author: SNELL, Justice.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. Steven A. STEFANI, Respondent.
    No. 00-210.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    Alfredo Parrish, Des Moines, for respondent.
   SNELL, Justice.

This case comes -to us for review of the recommendation of our grievance commission to suspend the license to practice law of Steven A. Stefani for a period of six months. Upon review, we agree with the commission’s report and order respondent’s license suspended for six months.

Our review of the record is de novo. Ct. R. 118.10. We give respectful consideration to the recommendations of the commission. However, the ultimate decision on what discipline is appropriate rests with this court. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 557 N.W.2d 94, 95 (Iowa 1996).

Charges against Stefani were brought in this attorney disciplinary proceeding by the Iowa Supreme Court Board of Professional Ethics and Conduct.

I. Olson Complaint

The Board accused Stefani of neglecting a client’s legal matter and lying to the client about the status of the case. The violations cited were DR 1 — 102(A)(4) (misrepresentation) and DR 6-101(A)(3) (neglect). See Iowa Supreme Ct. Bd. of Prof l Ethics & Conduct v. Jones, 606 N.W.2d 5, 8 (Iowa 2000); Committee on Prof'l Ethics & Conduct v. Gill, 479 N.W.2d 303, 305 (Iowa 1991).

Pamela K. Olson filed her complaint stating that Stefani had failed to carry out his professional responsibilities in processing her lawsuit through an appeal to the United States Supreme Court. Stefani had represented her in her suit against her former employer, the Dubuque Community School District, under the Americans with Disabilities Act. She had exhausted her administrative remedies with no success and had been refused representation by three other attorneys. Stefani took her case on a contingency basis and never received any fee.

The case was filed in federal court. Summary judgment for the defendant was granted; the Eighth Circuit Court of Appeals affirmed the judgment.

During the period prior to filing the Eighth Circuit brief, Stefani was residing in a halfway house as a result of cocaine addiction. A colleague in Stefani’s law firm drafted and filed the brief.

After the decision by the circuit court, Olson communicated with Stefani about the further appeal. The commission noted that Olson was very knowledgeable and articulate about the case and was intensely interested in the progress of her legal claim. When Stefani met with Olson, he indicated that he did not want to pursue the claim, and did not have enough experience or resources to do so. However, he was somewhat ambivalent about it and did not send her a letter of disengagement.

Olson had requested that Stefani file for extensions of time so that Olson could find funding and other representation. No applications for extension of time were ever filed and the time for appeal expired about the time Stefani told her he would not prepare a petition for writ of certiorari. During this period, Olson became aware that Stefani was personally charged with criminal offenses.

The commission found, and we agree, that there was considerable uncertainty as to whether Stefani had agreed to further representation. During a July 15, 1998 phone conference Stefani told Olson he did not want to pursue the case to the United States Supreme Court. She also learned that an appointment on July 18, 1998 had been canceled by Stefani’s secretary.

Olson regained steadfast in her desire to further pursue the litigation even though Stefani and another attorney in his law firm communicated a lack of interest in litigating and funding a doubtful claim to the United States Supreme Court. 01-son, however, was not receptive to the response from her attorneys.

We agree with the commission that Ste-fani and Olson were jointly responsible for the miseommunication and misunderstanding as to the specific time of the termination of Stefani’s legal representation. Under these circumstances, we find, as did the commission, that the Board did not prove by a preponderance of the evidence that Stefani neglected Olson’s claim.

II. Criminal Charge

On November 19, 1996, Stefani pled guilty in the United States District Court, Northern District of Iowa, to possession of cocaine in violation of 21 U.S.C. § 844 (1990). This crime is a misdemeanor. See United States v. Baggett, 890 F.2d 1095, 1097 (10th Cir.1990). On November 25, 1996, the court placed Stefani on pre-judgment probation. The federal court revoked his probation on March 13, 1997, placing him under supervision pending sentencing. On August 27, 1997, Stefani submitted a urine sample to the Sedlacek Treatment Center in Cedar Rapids. It tested positive for cocaine.

On September 16, 1997, the federal court sentenced Stefani on the possession charge and ordered that he serve three months in a community correction center followed by three years probation. About a year later, in August or September 1998, Stefani possessed and used cocaine in violation of federal law and the terms of his supervised release. On October 2, 1998, the United States District Court ordered Stefani to enter an in-patient treatment program by October 9, 1998. Stefani claimed that he entered such a program at the University of Iowa Hospitals but that the admission process was not completed due to the facility’s time constraints. Because he did not timely enter the in-patient treatment program, he was arrested on October 14,1998. He was then released to his father’s custody on the condition that his father deliver him to an in-patient drug center. Stefani now admits that he was not admitted to a treatment program by October 9, 1998, as ordered by the federal court but was admitted to one on October 16, 1998. Stefani did enter the Sedlacek Treatment Center on October 16, 1998. Following his discharge from the Center, he failed to report for probation supervision as required. On or about November 3, 1998, a warrant was issued for his arrest. Stefani claims that he absconded because he feared for his and his family’s safety. Nevertheless, he failed to notify the court, his probation officer, and the grievance commission of his whereabouts, his reason for leaving, or his expected time of return.

On June 7, 1999, the federal court sentenced Stefani to fifteen days imprisonment upon his plea of guilty to simple possession of a controlled substance (second offense).

Stefani admitted at the hearing before the commission that he is addicted to cocaine. He has not resumed the practice of law.

The Board charged that Stefani’s criminal conduct in possessing and/or using cocaine following his guilty plea and public reprimand violated Iowa Code of Professional Responsibility for Lawyers, DR 1-102(A)(5) and (6). These rules cite as misconduct a lawyer’s engaging in conduct that is prejudicial to the administration of justice and conduct that adversely reflects on the fitness of a person to practice law. The commission found that both charges were proved. Upon our review, we agree. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Runge, 588 N.W.2d 116, 118 (Iowa 1999); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Marcucci, 543 N.W.2d 879, 881-83 (Iowa 1996).

III. Failure to Respond

The Board also charged Stefani with a failure to respond to legal notices sent by the Board. A notice was sent by certified letter concerning the Pamela Olson complaint. The United States Postal Service returned the letter marked “unclaimed.” Stefani also failed to respond to a notice personally served at the Linn County jail regarding this complaint.

In granting a continuance as requested by Stefani, the commission ordered that he notify the clerk of the grievance commission within two days of his release from Sedlacek Treatment Center so that a hearing before the commission could be rescheduled. Stefani failed to so notify the commission. The Board charged, and the commission found, that Stefani’s failure to respond violated DR 1-102(A)(5) and (6) as described in division II of this opinion. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Gonnerman, 601 N.W.2d 34, 35 (Iowa 1999). We agree with the commission’s decision.

IV. Sanction

In reaching our decision, we give respectful consideration to the commission’s findings. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Hoffman, 572 N.W.2d 904, 907 (Iowa 1997). In this matter, we conclude, as the commission recommended, that Stefani’s license should be suspended. Accordingly, we suspend Steven A. Stefa-ni’s license to practice law indefinitely, with no possibility of reinstatement for six months from the filing of this opinion. Upon application for reinstatement, respondent shall furnish proof that he has successfully completed the treatment programs for drug addiction as ordered by the courts. Stefani shall also comply with the requirements of court rules 118.3 and 118.18. Costs are assessed to respondent.

LICENSE SUSPENDED.

All justices concur except CARTER, J., who takes no part.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP OF Bessie R. JORDAN. Gail Griffith Lovell, Administrator of the Estate of Bessie R. Jordan, Deceased, Appellant, v. George Remer and Garden Farms, Inc., Appellee.
    No. 98-0410.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      David Swinton of Ahlers, Cooney, Dor-weiler, Haynie, Smith & Allbee, P.C., Des Moines, for appellant.
    Dee Ann Wunschel of Wunschel Law Firm, P.C., Carroll, and George Remer, Battle Creek, for appellees.

      . The application for approval of this lease purported to obligate Bessie for the entire interest in the bins being leased. Elsewhere in the record, however, it is indicated that her interest may only have been in proportion to her fractional interest in the farm.

   CARTER, Justice.

Gail Griffith Lovell, the administrator of the estate of Bessie R. Jordan, appeals from an adverse ruling in her action to overturn the sale of Bessie’s interest in a 423-acre farm while Bessie was incompetent and under conservatorship. The defendants in the action are the conservator, George Remer (Remer) and- Garden Farms, Inc. (GFI), a corporation controlled by Remer. Remer and GFI cross-appeal, challenging money judgments that the district court imposed against them for other transactions involving the ward’s affairs.

After reviewing the record and considering the arguments presented, we reverse the portion of the district court’s decree upholding the land sale, affirm certain other portions thereof, and remand the case for further orders that are required to perfect, as nearly as practicable, the restoration of the status quo.

Bessie Jordan was a retired school teacher who resided in rural Ida County. Her primary asset was an interest in a 423-aere family farm of which she held a 58.33% interest in fee simple and a 10.42% interest as a life tenant. Bessie’s sister, Lucille, owned a 31.25% interest in the farm. Bessie and Lucille operated the farm as a partnership referred to by the parties as the Jordan farm partnership. Remer, who was Lucille’s son, acted as their farm manager. By 1985 Bessie was no longer mentally competent to handle her own affairs, and Remer was appointed to act as her guardian and conservator. Upon Lucille’s death in February 1987, Bessie’s fee simple interest was increased to 68.75% as a result of a joint tenancy interest with Lucille in a portion of the farm. When her 10.42% life estate interest is considered, this gave her a total beneficial interest in the property of 79.17%.

Prior to March 1, 1987, the Jordan farm partnership had leased the land on various crop share and cash arrangements. In February 1987, Lucille’s death caused a dissolution of the partnership. At about that time, Remer, a licensed attorney, formed the GFI Corporation. Although his wife, Carol, was shown as the sole shareholder of this corporation, the district court found that it was at all times under Remer’s control. Our review of the record convinces us that this conclusion was correct. On March 26,1987, Remer, acting as farm manager for Bessie, leased her interest and the other fractional interests in the farm to GFI. The lease called for a flat annual rental of $26,000 per year of which Bessie’s share was $20,584.

In October 1987 Remer, as conservator, arranged for Bessie to lease two new grain bins with an option to buy. He obtained court approval for this transaction by stating in his application that

the [ward’s] estate herein must continue to be involved in the Government programs and presently there is on hand in the estate herein corn under seal and loan to the CCC for which the estate is collecting rental. This additional storage which is necessary is required so the estate can meet its obligations under additional sealing of corn and beans....

In August 1988 Remer sought court approval for the sale of Bessie’s 68.75% fee simple interest in the 423-acre farm to GFI. His application revealed that the proposed purchaser was a corporation owned by his wife Carol. The reasons given for proposing this sale of Bessie’s property were as follows:

The sale is in the best interest of the estate herein as such proceeds are needed for the care of 'the ward and the proceeds receivable by the estate will be in excess of the rentals received annually, thus assuring the ward cash flow to meet ongoing needs.
Presently, the ward’s annual income is insufficient to meet the needs of the ward’s expenses. This farm sale would increase the annual amount received by the ward to a level sufficient to pay the care expenses of the ward and eliminate the necessity of the ward to participate in payment of the ongoing farm expenses and debts.

Prior to submitting the matter for court approval, Remer obtained two appraisals from qualified farm appraisers. One appraisal valued Bessie’s interest at $525 per acre and the other at $575 per acre. Rem-er’s application to the probate court proposed to sell Bessie’s interest in the farm for $575 per acre adjusted to recognize her fractional interest. The court granted Remer’s application to sell Bessie’s interest in the farm on September 8, 1988. The total purchase price was to be $150,318 payable in installment terms discussed later in this opinion. Because the original contract proposal understated Bessie’s fractional interest in the farm, a revised contract wras prepared and approved by the court calling for a purchase price of $167,217. The two orders approving the sale of Bessie’s farm interest to GFI were entered without notice to Bessie or anyone acting in her behalf other than the conservator applicant.

Bessie died on October 9, 1992. Rem-er’s wife, Carol, was appointed administrator of her estate and Remer as the attorney for the estate. In May 1994 the current administrator, Gail Lovell, and others filed a petition for Carol’s removal as personal representative. Carol then resigned as administrator, and Remer resigned as attorney for the estate. Lovell was then appointed as administrator. In June 1996 she filed an action to set aside the sale of the farm to GFI on the basis that it was the result of Remer’s self-dealing and had not been in Bessie’s best interest. In addition, the administrator lodged other complaints concerning the administration of the ward’s assets.

After hearing evidence, the district court declined to set aside the sale. The court found that based on the evidence presented the price paid by GFI was fair. It further concluded that, because Bessie, who was in a nursing home, needed an assured source of cash assets to meet the recurring and mounting costs of her care, the sale was in her best interest.

On the other complaints, the court found that Remer had not breached a fiduciary duty in failing to liquidate a walnut grove on the farm prior to its sale to GFI but concluded that he had (1) improperly imposed the grain bin expense on Bessie; (2) improperly obtained farm management fees for services that did not benefit Bessie; (3) improperly transferred $6000 of Bessie’s money to Lucille’s estate in the absence of evidence that this sum was owed Lucille; (4) improperly charged Bessie for accounting services necessary to resurrect Remer’s poor bookkeeping practices; (5) failed to pay Bessie her $2704 share of the December 1, 1988 rental income attributable to her 10.42% life estate interest; (6) improperly charged Bessie’s 10.42% life tenancy interest for improvements made after the sale of her fee simple interest to GFI; and (7) improperly charged Bessie for penalties exacted when Remer, as her conservator, had faded to pay her real estate taxes on time. For these transactions, the court entered judgment against Remer and GFI for $64,550 and judgment against Remer individually for $23,181. Although the administrator had sought to recover punitive damages from Remer, the court’s original decree did not speak to that issue. The administrator filed a motion under Iowa Rule of Civil Procedure 179(b) pointing this out. In ruling on that motion, the court amended the decree to include a judgment against Remer for $20,000 in punitive damages. Other details of the transactions under review will be discussed in our consideration of the legal issues presented.

I. Scope of Review.

Whether the proceeding was legal or equitable is determinative of this court’s standard for reviewing this matter. In re Estate of Wulf, 526 N.W.2d 154, 155 (Iowa 1994). Iowa Code section 633.33 provides:

Actions to set aside or contest wills, for the involuntary appointment of guardians and conservators, and for the establishment of contested claims shall be triable in probate as law actions, and all other matters triable in probate shall be tried by the probate court as a proceeding in equity.

It does not appear that the issues in this case fall into any of the categories listed as triable in probate as law actions. The district court tried this case as a proceeding in equity. Therefore, this court’s review is de novo. Iowa R.App. P. 4.

II. The Land Sale Transaction.

We first consider the claim of Bessie’s administrator that, because conservator Remer’s self-dealing with the property of his ward was not in the ward’s best interests, the sale of the farm to GFI should be set aside.

A. Self-dealing not prohibited. We begin our analysis by recognizing that under Iowa law self-dealing by fiduciaries is permissible if approved by the court after a finding that there is an adequate reason for the transaction. Iowa Code § 633.155 (1987). The granting of court approval requires notice and opportunity to be heard on the part of all interested persons. Id. When an order authorizing fiduciary self-dealing is entered in the absence of notice to persons entitled thereto, those persons entitled to notice may seek review of the order at any time prior to the approval of the fiduciary’s final report. Iowa Code § 633.37.

B. Notice requirements. Two notice requirements are directly involved in the administrator’s challenge to Remer’s sale of the farm to GFI. The first is the requirement placed on a conservator making an application to sell property of the ward. In this situation, section 633.652 incorporates the procedures for the sale of property by a personal representative of a decedent. Subject to exceptions not applicable to the present situation, those procedures require that notice of an application to sell property must be given to “all persons interested.” Iowa Code § 633.389.

The second notice requirement exists as part of the statutory requirement for court approval of self-dealing by fiduciaries. This statute provides:

No fiduciary shall in any manner engage in self-dealing, except on order of court after notice to all interested persons, and shall derive no profit other than the fiduciary’s distributive share in the estate from the sale or liquidation of any property belonging to the estate. Every application of a fiduciary seeking an order under the provisions of this section shall specify in detail the reasons for such application and the facts justifying the requested order. The notice shall have a copy of the application attached, or, if published, it shall contain a detailed statement of the reasons and facts justifying the requested order.

Iowa Code § 633.155 (emphasis added).

Although the district court found that the orders for court approval that Remer obtained on these transactions could be reconsidered more than eight years after their entry because of a failure to give notice to interested persons, the court did not suggest to whom notice should have been given. The answer to this question is not entirely clear. In the case of an application to sell property made by a personal representative, the controlling statute defines “all persons interested” as including “only distributees in the estate and persons who have requested notice as provided by this Code.” Iowa Code § 633.389. This definition is obviously inapplicable to a conservator’s application to sell property of a living ward.

Notwithstanding the absence of a clear directive in our probate code concerning those persons entitled to notice of a conservator’s sale of a ward’s property, our case law is specific enough to answer the question for purposes of the present dispute. Under an earlier version of our probate statutes, this court held:

It is settled by the decisions of this court that a proceeding by a guardian, for the purpose.of obtaining an order from the proper court for the sale of the real property of his ward, is not a proceeding in rem, but an, adversary proceeding, and that a guardian’s sale of real estate, without the notice required by law is void for want of jurisdiction in the court ordering the same.

Lyon v. Vanatta, 35 Iowa 521, 524 (1872) (citing Washburn v. Carmichael, 32 Iowa 475, 478 (1871)). In the Lyon and Wash-bum cases, we held that notice of the application to sell a ward’s property must be given personally to the ward even though that person is a minor and that the response in such situations should be made by a guardian ad litem. In interpreting section 633.652 and section 633.389 of our current probate code, we hold that a similar result, requiring notice to the ward, should hold forth if the ward is incompetent. Moreover, we believe that in the present case notice to the ward was also required by the self-dealing provisions of section 633.155. The type of notice that is contemplated is a notice of the time and place of hearing on the application to sell the ward’s property. Iowa Code § 633.38. When notice of the hearing is given to an incompetent person, the response should be made by a guardian ad litem pursuant to Iowa Rule of Civil Procedure 13. Because no notice of the proposed sale was given to Bessie, the district court correctly found that the order approving the sale was not binding on Bessie’s administrator. See In re Estate of Borrego, 490 N.W.2d 833, 837 (Iowa 1992) (order approving attorney fees granted without notice not binding on parties entitled to notice).

C. Consequences of not giving notice. The expression of the court in the Lyon case with respect to a sale without notice being void was in regard to a collateral attack on the sale. When, as in the present case, a challenge is made before the conservator’s final report has been approved by the court, the matter is reviewable by the court as provided in Iowa Code section 633.37. Because a party entitled to notice should not be prejudiced by a prior order entered without notice, we conclude that a review pursuant to section 633.37 should involve a consideration anew of all of the issues within the context of the situation existing at the time of the prior order. See Borrego, 490 N.W.2d at 837 (order approving attorney fees granted without notice to interested parties must be resubmitted pursuant to Iowa Code section 633.37).

D. The fairness issue. Although the administrator relies on burden of proof rules established in self-dealing cases such as Clinton Land Co. v. M/S Associates, Inc., 340 N.W.2d 232, 234-35 (Iowa 1983), we need not resort to those rules here. Those proof rules were derived in fiduciary settings not subject to court supervision. It is axiomatic that in situations in which a fiduciary may only act with court approval and the issue is whether that approval should be given, the burden of justifying the action taken rests on the fiduciary. See In re Boyd, 231 Iowa 1325, 1329, 4 N.W.2d 387, 390 (1942) (burden of proof on trustee in application for approval to use trust funds for farm improvements).

In our de novo review of the district court’s decree, we are satisfied with its finding that Bessie’s cash flow at the time of the application to sell the farm was barely adequate to meet her current expenses and that those expenses were very likely to increase. Bessie had no other assets that she could liquidate to solve that dilemma. Although Bessie’s administrator argues that the $575 per acre purchase price was inadequate, the evidence presented indicates that it was a fair price. Based on those circumstances, we cannot dispute the district court’s conclusion that a sale of the farm appeared to be a prudent measure. Notwithstanding our agreement with these conclusions, we are convinced that the transaction, as proposed by Remer, should not have gained court approval.

As the common saying goes, “the devil is in the details” — in this case in the details of the contract of sale. As a transaction was proposed and approved by the court, GFI made no monetary down payment to Bessie. The down payment of $3274 recited in the agreement was satisfied by GFI or Remer paying an installment payment owed by Bessie on the grain bin lease. As noted earlier, the district court ultimately ruled that Bessie should not be held responsible for that obligation because it benefited Remer and GFI exclusively and did not benefit her.

Although the contract was executed on August 2,1988, and was written so as to be retroactive to March 1, 1988 (when GFI purported to have taken possession), it called for no actual payment to Bessie until January 1, 1989. At that time a $9592 interest payment and an $8074 principal payment were required of GFI. The cash rent for the property had been payable on December 1 of each year in a lump sum of $26,000. Bessie’s share was $20,-584. Bessie had been paid her share of the December 1, 1987 rental payment when the sale to GFI occurred, but the contract released GFI from rental payments for Bessie’s fee simple interest on December 1, 1988, or thereafter. After the sale, Bessie continued to be entitled to rentals from GFI for her 10.42% life tenancy interest. This amount would have been $2704 annually. It was never paid to her and was the subject of a judgment against Remer and GFI in the district court’s decree.

As a result of the transaction approved by the probate court, Bessie, instead of being entitled to $20,584 in rentals on December 1, 1988, was entitled to $2704 in rentals on that date and $17,666 in principal and interest payments on January 1, 1989. For each year thereafter, the contract called for an amortized interest and principal payment of only $16,167 annually. Although the application to the court recited that, if the sale was approved, “the proceeds receivable by the [ward’s] estate will be in excess of the rentals received annually,” this obviously was not the case.

The transaction did relieve Bessie of expenses required to maintain the property. Among these expenses was the grain bin lease payment, which the court found was properly payable by GFI or Remer in any event. The record indicates that the legitimate annual expenses of which she was relieved were real estate taxes of $3400, a federal land bank loan payment of $900, and other miscellaneous expenses estimated at $800. It is obvious that if Bessie’s cash flow problem was in any way improved by the sale to GFI this was only minimally so. She still had no cushion for unexpected expenses and was in fact far worse off with respect to a source of financial security. Instead of owning a 68.75% fee simple interest in a minimally encumbered farm, she had only a contract right to payment of $16,167 annually. Based on these circumstances, we find that the sale of Bessie’s farm real estate to GFI was not in her best interest and should not have been approved by the court. We reverse that portion of the district court’s decree approving the sale.

E. Consequences of disapproval of sale. The ward is now dead. When a conservator’s application for sale of real estate is ultimately disapproved, ownership of the property is as if no sale had taken place. Although a conservator may continue to carry out actions previously approved by the court prior to the death of the ward, see Matter of Conservatorship of Britten, 430 N.W.2d 408, 410-11 (Iowa 1988), when that approval is ultimately denied on direct attack, the conservator must account for and deliver the property to the ward’s personal representative. In re Damon’s Guardianship, 238 Iowa 570, 576, 28 N.W.2d 48, 51 (1947). When this occurs more than eleven years after the ward parted with possession of the property, there will be some complications in restoring the status quo. As a general proposition, this requires each person to return to the other either in kind or in matching value what each person has received. Hyler v. Garner, 548 N.W.2d 864, 874 (Iowa 1996). We remand the case to the district court for a resolution of those matters consistent with directions from this court.

In certain cases, the remedy for acquiring property through self-dealing includes an accounting for any profits obtained through the use of the property so acquired. See Coster v. Crookham, 468 N.W.2d 802, 806-07 (Iowa 1991). We' do not approve of such a remedy in the present case. Instead, we direct that on remand the district court shall take evidence and fix the reasonable rental value of Bessie’s 68.75% fee simple interest in the property for the period subsequent to March 1, 1988, and until Bessie’s administrator regains possession thereof. Evidence should also be taken concerning (1) the value of the walnut trees that Remer and GFI removed from the property, (2) the amount of all principal and interest payments that have been paid by GFI or Remer on the contract of sale and on Bessie’s share of the Federal Land Bank mortgage, (3) the value of any beneficial improvements Remer or GFI have placed on the property, and (4) the property taxes that have been paid by them during that same period. If the rental value of the 68.75% fee simplé interest plus the value of the walnut trees exceeds the sum of the contract and mortgage payments, the value of the beneficial improvements and the property taxes paid, Bessie’s administrator shall have judgment jointly and’severally against Remer and GFI for the difference. If the total of the contract and mortgage payments, beneficial improvements,, and tax payments exceed the sum of the' walnut tree value and rental value of the 68.75% fee simple interest, the difference shall be set off against the administrator’s other judgments against Remer and GFI.

Our goal is an equitable adjustment of the rights of the parties. For this reason, we must recognize the possibility that circumstances may have arisen during the pendency of this litigation of which we are unaware. If, following remand, that is found to be the case, the district court may deviate from our formula to the extent required to effect an equitable solution.

III. The Cross-Appeal Issues.

Remer and GFI appeal from the miscellaneous judgments that were entered against them by the district court with respect to the transactions previously described in this opinion. In reviewing the record de novo, we are satisfied that the district court’s findings and judgments were entirely proper with respect to each of these items subject to certain changes required by reason of our abrogation of the land sale. These changes are discussed in division III(F) and division IV of this opinion.

We review each item of damage briefly.

A. Judgment for amotmts, expended on grain bin lease. The district court awarded damages for sums charged to Bessie for the leasing of grain bins because it concluded that the bins were not erected to benefit her. The record .indi-cates that, when Remer obtained court approval to enter into the bin leases on Bessie’s behalf, he advised the court that she had the need for additional storage space. The lease of the fee to GFI did not require the lessors to make capital improvements. As it turned out, the bins were entirely for the benefit of Remer and GFI. Bessie did not need additional grain storage. The slight amount of grain that she had was adequately stored when the application for permission to enter into the lease was presented to the court. There was no indication that she would personally acquire any additional grain subsequent to that time. The district court correctly entered judgment against Remer and GFI for the amount of Bessie’s funds expended on the grain bin leases.

B. Judgment for farm management fees paid to Remer. The district court concluded that Bessie’s administrator should recover from Remer amounts expended for management fees not approved by court order. An expert witness testified at length concerning the gross inadequacy of Remer’s services as a farm manager and the abysmal state of his record keeping. The district court concluded that Remer’s services were of no benefit to Bessie. We agree with that conclusion and the judgment for recoupment of the fees.

C. Judgment for funds improperly transferred from Bessie’s conservator-ship to Lucille’s estate. On April 18, 1989, Remer took from Bessie’s conservatorship the sum of $6000 denominated as a “windup settlement.” This purported to be a payment to settle accounts between Bessie and the estate of her sister, Lucille. When called to account for this transaction, Rem-er was unable to provide any documentation that would establish that Bessie owed $6000 to Lucille’s estate. Nor did his oral testimony satisfactorily explain what the cash transfer was for. The district court’s decree properly entered judgment against Remer for recoupment of the $6000.

D. Judgment for accounting fees improperly charged to Bessie’s conserva-torship. At the time of Lucille’s death, Remer’s brother began asking questions concerning her financial affairs. Remer was unable to provide a satisfactory accounting from records in his possession. He engaged an accounting firm for purposes of establishing a comprehensible accounting of the Jordan farm partnership during the time that Remer had acted as farm manager. There was clearly no basis to charge Bessie’s conservatorship account for any of these services, and the district court properly entered judgment against Remer for those accounting fees that had been paid from her funds.

E. Failure to pay rentals attributable to Bessie’s life estate interest. This issue* concerns the $2704 in rentals that were properly attributable to Bessie’s 10.42% life estate interest. As noted in our prior discussion, Remer has acknowledged GFI’s liability to Bessie for that sum. He was unable to document any payment to Bessie of that amount for the rental due on December 1, 1988. When an obligation is proven and a corresponding payment is not established by the obligor, judgment against the obligor for the sums claimed is entirely proper. Glenn v. Keedy, 248 Iowa 216, 221, 80 N.W.2d 509, 512 (1957); Folsom v. Grove, 233 Iowa 1140, 1143, 11 N.W.2d 368, 369 (1943).

F. Improper apportionment of farm improvement expenses to Bessie’s life estate interest. The district court entered judgments against Remer and GFI for the cost of improvements paid for by Bessie after she had sold her fee simple interest. The court concluded that a life tenant of only a 10.42% interest had no obligation to pay for major improvements made by the owners of the other fractional interest in the property. Although we believe the district court’s conclusions were correct based on the circumstances that existed, our decision in this case has altered the relevant ownership interests ab initio. In the earlier portion of our opinion rescinding the farm sale, we have provided that the value of the beneficial improvements shall be taken into consideration in attempting to restore the status quo. This does not include all improvements — only those that have benefited the interest of Bessie’s successors in interest. We make no conclusion as to whether the expenses involved in this particular judgment entry (for the amount of $5064) were beneficial in that regard. The nature of improvements made must be considered by the district court in the reconciliation that will take place after remand. If the improvements involved in the $5064 judgment were beneficial, the district court shall delete that particular judgment and accompanying prejudgment interest from the decree and consider the improvements with regard to the reconciliation of accounts that we have directed. If the improvements were not beneficial, the $5064 judgment and accompanying interest should stand.

G. Real estate tax penalties paid with Bessie’s funds., In the years 1986, 1987, and 1988, Remer failed to make timely payment of the real estate taxes due on the property. When the taxes were finally paid, a penalty was assessed. Remer used Bessie’s funds to pay those penalties in proportion to her share of the taxes. The district court concluded that Remer failed to offer any plausible excuse for not paying the taxes on time and that, consequently, he and not Bessie should be held responsible for the amount of these penalties. The record fully supports that finding.

H. Punitive damages. Remer contends that the award of punitive damages against him was unwarranted. We disagree. Although punitive damages are usually a remedy imposed in actions of law, courts of equity may also employ this remedy. Holden v. Construction Mach. Co., 202 N.W.2d 348, 360 (Iowa 1972); Charles v. Epperson & Co., 258 Iowa 409, 431-32, 137 N.W.2d 605, 618 (1965).

In awarding punitive damages against Remer, the district court noted:

As the court has stated in the decree, Mr. Remer’s course of self-dealing was persistent, extreme and pervasive. It continued over a long period of time and affected almost every aspect of Ms. Jordan’s financial affairs.
The most difficult question to be determined is whether all of the deficiencies in Mr. Remer’s conduct were the result of severe chronic incompetence. A course of misconduct, even if it is extensive in duration and scope, does not justify punitive damages if it is the result of ordinary negligence and lack of ability.
Some of the compensatory damages awarded in this case undoubtedly resulted from ordinary negligence. Mere negligence, however, does not account for Mr. Remer’s long course of self-dealing. The self-dealing resulted from complete disregard for Mr. Remer’s obligations as a fiduciary and for the rights of his ward.

Our review of the record convinces us that these conclusions were correct and that punitive damages in the amount awarded were proper.

IV. Adjustment of Certain Judgment Amounts.

The judgments entered against Remer and GFI included not only the recoupment of funds that had been expended from Bessie’s conservatorship but also amounts that she had never paid but which had been used to reduce the price for the sale of her land. Because the contract is now being judicially annulled, the latter elements of damage are no longer appropriate, and the judgments should be amended so as not to include them. These items are (1) a $842.67 overstatement of the amount of Bessie’s share of the Federal Land Bank mortgage obligation, (2) an $8799.81 reduction of the contract price for management fees, and (3) a $13,094.85 reduction for Bessie’s remaining obligation on the grain bin.

Another item for which judgment against Remer and GFI has now been made inappropriate is the underpayment of interest on the contract of sale prior to January 1,1989, in the amount of $1130.06. Deletion from the judgment of the four items mentioned will also require a substantial adjustment of the district court’s interest calculations. On remand, the district court shall recompute the amounts of the judgments against Remer and GFI according to our directions.

We have considered all issues presented and conclude that the portion of the district court decree upholding the land sale should be reversed. The case is remanded to that court for the restoration of the status quo consistent with our directions for reconciliation and, where we have directed, for amendment of the judgments against Remer and GFI. All other portions of the district court decree are affirmed.

Costs of appeal are assessed to the ap-pellees.

REVERSED AND REMANDED ON APPEAL, AFFIRMED AS MODIFIED ON CROSS-APPEAL.

All justices concur except SNELL, J., who takes no part.

      . The initial orders approving the sale were entered by a district court judge other than the judge who decided the issues being argued on this appeal.

      . Those judgments contain a substantial amount of prejudgment interest computed to the date of the decree.

      . It is inapplicable because neither category of persons entitled to notice under the § 633.389 definition exists in the conservator-ship setting. There is no statutory provision for persons who are interested in the activities in a conservatorship to request notice as is the case for persons interested in a decedent's estate. Moreover, while the ward is still living, the distributees of the ward's estate are as yet undetermined. In analogous situations, we have concluded that a prospective right to inherit does not confer standing to obtain a judicial resolution involving the source of the prospective inheritance. See Birkhofer v. Birkhofer, 610 N.W.2d 844, 847 (Iowa 2000).

      . The values for the walnut trees, mortgage payments, improvements, and taxes must be in proportion to Bessie’s fractional interest.

      . The grain bins involved in the transaction discussed in division III(A) shall not be considered to be a beneficial improvement for purposes of the reconciliation.

      . If following remand it appears Bessie's successors in interest have some future liability on the grain bin debt, the court shall require Remer and GFI to hold them harmless therefrom.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Evelyn Lou TANGIE, Appellant.
    No. 98-0896.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      R.E. Breckenridge of Johnson, Hester, Walter & Breckenridge, L.L.P., Ottumwa, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland and Douglas D. Hamme-rand, Assistant Attorneys General, Victoria Siegel, County Attorney, and Ronald Kelly, Assistant County Attorney, for ap-pellee.
   LARSON, Justice.

Evelyn Lou Tangie was convicted by a jury of second-degree murder in violation of Iowa Code section 707.3 (1997). The court of appeals reversed, and we granted the State’s application for further review. We vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Facts and Prior Proceedings.

The body of the defendant’s former boyfriend, John Terry, was discovered in rural Wapello County. The cause of death was a blow to the head with a blunt object. A pickax handle with Terry’s blood on it was found nearby.

Investigating officers contacted Tangie, who soon became entangled in conflicting stories about her knowledge of Terry’s death. She first said the victim had left her house, intoxicated, on the night he disappeared, and she never saw him again. She did not mention being at the murder scene. Later, she told a different version of events. She told officers Terry was rough to her and on numerous occasions she had unsuccessfully asked Terry to move out of her house. Terry kept going to her for money, according to her. Tangie told the officers she had gone with Terry and Ben Schreiber to see a mobile home on the night of the murder. Schreiber drove the car, the victim sat in the front seat, and the defendant sat in the back, according to her. When they got to the mobile home, she and the victim walked, holding hands, toward the mobile home. Schreiber was behind them. She heard some thuds, and Terry fell to the ground. Tangie told officers she did not see the pickax handle Schreiber used until he later put it in the backseat of his car. She told officers that Schreiber threw the handle out the window and told her she was “just as involved” as he was, and she had better not tell anyone about it. Tangie said she and Schreiber went to a friend’s house so they could get their story straight for the police. She told officers Schreiber burned the clothes he was wearing, and she threw hers into a trash bin at work.

Tangie was charged with first-degree murder. She gave notice of her intent to call Schreiber as a witness, but he invoked his Fifth Amendment privilege against self-incrimination. Tangie filed a motion in limine to prohibit the State’s use of evidence regarding statements attributed to Schreiber. She claimed such evidence would be hearsay and would violate her Sixth Amendment right to confront the witnesses against her.

II. Issues on Appeal.

The defendant raises five issues: (1) the admission of statements made by Schreiber, (2) the court’s denial of her right to obtain evidence under Brady v. Maryland and the opportunity to impeach a State witness based on that evidence, (3) the court’s refusal to allow her to depose a State rebuttal witness, (4) the court’s instruction regarding inferred intent, and (5) the sufficiency of the evidence.

III. The Statement by the Alleged Coconspirator.

The defendant contends evidence of statements made by Schreiber was hearsay and violated her right of confrontation. The gist of Schreiber’s statements, which came in through the testimony of a Charles Denham, was that Schreiber (who was also charged with the murder) had told Denham that he and the defendant were going to get the victim drunk and “drop him off’ in Des Moines. Schreiber asked Denham, his employer, for money to buy gas.

We review the admission of hearsay evidence for errors at law. State v. Moeller, 589 N.W.2d 53, 54 (Iowa 1999). We review claims under the Confrontation Clause de novo. State v. Jefferson, 574 N.W.2d 268, 271 (Iowa 1997).

A. Preservation of error. At the outset, we must determine whether Tangie has preserved error with respect to the hearsay and Confrontation Clause issues. Prior to trial, Tangie filed a motion in limine to prevent Denham’s testimony. The motion asserted both hearsay and Confrontation Clause arguments, but the court did not rule on the motion prior to trial. At trial the defendant pressed for a ruling on her hearsay objection, but she did not raise a Confrontation Clause argument. In response to the State’s argument that the evidence should be admitted under Iowa Rule of Evidence 801(d)(2)(E), the court made it clear it would wait until the evidence was proffered before it ruled on the objection, saying “[wje’ll cross that bridge when we get there, counsel.” Defense counsel then asked to make an offer of proof, and the court responded as follows:

THE COURT: Counsel, I have no idea as to what context this is going to be brought up in. You can forewarn me prior to the time that it starts to come up, and we’ll take a look at it then.

Later, during the State’s examination of Denham, defense counsel asked that a hearing be held in the absence of the jury to allow the court to hear the evidence in question. The court granted the request. In that hearing, Denham related the conversation with Schreiber concerning the plan to get the victim drunk and drop him off in Des Moines. The defendant’s lawyer then renewed the hearsay objection, and the court said it “finds that the statements are admissible under [Iowa Rule of Evidence] 801(d)(2).” The Confrontation Clause was not raised in this hearing. In fact, the only tirhe it was ever mentioned was in the defendant’s written motion in limine. Ordinarily, error claimed in a court’s ruling on a motion in limine is waived unless a timely objection is made when the evidence is offered at trial. State v. Edgerly, 571 N.W.2d 25, 29 (Iowa App.1997) (citing State v. Davis, 240 N.W.2d 662, 663 (Iowa 1976)). However,

where a motion in limine is resolved in such a way it is beyond question whether or not the challenged evidence will be admitted during trial, there is no reason to voice objection at such time during trial. In such a situation, the decision on the motion has the effect of a ruling.

State v. Miller, 229 N.W.2d 762, 768 (Iowa 1975). This rule is inapplicable in this case because the court did not, in addressing the motion in limine, “resolve[ ] [the issue] in such a way it is beyond question whether or not the challenged evidence will be admitted during trial.... ” Id. In fact, the court made it clear it would not rule on the hearsay objection until the evidence was offered at trial, and it gave no indication at all how it would rule on a Confrontation Clause argument had the argument been presented to it. We conclude the defendant has failed to preserve a Confrontation Clause argument and has therefore waived it.

It is likely defense counsel did not press the Confrontation Clause issue because, as the State argues, there is no merit in the argument in any event. Our court of appeals, in reversing on the Confrontation Clause issue, relied on the Supreme Court cases of Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), both of which must be distinguished. These cases involved confessions by nontestifying codefendants who stood to gain by implicating the defendant. In the present case, the evidence was not admitted as a confession by a codefendant but as a statement by a codefendant in furtherance of a conspiracy under Iowa Rule of Evidence 801(d)(2)(E). The identical federal rule of evidence, according to the Supreme Court, is so firmly established there is no need for a separate Confrontation Clause analysis. According to the Court,

[w]e think that [prior Supreme Court] cases demonstrate that co-conspirators’ statements, when made in the course and in furtherance of the conspiracy, have a long tradition of being outside the compass of the general hearsay exclusion. Accordingly, we hold that the Confrontation Clause does not require a court to embark on an independent inquiry into the reliability of statements that satisfy the requirements of Rule 801(d)(2)(E).

Bourjaily v. United States, 483 U.S. 171, 183-84, 107 S.Ct. 2775, 2783, 97 L.Ed.2d 144, 158 (1987).

B. Merits of arguments. For the reasons just discussed, we reject Tangie’s Confrontation Clause argument and proceed to the hearsay issue. The district court allowed evidence of Schreiber’s out-of-court statement under the coconspirator exception of Iowa Rule of Evidence 801(d)(2)(E), which provides a statement is not hearsay if “[t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Tangie argues the district court erred in admitting the evidence under this rule because the State failed to prove the existence of a conspiracy and failed to show the statement was made during and in furtherance of a conspiracy.

Under rule 801(d)(2)(E), statements by a coconspirator are admissible against the party as an admission of a party-opponent. State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998). Before the statement is admissible, the court must find, by a preponderance of the evidence, that a conspiracy to commit a crime existed between the declarant and the nonoffer-ing party. In re Property Seized from, DeCamp, 511 N.W.2d 616, 621 (Iowa 1994). Such a finding is implicit when the district court admits the statement into evidence. State v. Florie, 411 N.W.2d 689, 695 (Iowa 1987). We review a district court’s determination that a conspiracy existed under the substantial-evidence test. Id.

The defendant contends the foundation for admitting evidence under rule 801(d)(2)(E) must be established by evidence independent of the out-of-court statement itself. Otherwise, admitting an out-of-court statement that is supported only by the statement itself has been characterized as impermissible “bootstrapping.” See Glasser v. United States, 315 U.S. 60, 74-75, 62 S.Ct. 457, 467, 86 L.Ed. 680, 701-02 (1942). However, the Glasser rule has been effectively superseded by Congress through its adoption of the Federal Rules of Evidence. See Bourjaily, 483 U.S. at 181, 107 S.Ct. at 2781, 97 L.Ed.2d at 156. Federal Rule of Evidence 104(a), similar to our rule of the same number, provides:

Preliminary questions concerning ... the admissibility of evidence shall be determined by the court.... In making its determination it is not bound by the rules of evidence except those with respect to privileges.

Federal Rule of Evidence 1101(d)(1), which is similar to our rule 1101(c)(1), states that the rules of evidence, except those involving privileges, shall not apply to “[t]he determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104.”

Under the federal rules, “there is little doubt” a court may consider the out-of-court statement itself to establish the foundational facts to apply the coconspirator exception under Federal Rule of Evidence 801(d)(2)(E). Bourjaily, 483 U.S. at 180, 107 S.Ct. at 2781, 97 L.Ed.2d at 156. We believe' a similar approach is appropriate under Iowa Rules of Evidence 104(a) and 1101(c)(1). We hold decisions on admissibility made pursuant to Iowa Rule of Evidence 104(a) may be made by the court without respect to the rules of evidence, including those concerning hearsay. See Florie, 411 N.W.2d at 695-96.

The statement attributed to Schreiber as a coconspirator was presented to the court in its in camera hearing:

• Q. When you were talking to Mr. Schreiber, did he talk about a plan? A. Yes.
Q. Tell the jury what happened. A. Benny [Schreiber] had mentioned that— talking about this relationship with Evelyn [Tangie] and mentioned — there was only one problem and that she’d had a boyfriend. And I had replied, one problem, she’s got a boyfriend? And he says, I hear he’s a real asshole. I never knew the guy. And I replied, well, good, hopefully he’ll kick your ass and I can get some work out of you again. Then later on Benny mentioned, well, the plan is that them or Mary and Evelyn are to take him out and get him drunk tonight and I’m going to drive him and drop him off in Des Moines.
Q. And after that conversation after Mr. Schreiber told you that, was there any talk about gas money? A. Yes.
Q. Tell us about that. A. Benny had asked for some money for some gas so I wrote him out a check for $15, I believe.
Q. Did you write the check out to him personally? A. No. I wrote it out to Amoco.
Q. So when Mr. Schreiber told you the plan was to get' — Mary and Evelyn were to get — John Terry drunk and go drop him off, did he say where? A. He said Des Moines.

The court in Bourjaily found it unnecessary to decide whether a court may rely solely on hearsay statements to find the existence of a conspiracy because in that case the statements of the coconspirator regarding the existence of a conspiracy were supported by “subsequent events” tending to show the existence of a conspiracy. Id. at 181, 107 S.Ct. at 2781-82, 97 L.Ed.2d at 156. That is the case here; the out-of-court statement is supplemented by other evidence of the conspiracy: Denham testified he had seen Schreiber' and Tangie together the Thursday or Friday before the murder (which occurred on Saturday) and that Schreiber was “awful happy” because “[h]e had met Evelyn ... and he was all excited because of just the relationship that they were gonna have.”

Mary Gerlich, a friend of Tangie, testified that on the day of the murder Tangie asked her to take her to talk to Schreiber. Gerlich said Schreiber and Tangie talked about Tangie getting a restraining order against Terry, about Tangie going to look at the bus in which Schreiber lived, and their concern about the bus being “big enough,” apparently in reference to Tangie moving in with Schreiber. Gerlich also testified to driving Tangie to Schreiber’s bus and to later picking up Tangie, Terry, and Tangie’s son to take them to Gerlich’s house. While Tangie and the victim were at Gerlich’s house on the day of the murder, Schreiber arrived, and Tangie went outside to talk to him. Tangie and Schreiber later suggested they go with the victim to look at a trailer house. They left in Schreiber’s car, and when they returned, the victim was not with them. Karen Brown, Schreiber’s neighbor, testified Schreiber did not have a telephone and that on the day of the murder a female called for Schreiber, identifying herself as Evelyn, “Benny’s [Schreiber] girlfriend.” She testified the person sounded excited and panicky, making it seem urgent to get Schreiber on the line.

This extrinsic evidence and the alleged coconspirator’s statement itself provide substantial record support for the trial court’s finding of a conspiracy. Once a conspiracy is established, two conditions must be met for rule 801(d)(2)(E) to apply: the statement must have been made during the pendency of the conspiracy, and it must be in promotion of the conspiracy’s object or design. Ross, 573 N.W.2d at 915. The evidence of the parties’ activities surrounding the statement and the statement itself provide substantial support for the court’s implied finding the statement was made during the pendency of the conspiracy and in furtherance of it. For example, a reasonable inference from Schreiber’s statement regarding gas money is that it was needed as a part of the plan to drive the victim to Des Moines.

The court did not err in admitting Schreiber’s statements under Iowa Rule of Evidence 801(d)(2)(E).

IV. Impeachment of State’s Witness.

Mary Gerlich testified for the State and was cross-examined by the defendant. After she was excused, but while the trial was still in progress, the defendant discovered possible grounds for impeaching Ger-lich’s testimony. The defendant requested an opportunity to recall Gerlich for that purpose. The court refused, and the defendant assigns this as error.

A. The Brady issue. The defendant contends Gerlich had been convicted of contributing to the delinquency of a minor by having her children steal compact disks for her. The defendant says she did not know about the conviction until after Gerlich was excused as a witness, and she blames the State for that. She contends the State’s failure to reveal this evidence violated the rule of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963) (suppression of material evidence favorable to accused violates due process). Moreover, she claims, the court abused its discretion in refusing her request to recall Gerlich when she discovered this information. We review the Brady issue de novo and the refusal to recall Gerlich for an abuse of discretion. We have said

the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.

State v. Anderson, 410 N.W.2d 231, 232 (Iowa 1987) (quoting Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218). To establish a Brady violation, the defendant must prove the prosecution suppressed evidence that was favorable to the defendant and material to the issue of guilt. State v. Veal, 564 N.W.2d 797, 810 (Iowa 1997). Evidence is material for purposes of the Brady rule when there is a “reasonable probability” that disclosure would have changed the result of the proceeding. Id. A defendant can establish “reasonable probability” of a different result by showing that suppression undermines confidence in the outcome of the trial. Id.

Tangie made no showing the prosecution suppressed the existence of Gerlich’s conviction. Moreover, she cannot show a reasonable probability it would have changed the result of the proceeding, Anderson, 410 N.W.2d at 235 (suppression of evidence concerning prior conviction standing alone will not rise to level of reasonable probability of different result), or how suppression of the conviction record would have undermined confidence in the outcome of her trial. At best, use of the impeachment evidence would establish that Gerlich was untruthful. However, Tangie’s cross-examination of Gerlich quite effectively established that anyway; Ger-lich admitted she had lied earlier to investigating officers. There is no reasonable probability that, had the jury learned of another act of dishonesty, this would have changed the result of the trial. Tangie has not established a Brady violation.

B. Recalling the witness. In a related argument, Tangie complains of the trial court’s refusal to recall Gerlich so Tangie could attempt to impeach her based on her conviction. Aside from the fact Tangie could show no reasonable probability this evidence would have changed the result of the trial, she faces the fact that recalling witnesses is a matter of broad trial court discretion. State v. Ivy, 300 N.W.2d 310, 311 (Iowa 1981). We find no abuse here.

Y. Deposition of State’s Rebuttal Witness.

The State called Dr. Michael Taylor, a psychiatrist, on rebuttal to testify regarding the defendant’s claim, supported by expert testimony, that her low intellectual functioning would have made it difficult for her to plan the murder and difficult for her to make a timely report of the incident to the police.

The defendant complains about the court’s refusal to allow her to take a discovery deposition of Dr. Taylor. She concedes there is no authority on the issue, but she contends the interests of justice should be sufficient. She bases this argument on Iowa Rule of Criminal Procedure 12(2)(a), which provides:

Whenever the interests of justice and the special circumstances of a case make necessary the taking of the testimony of a prospective witness not included in subsection 1 [deposition by defendant of witnesses listed on indictment or information] or 3 [deposition by State of witnesses listed by defendant] of this rule, for use at trial, the court may upon motion of a party and notice to the other parties order that the testimony of the witness be taken by deposition and that any designated book, paper, document, record, recording, or other material, not privileged, be produced at the same time and place. For purposes of this subsection, special circumstances shall be deemed to exist and the court shall order that depositions be taken only upon a showing of necessity arising from either of the following:
(1) The information sought by way of deposition cannot adequately be obtained by a bill of particulars or voluntary statements.
(2) Other just cause necessitating the taking of the deposition.

The issue of whether rule 12(2)(a) provides authority for pretrial deposition of a witness was resolved against Tangie’s argument in a case decided after the trial in this case. See State v. Weaver, 608 N.W.2d 797, 800-02 (Iowa 2000) (rule 12(2) to be used only to perpetuate testimony for trial, not for discovery).

Because rule 12(2) is the only basis on which discovery may be ordered on “special circumstance” grounds, and that rule is inapplicable here, we reject this argument.

VI. The Court’s Instructions.

The court’s marshaling instruction, No. 20, stated:

In order to prove the defendant guilty of Murder in the Second Degree, as a lesser included offense of the crime charged in the Trial Information, the State must prove all of the following elements:
1. On or about July 27, 1996, someone aided and abetted by the defendant struck John Terry.
2. John Terry died as a result of being struck.
3. The defendant acted with malice aforethought, or someone aided and abetted by the defendant acted with malice aforethought, with the knowledge of the defendant.
If the State has proved all of the elements, the defendant is guilty of Murder in the Second Degree. If the State has failed to prove any one of the elements, the defendant is not guilty of Murder in the Second Degree, and you will then consider the charge of Involuntary Manslaughter, as explained in Instruction No. 21.

Tangie argues this instruction was wrong because “the jury was permitted to infer such specific [ ] state of mind for Evelyn if they concluded that Ben Schreiber possessed that state of mind ... [and allowed the jury] to presume Evelyn had malice aforethought because of Ben Schreiber’s use of a dangerous weapon.”

We reject both criticisms of the court’s instructions. When intent is an element of the crime charged, a person may be convicted as an aider and abettor by participating either with the requisite intent or with the knowledge that the principal possesses the required intent. See State v. Lewis, 514 N.W.2d 63, 66 (Iowa 1994); State v. Lott, 255 N.W.2d 105, 109 (Iowa 1977); State v. Speaks, 576 N.W.2d 629, 632 (Iowa App.1998). This was the gist of instruction 20, which correctly stated the law.

We also reject Tangie’s argument that the instructions would allow the jury to infer she had malice aforethought from Schreiber’s use of a dangerous weapon. The court defined malice aforethought in instruction 15:

Murder in the First Degree and Murder in the Second Degree both require “malice aforethought.”
“Malice” is a state of mind which leads one to intentionally do a wrongful act to the injury of another out of actual hatred, or with an evil or unlawful purpose. It may be established by evidence of actual hatred, or by proof of a deliberate or fixed intent to do injury. It may be found from the acts and conduct of the defendant, and the means used in doing the wrongful and injurious act. Malice requires only such deliberation that would make a person appreciate and understand the nature of the act and its consequences, as distinguished from an act done in the heat of passion.
“Malice aforethought” is a fixed purpose or design to do some physical harm to another which exists before the act is committed. It does not have to exist for any particular length of time.

The court then stated in instruction 17 that:

If a person has the opportunity to deliberate and uses a dangerous weapon against another resulting in death, you may, but are not required to, infer that the weapon was used with malice, premeditation and specific intent to kill.

There was substantial evidence to find this defendant knew Schreiber had the ax handle and intended to use it. This instruction correctly allowed the jury to find the requisite malice on the part of Tangie as an aider and abettor.

VII. Sufficiency of the Evidence.

To sustain a conviction on the theory of aiding and abetting, the record must contain substantial evidence the accused assented to or lent countenance and approval to the criminal act either by active participation or by some manner encouraging it prior to or at the time of its commission. Jefferson, 574 N.W.2d at 277. The State must prove the accused knew of the crime at the time of or before its commission. However, such proof need not be established by direct proof, it may be either direct or circumstantial. Lewis, 514 N.W.2d at 66.

Neither knowledge of the crime nor proximity to the crime scene are enough to prove aiding and abetting. Id. However, they are factors, which with circumstantial evidence such as “presence, companionship, and conduct before and after the offense is committed,” may be enough to infer a defendant’s participation in the crime. Id. (quoting State v. Miles, 346 N.W.2d 517, 520 (Iowa 1984)). When, as here, intent is an element of the crime charged, a person may be convicted on a theory of aiding and abetting if she participates with either the requisite intent, or with knowledge the principal possesses the required intent. Lewis, 514 N.W.2d at 66; Lott, 255 N.W.2d at 109; Speaks, 576 N.W.2d at 632.

Tangie argues there was not sufficient evidence to convict her as an aider and abettor and the court should have directed a verdict in her favor. In resolving the issue of whether substantial evidence supports the verdict, we view the evidence in the light most favorable to the verdict. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000).

Tangie does not contest the fact that Schreiber clubbed the victim to death with a pickax handle. She argues, however, there is not sufficient evidence to convict her as an aider and abettor. Also she contends “the evidence, while viewed in the light most favorable to the State, cannot be viewed from the perspective of a normal person” because she has “special needs and conditions” and does not react as other people do.

We reject her competency argument, for which she cites no authority, because there was substantial evidence her lack of mental capacity had nothing to do with her involvement in the crime or her failure to report it, as she claims.

The jury could reasonably infer she was, in fact, the instigator of the murder. She had an unpleasant relationship with the victim, which she had been unable to terminate. On the other hand, Schreiber did not even know the victim. Tangie had said previously she wished the victim were dead.

Tangie and Schreiber were involved in a flurry of activity just before the killing. On the day of the murder, a female, identifying herself as “Benny’s girlfriend,” and as Evelyn, called for him at Karen Brown’s house (Schreiber didn’t have a telephone, so he took calls at Brown’s). The voice on the telephone sounded excited and panicky, making it seem urgent that she speak with Schreiber. This same person called later that day, again identifying herself as Evelyn and asking for Schreiber; he took that call and immediately left in his car.

Cemeron Babcock, a friend of Schreiber, testified that on the day of the murder he was in Schreiber’s car and noticed an ax handle on the back floorboard of Schreiber’s car, which he placed in the back window. Tangie later sat in the backseat when she, Schreiber, and Terry went to see the trailer. The jury could reasonably infer she saw the ax handle at that time.

Schreiber told Charles Denham that the victim was an impediment to Schreiber’s relationship with Tangie. The jury could find that Tangie helped get the victim drunk and lured him to the scene where he was murdered. Tangie also made an incriminating statement to a witness concerning bloody shoes she had thrown into the trash and “kinda laughed” about it because the officers had taken the wrong shoes for examination.

We conclude there was substantial evidence for the jury to find that this defendant was guilty of murder in the second degree as an aider and abettor. Accordingly, we vacate the decision of the court of appeals and affirm the judgment of the district court.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED.

All justices concur except NEUMAN, J., who takes no part.


author: TERNUS, Justice.

text:
    STATE of Iowa, Plaintiff, v. IOWA DISTRICT COURT FOR BLACK HAWK COUNTY, Defendant.
    No. 99-1441.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for plaintiff.
    Lee M. Walker and John E. Billingsley of Walker, Knopf & Billingsley, Newton, for defendant.
   TERNUS, Justice.

The question to be answered in this case is whether Iowa Code section 232.8(l)(c) (1999) precludes imposition of the mandatory minimum sentence required by Iowa Code sections 902.12 and 903A.2(1)(6), commonly known as th'e 85% rule. We hold, contrary to the district court’s ruling, that it does not. Therefore, we sustain the writ of certiorari, vacate the defendant’s sentence, and remand for resentencing.

I. Background Facts and Proceedings.

The defendant in the underlying criminal matter, Dezmond Thurmond, a minor, was charged with second-degree robbery, a class “C” felony. See Iowa Code §§ 711.1, .3. Because the defendant was seventeen years old when the crime was committed and because second-degree robbery is a forcible felony, the district court rather than the juvenile court had jurisdiction. See id. § 232.8(l)(c) (stating that “[violations of a child, age sixteen or older, ... which constitute a forcible felony are excluded from the jurisdiction of the juvenile court”). The defendant’s case was tried to a jury, which found the defendant guilty as charged.

Subsequently, the defendant filed a motion to adjudicate law points, asking the court to rule that Iowa Code sections 902.12 and 903A.2(1)(6) did not apply to him. Section 902.12 requires that defendants convicted of certain forcible felonies, including second-degree robbery, serve 100% of the maximum sentence, subject to the provisions of section 903A.2. See id. § 902.12. The latter statute allows felons convicted of a section 902.12 offense to reduce their sentences by no more than 15% for good conduct. See id. § 903A.2(1)(6). These statutes in combination, then, require persons convicted of the specified forcible felonies to serve 85% of their sentences before they are eligible for parole or work release. The district court granted the defendant’s motion and ruled that the 85% rule did not apply to a juvenile age sixteen or older convicted of a forcible felony in district court.

Thereafter, the district court sentenced the defendant to an indeterminate term of incarceration not to exceed ten years. See Iowa Code § 902.9 (setting forth a maximum sentence of ten years for a person convicted of a class “C” felony). The court did not impose the mandatory minimum sentence required by sections 902.12 and 903A.2(1)(6).

The State filed a petition for writ of certiorari, contending that the district court erred in failing to impose the mandatory minimum sentence applicable to adults committing certain forcible felonies. The State asserts this error has resulted in an illegal sentence. See Iowa R. Civ. P. 306 (“A writ of certiorari shall only be granted ... where an inferior tribunal ..., exercising judicial functions, is alleged to have exceeded proper jurisdiction or otherwise acted illegally.”). The defendant now argues in response that the question of whether sections 902.12 and 903A.2(1)(6) apply is not ripe for determination.

II. Scope of Review.

We review the ruling of the district court on the defendant’s motion to adjudicate law points for the correction of legal error. See State v. Mann, 463 N.W.2d 883, 883 (Iowa 1990). The appropriateness of the district court’s action turns -on the correctness of its interpreta tion of the relevant statutes. We review a district court’s interpretation. of statutes for correction of errors of law, as well. See State v. Terry, 569 N.W.2d 364, 366 (Iowa 1997).

III. Governing Principles of Statutory Construction,

“The primary rule of statutory interpretation is to give effect to the intention of the legislature.” State v. Casey’s Gen. Stores, Inc., 587 N.W.2d 599, 601 (Iowa 1998). We presume that when the legislature enacts a statute that it intends “[a] just and reasonable result.” Iowa Code § 4.4(3). Accordingly, the court interprets statutes so as to avoid absurd results. See State v. Ceron, 573 N.W.2d 587, 590 (Iowa 1997). In addition, we “construe statutes that relate to the same or a closely allied subject together so as to produce a harmonious and consistent body of legislation.” Casey’s Gen. Stores, 587 N.W.2d at 601.,

IV. Ripeness of Issue.

Before we consider the merits of the issue before us, we must preliminarily address the defendant’s contention that the issue is not ripe for determination. The defendant asserts that the 85% rule of sections 902.12 and 903A.2(1)(5) operates as a limitation on the executive branch, namely, the Department of Corrections and the Board of Parole. He contends, therefore, that the district court’s only duty is to impose an indeterminate ten-year sentence pursuant to Iowa Code section 902.9. Not until the executive branch agencies determine whether the defendant may be released on parole or work release will the applicability of sections 902.12 and 903A.2(1)(6) be implicated, he argues.

A case is ripe for adjudication when it presents an actual, present controversy, as opposed to one that is merely hypothetical or speculative. See State v. Baches, 601 N.W.2d 374, 375 (Iowa App.1999); Black’s Law Dictionary 1328 (6th ed.1990). The basic rationale for the ripeness doctrine

is to prevent the courts, through avoidance of premature adjudication, from'entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.

Abbott Lab. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192, 199 (1977); accord 2 Am.Jur.2d Administrative Law § 485, at 474-75 (1994).

Our first step here is to determine whether the ripeness doctrine is even implicated. In other words, is the applicability of sections 902.12 and 903A.2(1)(6) an administrative decision for the Department of Corrections and Board of Parole, or is it a judicial decision for the sentencing court? For the reasons that follow, we think this question is one for the courts to decide.

Although the legislature prescribes the punishment for crimes, the actual sentencing of a defendant is an independent function that is the sole province of the judiciary. See State v. Iowa Dist. Ct. for Shelby County, 308 N.W.2d 27, 30 (Iowa 1981). A sentencing court must

designate[] the maximum term established by statute. Unless the legislature has prescribed a minimum term which must be served, the duration of the sentence is determined by the parole board. When a minimum sentence is prescribed, however, the legislature ordinarily requires a judicial determination of its applicability.

State v. Wilson, 314 N.W.2d 408, 409 (Iowa 1982) (citation omitted). We turn now to the statutes at issue to determine whether they establish a mandatory minimum sentence.

Iowa Code section 902.12 provides that persons convicted of specified forcible felonies “shall serve one hundred percent of the maximum term of the person’s sentence and shall not be released on parole or work release,” except as otherwise provided in section 903A.2. Section 903A.2 in general allows inmates to reduce their sentences for good behavior, earning a reduction of sentence of one day for each day of good conduct and up to five additional days per month for satisfactory participation in designated activities. See Iowa Code § 903A.2(1)(u). Inmates sentenced pursuant to section 902.12, however, are limited to a total reduction of only 15% of their sentences. See id. § 903A.2(1)(5). The practical effect of these two statutes is to require that a defendant convicted of a forcible felony listed in section 902.12 must serve at least 85% of his sentence. See State v. Phillips, 610 N.W.2d 840, 841 (Iowa 2000).

The fact that section 902.12 was placed in chapter 902, governing the sentencing of felons, rather than in chapter 903A, governing the reduction of sentences for good conduct, indicates a legislative intent that section 902.12 operate as a minimum sentence as opposed to a restriction on the power of the parole board. See Wharton v. Iowa Bd. of Parole, 463 N.W.2d 416, 417 (Iowa 1990); Wilson, 314 N.W.2d at 409-10. Of course, section 903A.2 is found in the chapter governing reduction of sentences for good conduct time and so would function as a limitation on the executive agencies administering the sentence imposed by the court. But the express terms of section 902.12 require that section 903A.2 be considered as a qualification of the minimum sentence that must be served by felons subject to section 902.12. We hold, therefore, that these statutes together impose a mandatory minimum sentence and, accordingly, it is the court’s obligation to determine their applicability to a particular defendant. This conclusion is bolstered by the fact that the factual predicate for application of these statutes — the commission of one of the specified forcible felonies — is necessarily adjudicated in the criminal proceeding. See Wilson, 314 N.W.2d at 410 (noting that statutes imposing a mandatory minimum sentence generally require that the facts upon which the minimum sentence is grounded be established at trial). For these reasons, we conclude that the ripeness doctrine is not implicated and does not prevent our review of the issue in this case.

V. Applicability of Sections 902.12 and 90SA.2(l)(b) to a Juvenile Prosecuted Under Section 232.8(l)(c).

As noted earlier, section 232.8(l)(c) places jurisdiction in the district court of juveniles age sixteen or older who commit certain specified crimes, including forcible felonies. Unless the court transfers jurisdiction to the juvenile court as allowed by that statute, a juvenile convicted of a violation encompassed in section 232.8(l)(c) “shall be sentenced pursuant to section 124.401B, 902.9, or 903.1.” See Iowa Code § 232.8(l)(e). The defendant argues that because section 232.8(l)(c) does not specifically list sections 902.12 and 903A.2(1)(6), the legislature did not intend these statutes to be applied to juveniles prosecuted under section 232.8(l)(c). If his argument is correct, the defendant would be subject only to section 902.9, providing for an indeterminate ten-year sentence for a person convicted of a class “C” felony, and would remain eligible for a 50% reduction of his sentence for good conduct under section 903A.2(l)(a). We reject the defendant’s interpretation of section 232.8(l)(e) because it would lead to absurd results inconsistent with legislative intent. See generally State v. Draper, 457 N.W.2d 600, 603-04 (Iowa 1990) (rejecting defendant’s interpretation of pertinent sentencing statutes because it would lead to an absurd result). A review of the legislative scheme for the prosecution of juveniles will illustrate this point.

One category of juvenile offenders consists of children who are initially subject to district court jurisdiction, rather than juvenile court jurisdiction. This group encompasses juveniles age sixteen and older under two different sets of circumstances: (1) juveniles, age sixteen and older, who commit specified crimes, including forcible felonies, see Iowa Code § 232.8(l)(c); and (2) juveniles, age sixteen and older, who have previously been waived to and convicted of an aggravated misdemeanor or a felony in district court and who have been charged with a subsequent aggravated misdemeanor or felony, see id. § 232.45A(2). All other juveniles are subject, at least initially, to juvenile court jurisdiction. See id. § 232.8(l)(a).

The second relevant category of children consists of those juveniles, age fourteen and older, over whom the juvenile court may waive jurisdiction so they may be prosecuted in district court. See id. §§ 232.8(3), .45(1). These juveniles may be prosecuted as adults or as youthful offenders. See id. § 232.8(3). Youthful offender status is available to children age fifteen or younger who have committed a section 232.8(l)(c) offense. See id. § 232.45(7). If convicted as a youthful offender, the juvenile’s sentence is deferred and supervision of the child is transferred back to the juvenile court. See id. § 907.3A(1). If the youthful offender is returned to the jurisdiction of the district court, see id. §§ 232.54(8), .56, the district court may defer sentence or may enter a sentence and suspend it, “[n]ot-withstanding any provision of the Code which prescribes a mandatory minimum sentence for the offense committed by the youthful offender.” See id. § 907.3A(3). If the child waived to district court is not given youthful offender status and is convicted as an adult of a forcible felony, the child is eligible for a deferred judgment, see id. § 232.8(3), despite the fact that an adult convicted of a forcible felony is not eligible to have judgment deferred, see id. § 907.3.

From this statutory scheme we conclude that the legislature intended to treat older juveniles committing more serious crimes and older juveniles who are repeat offenders more severely than younger juveniles. See generally State v. Mann, 602 N.W.2d 785 at 793 (1999) (holding that legislative scheme that punishes older juveniles more severely than younger juveniles does not violate the Equal Protection Clause). The defendant’s interpretation of the sentencing provision of section 232.8(l)(c) would, however, be contrary to this legislative intent.

Let us suppose that a fourteen-year-old child commits second-degree robbery, a forcible felony. The juvenile court waives jurisdiction to the district court and he is prosecuted as an adult, not as a youthful offender. If he is convicted, the sentencing court would be faced with two alternatives: a deferred judgment as authorized by section 232.8(3), or the mandatory minimum sentence required by section 902.12. An option more lenient than the latter alternative — an indeterminate prison sentence' — would not be available. Thus, under the defendant’s suggested interpretation of section 232.8(l)(c), a younger juvenile committing the same crime as the defendant could be punished more severely.

We do not think this incongruous result — where younger offenders are treated more harshly than older offenders — -was intended by the legislature. Rather, we conclude that the legislature’s reference in section 232.8(l)(c) to the general statutes for sentencing adult felons and misdemeanants indicates its intent that sections 902.9 and 903.1 be applied in conjunction with the other relevant statutes that modify and supplement these general sentencing provisions. As this court stated in a recent case also interpreting section 232.8(l)(c), “Nothing in the language of section 232.8(l)(c) suggests that juveniles who commit forcible felonies and are automatically subject to prosecution as adults are to be subject to sentencing limits any different than those imposed upon similarly-situated adults.” State v. Edgington, 601 N.W.2d 31, 34 (Iowa 1999) (holding juveniles prosecuted in district court pursuant to section 232.8(l)(c) are not eligible for deferred judgments).

The interpretation we give to section 232.8(l)(e) will result in a system that punishes older juveniles who commit more serious crimes more severely than younger juveniles, thereby giving effect to the legislature’s intent to progressively increase the punishment of juvenile offenders as they become older. See generally Mann, 602 N.W.2d at 793 (noting legislature’s desire to punish older juveniles more severely than younger juveniles). This interpretation is also consistent with this court’s long history of reading general sentencing statutes in pari materia with specific sentencing provisions found elsewhere in the Code. See, e.g., State v. Carstens, 594 N.W.2d 436, 437 (Iowa 1999) (stating that section 902.9, the general sentencing statute for felony violations, “must be read in pan materia with specific sentencing provisions found elsewhere in the Code”); State v. Daniel, 574 N.W.2d 333, 335 (Iowa 1998) (requiring that sentencing provisions of sections 124.401(5), 901.5(10) and 903.1 be read together to ascertain legislative intent); State v. Hildebrand, 280 N.W.2d 393, 397 (Iowa 1979) (stating that section 321.281, providing punishment for first-offense operating while intoxicated, must be read in pari materia with section 901.5, granting courts the authority to defer judgment, defer sentence or suspend sentence). Finally, we think that if the legislature had intended that juveniles subject to section 232.8(l)(c) be exempt from the harshness of adult sentencing, it would have specifically said so, as it has in other places in the Code. See Iowa Code § 232.8(3) (providing that juvenile waived to district court may be given a deferred judgment “without regard to restrictions placed upon deferred judgments for adults”); id. § 232.45(14) (providing that children waived to district court for prosecution for certain drug violations are not subject to the mandatory minimum sentence set forth in section 124.413); id. § 907.3A(3) (providing that youthful offenders are not subject to mandatory minimum sentences).

In conclusion, we hold that the trial court erred in ruling that the defendant was not subject to the 85% rule of sections 902.12 and 903A.2(1)(6). Therefore, we sustain the writ of certiorari, vacate the defendant’s sentence, and remand for re-sentencing in accordance with this opinion. See generally Iowa Code § 901.6 (“In every case in which judgment is entered, the court shall include in the judgment entry the number of the particular section of the Code and the name of the offense under which the defendant is sentenced....”); Iowa R.Crim. P. 22(3)(d) (same); State v. Victor, 310 N.W.2d 201, 205 (Iowa 1981) (same).

WRIT SUSTAINED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

All justices concur except NEUMAN, J., who takes no part.

      . All references in this opinion to "the defendant” are to Thurmond, the real party in interest, rather than to the nominal defendant, the Iowa District Court.

      . Iowa Code section 124.40 IB imposes an additional penalty on persons convicted of certain 'drug offenses when the crimes occur within a specified proximity to schools, public parks, and other designated areas. Iowa Code section 902.9 specifies the maximum sentences for felonies. Similarly, Iowa Code section 903.1 sets forth the maximum sentences for misdemeanors.

      . In a recent amendment to section 232.8(3), the legislature gave the sentencing court authority to suspend the sentence of a juvenile prosecuted as an adult under this section provided the juvenile was not found guilty of a class "A” felony. See 2000 Iowa Acts _, § 1. This amendment does not change the validity of our analysis in the present case because the amendment did not waive the mandatory minimum sentence for a juvenile not given the benefit of a deferred judgment or a suspended sentence.