzuki “Sidekick” sport utility vehicle from Rhoden Auto Center, Inc. in Council Bluffs, Iowa. Within a few months, Cato began experiencing difficulties starting the vehicle. Rhoden towed the ear to its facility and kept the vehicle for six days, August 2 through August 7, in an attempt to diagnose the problem. The problem could not be duplicated and Rhoden returned the car to Cato without making any repairs.

Cato continued to randomly have problems with the vehicle. She returned the car to Rhoden on September 17, 1996 with a complaint that the “[e]ngine at times will cut out and stall — will re-start but have to keep accelerator depressed and runs rough and cuts out.” Rhoden kept the vehicle for four days, but again was unable to duplicate the problem. A third incident occurred on September 30, 1996, when Cato reported to Rhoden that the car “starts and dies at times [and] shakes very bad when starting to die.” Although Rho-den could not identify the problem, it decided to replace the idle air control valve. This part, however, was on backorder, resulting in a lengthy delay before the repairs could be completed. During this time, Rhoden provided Cato with a free rental vehicle. The repairs were eventually completed on October 31, thirty-two days after the car had been taken in for repair.

After the valve was replaced, Cato thought the car ran “kind of sluggish,” but she considered the vehicle repaired. In June 1997, she exercised her option under the lease to purchase the car.

Problems with the car began to resurface in the fall of 1997. Cato had difficulty starting the vehicle and she experienced problems with the car dying out. These problems generally occurred when the engine was cold, in the morning or after the car had sat for a while. Cato also started to notice a “rubbing noise in the steering wheel” and a “knocking noise in the front left portion of the car.” She returned the vehicle to Rhoden on November 10. Rho-den kept the car for four days in an unsuccessful attempt to diagnose the stalling problem. During this time it lubricated the steering column in an attempt to stop the noise coming from that area.

When similar problems developed on November 18, Cato returned the car to Rhoden, who decided to replace the idle air control valve again. This repair was completed on November 25, 1997. By this time, the car had been in for repairs a total of fifty-four .days since Cato acquired the vehicle in May 1996.

Cato spoke with Rhoden about the possibility of obtaining a replacement vehicle under the lemon law. When Rhoden told her this was not possible, Cato sought legal advice. Upon advice of counsel, she sent a letter to Suzuki informing it of “the stalling and other problems with the vehicle such as incessant rattling under the body,” and giving Suzuki an opportunity to correct these problems. Suzuki received this letter on January 6,1998.

The parties dispute what occurred after Suzuki received Cato’s letter. Cato testified that she was not contacted by Suzuki until January 19, 1998, when someone left a message on her answering machine. Suzuki, on the other hand, presented evidence that Rhoden’s service advisor had contacted Cato on Suzuki’s behalf on two occasions within ten days of receiving the notice, leaving messages on Cato’s answering machine on January 8 and January 13, 1998.

Cato filed this suit on February 4, 1998. She sought damages under Iowa Code chapter 322G. Suzuki answered, claiming, in part, that Cato’s suit was premature because she had not given Suzuki an opportunity to cure the alleged nonconformities under Iowa Code section 322G.4(1). Suzuki filed a motion for summary judgment on the basis that as a matter of law the alleged nonconformities had been repaired. The court denied Suzuki’s motion.

The case proceeded to trial on November 24, 1998. The parties stipulated that the court would determine damages and attorney fees if the jury found in favor of Cato on liability.

At the close of evidence, the court submitted the liability issue to the jury. The court’s instructions told the jury that Cato could recover if she proved the elements of one of two alternative theories; one theory was set out in instruction no. 8 and an alternative theory was set out in instruction no. 9. These instructions were basically patterned after the two statutory presumptions set out in section 322G.4(3). Instruction no. 8 was based on section 322G.4(3)(a), which provided for a presumption that the manufacturer had been given a reasonable number of opportunities to repair the vehicle if the car had been in for examination or repair at least three times and the manufacturer had been given a final opportunity to correct the problem, as provided in section 322G.4(1). Instruction no. 9 was based on section 322G.4(3)(e), which allowed a presumption if the car had been out of service by reason of repair for “a cumulative total of thirty or more days.” The significant difference between the two instructions was the inclusion in instruction no. 8 of the requirement that “[t]he defendant was given notice of a final attempt to cure the nonconformities”; this requirement was omitted in instruction no. 9 over Suzuki’s objection.

The case was submitted to the jury on five special interrogatories. Suzuki had requested that the jury answer the following question: “Did plaintiff Dianna Cato provide defendant American Suzuki a final opportunity to cure the alleged nonconformity?” Instead, the court instructed the jury to answer this question: “If the vehicle was out of service for less than SO days, did plaintiff Dianna M. Cato provide defendant American Suzuki a final opportunity to cure the alleged nonconformity?” (Emphasis added.) Suzuki objected to the verdict form and reasserted its request for the verdict form it had submitted to the court. The trial court overruled Suzuki’s objections and submitted the case to the jury.

The jury answered the special interrogatories, finding that Cato’s vehicle had a nonconformity that substantially impaired the car. The jury also found that Suzuki had been given a reasonable number of opportunities to repair the vehicle, but had not done so. In response to interrogatory no. 5, “If the vehicle was out of service for less than 30 days, did plaintiff Dianna M. Cato provide defendant American Suzuki a final opportunity to cure the alleged nonconformity?” the jury answered “no.”

Suzuki requested that the court enter judgment in its favor based on the jury’s response to question no. 5, asserting that the jury found that Suzuki did not have a final opportunity to cure and that this finding was fatal to Cato’s right to recover. The court ruled that whether Suzuki had a final opportunity to cure was not pertinent to Cato’s recovery under instruction no. 9 and that the jury’s answers to the first four interrogatories established Suzuki’s liability under that instruction. After receiving evidence on damages, the court entered judgment for Cato in the amount of $26,120.70, plus attorney fees. Suzuki appealed. Initially it claims that the trial court erred in failing to enter a judgment in its favor based on the jury’s answer to special interrogatory no. 5. Suzuki argues that the jury’s answer indicates it found that Cato had not given Suzuki a final opportunity to cure the non-conformities in Cato’s vehicle. Therefore, asserts Suzuki, Cato cannot recover under the lemon law as a matter of law. Secondly, Suzuki reasserts its objection to the trial court’s faitee to include in instruction no. 9 the requirement that Cato give Suzuki a final opportunity to correct the problems with her car. Suzuki’s third alleged error is based on the trial court’s denial of its motion for summary judgment. Suzuki asserts that it established as a matter of law that, as of the time of the summary judgment motion, Cato’s vehicle had been repaired and was not “substantially impaired” as required by the lemon law. Finally, Suzuki challenges the trial court’s calculation of damages and attorney fees. We will start our discussion with the claimed instructional error.

III. Was Cato Required, to Give Suzuki a Final Opportunity to Correct the Alleged'Nonconformities?

The court instructed the jury in instruction no. 9 that the plaintiff could recover if she proved that the vehicle did not conform to the warranty, that the nonconformity substantially impaired the vehicle, that the car had been out of service for thirty or more days, and that Suzuki had not repaired the vehicle within a reasonable number of attempts. Suzuki contends that Cato was also required to prove that she had complied with section 322G.4(1), which provides for notice to the manufacturer and a final opportunity to remedy the nonconformity. Cato responds that this notice and opportunity are not required if the vehicle has been out of service for repairs for thirty days or more, citing section 322G.4(3). We review this claimed error for correction of errors of law. See Graber v. City of Ankeny, 616 N.W.2d 633, 642 (Iowa 2000).

It is important initially to distinguish between the requirements for the statutory presumption that the manufacturer had a reasonable number of attempts to cure and the statutory prerequisites for a civil action in the district court. Compare Iowa Code § 322G.4(3), with id. § 322G.8(1). To obtain the statutory presumption, a plaintiff must meet one of three sets of requirements. See id. § 322G.4(3). Pertinent to the facts of the present case are two alternatives. Cato had to prove either that the manufacturer or its authorized service agent had made at least three attempts to repair the vehicle plus a final attempt by the manufacturer as provided for in section 322G.4(1), or that the vehicle had been out of service for repairs for thirty days or more. See id. § 322G.4(3)(a), (c) (also requiring that the nonconformity “substantially impair the motor vehicle”). Thus, to obtain the statutory presumption when the vehicle has been in for repairs for thirty or more days, Cato did not have to show that she had given'notice to the manufacturer of a final opportunity to cure the nonconformity. See id. § 322G.4(3)(c).

In contrast, section 322G.8(1) sets forth the prerequisites for bringing a civil suit in district court. It provides that the consumer may commence an action if “the consumer has notified the manufacturer pursuant to section 322G.4, subsection 1,” in other words, if the consumer has given the manufacturer a final opportunity to cure as provided in section 322G.4(1). The necessity of giving the section 322G.4(1) notice before filing suit, as established by section 322G.8(1), is not dependent on the number of days that the vehicle has been out of service; this prerequisite applies in all cases. Therefore, the trial- court should have instructed the jury that Cato was required to prove her compliance with section 322G.4(1) in order to recover.

This error requires that we reverse the judgment in favor of Cato and remand for a new trial. Suzuki argues, nonetheless, that a new trial is not necessary because the jury’s answer to interrogatory no. 5 reflects a finding that the required opportunity to cure was not given to the manufacturer. We now consider that argument.

IV. Did the Trial Court Err in Failing to Enter Judgment in Favor of Suzuki Based on the Jury’s Answer to Interrogatory No. 5?

After the jury’s verdict, Suzuki argued that it was entitled to judgment in its favor because the jury found that Cato had not given it a final opportunity to cure the nonconformities. This argument rests on the jury’s negative answer to the following interrogatory: “If the vehicle was out of service for less than 30 days, did plaintiff Dianna M. Cato provide defendant American Suzuki a final opportunity to cure the alleged nonconformity?”

Pursuant to the instructions contained in the special interrogatories, the jury was required to answer this question regardless of whether it made a preliminary finding that the vehicle was out of service for less than thirty days. Thus, it is unclear when the jury answered “no” to this interrogatory whether its answer was based on a finding that the vehicle was not out of service for less than thirty days, or was based on a finding that the plaintiff did not give the defendant a. final opportunity to cure. Therefore, we cannot say with any certainty that the jury in fact made a finding that Cato did not give Suzuki a final opportunity to correct the nonconformity.

Suzuki argues that as a matter of law the vehicle was out of service for less than thirty days and, therefore, the jury’s response must have been based on a finding that Suzuki did not have a final chance to repair the vehicle. Suzukt’s argument rests on the contention that the “lemon law rights period” commenced upon Cato’s purchase of the vehicle in 1997 and, therefore, the forty-two days on which the vehicle was in for repairs during the time Cato leased the vehicle cannot be counted. Suzuki also claims that the statutory definition of a “consumer” prevents Cato from tacking together the periods during which she was a lessee and a purchaser. We find these arguments unconvincing.

The statute defines “lemon law rights period” as

the term of the manufacturer’s written warranty, the period ending two years after the date of the original delivery of a motor vehicle to a consumer, or the first twenty-four thousand miles of operation attributable to a consumer, whichever expires first.

Id. § 322G.2(8). The applicable alternative in the present case is “the period ending two years after the date of the original delivery of a motor vehicle to a consumer.” Id. (emphasis added). The parties dispute the date upon which delivery occurred. Cato argues the vehicle was delivered on May 30, 1996, when she first leased the car. Suzuki contends that when Cato elected to purchase the vehicle in June 1997, a new delivery occurred and any attempts to repair the vehicle and any out-of-service days prior to that date did not occur within the new lemon law rights period. We disagree with Suzuki’s interpretation of the statute.

Chapter 322G defines a “consumer” as the purchaser or lessee, other than for purposes of lease or resale, of a new or previously untitled motor vehicle, or any other person entitled by the terms of the warranty to enforce the obligations of the warranty during the duration of the lemon law rights period.

Id. § 322G.2(3). Under this definition, Cato was “a consumer” when she leased the vehicle in May 1996. Therefore, the lemon law rights period commenced on May 30, 1996, “the date of the original delivery ... to a consumer.” Id. § 322G.2(8) (emphasis added). We find nothing in chapter 322G that provides for a new or different lemon law rights period when the vehicle is subsequently sold. Therefore, the days on which Cato’s car was in for repairs during the lease period are included in determining the cumulative days the vehicle was out of service.

Under this interpretation of the statute, we must reject Suzuki’s argument that the evidence established as a matter of law that the vehicle was out of service less than thirty days. To the contrary, there was substantial undisputed evidence in the record to support a finding by the jury that the ear was not out of service for less than thirty days, but rather had been in for repairs for fifty-four days by the time suit was filed. Therefore, the jury’s negative answer to interrogatory no. 5 could be explained by a finding that the vehicle was not out of service for less than thirty days. Consequently, we adhere to our earlier conclusion that the jury’s answers to the special interrogatories cannot support entry of judgment in favor of Suzuki.

V. Did the District Court Err in Refusing to Grant Summary Judgment to Suzuki?

We must still consider Suzuki’s claim that it was entitled to summary judgment on the basis that it established as a matter of law that the nonconformity in Cato’s vehicle had been repaired by Suzuki. We review the district court’s denial of Suzuki’s motion for summary judgment for correction of errors of law. See Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000).

If the record shows no genuine issue of a material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. In assessing whether summary judgment is warranted, we view the entire record in a light most favorable to the nonmoving party. We also indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question.

Id. (citations omitted).

Under chapter 322G, Cato was required to prove that her vehicle had a nonconformity — “a defect, malfunction, or condition ... such that the vehicle fail[ed] to conform to the warranty.” Iowa Code § 322G.2(14) (defining “nonconformity”). She also had to prove that this defect, malfunction, or condition “substantially impair[ed]” the vehicle so as “to render [it] unfit, unreliable, or unsafe for warranted or ordinary use.” Id. § 322G.2(20) (defining “substantially impair”). Suzuki claims that the undisputed facts show that the vehicle did not have a defect that rendered the vehicle unfit, unreliable or unsafe because the stalling problem in the vehicle had been fixed.

At the time of the summary judgment motion, the record showed the following, when viewed most favorably to Cato. Rho-den replaced the idle air control valve in October 1996 in an attempt to remedy the stalling problems experienced by Cato since her purchase of the vehicle in May 1996. The car then performed relatively well the remainder of that winter, only to again have stalling problems when cold weather commenced in late 1997. Rhoden again replaced the idle air control valve in November 1997 and, according to Cato’s deposition testimony in September 1998, she had had no further problems with the car stalling. Based on her past experience, however, in thinking the problem was corrected only to have it resurface, she testified that she did not know whether the stalling problem had actually been remedied. We think that based on this record, a fact finder could conclude that replacing the valve was only a temporary solution, and did not resolve the stalling problem, which occurred only during cold weather.

Moreover, there was evidence in the record that, despite the second replacement of the air intake control valve, the car continued to run sluggishly, there was “incessant rattling” and noises in the steering column, and the interior dome light intermittently came on during left-hand turns. There was also evidence that this latter problem caused visual difficulties for Cato when it occurred after dark. In addition, Cato testified that she was afraid to drive the vehicle out of town based on its past problems and the continuing sluggishness and rattling. Even if the stalling problem had been fixed, a jury could have found that the other problems with the vehicle rendered it substantially impaired. We think the district court correctly held that Suzuki had not established as a matter of law that the nonconformities in the vehicle had been remedied so as to entitle it to summary judgment.

VI. Summary and Disposition.

We hold that Cato was required under section 322G.8(1) to prove that Suzuki had been given a final opportunity to fix the vehicle as provided in section 322G.4(1) as a prerequisite to filing suit. The court erred in failing to instruct the jury on this requirement as requested by Suzuki. We reject Suzuki’s contention that it was entitled to judgment based on the jury’s answers to the special interrogatories. The jury did not clearly find that Suzuki had not been given a final opportunity to cure. Finally, we agree with the district court that the defendant was not entitled to summary judgment. A genuine. issue of material fact existed as to whether Cato’s car had a defect that substantially impaired the vehicle and had not been repaired by Suzuki or its authorized service agent.

Based on the court’s instructional error, we reverse the judgment entered in Cato’s favor and remand for a new trial. This ruling makes it unnecessary to consider Suzuki’s challenge to the court’s determination of damages.

REVERSED AND REMANDED.

      .These instructions stated:
      INSTRUCTION NO. 8
      Plaintiff has alleged two theories of recovery but is required to prove only one.
      The plaintiff must prove either the necessary elements of this instruction or the necessary elements of Instruction No. 9 on the following page.
      In order to prove her case under this Instruction, the plaintiff must prove all of the following propositions:
      1. There was a nonconformity in one or more of the following ways:
      a. The nonconformity was likely to cause death or serious bodily injury and at least one attempt was made to repair the nonconformity.
      b. The nonconformity substantially impaired the fitness, reliability or safety of the vehicle for ordinary use and at least three altempts were made to repair the nonconformity, and/or
      c.The nonconformity substantially impaired the fitness, reliability or safety of the vehicle for ordinary use and the vehicle was out of service twenty (20) or more days during the first two years after delivery for repair of one or more nonconformities.
      2. The defendant was given notice of a final attempt to cure the nonconformities.
      3. Defendant failed to contact plaintiff within ten days of receiving notice.
      4. Defendant American Suzuki has not conformed plaintiff Dianna M. Cato’s Suzuki Sidekick to the warranty by repairing the nonconformities.
      If lhe plaintiff has failed to prove any of these propositions, you will consider the following instruction.
      INSTRUCTION NO. 9
      This Instruction is an alternative theory of recovery to the previous Instruction.

        Under this Instruction, the plaintiff must prove all of the following propositions:
      1. There was a nonconformity in the vehicle.
      2. The nonconformity substantially impaired the fitness, reliability or safety of the vehicle for ordinary use and the vehicle was out of service thirty (30) or more days during the first two years after delivery for repair of one or more noncon-formities.
      3.Defendant American Suzuki has not conformed plaintiff Dianna M. Cato’s Suzuki Sidekick to the warranty by repairing the nonconformities within a reasonable number of attempts.
      If the plaintiff has failed to prove any of these propositions, the plaintiff is not entitled to recover.
      If the plaintiff has proved all of these propositions, you will consider defendant American Suzuki’s affirmative defense explained to you in Instruction No. 11.

      . We are not aware of a requirement that the vehicle be out of service for a particular length of time as a prerequisite to recovery under chapter 322G, as opposed to being simply a prerequisite for the statutory presumption that the manufacturer had a reasonable number of opportunities to repair the nonconformity. In any event, neither party objected to the inclusion of this requirement as an element of the plaintiff’s claim, rather than being contained in a separate instruction identifying the requirements for the statutory presumption.

      . Suzuki contends that Cato waived any argument that the special interrogatory was confusing because she did not object to the question. This contention misses the mark. Cato does not predicate error on the special interrogatory so as to trigger error preservation requirements. Rather, Suzuki bases its request for judgment in its favor on the ground that the jury’s answer to interrogatory no. 5 reflects a finding that Cato did not give Suzuki a final opportunity to cure. Therefore, it is incumbent on Suzuki to convince the court that this finding is inherent in the jury’s answer. Whether Cato objected to the interrogatory has little to do with whether the jury’s answer can be interpreted in the way Suzuki proposes.

      . We also note that Cato remained a “consumer” upon her purchase of the vehicle because she was a “person entitled by the terms of the warranty to enforce the obligations of the warranty during the lemon law rights period.” See Iowa Code § 322G.2(3).

      . In fact, there was evidence at trial in November 1998 that the stalling problem had started again with the commencement of cold weather in October 1998.


author: NEUMAN, Justice.

text:
    NOVAK HEATING & AIR CONDITIONING, Appellee, v. CARRIER CORPORATION, Appellant, and Yellow Freight System and Yeoman’s Distributing, Defendants.
    No. 99-0238.
    Supreme Court of Iowa.
    Feb. 14, 2001.

      Webb L. Wassmer of Simmons, Perrine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellant.
    No appearance for appellee.
   NEUMAN, Justice.

We granted further review to consider defendant Carrier Corporation’s claim that the district court and court of appeals misapplied fundamental tort principles in the resolution of this small claims dispute. We agree with Carrier’s contentions and, therefore, vacate the decision of the court of appeals and reverse the district court judgment against Carrier.

The facts are essentially undisputed. Plaintiff, Novak Heating & Air Conditioning, ordered a roof top heating and air conditioning unit through Carrier’s distributor, Yeoman’s Distributing. Yeoman’s never saw or handled the unit. Carrier instead shipped it directly to Novak, surrounding the unit with shrink-wrap and packing it in wooden pallets, top and bottom. Defendant Yellow Freight, a common carrier, picked up the packaged unit at Carrier’s dock, and Novak picked up the unit at Yellow Freight’s warehouse in Cedar Rapids. At no time did Yellow Freight inspect or unpack the unit while in its possession.

Novak planned to install the unit on the roof of its building. During installation, Novak removed the packaging and discovered that the unit’s condensing coil was severely damaged. Estimated cost of repairs to the unit totaled $3450.75.

Novak brought an action in small claims court against Carrier, Yeoman’s and Yellow Freight for the cost of necessary repairs. The court first determined Yeoman’s had no liability based on its contract with Novak. The contract provided that “[a]U shipments and deliveries shall be F.O.B. shipping point.” See Iowa Code § 554.2509(l)(a) (1997) (when buyer does not require seller to deliver goods to specific destination, risk of loss passes to buyer when goods delivered to common carrier). Thus the court held Yeoman’s was relieved of liability when Carrier delivered the unit to Yellow Freight.

Pertinent to this appeal, the court then found Carrier and Yellow Freight jointly and severely liable for the damage sustained by the unit. The court theorized that these defendants shared joint control of the unit after its manufacture but prior to receipt by Novak. On Carrier’s appeal to the district court, that court affirmed the small claims court’s reasoning. Finding the damages occurred either at Carrier’s plant or on Yellow Freight’s truck, the court ruled “[sjimilar to res ipsa loquitur, the burden shifted to each defendant to show lack of injury on their part.” (Emphasis added.)

We granted Carrier’s application for discretionary review and transferred the case to the court of appeals. There, on a two-to-one vote, the court affirmed the district court’s imposition of joint and several liability. The dissent, noting the case involved sequential tort suspects, not simultaneous ones, found the res ipsa doctrine inapplicable. Because Novak failed to furnish proof that the unit was damaged while in Carrier’s possession, the dissent reasoned, no liability should attach to Carrier.

The case is now before us on Carrier’s application for further review. At no point has Yellow Freight appealed the judgment entered against it. The only question is whether judgment was properly entered against Carrier.

Our review is limited to the correction of errors at law. Iowa Coal Mining Co. v. Monroe County, 555 N.W.2d 418, 427 (Iowa 1996).

I. Applicable Legal Principles.

It is axiomatic that, in order to prevail on a claim of negligence, the plaintiff must establish that the defendant owed the plaintiff a duty of care, the defendant breached that duty, the breach was the actual and proximate cause of the plaintiffs injuries, and the plaintiff suffered damages. Walls v. Jacob North Printing Co., 618 N.W.2d 282, 285 (Iowa 2000). The mere occurrence of an accident, without more, is not proof of negligence. Brewster v. United States, 542 N.W.2d 524, 528 (Iowa 1996). The plaintiff carries the burden of “producing] ‘evidence from which reasonable persons may conclude that, upon the whole, it is more likely that the event was caused by negligence than that it was not.’ ” Id. (quoting W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 39, at 242 (5th ed.1984)).

Where, as here, no direct evidence of negligence is available, a plaintiff may rely on circumstantial evidence. One rule of circumstantial evidence, res ipsa loquitur, permits an inference of negligence when (1) the injury is caused by an instrumentality under the exclusive control of the defendant, and (2) the occurrence is such that in the ordinary course of things would not happen if reasonable care had been used. Id. at 529. Importantly, the doctrine applies only when control and negligence coincide. Town of Reasnor v. Pyland Constr. Co., 229 N.W.2d 269, 272 (Iowa 1975). In other words, “[f]ailure to connect the defendant with the negligent event defeats the application of res ipsa loquitur.” Brewster, 542 N.W.2d at 528-29.

The difficulty in successfully applying the res ipsa doctrine in the case of multiple defendants was demonstrated in Town of Reasnor. There the city sued two construction companies, each involved in constructing separate parts of a sewer system. One contractor constructed sewer mains and manholes while the other constructed sewage lagoons, a lift station, and force main. Town of Reasnor, 229 N.W.2d at 270. The two parts of the system were designed to connect but, because of an unexpectedly high water table at the first manhole, the first contractor had to adjust its plans, an event causing problems for the second contractor when it “tied-in” its work. Id. at 271. One manhole eventually sunk, causing the sewer pipe to break. Id. The town of Reasnor sued both contractors, alleging both specific acts of negligence and general negligence based on res ipsa loquitur. The trial court refused to submit the town’s claims of general negligence and the jury returned a defense verdict on plaintiffs claims of specific negligence. Id. at 272.

On appeal, the town challenged only the court’s failure to submit its claim under the doctrine of res ipsa loquitur. We affirmed the trial court’s decision, finding that “there was insufficient exclusive control by either defendant for the application of the doctrine.” Id. Addressing the problem of applying res ipsa loquitur to two defendants, we said:

“Unless there is vicarious liability or shared control, the logical rule usually is applied, that the plaintiff does not make out a preponderant case against either of two defendants by showing merely that he has been injured by the negligence of one or the other.”

Id. (emphasis added) (quoting William L. Prosser, Handbook on the Law of Torts § 39, at 221 (4th ed.1971)). Because the construction companies’ control of the in-strumentalities at issue was consecutive rather than shared, neither company could be shown to have had exclusive control when the negligence occurred, thus making the doctrine of res ipsa loquitur inapplicable.

II. Application of Law to the Facts.

The record before us plainly reveals consecutive rather than shared control of the air conditioning unit by defendants Carrier and Yellow Freight. Under these facts, the trial court and court of appeals improperly inferred negligence based on the doctrine of res ipsa loquitur. Moreover, both courts erroneously applied the burden-shifting rule of Restatement (Second) of Torts section 433B(3). The rule states:

Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

Restatement (Second) of Torts § 433B(3), at 441-42 (1965). In order for this Restatement section to apply, the plaintiff must first demonstrate that both actors were negligent, even though the resulting damage may have been caused by only one of them. See id. cmt. g, at 446. This principle is demonstrated by the following illustration:

A and B, independently hunting quail, both negligently shoot at the same time in the direction of C. C is struck in the face by a single shot, which could have come from either gun. In C’s action against A and B, each of the defendants has the burden of proving that the shot did not come from his gun, and if he does not do so is subject to liability for the harm to C.

Id. illus. 9, at 447. In the case at hand, Novak did not establish that either Carrier’s or Yellow Freight’s conduct was negligent. Factually, the situation is strikingly similar to one used in the Restatement to illustrate this point:

Over a period of three years A successively stores his furniture in warehouses owned by B, C, and D. At the end of that time A finds that his piano has been damaged by a large dent in one corner. The nature of the dent indicates that it was caused by careless handling on a single occasion. A has the burden of proving whether the dent was caused by the negligence of B, C, or D.

Id. illus. 10, at 447. Just as A could not recover for his dented piano, Novak cannot recover from Carrier as well as Yellow Freight for its dented air conditioner because Novak has failed to show that the conduct of either defendant was negligent. Cf. Walls, 618 N.W.2d at 285-86 (record permitted inference that one of two defendants may have destabilized ladder without warning roofer but record insufficient to connect a defendant, acting alone or in concert with the other, to negligent act). The burden-shifting rule of Restatement section 433B (3) is simply inapplicable to the facts before us and should not have been employed to infer negligence by Carrier.

We therefore vacate the decision of the court of appeals and reverse that portion of the district court judgment finding Carrier Corporation liable. The judgment against Yellow Freight, not having been appealed, shall stand.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,