author: STREIT, Justice.

text:
    In the Interest Of K.C. and S.C., Minor Children, C.C., Mother, S.C., Father, K.C., Minor Child, and Scott County Attorney, Appellants.
    No. 02-1264.
    Supreme Court of Iowa.
    April 2, 2003.

      Brenda Drew-Peeples, Davenport, for appellant-mother.
    Angela Fritz Reyes, Davenport, for appellant-father.
    William E. Davis, County Attorney, and Gerda C. Lane, Assistant County Attorney, for appellant-Scott County Attorney.
    Michael T. Hines, Davenport, for appellant-minor children.
    Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant Attorney General, for State.
   STREIT, Justice.

A juvenile court directed the Scott County Attorney to file a petition to initiate termination of parental rights proceedings when no involved party sought such action. We granted all parties interlocutory appeal. We find the juvenile court had authority to direct the county attorney to start termination proceedings and this power is not unconstitutional. The parents waived their due process arguments by not raising them before the juvenile court. Given the unique circumstances before us, it was error to direct the county attorney to file a petition to terminate parental rights. We reverse and remand.

I. Background and Facts

Sharquelle came to the attention of the Iowa Department of Human Services (DHS) when it received a report that her parents had abandoned her younger sister, Kyshawnda. Connie and Sylvester are the parents of Sharquelle, born in March 1999, and Kyshawnda, born September 2001. Kyshawnda was born with severe birth defects and required specialized medical care and treatment. The parents were unable to properly care for Kyshawnda and there were other domestic violence concerns. In October 2001, a temporary removal order was entered with regard to Kyshawnda. Both girls were adjudicated in need of assistance in January 2002. DHS took custody of Kyshawnda while Sharquelle remained in her mother’s custody. Sharquelle was removed from her mother’s custody in March 2002 and placed into foster care. The parents separated in January 2002. They each now reside in separate residences in Illinois.

Prior to a scheduled permanency hearing the parties held a staffing where they discussed issues relative to the permanency hearing. The only contested issue was whether termination of parental rights should occur as to Kyshawnda or whether her paternal aunt should be granted custody. No party at any time in these proceedings has sought termination for Sharquelle.

In August 2002, the court held a forty-five minute permanency hearing. The DHS case manager testified about Kysh-awnda’s situation and recommended termination of parental rights only as to Kysh-awnda. The case manager testified the mother had made some progress and DHS anticipated reunification between Sharq-uelle and her mother would be possible in three to four months. Because the hearing had run over by fifteen minutes, the court interrupted the testimony of the case manager. The mother’s attorney briefly finished questioning the case manager and concluded with, “Nothing further.” The judge then stated, “I will issue an opinion.”

Three days later the court entered an order stating the permanency plan as to Sharquelle was not acceptable because it called for reunification. The court directed the county attorney to file a petition to terminate the parental rights of both children within thirty days. We granted the parties’ petitions for interlocutory appeal. Due to complications with her medical condition, Kyshawnda died after the permanency hearing. We will address only the concerns as to Sharquelle.

The county attorney contends: (1) it cannot follow the court’s order because to do so would constitute an ethical violation; (2) the statutes authorizing the court to “direct” the county attorney to file a petition to terminate parental rights unconstitutionally violate the separation of powers doctrine; (3) the same statutes constitute an unlawful delegation of authority to the judicial branch; (4) the statute only gives the court authority to “direct” not “order” the county attorney to initiate termination proceedings; (5) the county attorney cannot be compelled to initiate termination proceedings when the requisite statutory elements are not present under Iowa Code section 282.111(2)(a)(l)-(6) (2001); and (6) there is insufficient evidence to conclude there is a “reasonable probability” that the evidence before the court would warrant termination.

The parents argue: (1) the court violated their right to due process when it concluded the permanency hearing without allowing them to present evidence with respect to Sharquelle; (2) the court abused its discretion by concluding the hearing without allowing them to present evidence; (3) the court abused its discretion when it failed to grant the mother an additional six months to make reunification efforts.

The State contends the court has state and federal authority to order the county to initiate termination proceedings. Specifically, the State asserts such action does not (1) violate any ethical rules; (2) violate the separation of powers doctrine; or (3) constitute an unconstitutional delegation of powers to the judicial branch. The State joins the parents, the county attorney, and the guardian ad litem in stating, given the facts and circumstances of this case, the juvenile court should not have directed the county attorney to initiate termination proceedings. The State also concedes the juvenile court should have granted the mother additional time to pursue reunification.

II. Scope of Review

We review a permanency order de novo. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995). We review both the facts and the law and adjudicate rights anew. In re H.G., 601 N.W.2d 84, 85 (Iowa 1999). Although we give weight to the juvenile court’s findings of fact, we are not bound by them. In re N.M., 528 N.W.2d at 96. There is a rebuttable presumption that the child’s best interests are served by parental custody. Id. The best interests of the child are paramount to our decision. Id.

III. The Merits

Our main issue on this interlocutory appeal is to determine whether the juvenile court had authority to direct the county attorney to file a petition to initiate termination proceedings. If the juvenile court had such authority, we must determine on our de novo review whether the juvenile court’s order was appropriate under all of the facts and circumstances before us. Finally, we will address the parents’ argument that their due process rights weré violated when the judge concluded the permanency hearing without allowing them to testify or to present more evidence.

A. Options Available to the Juvenile Court

The county attorney challenges the juvenile court’s authority to order the county attorney to initiate termination proceedings. Iowa Code section 232.58(3) provides,

After the permanency hearing, the court shall do one of the following:
a. Enter an order ... to return the child to the child’s home;
b. Enter an order ... to continue [out-of-home] placement of the child; or
c. Direct the county attorney or the attorney for the child to institute ■ proceedings to terminate the parent-child relationship.

Iowa Code § 232.58(3) (Supp.2001). Other provisions of the code indicate the juvenile court may consider, as one option, taking the initiative to institute termination proceedings. Iowa Code § 232.102(9) (2001).

The county attorney argues the word “direct” in section 232.58(3)(c) does not mean the juvenile court has authority to “order” the county attorney to initiate termination proceedings. When we interpret a statute we use, if possible, the commonly understood, everyday meanings of words. Though susceptible to a plethora of definitions, the word “direct” includes the meaning “to order or command.” The American Heritage Dictionary 400 (2d college ed.1985). While “direct” may also be interpreted as a term aimed at merely guiding another’s direction, such an interpretation in this instance would be contrary to legislative intent. The intent of the legislature in enacting our juvenile justice statutes was to protect a child’s best interests. The legislature’s grant of authority to the juvenile court to direct the initiation of termination proceedings under certain circumstances furthers a child’s best interests.

The juvenile court is given a choice among three alternatives at a permanency hearing. One alternative is clearly to direct the county attorney to initiate termination proceedings. It would be nonsensical to find the juvenile court may order the first two alternatives (order the child to be returned to the home or order the child to continue out-of-home placement) but merely suggest to the county attorney a course of action as to the third alternative. See State v. Carpenter, 616 N.W.2d 540, 542 (Iowa 2000) (citing State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999)) (“In determining the intent of the legislature, we will not construe the language of a statute in a manner that will produce an absurd or impractical result.”).

1. Does Iowa Code section 232.58(3)(c) violate the separation of powers doctrine or constitute an illegal delegation of authority?

The county attorney also contends the statutory language stating a court “shall direct” the institution of termination proceedings is unconstitutional. Specifically, the county attorney argues this statute is a violation of the separation of powers clause of the Iowa Constitution and an unconstitutional delegation of authority to the judicial branch. Statutes are presumed constitutional and the challenger must show, beyond a reasonable doubt, the statute is unconstitutional and must negate every reasonable basis to support the statute. Johnston v. Veterans’ Plaza Auth., 535 N.W.2d 131, 132 (Iowa 1995).

The court has powers conferred on it both by the constitution and by statute. The court “also possesses broad powers to do whatever is reasonably necessary to discharge [its] traditional responsibilities.” State v. Hoegh, 632 N.W.2d 885, 888 (Iowa 2001) (citing Webster County Bd. of Supervisors v. Flattery, 268 N.W.2d 869, 874 (Iowa 1978)). This authority is known as inherent power, “and it is derived from the separation of powers between the three branches of government, as well as limited by it.” Id. The separation of powers clause of our state constitution provides:

The powers of the government of Iowa shall be divided into three departments — the legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others....

Iowa Const, art. Ill, § 1. This doctrine is designed to prevent the “encroachment and aggrandizement” of one branch at the expense of another. Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 854 (Iowa 2001). It “requires that a branch [of government] not impair another in the performance of its constitutional duties.” State v. Phillips, 610 N.W.2d 840, 842 (Iowa 2000) (citing Loving v. United States, 517 U.S. 748, 757, 116 S.Ct. 1737, 1743, 135 L.Ed.2d 36, 49 (1996)).

However, “[t]he three branches of government ... need not ‘be entirely separate and distinct.’” Channon, 629 N.W.2d at 854 (quoting Mistretta v. United States, 488 U.S. 361, 380, 109 S.Ct. 647, 659, 102 L.Ed.2d 714, 736 (1989)).

Although a state constitution may define three separate branches of power, there is generally no attempt to compartmentalize them, and perhaps, in truth, there can be no absolute and complete separation of all the powers of practical government. The powers of one department of government have always depended on or have been aided in some way by those of another. Moreover, there is sometimes an overlapping or blending of powers of separate departments.

Klouda v. Sixth Judicial Dist. Dep’t of Corr. Servs., 642 N.W.2d 255, 261 (Iowa 2002) (quoting 16A Am.Jur.2d Constitutional Law § 249, at 152 (1998)). The three branches of government have “a degree of overlapping responsibility, a duty of interdependence as well as independence the absence of which ‘would preclude the establishment of a Nation capable of governing itself effectively.’ ” Id. (quoting Mistretta, 488 U.S. at 381, 109 S.Ct. at 660, 102 L.Ed.2d at 736). We join the other jurisdictions that have rejected an attempt “to narrowly and rigidly compartmentalize the exercise of executive and judicial powers” with respect to juvenile proceedings. See In re D.S., 198 Ill.2d 309, 261 Ill.Dec. 281, 763 N.E.2d 251, 258-60 (2001). Bearing in mind the separation of powers doctrine “has no rigid boundaries,” we now turn to the constitutionality of Iowa Code section 232.58(3)(c). See Klouda, 642 N.W.2d at 260 (citing People v. P.H., 145 Ill.2d 209, 164 Ill.Dec. 137, 582 N.E.2d 700, 706 (1991)).

The juvenile justice system is one area in which we see a sharing of powers between the executive and judicial branches. It is true the county attorney is charged with the responsibility of promoting the best interests of the child. However, under the doctrine of parens patriae, the juvenile court has a concomitant obligation to act in the best interests of the child and to take such action quickly. This obligation is also imposed upon the juvenile court by statute. Iowa Code § 232.116(2). In discharging the court’s obligation, it “clearly” has inherent power to order the county attorney to file a termination petition. In re Interest of C.G., 444 N.W.2d 518, 520-21 (Iowa Ct.App.1989); accord In re Interest of J.R.T., 427 So.2d 251 (Fla.Ct.App.1983) (inherent in the court’s obligation to protect the welfare of a minor child is the authority to direct the filing of petition for severance of parental rights); In re D.S., 261 Ill.Dec. 281, 763 N.E.2d at 251 (court’s statutory duty to effectuate the best interests of a child may be satisfied by directing the state to prosecute a termination petition and such authority does not violate separation of powers); Phelps v. Sybinsky, 736 N.E.2d 809 (Ind.Ct.App.2000) (in the interest of promoting a child’s welfare, the court has authority to direct county attorney to initiate termination proceedings and this authority does not violate separation of powers); In re Interest of D.G.C., 690 So.2d 237 (La. 1997) (court has authority to order the state, the district attorney or DHS, depending upon the circumstances, to institute termination proceedings); In re Interest of V.R., 725 So.2d 241 (Miss. 1998) (the court retains power to direct DHS to initiate termination proceedings regardless of the parents’ compliance with the court’s requirements); In re G.S., 731 S.W.2d 525 (Mo.Ct.App. 1987) (court has statutory authority to order a juvenile officer to file a petition to terminate parental rights). The court’s powers under the juvenile justice statutes are designed to effectuate the best interests of the child which may not necessarily be the same as what the parties are advocating.

Some acts can be properly entrusted to more than one branch of government. Hoegh, 632 N.W.2d at 889. The purpose behind delegating authority to both the court and the county attorney to promote a child’s best interests is clear. A juvenile court’s objective to look after the child’s welfare would be compromised if the court did not have the power to direct the county attorney to file a termination petition. Under certain circumstances, the juvenile court can promote the interests of the child only if it is authorized to order the county attorney — even if against the attorney’s wishes — to initiate termination proceedings. See In re D.S., 261 Ill.Dec. 281, 763 N.E.2d at 261-62; In re Interest of T.T., 427 So.2d at 1384. Because both the county attorney and the juvenile court are entrusted to act in the best interests of the child, the court’s action in this capacity does not conflict with the duties of the executive branch. Id. “The crucial days of childhood cannot be suspended while parents experiment with ways to face up to their own problems.” In re AC., 415 N.W.2d 609, 613 (Iowa 1987). “Children should not be made to suffer indefinitely in parentless limbo.” Id. Where appropriate, the juvenile court has authority to prevent exactly this situation by directing the county attorney to initiate termination proceedings. To hold only the county attorney can decide which facts and circumstances justify the filing of a petition to terminate parental rights would be an ultimate frustration and restriction on the juvenile court’s duty to promote the best interests of a child. See In re Interest of J.R.T., 427 So.2d at 253.

In sum, pursuant to Iowa Code section 232.58(3)(c), the juvenile court has authority to direct the county attorney to initiate termination proceedings. In the interests of a child, the doctrine of separation of powers is not violated because “separate spheres of governmental authority may overlap.” See In re D.S., 261 Ill.Dec. 281, 763 N.E.2d at 258. This does no violence to our state constitution because the statute does not effectively allow the judicial branch to encroach upon or aggrandize itself at the expense of the executive branch. See Channon, 629 N.W.2d at 854. Rather, the statute is constitutionally designed to allow the judicial and executive branches to share the same responsibility thereby ensuring the best interests of a child.

2. Is it unethical for the county attorney to file a termination petition if she does not support such action?

The county attorney contends that it would be unethical to file a termination petition when the attorney does not support such action. Under this same reasoning, the county attorney would similarly be put in an unethical position to prosecute a criminal case if the attorney personally disagrees with the law. Certainly, one could argue a county attorney is put in a difficult position when asked to pursue a course of action the attorney does not believe is in the best interests of the child. In such cases, a county attorney would be required to prosecute a case the attorney has been opposed to throughout the entire proceedings. The legislature certainly contemplated such situations, though rare, when the juvenile court and county attorney do not agree on the way to handle a particular case. This is, in fact, the primary purpose behind the court’s authority to direct the county attorney to initiate termination proceedings. This mechanism provided by the Iowa Code is necessary to prevent children from slipping through the cracks of a CINA action.

Our rules of professional conduct provide an attorney shall not “[kjnowingly advance a claim or defense that is unwarranted under existing law, except that a lawyer may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.” Iowa Code Profl Resp. DR 7-102(A)(2). Any potential ethical conflicts facing the county attorney are remedied by the juvenile court’s direction to initiate termination proceedings. See Phelps, 736 N.E.2d at 817 (county attorney does not bring a frivolous action when he or she complies with the court’s order to file a termination petition because court is requiring attorney to bring the issue to the court for a judicial determination of the child’s best interests). That is, the county attorney’s good faith basis for prosecuting a termination stems from the court’s order. When the county attorney takes action in compliance with the juvenile court, such action would not be deemed to be unwarranted for lack of a good faith basis. See In re D.S., 261 Ill.Dec. 281, 763 N.E.2d at 261 (“Actions on the part of the State in compliance with an order of the circuit court would not be deemed ‘frivolous.’”).

Because we have found the juvenile court has authority to direct the county attorney to file a petition to terminate parental rights and such authority is constitutional, we now turn to whether the court’s order was appropriate under all of the facts and circumstances of this case.

B. Determination of Reasonable Progress

The issue of central importance is whether the evidence before us supports the conclusion that an order to the county attorney to file a petition to terminate parental rights was appropriate. The standard a court must satisfy in order to exercise this option is found in Iowa Code section 232.104(l)(c). This section provides at the permanency hearing, “the court shall also make a determination as to whether reasonable progress is being made in achieving the permanency goal and complying with the other provisions of that permanency plan.” Iowa Code § 232.104(1)(c) (emphasis added). All of the parties agree the evidence shows the mother was making reasonable progress toward reunification at the time of the permanency hearing.

In this case, Sharquelle’s parents have shown chronic issues of domestic violence. The mother has appeared, at times, disinterested in the process of reunification. She has had difficulty in appropriately disciplining Sharquelle. Though she was learning some new parenting techniques, DHS stated the mother was not using them in her interactions with Sharquelle. The mother moved to Illinois to be with her new boyfriend; she would not provide any information to DHS about her boyfriend.

There was also positive evidence supporting reunification. At the time of the permanency hearing, the mother had had only five months to work on the goals of the case permanency plan. During that time, the mother’s participation was not perfect, though DHS stated she continued to make progress. In June 2002, DHS stated the mother “has been responsive to the parenting services although she feels that she does not need this type of education.” At that time, the case permanency plan still indicated services would be provided to the mother focusing their efforts on reunification. Though the mother had moved to Illinois, she was maintaining contact with Sharquelle and DHS. She was participating in the Batterer’s Education Program. The DHS case manager stated reunification between Sharquelle and her mother would be possible within three to four months.

Before reunification would be possible, DHS stated the mother would need to accomplish several other things. She needed to “stabilize her living arrangement.” As of the permanency hearing, the mother stated she was moving to Illinois but yet she had not moved into the home where she said she would be. DHS also stated the mother must continue to comply with the parenting services. DHS recommended unsupervised time and possibly overnights with Sharquelle and her mother. Despite evidence to the contrary, the juvenile court stated,

The Court can only conclude that [the mother’s] efforts and attitude are marginal to say the least and only when it’s a matter of her convenience. Now with her moving to Galesburg, this is one more hindrance to her resolving her problems and becoming an effective parent. Based upon her past actions and the fact that she can’t even put forth effort in the face of a deadline, it is established that reasonable efforts at reunification have been made and failed. The Court feels that termination of parental rights is appropriate.

Given the mother’s prior record of incon- . sistent participation in services and seeming lack of interest in learning new parenting skills, it is easy to see the juvenile court’s frustration in this case. However, the above evidence does not support a finding that the mother was not making reasonable progress toward achieving the goals of the permanency plan.

Even though there is evidence supporting the juvenile court’s action, under all of the facts and circumstances, we conclude ' the mother was making “reasonable progress” toward achieving the permanency goal pursuant to Iowa Code section 232.104(l)(e). See In re C.G., 444 N.W.2d at 521 (juvenile court must determine whether “there is a reasonable probability, if such evidence is left unexplained, that clear and convincing evidence exists that may warrant the termination of parental rights under section 232.116 of the Iowa Code”). In light of the mother’s progress in rectifying her parental deficiencies, the county attorney, the guardian ad litem, the father’s attorney, and the state attorney general at the appellate level have all advocated allowing the mother six more months to pursue reunification. In sum, given the circumstances of this case, it was error to direct the initiation of termination proceedings. We reverse.

C. Due Process Challenge

The parents also argue they were denied due process when the juvenile court concluded the permanency hearing without allowing them to present more evidence and to testify. Certainly, the juvenile court is obligated to follow the procedures outlined in Iowa Code section 232.104 directing the course of a permanency hearing. The parents, however, waived this argument by failing to object at the closing of the hearing.

When the court announced its intention to conclude the hearing because the parties had exceeded the allotted time, the mother’s attorney briefly continued her cross-examination. However, the attorney finished stating, “Nothing further.” No one present at the hearing objected to ending the hearing or requested a continuance. Even issues impheating constitutional rights must be presented to and ruled upon by the district court in order to preserve error for appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v. Kinkead, 570 N.W.2d 97, 102 (1997)). Because the parents did not lodge an objection alerting the juvenile court to their complaints, they have not preserved error for our review.

IV. Conclusion

The juvenile court had statutory authority to direct the county attorney to file a petition to terminate parental rights. This statute does not violate the doctrine of separation of powers and does not require the county attorney to violate any ethical canons. Because of the circumstances of this case, it was error to direct the county attorney to file a termination petition. We reverse and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . The assistant county attorney suggests the central issue on appeal is whether she is required to file a petition to terminate parental rights when none of the circumstances listed in Iowa Code section 232.111(2)(u) are present. However, this argument is not directly on point because section 232.111 articulates the circumstances under which the county attorney may take the initiative to file a petition to terminate parental rights. This is not the issue before us. Rather, we are called upon to determine whether Iowa Code section 232.104(2)(c) permits a juvenile court to 'direct the county attorney to initiate termination proceedings. As such, we will not discuss the force of section 232.111.


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. John Cyril Lapid BUENAVENTURA, Appellant.
    No. 02-0429.
    Supreme Court of Iowa.
    April 2, 2003.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Denver D. Dillard, County Attorney, and Russell G. Keast, Assistant County Attorney, for appellee.
   TERNUS, Justice.

Appellant, John Buenaventura, a Philippine citizen, was not advised of his right to contact his consulate prior to the police questioning him regarding the beating death of his sister-in-law. In his later prosecution for first-degree murder, the trial court overruled Buenaventura’s motion to suppress statements he made during the police interrogation, rejecting a claim that Buenaventura’s rights under Article 36 of the Vienna Convention on Consular Relations were violated. The court also refused to allow witnesses to testify as to incidents of vandalism and harassment suffered by the victim before her death.

On Buenaventura’s appeal of his subsequent murder conviction, we affirm the trial court’s ruling on the defendant’s motion to suppress, as well as the court’s refusal to permit testimony regarding pri- or vexatious acts against the victim. Rejecting the defendant’s challenge to the adequacy of the evidence against him, we find sufficient evidence to support the trial court’s submission of first and second-degree murder charges to the jury. We preserve Buenaventura’s claim of ineffective assistance of counsel for a possible post conviction relief action.

I. Background Facts and Proceedings.

The defendant, John Buenaventura, is a Philippine national who, at the time of the crime, resided in Cedar Rapids, Iowa with his wife, Shirley, and their young daughter. Shirley’s sister, Sally Malacas, also lived with them prior to her brutal murder on the evening of March 8, 2001.

The evidence at trial showed that Shirley worked the night shift at a Cedar Rapids nursing home on the night of Mala-cas’s death’. While she was gone, neighbors living in the same building were awakened around 2:30 a.m. by the sound of a woman screaming and a man yelling. When Shirley returned home the next morning her sister was not there, even though her purse was in the apartment. Later in the day, when Malacas was still not home, Shirley and friends of the sisters began to look for Malacas. Buena-ventura was angry about the search, reminding Shirley that Malacas had run off once before. Rather than joining in the efforts to find Malacas, the defendant rented a carpet cleaner and cleaned the carpets in the apartment where they lived.

Eventually the police were notified that Malacas was missing. Nonetheless, Shirley and others continued to search for her. Finally, on March 11, one of the searchers looked in a utility closet in the apartment building where Malacas lived and discovered Malacas’s body. She was fully clothed and was wearing her coat. An autopsy revealed that Malacas had been dead for approximately two and one-half days. She had been brutally beaten, her death caused by severe head injuries. The victim suffered several skull fractures from an unidentified object and extensive injuries to her abdomen and chest, including broken ribs, a punctured lung, internal bleeding and a lacerated liver.

Later that day, the police asked to talk with Buenaventura at the police station. Buenaventura waited in a locked room for four hours while the police interviewed other witnesses. At 8:00 p.m., detectives began their interrogation of the defendant. They first ascertained that Buenaventura understood English. (It is undisputed that Buenaventura can read and understand English even though his native language is Tagalog.) The defendant was given his Miranda rights and then he signed a waiver-of-rights form. He did not request an attorney. Although the police knew that Buenaventura was a Philippine citizen, they did not inform him that he had a right to contact the Philippine consulate under the Vienna Convention on Consular Relations.

Buenaventura remained calm during the interview and denied any knowledge relating to Malacas’s death. He told the police that he had last seen his sister-in-law prior to taking his wife to work on March 8, 2001. Buenaventura denied cleaning the carpets in his apartment on March 9, until the police informed him that they knew the carpets had been cleaned. The defendant then admitted he had cleaned the carpets, asserting they were stained and he was concerned they would not get their damage deposit back from their landlord. He acknowledged, however, that there was no urgency to this task, as the family had no intention of moving any time soon.

Eventually Buenaventura consented to a polygraph test. After the test was completed, the detectives told Buenaventura that his polygraph examination showed he was providing false information. The defendant stuck to his story, however, and the police prepared to leave the interview room. At this point, Buenaventura asked for an attorney. Rather than providing the defendant with an attorney, the police stopped all questioning and released Bue-naventura to go home.

The next contact between the police and Buenaventura occurred at Malacas’s funeral. Seeing the detectives on his way into the church, Buenaventura asked the detectives what was going on. After the service, one of the detectives asked the defendant if he wanted to talk to them, but cautioned him that they could not speak to him unless he had an attorney or waived his right to an attorney. Buenaventura agreed to waive his right to counsel and went with the police to the station. The defendant was again given his Miranda rights and again signed a waiver-of-rights form that specifically stated he did not wish to have an attorney.

Prior to this second interview, the police had learned that blood and a large amount of detergent had been found in the family vacuum cleaner. In addition, they had discovered that the bottom of the carpet in Malacas’s bedroom and the pad beneath the carpet had significant bloodstains. The blood was consistent with that of Ma-lacas.

Buenaventura’s second interview began around 9:15 p.m. The detectives focused their questioning on whether the defendant had recently used the family vacuum. Initially, Buenaventura denied ever vacuuming. When he was confronted with the information known to the detectives, however, he broke down and began to tell a different story. First he stated he was a cold-blooded killer and that he had killed Malacas with twelve blows to the head with his fists. Then he stated that he used a wooden baseball bat. Almost immediately after these admissions, he returned to his original account that he had not killed his sister-in-law. Buenaventura then asked to talk to the pastor of the church attended by his wife and Malacas.

The pastor arrived around midnight. He agreed to the police listening to his conversation with Buenaventura. The pastor told the defendant that their discussion would not be confidential. During the course of their talk, the pastor advised Buenaventura several times that he should get an attorney. The defendant did not, however, ask for a lawyer.

After talking with the pastor, Buenaven-tura decided he wanted to give the police a written statement. The defendant’s description in this statement of what happened on March 8 varied significantly from any of his prior versions of the events of that evening. Buenaventura said Malacas was at the apartment when he returned home around 11:00 p.m. from dropping off his wife at work. The defendant stated that about 2:30 a.m. he saw two white males walking outside and it looked like they were smoking marijuana. He then invited them into the apartment. Malacas became mad and left. Buenaventura stated he did not know the men or their names. Nor could he describe them because he was high from smoking marijuana. After smoking three marijuana cigarettes, the defendant asked the men to leave and then he went to bed. He said he pushed his bed against his bedroom door so the men would not come back and harm him. Then he went to sleep. He did not recall whether he locked the apartment door.

Buenaventura claimed he woke up around 4:00 a.m. and checked to see if Malacas was home. It was then that he found a large amount of blood on the carpet in Malacas’s room. “Because of the blood [he] knew Malacas was dead and [he] felt it was [his] fault.” He tried to clean up the blood with water and detergent. Later in the day he used a vacuum cleaner; eventually he rented a carpet cleaner and further scoured the carpet.

When the police read his statement back to him, Buenaventura became so upset he vomited in the wastebasket. Afterwards, he signed the statement and the police then arrested him for murder. At no time during the interview or prior to his arrest was he informed of any rights under the Vienna Convention. The police did, however, notify the Philippine consulate in Chicago of Buenaventura’s arrest, first by voice mail and later by facsimile.

After entering a not guilty plea to the charge of murder in the first degree, Bue-naventura filed a motion to suppress the statements he made to the police in their two interviews of him. In addition to claiming that his statements were coerced, he argued they were inadmissible because they had been obtained in violation of his rights under Article 86 of the Vienna Convention. Specifically, he contended he had a right to consular notification and consultation prior to giving any statements to the police. The district court overruled the defendant’s motion. Relying on our decision in State v. Lopez, 633 N.W.2d 774, 783 (Iowa 2001), the court held that Buenaven-tura had failed to show that he was actually prejudiced by the failure to notify him of his right to contact his consulate.

The case proceeded to trial and the defendant was found guilty of first-degree murder. In his appeal from that judgment, he raises four issues: (1) the trial court erred in failing to suppress his statements to police because they were obtained in violation of the Vienna Convention and, as a consequence, were not voluntary; (2) there was insufficient evidence of premeditation and malice aforethought to support the court’s submission of murder charges to the jury; (3) the court erred in refusing to admit evidence of incidents of vandalism and harassment experienced by the victim in the months prior to her death; and (4) he was denied the effective assistance of counsel because his trial counsel did not adequately investigate the case and failed to file a motion for new trial based on an allegation that the verdict was not supported by the weight of the evidence. We do not think the record is sufficient to permit a decision on the defendant’s ineffective-assistance-of-counsel claim, so we preserve that issue for a possible post conviction relief action. See State v. Speed, 573 N.W.2d 594, 598 (Iowa 1998). The remaining three issues will be addressed separately.

II. Ruling on the Defendant’s Motion to Suppress: Alleged Violation of the Vienna Convention.

A. Scope of review. The defendant claims his rights under the Vienna Convention were violated and, due to that violation, the waiver of his Fifth Amendment right to counsel was not voluntary. To the extent we are called upon to interpret the Vienna Convention, we review the trial court’s ruling de novo. Lopez, 633 N.W.2d at 781 (noting federal courts routinely hold that “interpretation or construction of a treaty is subject to de novo review”). Our review of constitutional questions is, likewise, de novo. State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001).

B. Treaty provisions. The Vienna Convention on Consular Relations “is a seventy-nine article, multilateral treaty that governs the establishment of consular relations between nations and defines the functions of a consulate.” United States v. Emuegbunam, 268 F.3d 377, 388 (6th Cir. 2001), cert. denied, 535 U.S. 977, 122 S.Ct. 1450, 152 L.Ed.2d 392 (2002). It was negotiated in 1963 and ratified by the United States in 1969. Lopez, 633 N.W.2d at 782. Both the United States and the Philippines are signatories to the treaty. See State v. Jamison, 105 Wash.App. 572, 20 P.3d 1010, 1012 (2001). Of the seventy-nine articles of the treaty, only Article 36 arguably protects non-consular individuals. Emuegbunam, 268 F.3d at 391. In relevant part, that article states:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph....

Vienna Convention on Consular Relations, April 24, 1963, art. 36, 21 U.S.T. 77, 100-01, 596 U.N.T.S. 261, 292.

C. Propriety of suppression. Assuming the notification provisions of this article were violated in the matter before us, the State claims any such violation does not require suppression of Buenaventura’s statements for two reasons. First, the State argues Article 36 does not create rights that are privately enforceable in the courts. Second, it contends that even if the defendant has an individually enforceable right under the Vienna Convention, suppression of the defendant’s statements is unwarranted.

This court has previously declined to determine whether the treaty creates a right that is enforceable by individuals in the courts. Lopez, 633 N.W.2d at 783; Ledezma v. State, 626 N.W.2d 134, 150 (Iowa 2001). We noted in Ledezma that a “majority of courts assume, without deciding, such a right does exist, and then hold the requested remedy is inappropriate or the defendant did not prove he was prejudiced by the alleged Article 36 violation.” Ledezma, 626 N.W.2d at 151. That is the course we followed in Lopez, where we held even if Article 36 did create an individually enforceable right that required suppression of evidence obtained in violation of that right, a defendant would have to show actual prejudice, something the defendant in Lopez could not do. Lopez, 633 N.W.2d at 783-84.

In the ease before us, we again find it unnecessary to decide whether the defendant has rights under the treaty that are enforceable in the courts. But instead of engaging in a prejudice analysis as we did in Lopez, we now join those courts that hold the exclusionary rule simply does not apply to evidence obtained in violation of Article 36. See, e.g., United States v. Minjares-Alvarez, 264 F.3d 980, 986 (10th Cir.2001); United States v. Jimenez-Nava, 243 F.3d 192, 199-200 (5th Cir.2001); United States v. Chaparro-Alcantara, 226 F.3d 616, 621-22 (7th Cir.2000); United States v. Lombera-Camorlinga, 206 F.3d 882, 885-86 (9th Cir.2000); United States v. Li 206 F.3d 56, 66 (1st Cir.2000).

The Seventh Circuit Court of Appeals aptly summarized the “basic principles” guiding an analysis of whether suppression is an appropriate remedy in this context:

Application of the exclusionary rule is only appropriate when the Constitution or a statute requires it. There is no exclusionary rule generally applicable to international law violations. Indeed, the rights protected by the Vienna Convention are equivalent to rights protected by a statute because treaties and statutes have been held by the Supreme Court to be “on the same footing” with each other under the Constitution. Therefore, as in the case of statutes, the exclusionary rule is an appropriate sanction for a violation of a treaty provision only when the treaty provides for that remedy.

Chaparro-Alcantara, 226 F.3d at 621 (citations omitted); accord Minjares-Alvarez, 264 F.3d at 986; Jimenez-Nava, 243 F.3d at 198. Numerous courts examining the Vienna Convention have concluded that it does not provide a remedy of suppression for violations of Article 36. E.g., Minjares-Alvarez, 264 F.3d at 986-87; Chaparro-Alcantara, 226 F.3d at 621-22; Lombera-Camorlinga, 206 F.3d at 886; Li, 206 F.3d at 62-63. As one court noted, there is no indication in the treaty that its drafters had the exclusionary rule in mind, “especially given the fact that even the United States Supreme Court did not require Fifth and Sixth Amendment post-arrest warnings until it decided Miranda in 1966, three years after the treaty was drafted.” Jimenez-Nava, 243 F.3d at 198 (quoting United States v. Page, 232 F.3d 536, 540-41 (6th Cir.2000)).

We agree with this reasoning. As we noted in Lopez, the notification requirements of the Vienna Convention do not involve a fundamental right of the defendant. 633 N.W.2d at 783. Therefore, in the absence of any provision in the treaty itself for suppression of evidence obtained in violation of its provisions, we refuse to create such a remedy.

D. Impact of violation on voluntariness of statements. Perhaps in recognition of the growing case law rejecting a suppression remedy, Buenaventura attempts to bootstrap the alleged treaty violation into a constitutional violation. He argues that the denial of his purported rights under Article 36 rendered his statements involuntary under the Fifth Amendment. See State v. Bowers, 656 N.W.2d 349, 352 (Iowa 2002) (stating uncounseled responses to interrogation must be “voluntary in fact”).

The connection between the treaty violation and the alleged constitutional violation begins with the parties’ stipulation that had the Philippine consulate been notified of Buenaventura’s detention, it would have advised him to talk to an attorney before giving a statement. The defendant testified that he would have followed this advice. Had he employed an attorney, the reasoning continues, the attorney would have explained to Buenaventura his rights under American law. Buenaventura claims that in the absence of such advice and based on his understanding of police tactics in the Philippines, he feared he would be beaten if he did not confess. He contends, therefore, that his statements were not voluntary.

The facts do not support this contention. We first note that the voluntary nature of a statement depends on the totality of the circumstances. See State v. Smith, 546 N.W.2d 916, 926 (Iowa 1996). Therefore, even assuming Buenaventura’s rights under the Vienna Convention were violated, that singular fact would not necessarily render his statements to the police involuntary. The general rule is that “[statements are voluntary if they were the product of an essentially free and unconstrained choice, made by the defendant whose will was not overborne or whose capacity for self-determination was not critically impaired.” State v. Payton, 481 N.W.2d 325, 328 (Iowa 1992); accord State v. Washburne, 574 N.W.2d 261, 265 (Iowa 1997). Some of the circumstances that are considered in making this assessment include:

the defendant’s age; the level of the defendant’s prior experiences with law enforcement; whether the defendant was intoxicated at the time of the statement; whether the defendant was provided Miranda warnings; the intellectual capacity of the defendant; whether officers acted in a deceptive manner; whether the defendant appeared to understand and respond to questions; the length of time of the detention and interview; the defendant’s physical and emotional reaction to the interrogation; and whether the defendant was subjected to any physical punishment such as the deprivation of food or sleep.
The Supreme Court has also considered characteristics such as the defendant’s age; physical fatigue; mental deficiency; [and] level of education....

Smith, 546 N.W.2d at 926 (citations omitted); accord State v. Vincik, 398 N.W.2d 788, 790 (Iowa 1987).

The record in this case shows that Buenaventura was twenty-sixt years old at the time of his interrogation. He was college educated, employed in the United States, and understood English. Buena-ventura points to no deceptive conduct by the police, nor does he claim they used physical force to coerce statements from him. The first period of questioning began shortly before 8:00 p.m. and was concluded with a polygraph exam administered around 11:30 p.m. The second interrogation a few days later began at 9:15 p.m. and lasted until midnight. Both sessions were interrupted by breaks and the defendant was provided with food and beverages during his questioning. Buenaventura appeared to understand the questions asked and, with the exception of a brief emotional outburst in the second interview, he was generally calm and composed. The police gave Buenaventura Miranda warnings on both occasions, and he waived his rights both times. The defendant does not claim the Miranda warnings given to him were incomplete or that they were given in an untimely manner. Moreover, he admitted at trial that he understood he could have a lawyer. In fact at the end of the first interview he requested an attorney, but the police chose instead to terminate the interrogation.

We find scant support in these facts for Buenaventura’s contention he feared the police and his fear rendered his statements involuntary. Despite the defendant’s alleged apprehension that the police would beat him if he did not confess, he persisted in denying he was responsible for Mala-cas’s death. And, despite his failure to confess, he concedes he was not beaten or tortured, nor did the police threaten any physical violence. To the contrary, they gave him food and pop and let him use the bathroom.

Based on our review of the circumstances of Buenaventura’s questioning and the relevant factors, we conclude his statements were made voluntarily, a product of his free will, unburdened by coercion. It follows, then, that the defendant’s constitutional rights were not violated and, consequently, there is no constitutional basis for suppression of his statements. Accordingly, we affirm the trial court’s denial of the defendant’s motion to suppress.

III. Sufficiency of Evidence to Support Submission of Murder Charges.

At the close of the prosecution’s evidence, the defendant moved for a directed verdict of acquittal on the basis the State had failed to prove the defendant acted with malice aforethought and with premeditation as required by the statutes defining murder in the first and second degrees. See Iowa Code §§ 707.1, .2, .3 (2001). The court denied the defendant’s motion. This ruling has been assigned as error on appeal.

A. Scope and principles of review. We review a court’s assessment of the sufficiency of the evidence for correction of errors of law. See State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). The legal principles governing our review are well established:

The trial court’s [or jury’s] findings of guilt are binding on appeal if supported by substantial evidence. If a rational trier of fact could conceivably find the defendant guilty beyond a reasonable doubt, the evidence is substantial. The evidence is reviewed “in the light most favorable to the State, ‘including all legitimate inferences and presumptions which may be fairly and reasonably deduced from the ... record.’ ” We consider all evidence, not just that of an incul-patory nature. Evidence that raises only “suspicion, speculation, or conjecture” is not substantial evidence.

Id. (citations omitted); accord State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998).

B. Challenged elements of murder charges. Iowa Code section 707.1 defines murder as the killing of “another person with malice aforethought either express or implied.” Iowa Code § 707.1 (emphasis added). Buenaventura was charged with two alternative ways of committing murder in the first degree, as defined in section 707.2:

A person commits murder in the first degree when the person commits murder under any of the following circumstances:
1. The person willfully, deliberately, and with premeditation Mils another person.
2. The person kills another person while participating in a forcible felony [in this case, willful injury].

Id. § 707.2(l)-(2) (emphasis added). Insufficient evidence of premeditation would bar submission of the first alternative of the first-degree murder charge. Second-degree murder is simply a “murder which is not murder in the first degree.” Id. § 707.3. Thus, inadequate evidence of malice aforethought would preclude submission of both first-degree and second-degree murder. We will discuss each challenged element separately.

C. Premeditation. The jury was instructed that premeditate means “to think or ponder upon a matter before acting” and that premeditation need not exist for any particular length of time before the homicidal act. See State v. Wilkens, 346 N.W.2d 16, 20 (Iowa 1984). Premeditation may be shown through evidence of (1) activity by the defendant to plan the killing, (2) motive based on the relationship between the defendant and the victim, or (3) the nature of the Mlling, including the use of a deadly weapon combined with an opportunity to deliberate. State v. Reeves, 636 N.W.2d 22, 25 (Iowa 2001); State v. Khouri, 503 N.W.2d 393, 395 (Iowa 1993).

We think there was adequate evidence of motive in the present case to warrant submission of the first-degree murder charge. The evidence showed that Buenaventura did not have a smooth relationship with his sister-in-law. Buenaven-tura, a Catholic, was quite upset with Shirley and Malacas’s involvement with the Baptist church in Cedar Rapids. He was particularly unhappy that Malacas had become romantically involved with the assistant pastor at the church, a situation that frustrated his desire to line up Malacas with a male friend in the Philippines. The tense relationship between Buenaventura and Malacas was not confined to their household as evidenced by the church pastor’s testimony that he had questioned Buenaventura during the search for Mala-cas as to whether he and Malacas had “had a little spat.” Finally, there was evidence that Buenaventura had confided to a cellmate “that his sister-in-law used to always be in him and his wife’s business.”

We think the cumulative strength of this evidence would support an inference that the defendant, dissatisfied with Malacas’s behavior, choices, and meddling, thought about killing her before undertaking to accomplish that act. The fact that neighbors heard a woman screaming and a man yelling for two to three minutes before the clamor stopped indicates that Buenaventura had an opportunity to think about what he was doing before he struck the murderous blows. As indicated above, the law does not require any minimum amount of time to premeditate and a few minutes are certainly adequate. See State v. Blair, 347 N.W.2d 416, 421 (Iowa 1984) (“The amount of time required to bind a person[’]s hands and feet is ample to show that an opportunity to deliberate existed.”).

Premeditation was also shown by the nature of the crime and the defendant’s actions afterwards. As described above, Malacas was brutally beaten. Some of her injuries indicated that she had tried to defend herself from the attack. Buena-ventura hid the victim’s body and then tried to remove the bloody evidence of the murder. These circumstances, especially when combined with Buenaventura’s ill feelings toward his sister-in-law, indicate that what happened was no accident or defensive reaction by the defendant; it was something Buenaventura thought about before inflicting the fatal blows. See Wemark v. State, 602 N.W.2d 810, 817-18 (Iowa 1999) (finding evidence of motive and cover-up activities supported a finding of premeditation). We conclude, therefore, that the trial court did not err in finding sufficient evidence of premeditation to warrant submission of the first-degree murder charge.

D. Malice aforethought. “Malice aforethought is a fixed purpose or design to do some physical harm to another that exists before the act is committed.” State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002). Like premeditation, “[i]t does not have to exist for any particular length of time.” Id.

Because this element is a state of mind, circumstantial evidence is generally used to prove malice. See State v. Kellogg, 263 N.W.2d 539, 542 (Iowa 1978). Evidence of bad feelings or quarrels between the defendant and the victim are circumstances that may be used to support a finding of malice aforethought. Id. Malice may also be inferred from the use of a deadly weapon. Reeves, 636 N.W.2d at 25-26. The record here shows both circumstances: a disharmonious relationship between Buenaventura and Malacas, and the use of a deadly weapon.

We have already reviewed the evidence showing the poor relationship between the defendant and the victim that existed before the victim’s murder. In addition, autopsy evidence introduced at trial showed that Malacas’s fatal head injuries were inflicted with a very hard object having a curved edge. The murderer used this instrument with “severe force” to inflict five blows to Malacas’s head, causing several lacerations to the victim’s scalp, as well as multiple skull fractures that resulted in her death. Clearly, the weapon used, though unidentified and never found, was deadly. Moreover, the killer did not stop at bashing in the victim’s head; he also beat her body, causing multiple rib fractures, a perforated lung, hemorrhaging around the intestines, and a lacerated fiver.

These circumstances provided ample evidence from which a jury could find that the defendant acted with a fixed purpose or design to do physical harm to Malacas. Therefore, the trial court did not err in concluding there was sufficient evidence of malice aforethought to support submission of the murder charges.

IV. Exclusion of Evidence of Prior Incidents of Harassment and Vandalism.

In a pretrial motion in limine, the State sought to exclude evidence of (1) “vandalism involving the victim’s pickup truck, which occurred five months prior to the homicide”; (2) statements by the victim relating to sexual harassment by co-employees: and (3) “harassing phone calls based on the hearsay statements of the victim.” The court granted the motion. It ruled the incidents of vandalism were too remote in time to be relevant and, because they had not been accompanied by threats against the victim, would not assist the jury “in determining who committed the murder.” The court refused to allow evidence of the victim’s harassment because this evidence consisted of hearsay statements by the victim that did not fall within any exception to the hearsay rule.

The defendant claims the court’s ruling was wrong and that it prevented him from presenting his defense — that another person harbored malice toward Malacas and was responsible for her murder. Error was preserved by an offer of proof made by the defendant during trial. See State v. Lange, 531 N.W.2d 108, 114 (Iowa 1995).

A. Scope of review. We review the court’s ruling for an abuse of discretion. See State v. Ludvigson, 482 N.W.2d 419, 423 (Iowa 1992). “An abuse of discretion occurs when the trial court exercises its discretion ‘on grounds or for reasons clearly untenable or to an extent clearly unreasonable.’ ” State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001) (citations omitted). “A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law.” Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000). Even if an abuse of discretion is found, reversal is not required unless prejudice is shown. State v. Windsor, 316 N.W.2d 684, 688 (Iowa 1982). To the extent the defendant’s challenge is to the court’s ruling that the harassment evidence is inadmissible hearsay, we review for correction of errors of law. State v. Tangie, 616 N.W.2d 564, 568 (Iowa 2000).

B. Vandalism evidence. The district court held that the incidents of vandalism to the victim’s pickup were too remote in time to be relevant. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Iowa R. Evid. 5.401. In determining whether an act or event is too remote in time to be relevant, we have said “no precise timetable may be set.” Godbersen v. Miller, 439 N.W.2d 206, 210 (Iowa 1989). “[T]he question is whether ‘the elapsed time is great enough to negative any logical connection between the evidence and the fact sought to be established by it.’ ” Id. (citation omitted); accord State v. Maestas, 224 N.W.2d 248, 251 (Iowa 1974). An assessment of remoteness rests in the sound discretion of the trial court. Maestas, 224 N.W.2d at 251.

Here, the defendant claimed the incidents of vandalism showed someone else harbored ill will toward the victim and could have been the murderer. The tendency of the proffered evidence to prove this fact was, however, quite weak. The vandalism had stopped several months before Malacas’s murder. Although the alleged harassment continued, there was only speculation that the vandalism and harassment were linked. There was no suspect in the vandalism and again only speculation that these prior incidents were connected to the murder.

We conclude the trial court did not abuse its discretion in concluding that the incidents of vandalism did not have the tendency to establish that the victim was murdered by someone other than the defendant. Therefore, the court did not err in excluding this irrelevant evidence. See Iowa R. Evid. 5.402 (“Evidence which is not relevant is not admissible”).

C. Harassment. This evidence consisted of statements made by Malacas to others concerning allegedly lewd and harassing remarks directed to her at work. In addition, Malacas had confided that the male coworkers making these remarks also initiated unwanted sexual advances toward her. The defendant asserts on appeal that this evidence, like the acts of vandalism, supported his trial defense

that there was a man associated with Malacas at work who had refused to' accept her lack of sexual interest in him, had stalked her, had vandalized her pick-up truck, once violently, and who may very well have met her outside of her apartment and may have talked his way in or coerced her into admitting him to her room where he ultimately killed her.

The trial court refused to allow the evidence of harassment, holding it was inadmissible hearsay.

Our rules of evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of. the matter asserted.” Iowa R. Evid. 5.801(c). “Hearsay is not admissible except as provided by the Constitution of the state of Iowa, by statute, by the rules of evidence, or by other rules of the Iowa Supreme Court.” Id. 5.802.

The statements made by Malacas are clearly hearsay and inadmissible unless this evidence falls within some exception to the hearsay rule. The defendant relies on the state-of-mind exception set forth in Iowa Rule of Evidence 5.803(3) for “[a] statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health).... ” The defendant argues the victim’s alleged statements were “evidence that she had lived in fear of such harass-ments and had made such statements to others to explain her emotional state.” The weakness in this argument is that neither the victim’s emotional state nor her state of mind is relevant in this case. The sole purpose and relevancy of this testimony, as the defendant’s argument quoted above makes clear, is to prove the incidents of harassment actually occurred, thereby supporting Buenaventura’s defense that the person pestering the victim also murdered her. The trial court correctly ruled, however, that Malacas’s statements are inadmissible hearsay when offered for this purpose. We find no error in the trial court’s ruling.

V. Conclusion.

The trial court did not err in denying the defendant’s motion to suppress, as any violation of Article 36 of the Vienna Convention would not warrant exclusion of the evidence obtained as a result of the violation. There was sufficient evidence of premeditation and malice aforethought to support the trial court’s submission of the first and second-degree murder charges to the jury. Finally, the trial court did not abuse its discretion or commit error in excluding evidence of prior incidents of vandalism and harassment directed at the victim by persons other than the defendant. We preserve the defendant’s claim of ineffective assistance of counsel for a possible post conviction relief action. Finding no basis for reversal, we affirm the defendant’s conviction of first-degree murder.

AFFIRMED.


author: NEUMAN, Justice.

text:
    STATE of Iowa, Appellee, v. Michael James SHEARON, Appellant.
    No. 01-1613.
    Supreme Court of Iowa.
    April 2, 2003.

      Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, and Barbara A. Edmondson, County Attorney, for appellee.
   NEUMAN, Justice.

This is an appeal by defendant, Michael Shearon, from his conviction for lascivious acts with a child. He urges three grounds for reversal: (1) his trial counsel was ineffective in failing to object to the district court’s failure to follow statutory procedures required for the use of closed-circuit testimony for a child witness; (2) the district court erroneously refused to instruct the jury on the lesser included offense of indecent contact with a child; and (3) the court imposed an illegal sentence when it ordered Shearon to undergo DNA profiling. Finding no merit in any of these contentions, we affirm.

A jury could have found the following facts. While babysitting for friends, Shearon (then nineteen years old) exposed himself to six-year-old K.D.J. and then asked her to touch his penis. The girl at first refused but was ultimately persuaded by Shearon to do so. She testified that Shearon made her promise not to tell anyone. A few months later, K.D.J. told her mother about the incident. Shearon admitted the incident when questioned by police but denied it at trial.

Further facts and procedural details will be explained as they pertain to the issues on appeal.

I. Compliance with Iowa Code section 915.38.

Prior to trial the State sought an order, pursuant to Iowa Code section 915.38 (1999), permitting K.D.J. to testify at trial via closed-circuit television. The State alleged that requiring the minor to testify in the presence of the defendant would unduly traumatize her as well as impair her ability to communicate. Over Shearon’s vigorous objection, the court granted the State’s application.

On appeal, Shearon contends the court did not follow the strict requirements of section 915.38. The statute contains two requirements at issue here:

The judge shall inform the minor that the defendant will not be present in the room in which the minor will be testifying but that the defendant will be viewing the minor’s testimony through closed-circuit television.
During the minor’s testimony the defendant shall remain in the courtroom and shall be allowed to communicate with the defendant’s counsel in the room where the minor is testifying by an appropriate electronic method.

Iowa Code § 915.38. The record reveals a brief colloquy between the court and K.D.J. concerning the importance of telling the truth but fails to disclose whether K.D.J. was informed that the defendant would be viewing her testimony. It also appears from the record that Shearon had no electronic means by which to communicate with his counsel while K.D.J. testified.

Defendant contends the court’s failure to comply with these statutory provisions implicates his constitutionally protected right to confront his accuser. See U.S. Const, amend. VI; Iowa Const, art. I, § 10. This argument was not made, however, by defendant’s trial counsel. Shearon raises it on appeal in the context of ineffective assistance of counsel, an exception to the general rule of error preservation. See Earnest v. State, 508 N.W.2d 630, 632 (Iowa 1993). Although such claims are often reserved for post-conviction proceedings, see State v. Bass, 385 N.W.2d 243, 245 (Iowa 1986), we are convinced the record before us is sufficient to resolve the claim here.

To prevail on his claim, Shearon must establish that (1) counsel faded to perform an essential duty and (2) prejudice resulted from that failure. State v. Risdal, 404 N.W.2d 130, 131-32 (Iowa 1987). The burden rests on the defendant to prove both prongs of the two-part test by a preponderance of the evidence. Id. at 132. We review such constitutional claims de novo. State v. Kasel, 488 N.W.2d 706, 709 (Iowa 1992). The ultimate question is whether the record establishes a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-93 (1984).

We are convinced that Shearon cannot meet the Strickland standard here. Even assuming counsel erred in failing to object to the court’s omissions, Shearon is unable to show any prejudice resulting from the error.

Three main rights may be claimed by Shearon under the Confrontation Clause: (1) testimony under oath, (2) cross-examination by his counsel, and (3) the right to have the jury observe the witness’s demeanor. State v. Rupe, 534 N.W.2d 442, 444 (Iowa 1995); accord Maryland v. Craig, 497 U.S. 836, 845-46, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666, 678 (1990). None of these rights was infringed here. The judge’s colloquy with K.D.J. established that she understood the importance of telling the truth and promised to do so. Shearon, through his counsel, vigorously cross-examined her. There can be no dispute that the jury had a full opportunity to observe K.D.J.’s demeanor because the jury viewed her testimony, live, over closed-circuit television.

To the extent section 915.38 elaborates on these confrontation rights, we are not convinced the court’s failure to strictly adhere to its provisions results in error of constitutional magnitude. It is true that, contrary to statute, Shearon’s placement in the courtroom did not permit him immediate access to counsel by electronic means. But the record plainly reveals the granting of a brief recess to enable Shearon and his lawyer to communicate before cross-examination was concluded. As for the court’s failure to advise K.D.J. that Shearon would be observing her testimony, Shearon’s argument is equally unavailing. Even assuming error could be premised on this ground, Shearon makes no attempt to show how he was prejudiced by it. To the contrary, the testimony of K.D.J.’s therapist reveals that the child was well aware, and in fact concerned, that Shearon would be watching her accuse him.

Because Shearon has not established that the outcome of the trial was in any way affected by the court’s failure to strictly adhere to section 915.38, he cannot prevail on his claim that counsel erred in failing to bring these matters to the court’s attention. No ground for reversal appears.

II. Jury Instructions/Lesser Included Offense.

Shearon was charged with the offense of lascivious acts with a child, in violation of Iowa Code sections 709.1 and 709.8. His counsel requested a jury instruction on the offense of indecent contact with a child, alleging it to be a lesser-ineluded offense. The district court refused to give the requested instruction on indecent contact, a matter Shearon cites as error on appeal.

We review a charge of instructional error for correction of errors at law. State v. Breitbach, 488 N.W.2d 444, 449 (Iowa 1992). It is the trial court’s duty to instruct “not only as to‘ the public offense charged but as to all lesser offenses of which the accused might be found guilty under the indictment and upon the evidence adduced.” Iowa R.Crim. P. 2.6(3). We are committed to the “impossibility test” when it comes to determining whether one offense is a lesser included of another. See State v. Jeffries, 430 N.W.2d 728, 740 (Iowa 1988). The test is satisfied when “the greater offense cannot be committed without also committing all elements of the lesser offense.” State v. Coffin, 504 N.W.2d 893, 894 (Iowa 1993); State v. Turecek, 456 N.W.2d 219, 223 (Iowa 1990).

Based on the trial information, the court gave the following marshalling instruction for the crime of Lascivious Acts with a Child:

[T]he State must prove all of the following elements:
1. On or about the 15th day of November, 2000, the defendant with or without [K.D.J.’s] consent permitted or caused [K.D.J.] to fondle or touch the defendant’s genitals.
2. The defendant did so with the specific intent to arouse or satisfy the sexual desires of the defendant or [K.D.J.].
3. The defendant was then 18 years of age or older.
4. [K.D.J.] was then under the age of 14 years.

A jury instruction for Indecent Contact with a Child fitting charges similar to this case would include the following elements:

1.On or about the 15th day of November, 2000, the defendant with or without [K.D.J.] consent:
a. Fondled or touched the inner thigh, groin, buttock, anus or breast of [K.D.J.]; or
b. Touched the clothing covering the immediate area of the inner thigh, groin, buttock, anus or breast of [K.D.J.]; or
c. Solicited or permitted [K.D.J.] to fondle or touch the inner thigh, groin, buttock, anus or breast of the defendant; or
d. Solicited [K.D.J.] to engage in acts described in sections 709.8(1), (2) or (4).
2. The defendant did so with the specific intent to arouse or satisfy the sexual desires of the defendant or [K.D.J.],
3. The defendant was then 18 years of age or older....
4. [K.D.J.] was then under the age of 14 years....

Iowa Criminal Jury Instr. 900.7; Iowa Code § 709.12.

Because elements two through four of each crime are identical, our analysis focuses on the first element of each crime. Shearon was charged under the lascivious acts alternative requiring proof that he “permitted or caused [the victim] to fondle or touch the defendant’s genitals.” By contrast, the crime of indecent acts criminalizes the touching or fondling of non-genital body parts, e.g., inner thigh, groin, buttock, anus or breast. See Iowa Code § 709.12. Alternatively, indecent contact is committed when a person solicits a child to engage in any act prohibited in section 709.8. Id.

The State argues “[i]t is entirely possible for a defendant to ‘permit or cause’ a child to fondle or touch his or her genitals without also ‘soliciting’ the child to do so.” Whereas a defendant might cause the lascivious act by placing a child’s hand on his genitals or permit the child to crawl across his lap and thereby touch them, the word “solicit” connotes “asking or urging” conduct. State v. Willis, 218 N.W.2d 921, 924 (Iowa 1974). Put another way, the crime of solicitation “is in the asking.” State v. Anderson, 618 N.W.2d 369, 372 (Iowa 2000) (citation omitted). Thus, the State argues, once the defendant solicits the child under section 709.12(4), the crime is complete. Because no actual touching or fondling is necessary, the crime of indecent contact does not qualify as a lesser-included offense of lascivious acts.

Shearon relies on State v. Capper, 539 N.W.2d 361 (Iowa 1995) as his sole basis for countering the State’s argument. His reliance is misplaced. Our focus in Capper was on whether lascivious acts or indecent contact were lesser-included offenses of the principal crime charged there, second-degree sexual abuse. We held they were not. Capper, 539 N.W.2d at 367. Without comparing the elements, we then summarily observed in passing that “[hjowever, indecent contact with a child is a lesser included offense of lascivious acts with a child.” Id. at 368. We now reconsider that dictum and hold to the contrary. Because it is possible to commit the crime of lascivious acts without also committing indecent contact with a child, the latter crime is not a lesser-included offense of the former. The district court was correct in so ruling.

III. DNA Profiling.

Shearon’s third assigned error relates to the legality of his sentencing, a matter that may be raised for the first time on appeal. State v. Austin, 503 N.W.2d 604, 607 (Iowa 1993). Shearon contends the court erred when it required him to submit to DNA profiling pursuant to Iowa Code section 901.5(8A)(a). Our review is for the correction of errors at law. State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998).

It is true, as Shearon contends, that subparagraph (a) of section 901.5(8A) only requires the court to order DNA profiling upon a defendant’s conviction of certain offenses listed in section 13.10 such as murder, kidnapping, burglary (first degree) and sex abuse. Lascivious acts, the crime for which Shearon was convicted, is not among the listed offenses triggering this provision. Nor is Shearon’s crime among those the legislature authorized the attorney general, in consultation with the division of criminal investigation, to incorporate by rule. See Iowa Code § 13.10; Iowa Admin. Code r. 61-8.2(13) (1999).

However another subsection under section 901.5(8A) authorizes the sentence imposed on Shearon if — as in the case before us — the court finds DNA profiling factually appropriate. The statute states:

Notwithstanding section 13.10, the court may order the defendant to provide a physical specimen to be submitted for DNA profiling if appropriate. In determining the appropriateness of ordering DNA profiling, the court shall consider the deterrent effect of DNA profiling, the likelihood of repeated offenses by the defendant, and the seriousness of the offense.

Iowa Code § 901.5(8A)(b).

Our review of the sentencing record reveals that the court’s decision to impose DNA profiling rested on Shearon’s juvenile record, including a troublesome tendency to use violence to get his way. This history, combined with the seriousness of Shearon’s current offense, justified the court’s determination that DNA profiling was an appropriate condition of Shear-on’s probation. The court merely referred to the wrong Code subsection at sentencing.

A sentence is not illegal unless it is not authorized by statute. Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001). Plainly Shearon’s sentence was authorized by statute. No error warranting reversal, or even remand for resentencing, has been shown.

AFFIRMED.

      . The fact that the evidence reveals Shearon actually did urge the victim to touch his penis is irrelevant to this analysis. See Jeffries, 430 N.W.2d at 738 (rejecting factual test for determining lesser included offense).