author: LARSON, Justice.

text:
    Timothy Lee WOLF, Appellee, v. Joan Lynn WOLF, Appellant.
    No. 02-1292.
    Supreme Court of Iowa.
    Jan. 7, 2005.

      G. Brian Weiler, Davenport, for appellant.
    Arthur L. Buzzell, Davenport, for appel-lee.
   LARSON, Justice.

The Scott County District Court, in reliance on Wood v. Wood, 338 N.W.2d 123 (Iowa 1983), awarded this plaintiff-father actual and punitive damages for the defendant’s tortious interference with the plaintiffs custody rights in the parties’ daughter, Ashley. We affirm in part, reverse in part, and remand.

I. Facts and Prior Proceedings.

Timothy Wolf and his former wife, Joan, have been embroiled in a bitter tug-of-war in Arizona and Iowa courts over the physical care of Ashley. Ashley, born in 1985, is now an adult, but the battle continues. The parties divorced in 1990, and the court awarded sole legal custody and primary physical care to Joan. In 1993 the court modified the decree by granting the parties joint legal custody and primary physical care to Timothy. In 1998 the district court modified the decree, retaining joint legal custody but granting primary physical care to Joan. Timothy appealed, and the court of appeals reversed, reaffirming physical care in Timothy. By this time, Ashley had moved to Arizona with Joan, and Joan petitioned an Arizona court to award her primary care. The Arizona court refused.

In August 2000, eleven months after the court of appeals ordered that physical care be returned to Timothy, Ashley was still not returned to Iowa. Timothy obtained a writ of habeas corpus in Iowa and went to Arizona to retrieve Ashley. He brought her back to Iowa, and she lived with him for approximately a month and a half. However, on October 8, 2000, when Ashley was fifteen, she left Timothy’s home and flew to Arizona. On November 8, 2000, Joan petitioned an Arizona court to award her temporary physical custody, but the Arizona court, refused, ruling that Iowa retained jurisdiction.

On November 14, 2000, Joan filed a petition in Iowa to modify the decree, and she and Ashley came to Iowa to testify. During that trial, the court, concerned that Joan might flee the jurisdiction with Ashley, stated:

I will issue an order that all parties are to remain in the State of Iowa, and will be personally present for the remainder of these proceedings.

During the modification proceedings, the court entered a show-cause order in connection with Joan’s failure to abide by the earlier court order to return Ashley to Iowa. The court set the show-cause hearing for three days later. This colloquy followed:

THE COURT: I would like the record to reflect that the [show-cause] order is being handed through counsel to the Respondent, and also I wish to state on the record that the Respondent understands that it is further an order — an interim order of the Court that the Respondent shall remain in the State of Iowa pending the hearing on the contempt action.
Do you understand that, Ms. Wolf?
MS. WOLF: Yes, I do.
THE COURT: Do I have your word that you will remain here in the State of Iowa until this matter is heard?
MS. WOLF: Yes.

Joan did not stay in Iowa as promised, but immediately left for Arizona with Ashley. In an order of December 27, 2000, the district court denied Joan’s modification petition and confirmed Timothy’s right to custody.

In May 2002 Timothy filed this suit for damages, based on the Wood case and Restatement (Second) of Torts section 700 (1977). At the trial, Timothy introduced the evidence outlined above, and the court took judicial notice of the court files in the prior cases between the parties. Joan did not appear for the hearing and produced no evidence. Her lawyer, however, appeared for her and moved to dismiss the suit for failure to establish a prima facie case of tortious interference. The court denied the motion.

In Wood we recognized the tort claim of intentional interference with custody and stated the rule:

“One who, with knowledge that the parent does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has been left him, is subject to liability to the parent.”

338 N.W.2d at 124 (quoting Restatement (Second) of Torts § 700). A similar cause of action is now codified at Iowa Code section 710.9 (2001), although this was not a basis for the trial court’s ruling and, in fact, was not raised at trial or on appeal until oral arguments.

Despite a vigorous dissent in Wood raising several “slippery slope” arguments, see 338 N.W.2d at 127-30 (Wolle, J., dissenting), we adopted the cause of action for several reasons: (1) similar claims had already been recognized at common law, id. at 124; (2) several other jurisdictions had recognized the claim, id. at 124-25; and (3) “the tort claim can, more effectively than any of the alternative sanctions [such as the Uniform Child Custody Jurisdiction Act, kidnapping prosecution, and contempt], serve both to prevent child-snatching and to pick up the pieces if it does occur,” id. at 126-27. The prediction in the Wood dissent that a flood of intrafamily litigation would ensue has not been borne out. In fact, only one case involving the Wood cause of action, Lansky v. Lansky, 449 N.W.2d 367 (Iowa 1989), has reached this court in the twenty-one years since Wood. In Lansky we reaffirmed the holding of Wood. See Lansky, 449 N.W.2d at 368.

To establish a claim of tortious interference with custody, a plaintiff must show (1) the plaintiff has a legal right to establish or maintain a parental or custodial relationship with his or her minor child; (2) the defendant took some action or affirmative effort to abduct the child or to compel or induce the child to leave the plaintiffs custody; (3) the abducting, compelling, or inducing was willful; and (4) the abducting, compelling, or inducing was done with notice or knowledge that the child had a parent whose rights were thereby invaded and who did not consent. See 67A C.J.S. Parent and Child § 322, at 409 (2002).

II.The Issues.

The defendant argues: (1) the plaintiffs evidence is insufficient to establish a prima facie case of tortious interference, specifically with respect to any active conduct to entice Ashley away from her father; (2) there was insufficient evidence of willful and wanton conduct to support a claim for punitive damages; (3) the punitive damages award was excessive; and (4) the court erred in awarding attorney fees to Timothy.

The defendant’s appeal brief also argues that Timothy could not sue for intentional interference because the parties have joint legal custody. See Restatement (Second) of Torts § 700 cmt. c (“When the parents are by law jointly entitled to the custody and earnings of the child, no action can be brought against one of the parents who abducts or induces the child to leave the other.”). The defendant did not raise this argument in the district court, and she now concedes that Timothy has superior custody rights for purposes of this case. In any event, we hold that “primary physical care” under Iowa Code sections 598.1(7) and 598.41(5) is a sufficient basis for maintaining the cause of action, even if the parties have “joint legal custody” under Iowa Code sections 598.1(3) and 598.41(2), (4). To be consistent with the wording of the Restatement, we use “custody” in this case to refer to primary physical care.

III. Principles of Review.

In a law action tried to the court, our review is for the correction of errors at law, and the district court’s findings of fact are binding on us if they are supported by substantial evidence. Hendricks v. Great Plains Supply Co., 609 N.W.2d 486, 490 (Iowa 2000); Grinnell Mut. Reins. Co. v. Voeltz, 431 N.W.2d 783, 785 (Iowa 1988). “Evidence is substantial if reasonable minds would accept it as adequate to reach a conclusion.” Schlegel v. Ottumwa Courier, 585 N.W.2d 217, 221 (Iowa 1998).

IV. The Court’s Findings of Fact.

The district court found that Joan knew Ashley’s father did not consent to her being in Joan’s custody. The court further found that Joan induced Ashley to leave her father and not return as ordered by the court. The court based its inducement finding, in part, on testimony that, while Ashley was living with Timothy for a brief time in 2000, Joan sent an airline ticket, credit card, and a cell phone battery through a friend of Ashley to facilitate her leaving Iowa. She also fled with Ashley during a prior court proceeding in Iowa.

Joan did not attend the hearing on Timothy’s tort suit, presumably because she was under the contempt show-cause order in Iowa. However, her lawyer appeared and argued that her client was unable to force Ashley to return to Iowa and that Joan merely provided shelter for her. The court rejected the lawyer’s argument, saying “I want to hear evidence. I don’t want to hear it through argument.” In any event, this “fact” adduced by Joan’s lawyer is belied by the record. When it was in Joan’s interest to have Ashley testify in support of Joan’s modification petition, she seemed to have no trouble getting Ashley back to Iowa. Also, by furnishing Ashley with the credit card and related items to facilitate her flight to Arizona, Joan went beyond merely providing shelter. The plaintiffs evidence, which was uncontro-verted, is substantial and supports the court’s finding that Joan induced Ashley to avoid returning to Iowa.

V. Punitive-Damage Award.

A. Are punitive damages recoverable in this case? In Wood we recognized a plaintiffs right to punitive damages in tortious-interference cases and noted the public policy considerations underlying that right. Wood, 338 N.W.2d at 127 (“potential punitive damages will serve as an additional deterrent”); cf. Westway Trading Corp. v. River Terminal Corp., 314 N.W.2d 398, 404 (Iowa 1982) (allowing punitive damages for tortious interference with contractual relationship). See generally 67A C.J.S. Parent and Child § 325, at 411 (noting that “it has been held that punitive damages may be recovered for the wrong done, under aggravating circumstances, to the parent in his or her affections and feelings”); William B. Johnson, Annotation, Liability of Legal or Natural Parent, or One Who Aids and Abets, for Damages Resulting From Abduction of Own Child, 49 A.L.R.4th 7, 46-49 (1986). Also, the legislature has put its stamp of approval on punitive damages in similar cases in Iowa Code section 710.9. We reaffirm the holding in Wood that punitive damages may be recovered.

B. Merits. We review an award of punitive damages for correction of errors at law. Jones v. Lake Park Care Ctr., Inc., 569 N.W.2d 369, 378 (Iowa 1997). Punitive damages are only appropriate when a tort is committed with “either actual or legal malice.” Id. “Actual malice may be shown by such things as personal spite, hatred, or ill-will and legal malice may be shown by wrongful conduct committed with a willful or reckless disregard for the rights of another.” Id. Under Iowa Code section 668A.l(1)(a), the plaintiff must show “by a preponderance of clear, convincing, and satisfactory evidence” that the defendant’s conduct “constituted willful and wanton disregard for the rights or safety of another.” “Thus, merely objectionable conduct is insufficient.... To receive punitive damages, plaintiff must offer evidence of defendant’s persistent course of conduct to show that the defendant acted with no care and with disregard to the consequences of those acts.” Hockenberg Equip. Co. v. Hockenberg’s Equip. & Supply Co., 510 N.W.2d 153, 156 (Iowa 1993) (citation omitted).

We reject Joan’s argument that she was only acting as a good mother by providing Ashley with a protective environment. The court found affirmative acts by her, as outlined above, that demonstrated willful and wanton conduct. Joan kept Ashley for nearly three years after Timothy was awarded physical care. During the short period Timothy did have physical care, Joan provided Ashley with the means to run away — showing a disregard for Timothy’s custodial rights and the emotional harm he would likely suffer. When Joan returned to Iowa to seek a modification of physical placement, she disobeyed direct orders from the judge and took Ashley back to Arizona before the proceeding ended. She thereby showed not only a lack of concern for Timothy’s custodial rights, but also displayed a complete disregard for the Iowa legal system. In fact, she has defied Iowa court orders for three years. We believe that clear, convincing, and satisfactory evidence supports the district court’s finding of willful and wanton conduct warranting punitive damages.

C. Was the punitive-damage award excessive? Joan argues that the amount of punitive damages — $25,000—vi-olates the Due Process Clause of the Fourteenth Amendment because it is “grossly excessive.” Appellate review for excessiveness is de novo. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 1520, 155 L.Ed.2d 585, 601 (2003).

The Supreme Court has stated that an appellate court reviewing a punitive-damage award for excessiveness should consider three “guideposts.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75, 116 S.Ct. 1589, 1598, 134 L.Ed.2d 809, 826 (1996); accord Campbell, 538 U.S. at 418, 123 S.Ct. at 1520, 155 L.Ed.2d at 601. These guideposts are:

(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the [trier of fact] and the civil penalties authorized or imposed in comparable cases.

Campbell, 538 U.S. at 418, 123 S.Ct. at 1520, 155 L.Ed.2d at 601.

1. Degree of reprehensibility. The degree of reprehensibility of the defendant’s conduct is said to be the most important indicium of the reasonableness of a punitive-damage award. Gore, 517 U.S. at 575, 116 S.Ct. at 1599, 134 L.Ed.2d at 826. The Court has said that a number of factors should be considered in determining the reprehensibility of the defendant’s conduct:

[1] [T]he harm caused was physical as opposed to economic; [2] the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; ... [3] the conduct involved repeated actions or was an isolated incident; and [4] the harm was the result of intentional malice, trickery, or deceit, or mere accident.

Campbell, 538 U.S. at 419, 123 S.Ct. at 1521, 155 L.Ed.2d at 602. The Court also said that

[t]he existence of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain a punitive damages award; and the absence of all of them renders any award suspect.

Id. (citing Gore, 517 U.S. at 575, 116 S.Ct. at 1599, 134 L.Ed.2d at 826).

On our de novo review of the record as set out above, we find all of these factors were established in the evidence. Timothy suffered both emotional and economic damage; Joan showed indifference to his emotional condition; her actions were repeated — not only toward Timothy’s legal rights under court orders — but toward the courts themselves; and harm was the result of intentional malice, trickery, or deceit and not the result of mere accident.

2. Disparity betiveen actual or potential harm and the punitive-damage award. Joan’s argument emphasizes the disparity between the district court’s actual-damage award (one dollar) and its punitive-damage award ($25,000). In this case, Timothy specifically asked for only one dollar to remove any appearance to Ashley that he was motivated by money. His actual damages award is therefore not an accurate indicator of the actual harm caused by the defendant.

We note that the Supreme Court has been “reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award.” Campbell, 538 U.S. at 424, 123 S.Ct. at 1524, 155 L.Ed.2d at 605. Part of the reason for this is that mathematical formulae are impractical in cases such as this in which the underlying award is one of nominal damages. Gore, 517 U.S. at 582, 116 S.Ct. at 1602, 134 L.Ed.2d at 830-31 (“[W]e have consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential damages to the punitive award.”). In those cases, the Supreme Court has said

low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages. A higher ratio may also be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine. It is appropriate, therefore, to reiterate our rejection of a categorical approach.

Id. at 582, 116 S.Ct. at 1602, 134 L.Ed.2d at 831.

In sum, courts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered.

Campbell, 538 U.S. at 426, 123 S.Ct. at 1524, 155 L.Ed.2d at 606 (emphasis added). As is apparent from this language, “harm” does not necessarily equate with “damages.”

As the eighth circuit has observed,

[t]o apply the proportionality rule to a nominal damages award would invalidate most punitive damages awards because only very low punitive damages awards could be said to bear a reasonable relationship to the amount of a nominal damages award. Consequently, in those cases where the trial court has awarded nominal damages and punitive damages, we rely and give great deference to the trial court’s discretion as to the amount of the punitive damages award it has permitted to stand.

Edwards v. Jewish Hosp. of St. Louis, 855 F.2d 1345, 1352 (8th Cir.1988).

In this case, the harm done to the plaintiff clearly exceeded the amount of compensatory damages awarded because the plaintiff waived all amounts over one dollar. Although the amount of compensatory damages awarded was nominal, the actual harm to the plaintiff was substantial. We need not attempt to quantify the potential damages that could have been allowed here. Suffice it to say that the deprivation of a parent’s relationship with a child, over several years, with the attendant costs such as attorney fees spawned by the defendant’s contumacious conduct are sufficient potential damages to make the award of $25,000 in punitive damages well within constitutional parameters.

3. Comparing the punitive-damage award to civil or criminal penalties authorized in comparable cases. Another guideline to consider is the disparity between the punitive-damage award and the civil or criminal penalties authorized or imposed in comparable cases. Gore, 517 U.S. at 583-84, 116 S.Ct. at 1603, 134 L.Ed.2d at 831; see also Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23, 111 S.Ct. 1032, 1046, 113 L.Ed.2d 1, 23 (1991). Comparing the plaintiffs punitive-damage award to other penalties provided by law, we note that, while a contempt citation is aimed at an affront to the court and not directly to the plaintiff, the Iowa legislature has provided for a jail term of up to thirty days for violation of a custody decree. See Iowa Code § 598.23. From a policy standpoint, it is doubtful this defendant will venture into Iowa with the contempt order hanging over her head. Nevertheless, the punitive-damage award, which may follow her to Arizona, will provide some of the punitive and deterrent effects that underlie our recognition of this tort claim. See Wood, 338 N.W.2d at 127.

After considering the three Gore guideposts, we conclude the district court’s punitive-damage award was not “grossly excessive” and, therefore, did not violate Joan’s due process rights.

VI. Attorney Fees.

A. Standard of review. The standard of review for an award of common-law attorney fees is de novo. Hockenberg Equip. Co., 510 N.W.2d at 158.

B. Merits. A plaintiff seeking common-law attorney fees must prove that the culpability of the defendant’s conduct exceeds the punitive-damage standard, which requires “willful and wanton disregard for the rights of another.” Id. at 159. Instead, “such conduct must rise to the level of oppression or connivance to harass or injure another.” Id. at 159-60. Put another way, the standard “envisions conduct that is intentional and likely to be aggravated by cruel and tyrannical motives.” Id. at 159.

Although the defendant’s conduct in this case was clearly willful and demonstrated a wanton disregard for Timothy’s rights, we do not believe the evidence meets the heightened standard of oppression or connivance under the Hockenberg test. Accordingly, we reverse on this issue and remand for entry of a corrected judgment, excluding attorney fees.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

      . We use the word "custody” in its limited sense of "primary physical care” under Iowa Code sections 598.1(7) and 598.41(5) (2001).

      . Section 710.9 provides:
      A parent, guardian, or custodian of a runaway child has a right of action against a person who harbored the runaway child in violation of section 710.8 for expenses sustained in the search for the child, for damages sustained due to physical or emotional distress due to the absence of the child, and for punitive damages.
      Iowa Code section 710.8(l)(c) defines "runaway child” as "a person under eighteen years of age who is voluntarily absent from the person’s home without the consent of the person’s parent, guardian, or custodian.”


source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    MAXIM TECHNOLOGIES, INC., Appellant, v. The CITY OF DUBUQUE, Appellee.
    No. 03-1355.
    Supreme Court of Iowa.
    Jan. 7, 2005.

      Webb L. Wassmer of Simmons, Perrine, Albright & Elwood, P.L.C., Cedar Rapids, for appellant.
    Les V. Reddick of Kane, Norby & Red-dick, P.C., Dubuque, for appellee.
   STREIT, Justice.

A jury found Maxim Technologies improperly monitored construction of a pub-lie parking ramp in Dubuque. Maxim now argues the City of Dubuque should pay for its misdeeds because Dubuque agreed to do so. Because we find the parties’ agreement does not clearly and unambiguously express an intention that Dubuque indemnify Maxim under the circumstances of this case, we affirm dismissal of Maxim’s claim.

I. Facts and Prior Proceedings

For the purposes of this appeal, we assume the City of Dubuque hired Maxim Technologies, an independent inspection firm, to monitor construction of a public parking ramp. The parties’ agreement included a cost proposal and two attached pages of terms and conditions. Maxim drafted the terms and conditions, which were printed in a font small enough to make even the youngest eyes feel old; there are approximately sixty lines and fifteen hundred words on each page.

After construction began, cracks were found in buildings neighboring the jobsite. The owners of these buildings sued Du-buque, Maxim, and others. The plaintiffs claimed installation of the ramp’s foundation, which consisted of auger cast piles, had disturbed the soil under their buildings. To create the auger cast piles, workers drilled deep holes into the ground and filled them with grout.

The plaintiffs alleged Maxim did not properly monitor installation of the piles and failed to report problems. Maxim cross-claimed against Dubuque. Maxim maintained Dubuque had agreed in some fashion to defend and indemnify Maxim from third-party lawsuits, even if such a lawsuit was predicated upon Maxim’s own negligence. Maxim pointed to the eleventh paragraph of its terms and conditions, which read:

11. Third Party Claims. In the event any third party brings a suit or a claim for damages against Consultant alleging exposure to or damage from materials, elements or constituents at or from the project site before, during or after services are performed by Consultant under this Agreement, which is alleged to have resulted in or caused any adverse condition to any third party or resulted in claims arising from remedial action, cleanup, uninhabitability of property, or other property damage, Client, except to the extent of Consultant’s gross negligence or willful misconduct, agrees to defend, indemnify and hold Consultant harmless against any such suit or claim and any obligation or liability arising therefrom.

Dubuque contended this provision did not apply to the facts of the present case and therefore declined to defend or indemnify Maxim.

A jury decided Maxim was liable to the plaintiffs. In a special verdict, the jury also found Dubuque had a contract with Maxim containing the disputed eleventh paragraph, as well as another paragraph in which Maxim generally agreed to indemnify Dubuque.

Dubuque moved for a judgment notwithstanding the verdict on the cross-claim. Dubuque argued the eleventh paragraph applied only to environmental claims, such as where a chemical migrates onto another’s property and requires remedial cleanup. The district court dismissed the cross-claim, and Maxim appealed.

II. Scope arid Standards of Review

Appellate review of a grant of a motion notwithstanding the verdict is for correction of errors at law. Lynch v. Saddler, 656 N.W.2d 104, 107 (Iowa 2003). Likewise, to the extent this appeal concerns the 'construction or interpretation of a contract, our review is generally at law. See Ellefson v. Centech Corp., 606 N.W.2d 324, 330 (Iowa 2000); Iowa Waste Sys., Inc. v. Buchanan County, 617 N.W.2d 23, 32 (Iowa Ct.App.2000).

III. The Merits

At issue is the scope of an express contract for indemnification. In an indemnification contract, one party" promises to reimburse or hold harmless another party for loss, damage, or liability. See McNally & Nimergood v. Neumann-Kiewit Constructors, Inc., 648 N.W.2d 564, 570 (Iowa 2002). The eleventh paragraph contains such a promise: Dubuque “agree[d] to defend, indemnify and hold [Maxim] harmless against” certain third-party claims. The intent of the parties controls, and in this ease the plain language of the agreement manifests the requisite intent. See id. The only issue concerns the scope of that intent, as expressed in the language of the parties’ written contract.

By its terms, the indemnification clause applied only if (1) a third party sued Maxim; (2) the third party alleged “exposure to or damage from materials, elements or constituents at or from the project site”; (3) this exposure or damage “resulted in or caused any adverse condition to any third party or resulted in claims arising from remedial action, cleanup, uninhabitability of property, or other property damage”; and (4) Maxim was not grossly negligent and did not commit willful misconduct. If all four of these conditions applied, Du-buque was obligated to defend and indemnify Maxim. The first and fourth conditions were met; the plaintiffs were plainly third parties, and there was no allegation Maxim committed anything more than ordinary negligence.

Maxim takes an expansive view of the potential scope of the eleventh paragraph and seizes upon several of the broad and general phrases in second and third conditions to bolster its case. For example, Maxim argues soil is a “material,” “element,” or “constituent” because the dictionary defines “element” as “one of the simple substances or principles of which according to early natural philosophers, the physical universe is composed, the four elements pointed out by Empedocles being fire, air, water, earth.” Black’s Law Dictionary 520 (6th ed. 1990) (emphasis added). Maxim also contends it is plain that its negligent acts resulted in an “adverse condition” to the plaintiffs.

The district court took a less expansive view of the provision, and so do we. We do not think the plain language of the contract clearly and unambiguously expresses an intention that Dubuque indemnify Maxim under the circumstances alleged here, where there is no evidence of an environmental-type claim.

In determining the intent of the parties from the plain language of the agreement, a special rule of construction applies when, as here, a party asserts indemnification from its own negligence. McNally & Nimergood, 648 N.W.2d at 571.

This rule provides that indemnification contracts will not be construed to permit an indemnitee to recover for its own negligence unless the intention of the parties is clearly and unambiguously expressed. See McComas-Lacina Constr. Co. [v. Able Constructors], 641 N.W.2d [841,] 845 [(Iowa 2002)]; Sears, Roebuck & Co. v. Poling, 248 Iowa 582, 588, 81 N.W.2d 462, 465 (1957).... Thus, indemnification contracts claimed to contain these provisions are construed more strictly than other contracts. Exide Corp. v. Millwright Riggers, Inc., 727 N.E.2d 473, 482 (Ind.Ct.App.2000); Amoco Prod. Co. v. EM Nominee P’ship, 2 P.3d 534, 541 (Wyo.2000).

Id.; see also 11 Richard A. Lord, Williston on Contracts § 32:20, at 533-34 (4th ed. 1999) [hereinafter Williston on Contracts] (indemnification provisions, as exculpatory clauses, are frequently construed strictly against the party seeking the benefit). This rule of construction dovetails with one of our rules of interpretation, insofar as any ambiguity in the exceptionally fine print of this contract must also be construed strictly against Maxim, its drafter. See Iowa Fuel & Minerals, Inc. v. Iowa State Bd. of Regents, 471 N.W.2d 859, 862-63 (Iowa 1991).

With these principles in mind, we turn to the language of the indemnity provision. It is at once broad and narrow. On the one hand, we find broad and seemingly limitless phrases such as “materials, elements or constituents” and “other property damage”; on the other hand, indemnification appears limited to environmental-type claims, insofar as specific and prominent reference is made to indemnification for suits alleging “remedial action,” “cleanup,” or “uninhabitability of property.” We need only, however, focus upon the aforementioned third condition; reference to “remedial action,” “cleanup,” and “unhabit-ability of property” indicates this provision was only intended to apply to environmental-type claims.

“Remedial action” is a term of art in federal environmental law. 42 U.S.C. § 9601(24) (2000); see also Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Shell Oil Co., 606 N.W.2d 376, 381 (Iowa 2000) (employing term “remedial action” in discussion of federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601-75). A remedial action is defined as a permanent measure taken “to prevent or minimize the

release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment.” 42 U.S.C. § 9601(24); see City of New York v. Exxon Corp., 633 F.Supp. 609, 614 (S.D.N.Y.1986) (remedial actions are generally those long-term measures taken to restore environmental quality). Likewise, the term “cleanup” is plainly associated with environmental practice. See generally Cooper Indus., Inc. v. Aviall Servs., Inc., — U.S. —, 125 S.Ct. 577, 160 L.Ed.2d 548 (filed Dec. 13, 2004) (repeatedly employing “cleanup” in discussion of CERCLA). Indeed, “remedial action” itself is a specific form of cleanup. See Fort Ord Toxics Project, Inc. v. Cal. EPA, 189 F.3d 828, 833-34 (9th Cir.1999); see also 42 U.S.C. § 9601(23), (defining removal action), (24) (defining remedial action). It is also plain that environmental problems may cause damage to property, including rendering it uninhabitable. In light of the use of these environmentally loaded terms, a strict construction of this provision requires that use of the general phrases be read in context and limited to environmental-type claims to determine the intent of the contracting parties.

In part, we are guided by the familiar precept of ejusdem generis. Ejus-dem generis (Latin for “of the same kind or class”)

is a well-established rule of construction used to aid in ascertaining the meaning of written instruments. It is sometimes known as Lord Tenterden’s Rule; and it means that “where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase is to be held to refer to things of the same kind.... ”

Hewitt v. Whattoff, 251 Iowa 171, 175, 100 N.W.2d 24, 26 (1959) (citation omitted); see also Messerschmidt v. City of Sioux City, 654 N.W.2d 879, 884 (Iowa 2002); Fleur de Lis Motor Inns, Inc. v. Bair, 301 N.W.2d 685, 690 (Iowa 1981); Williston on Contracts § 32:10, at 451-531. For example, in light of the preceding string of terms “remedial action,” “cleanup,” and “uninhabitability,” use of the subsequent phrase “or other property damage,” upon which Maxim in part relies, can only be understood to be intended to refer to the same subject matter as the string of terms, only with added flexibility. This flexibility, of course, is designed to accommodate for similar environmental costs not specifically included in the prior three terms. See Messerschmidt, 654 N.W.2d at 884 (ultimate term “otherwise” in string was intended to define preceding terms with flexibility); cf. H.L.A. Hart, The Concept of Law 127-28 (2d ed. 1994) (pointing out the “open texture” of legal standards and language). For similar reasons, we do not think paragraph eleven clearly and manifestly expresses an intention of the parties for indemnification in a non-environmental-type claim such as the one here, wherein the plaintiffs alleged Maxim negligently performed its duty to monitor the construction.

In the alternative, Maxim contends the duty to defend is broader than the duty to indemnify. Maxim cites several insurance cases, in which we have held the insurer’s duty to defend was separate from, and broader than, its duty to indemnify. See, e.g., Employers Mut. Cas. Co. v. Cedar Rapids Television Co., 552 N.W.2d 639, 642 (Iowa 1996). It is trué we have held that when “any claim alleged against the insured can rationally be said to fall within such coverage, the insurer must defend the entire action” and doubts regarding the extent of the insured’s coverage should be resolved in the insured’s favor. Id.; see A.Y. McDonald Indus., Inc. v. Ins. Co. of N. Am., 475 N.W.2d 607, 627 (Iowa 1991); see also First Newton Nat’l Bank v. Gen. Cas. Co., 426 N.W.2d 618, 630 . (Iowa 1988) (recognizing majority rule that “when an action against an insured involves both covered and noncovered claims, the insurer is liable for recovery of damages on only the covered claims but has a duty to defend the entire action”). Although this case is not set in an insurance context, there was plainly no duty to defend any claim, because the contract clearly applied only to environmental-type claims, which were not asserted here.

IV. Conclusion

Because we find the parties’ agreement does not clearly and unambiguously express an intention that Dubuque indemnify Maxim under the circumstances of this case, we affirm dismissal of Maxim’s claim. Nor is the duty to defend in the parties’ contract broader than the duty to indemnify-

AFFIRMED.

      . .In the district court, Dubuque maintained it did not have a valid agreement with Maxim because the city council never formally approved of one. See Iowa Code § 364.3(1) (2003) ("A city council shall exercise a power only by the passage of a motion, a resolution, an amendment, or an ordinance."). Maxim rejoined that certain provisions in Dubuque’s contract with its architect and the ramp's official project manual — two documents that did receive formal approval of the city council — met this municipal approval requirement because they (1) contemplated the hiring of an independent consultant and (2) identified Dubuque’s parking systems supervisor as Du-buque’s "Designated Representative” "authorized to act on [Dubuque’s] behalf with respect to the Project.” Maxim alleged that the parking systems supervisor hired it to perform inspection services. The facts presented to the jury were as follows:
      When the time came to find an inspection firm, Dubuque’s architect asked Maxim for a cost proposal. Maxim sent a cost proposal to the architect, attaching two pages of fine print. The architect then sent a letter to the parking systems supervisor listing what work it wanted Maxim to do. The architect authorized approximately one third of the amount of work. Maxim had proposed. The architect sent a copy of the letter to Maxim.
      Although Maxim indicated in its proposal that it would not work on the project without written authorization, Maxim did so anyway. Maxim sent all bills to the architect. These bills listed the architect as Maxim’s "client.” All payments went through the architect. The architect sent Maxim's bills to Dubuque. After receiving a check from Dubuque, the architect would either endorse it over to Maxim or write Maxim a separate check. During her deposition, however, the parking systems supervisor admitted she thought Dubuque, not the architect, had a contract with Maxim. She later recanted.
      Although the record does not clearly disclose under what particular contract theory Maxim’s claim was based, a jury nonetheless found Maxim had an agreement with Du-buque. Moreover, the jury found the parties’ agreement included the fine print at issue in this appeal, i.e., a paragraph in which, Maxim alleged, Dubuque agreed to indemnify Maxim for Maxim's own negligence. Notwithstanding the jury's findings, however, the district court held as a matter of law that Maxim did not have a valid agreement with Dubuque because the city council never gave its formal approval. See City of Akron v. Akron-West field Cmty. Sch. Dist., 659 N.W.2d 223, 225-26 (Iowa 2003). Although on appeal the parties briefed the issue of municipal authorization through delegation in extensive fashion, at oral argument Dubuque's counsel partially conceded the point, agreeing that the parking systems supervisor had the authority to enter contracts, but not contracts with an indemnification provision. We assume Dubuque and Maxim had a valid contract and do not reach the issue of municipal authorization. Only the terms of the parties' agreement are at issue in this case.

      . The court told the jury that while the cross-claim was an issue of law for the court alone to decide, answering some additional factual questions would help the court reach its decision.

      . The ninth paragraph of the terms and conditions stated:
      9. Indemnification. Consultant shall defend, indemnify and hold harmless the Client and its officers, employees, servants, agents, successors, and assigns from and against any and all liability, claims, demands, suits, actions, third party claim[s], penalties, fines, debts, accounts, damages, costs, expenses, losses and attorney's fees ... which directly or indirectly arise out of or result from injury or death to its employees and subcontractors or damage to property, to the extent the injury or damage is caused by the negligent act or willful misconduct of Consultant or its employees, servants and agents in the performance of Consultant's work under this Agreement. ... Indemnification under this provision shall exclude any and all Damages which either directly or indirectly arise out of or result from acts, errors, or omissions of the Client or any of their officers, employees, servants, agents, consultants, or other representatives. Neither party shall be liable to the other party for any special, indirect, incidental, punitive, or consequential damages, whether based on contract, tort (including negligence), strict liability or otherwise.
      Maxim argues the ninth paragraph does not apply to this case because the plaintiffs’ damages, either directly or indirectly, arose out of or resulted from Dubuque's negligence. (The jury found Dubuque was also at fault in causing damage to the plaintiffs' buildings.) Because our analysis focuses strictly upon the eleventh paragraph of the agreement, we do not reach this issue.


author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Bradley Lee WINTERS, Appellant.
    No. 03-0737.
    Supreme Court of Iowa.
    Jan. 14, 2005.

      Kent A. Gummert of Gaudineer, Comito & George, L.L.P., West Des Moines, and Bradley Winters, pro se, for appellant.
    Thomas J. Miller, Attorney General, and Karen Doland, Assistant Attorney General, for appellee.
   CADY, Justice.

Bradley Lee Winters seeks further review of his judgment of conviction and sentence for possession of methamphetamine with intent to deliver, conspiracy to deliver, and failure to affix a tax stamp. He challenges the judgment and sentence on several bases. Because we find the district court abused its discretion in failing to dismiss the charges against Winters on speedy-trial grounds, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand to the district court for dismissal of the trial information.

I. Background Facts and Proceedings

Winters’ convictions resulted from events that occurred on August 28, 2002. On that date, law enforcement officers in Des Moines received information from officers in Mason City that Winters arid his mother, Barbara Query, would be traveling to Des Moines that day to pick up a large amount of methamphetamine. The officers located the vehicle in Des Moines and conducted surveillance of Winters and Query throughout the day. They followed them to two locations in Des Moines and continued following them after they left Des Moines and began traveling north on Interstate 35.

A state trooper who was part of the surveillance convoy observed Winters’ vehicle weave across the centerline and fog line several times. When Winters exited the interstate a short distance north of Des Moines, the trooper pulled him over. Before the vehicle stopped, the trooper noticed Winters and Query making furtive movements toward the console area between the two front seats. When the trooper approached the vehicle to ask for Winters’ driver’s license, he noticed Winters had dilated pupils and body tremors, which he associated with the use of cocaine or methamphetamine. After Winters denied using narcotics, the trooper had him sit in his patrol car while they awaited a drug-sniffing dog.

When the' dog arrived, it signaled the presence of drugs in Winters’ vehicle and in the area of the patrol car where Winters was sitting. The officers then searched Winters and found a small quantity of methamphetamine on his person. They also searched Winters’ vehicle and found almost a half pound of methamphetamine, $5000 in a paper bag, and various other items of evidence. Winters and Query were arrested.

The next morning, officers executed search warrants on the residences in Des Moines that Winters had visited on August 28. Officers seized various items indicative of methamphetamine use and distribution from both locations.

On October 9, 2002, the State filed a trial information jointly charging Winters; Query, Kathleen Stalker (who lived at one of the residences Winters visited on August 28), and Paul Hulbert (who was at one of the residences) with possession with intent to deliver, conspiracy to deliver, and failure to affix a tax stamp. Winters was also charged in the information under the enhancement provisions of Iowa Code section 124.411 (2001), based on a prior conviction of a felony drug offense on March 27,1998.

Winters was arraigned on October 10. At the arraignment, the district court set the trial for December 9, 2002 and ordered a pretrial conference to be held on November 7.

Although Winters was represented by counsel, he filed a handwritten pro se motion to dismiss the enhancement portion of the trial information on October 14. He claimed the enhancement violated double-jeopardy principles. He also moved to merge the three counts of the trial information, claiming he could not be convicted of both a public offense and conspiracy to commit a public offense. Additionally, he filed a separate, detailed motion to suppress. The motion asserted the vehicle stop violated the federal and state constitutions.

The district court set the motions for a hearing on November 4, 2002. It subsequently continued the hearing and ordered the hearing on the motions to be rescheduled at the November 7 pretrial conference.

The pretrial conference was held on November 7. The district court entered an order following the conference confirming that the trial would be held on December 9. The order also reflected that the attorneys had no conflict with the trial date. The order further directed that discovery be completed per the rules of criminal procedure or further court order. The pending motions were noted in the order, but they were not heard or rescheduled for hearing.

On November 27, the district court held a status conference on the case. At the conference, the district court first reviewed the status of the case by noting that codefendants Query and Stalker had waived their speedy-trial rights and desired to continue the December 9 trial to enable them to engage in pretrial discovery. The court further recognized that Winters also wanted to engage in discovery but would not waive his right to a speedy trial. Winters’ attorney, as well as counsel for the codefendants, acknowledged the pending status of the case. Winters was then permitted to explain his position:

The reason I don’t feel I should have to waive any speedy trial and it shouldn’t be violated is that from [October] 10 when I had my arraignment until the present time I feel that’s sufficient time that they had to do depositions, hear the motions and all that. Otherwise, that was all just a waste of time. And I am incarcerated....

Winters further explained that he desired to depose the State’s witnesses prior to trial but believed there was adequate time to complete all discovery within the speedy-trial time period. Winters reminded the district court: “We still got ... the rest of November, December and part of January.” In response, the State acknowledged that there was an available trial date on January 6, 2003, one day prior to the expiration of the speedy-trial period. However, the prosecuting attorney told the district court that the State had approximately twenty witnesses, and he did not believe there was sufficient time within the speedy-trial period to take the depositions of these witnesses. The prosecutor also mentioned the existence of the pending motions as a reason to continue the trial.

Based on these statements, the district court ruled that there was good cause to continue the case beyond the speedy-trial deadline, and set the trial for February 17, 2003. The district court found it was not possible “as a practical matter” to rule on the pending motions and complete the desired discovery prior to the speedy-trial deadline. It further found that holding the trial within the speedy-trial time period would deny the codefendants a fair trial because they would be unable to fully prepare for trial. Furthermore, the district court found that severing Winters’ case would not help preserve his speedy-trial right because it had already found there was not enough time for Winters to complete discovery and for it to rule on the pending motions prior to the speedy-trial deadline. The district court also observed that severance of the trials would create an imposition on witnesses and result in a greater expense to the state due to the duplication of discovery.

On February 6, 2003, Winters filed a motion to dismiss. He argued that his right to a speedy trial had been violated because there was no good cause for delay of the trial beyond the speedy-trial deadline. At a status hearing on February 12, the court severed the trials of Winters, Query, and Stalker. The court also considered the motion to dismiss and the pending motion to suppress. The court denied the motion to dismiss, stating that it was “basically nothing more than asking for a reconsideration of [the November 27] ruling.” The court also denied the motion to suppress following a hearing. It found the stop of Winters’ vehicle was permissible for two reasons: (1) it crossed the centerline; and (2) the officers had reasonable suspicion to justify an investigatory stop. The court also found there was probable cause to search the vehicle and that the search was thus justified under the automobile exception to the warrant requirement. Alternatively, the court found the search was justified as a search incident to arrest.

Winters’ jury trial commenced on February 17, 2003 — forty-one days after his speedy-trial deadline: On February 19, the jury found him guilty of all three counts. On April 29, 2003, the court sen--tenced him to seventy-five years each for the possession and conspiracy convictions and to five years for the tax stamp conviction, with the sentences to run concurrently.

Winters appealed. He argued: (1) the charges should have been dismissed on speedy-trial grounds, (2) the district court admitted inadmissible hearsay testimony, (3) his motion to suppress should have been granted, (4) he received an illegal and excessive sentence, (5) the statutes under which he was convicted were unconstitutionally vague, and (6) his trial counsel was ineffective. We transferred the case to the court of appeals. It affirmed the judgment and sentence. We granted further review.

II. Standard of Review

We review a trial court’s ruling on a motion to dismiss based on speedy-trial grounds for. an abuse of discretion. State v. Nelson, 600 N.W.2d 598, 601 (Iowa 1999) (citing State v. Todd, 468 N.W.2d 462, 470 (Iowa 1991)). When speedy trial grounds are at issue, however, the discretion given to the. district court narrows. Id. (citation omitted); see also State v. Bond, 340 N.W.2d 276, 279 (Iowa 1983) (“The discretion of the district court to grant a trial continuance for good cause shown under Iowa R.Crim. P. [2.33(2)(6) ] is narrower than is the discretion in civil cases under Iowa R. Civ. P. [1.911]. ‘The discretion to avoid dismissal in a criminal case is limited to the exceptional circumstance where the State carries its burden of showing good cause for the delay. This is the circumscribed discretion in review on appeal.’ ” (Citations omitted.)); 21A Am.Jur.2d Criminal Law § 1031, at 295 (1998) (stating that statutes and rules implementing the right to a speedy trial should be “strictly construed in favor of the liberty of the citizen, and all doubts are to be resolved in favor of the accused”).

III. Speedy Trial

Iowa Rule of Criminal Procedure 2.33(2)(6) provides:

If a defendant indicted for a public offense has not waived the defendant’s right to a speedy trial the defendant must be brought to trial within 90 days after indictment is found or the court must order the indictment to be dismissed unless good cause to the contrary be found.

Under this rule, a criminal charge must be dismissed if the trial does not commence within ninety days from the filing of the charging instrument “unless the State proves (1) defendant’s waiver of speedy trial, (2) delay attributable to the defendant, or (3) ‘good cause’ for the delay.” Nelson, 600 N.W.2d at 600 (citing State v. Petersen, 288 N.W.2d 332, 335 (Iowa 1980); State v. Smith, 573 N.W.2d 14, 17 (Iowa 1997); Bond, 340 N.W.2d at 279).

The district court in this case found there was good cause for the delay. We have made it clear that good cause “ ‘focuses on only one factor: the reason for the delay.’ ” Id. at 601 (citation omitted). The attending circumstances “bear on the inquiry only to the extent they relate directly to the sufficiency of the reason itself.” Id. (citations omitted). Surrounding circumstances include: (1) the length of the delay, (2) whether the defendant asserted his or her right to a speedy trial, and (3) whether prejudice resulted from the delay. Id. at 601 n. 2. However, “ ‘[i]f the reason for the delay is insufficient, the other factors will not avail to avoid dismissal.’” Id. at 601 (quoting Petersen, 288 N.W.2d at 335). Compare id. (finding the fact that the court had yet to rule on a motion to suppress, which was fully submitted over three months before, to be insufficient reason for trial to be delayed 137 days beyond the speedy-trial deadline), with Todd, 468 N.W.2d at 470 (finding good cause for delay when the court had yet to hold a hearing on motions to suppress that were filed by the defendants one week before trial was to begin and for which the State’s witnesses were not available to testify until after the speedy-trial deadline).

The district court found good cause for the delay in this case primarily based on the time needed to rule on pending motions and the time required for Winters to depose the State’s witnesses. Generally, a defendant must accept the passage of time that is reasonably necessary for a court to hear and rule on dispositive pretrial motions. Nelson, 600 N.W.2d at 601 (citation omitted). Consequently, the time required for the court to rule on motions filed by a defendant can amount to delay attributable to the defendant and constitute good cause for the failure to comply with the speedy-trial deadline. State v. Miller, 637 N.W.2d 201, 204-05 (Iowa 2001). However, defendants do not waive their right to be tried within the speedy-trial deadline by filing timely pretrial motions. Nelson, 600 N.W.2d at 601. The pretrial process is set up to normally dispose of pretrial motions within the speedy-trial deadline. See Iowa R.Crira. P. 2.11(4) (stating motions generally must be filed no later than forty days after arraignment).

Similarly, good cause for pretrial delay under the speedy-trial rule can result from the need to complete pretrial discovery. State v. LaPlant, 244 N.W.2d 240 (Iowa 1976). Yet, as with pretrial motions, defendants do not forfeit their speedy-trial rights by pursuing discovery of the State’s evidence.

Our approach to good cause reveals that the determination of whether pretrial motions and pretrial discovery can excuse a failure to comply with the speedy-trial rule essentially rests on the strength of the underlying reasons for the delay in disposing of the motions or completing the discovery, not the mere existence of the motions or the request for discovery. In this case, the State failed to offer any reason to support its claim that the pending motions could not be heard before the expiration of the speedy-trial time period. Furthermore, the district court failed to offer any explanation. The district court did observe that the motions were filed pro se and should be recast by counsel. Nevertheless, this fact does not supply a reason to delay their consideration or to treat them differently than motions filed by counsel. The motions were properly captioned and articulated each claim with clarity. The court was required to consider them as any other motion. Furthermore, the conclusion by the district court that the motions could not be heard and ruled upon within the speedy-trial time period was made nearly six weeks before the deadline. Thus, not only was there no reason presented to explain why the motions were not heard before the district court granted the continuance, there was no reason provided to explain why the motions could not be heard within the time still remaining before the expiration of the speedy-trial period. In the absence of any underlying reason, the only ground in the record to support the continuance was the filing of the motions. ■ This reason, without more, is insufficient.

Similarly, the record failed to show why the discovery Winters sought could not be completed prior to the expiration of the speedy-trial deadline. Although there was evidence of the number of witnesses the State expected to call at trial, there was no indication of the number of witnesses Winters, or the codefendants, desired to depose or the reason why those depositions could not be completed prior to the expiration of the speedy-trial deadline. The rules of procedure contemplate that depositions be taken within thirty days after arraignment. See Iowa R.Crim. P. 2.13(6). However, even assuming the district court extended the time for taking depositions, the record failed to disclose any reason why the depositions could not have been completed prior to the expiration of the speedy-trial deadline other than the bare assertion by the prosecutor. The burden on the State to establish good cause requires more.

Finally, we must consider the impact of the jointly charged defendants on the good-cause determination. We agree with the district court that the economy and convenience of a joint trial can be considerations in determining good cause to delay the trial .of -codefendants beyond the speedy-trial deadline. See State v. Rodriguez, 511 N.W.2d 382, 384 (Iowa 1994) (stay of the trial of the codefendant’s case, which effectively stayed the trial of the defendant’s - case, established good cause for delay under the speedy-trial rule). However, the convenience and economic benefits of a joint trial do not alone establish good cause and do not normally take precedence over a defendant’s right to a speedy trial. See Santiago v. State, 698 So.2d 919, 920 (Fla.Dist.Ct.App.1997) (“[A] defendant’s right to a speedy trial takes precedence over the state’s convenience in trying co-defendants together. State ‘convenience’ in a joint trial is not of itself an exceptional circumstance ... justifying an extension of the speedy trial period.” (Citations omitted.)). Similarly, the waiver of speedy trial by a codefendant does not, by itself, constitute a waiver of speedy trial by the other defendant. See In re Edwayne V., 197 Cal.App.3d 171, 242 Cal.Rptr. 748, 750 (1987) (“[A] defendant cannot waive the rights of a codefendant to have a criminal proceeding commence within a period of time specified by statute.” (Citation omitted.)); Flores v. State, 574 So.2d 1314, 1321 (Miss.1990) (“[Sjince the right to a speedy trial is a right personal to the accused, the right should not be waived because of delays occasioned by a co-defendant for which the accused was not in any way responsible.” (citing People v. Roberts, 133 Ill.App.3d 731, 88 Ill.Dec. 773, 479 N.E.2d 386, 390 (1985))). Instead, the good-cause standard requires a careful balancing of the codefendant’s rights to effective counsel and a fair trial against the defendant’s right to a speedy trial, together with the State’s desire to promote judicial economy. See Arroyo v. Super. Ct., 119 Cal.App.4th 460, 14 Cal.Rptr.3d 462, 465 (2004).

In this case, Winters objected to a continuance and requested a severance of trial. He clearly asserted his right to a speedy trial. On the other hand, there was no evidence of any underlying reasons to support a conclusion that the remaining discovery sought by all defendants could not have been completed prior to the speedy-trial deadline. At the very least, the district court should have required the defendants to make an effort to complete discovery, considering there were nearly six weeks remaining prior to the speedy-trial deadline. Thus, the codefendants’ rights to effective counsel and a fair trial were not seriously implicated.

Accordingly, the only remaining factors to support good cause were judicial economy and waiver by the codefendants. Yet, judicial economy due to a joint trial is not a helpful consideration without underlying evidence supporting the need for the continuance of the joint trial beyond the speedy-trial deadline. In the end, the continuance was granted by the district court because the codefendants waived their right to a speedy trial. Under the record developed in this case, this was insufficient to establish good cause for delay in the trial of the remaining defendants. Under all the circumstances, the district court abused its discretion in granting a continuance of the case beyond the speedy-trial deadline. We are obligated to enforce the speedy-trial rule and dismiss the trial information.

IY. Conclusion

Because the State failed to carry its burden to prove good cause, Winters’ motion to dismiss the charges against him on speedy-trial grounds should have been granted. See Nelson, 600 N.W.2d at 602. Accordingly, we must reverse the judgment on his convictions and remand to the district court to dismiss the trial information. Id. We need not reach the other issues raised on this appeal.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

      . Hulbert pled guilty, but the other three cases proceeded together.

      . Prior to the status conference, Winters wrote to the district court requesting a separate trial. The letter was dated November 19 and was eventually filed on December 9.


text:
    STATE of Iowa, Appellee, v. Mark Leonard TUBBS, Appellant.
    No. 03-1765.
    Supreme Court of Iowa.
    Jan. 14, 2005.

      Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Derek J. Schwieger, County Attorney, and Tomas R. Meyer, Former County Attorney, for appellee.
   LARSON, Justice.

Mark Tubbs was convicted of driving while intoxicated and assaulting a police officer, in violation of Iowa Code sections 821J.2 and 708.3A (2001). He appeals, contending the district court erred in admitting evidence of his refusal to submit to a blood or urine test and in allowing improper voir dire examination by the prosecutor. He also contends his trial counsel was ineffective in failing to challenge the sufficiency of the evidence and the court’s instructions to the jury. We affirm.

I. Facts and Prior Proceedings.

We will set out in some detail the events preceding Tubbs’ arrest and prosecution because one of his issues on appeal is the sufficiency of the evidence of intoxication. On May 11, 2003, at approximately 2:30 a.m., Officer Tony Walter, of the Humboldt Police Department, saw Tubbs speeding on Highway 169. Walter pulled in behind him with lights and sirens going. Tubbs continued to drive, swerving within his lane. Eventually, he turned into a convenience store parking lot, left his car, and began walking toward the store. Officer Walter, using his squad car PA system, ordered Tubbs to stop, but he kept walking. Walter ordered Tubbs to stop two more times, and after the third time, he finally stopped.

Officer Walter approached Tubbs and noticed he smelled of alcohol, appeared disheveled, and he was having trouble balancing. Walter asked Tubbs to perform field sobriety tests, and Tubbs agreed. By this time, another officer, Officer Davies, arrived at the scene. As Walter began to instruct Tubbs on the tests, both officers noticed that Tubbs became very despondent. During the first test — following the officer’s finger with his eyes — Tubbs just stared at the ground. Tubbs also failed to properly perform the walk-and-turn test, and he refused to perform the one-legged-stand test. Based on their observations, the officers decided to arrest Tubbs.

However, instead of submitting to the officers, Tubbs began running around, shouting obscenities, and daring the officers to shoot him. When the officers tried to apprehend him, he charged them. The officers were ultimately able to subdue Tubbs, at which point Tubbs then complained that his arm hurt. The officers called an ambulance, and Tubbs was taken to the hospital.

Once at the hospital, Tubbs urinated on two examination tables and passed in and out of consciousness. The officers asked Tubbs if he would consent to chemical testing of his blood or urine. Initially, Tubbs agreed, but then changed his mind and said he wanted his wife to read the consent form before he would agree to anything. The officers were about to call his wife when one of them remembered from a- prior encounter that Tubbs was under a judicial no-contact order with respect to his wife. Tubbs responded that the order had been or was soon going to be lifted, but the officers would not permit him to call her. Tubbs refused to consent. Tubbs did not ask to contact any other family member or an attorney, as provided by Iowa Code section 804.20:

Any peace officer or other person having custody of any person arrested or restrained of the person’s liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person’s family or an attorney of the person’s choices or both.

II. The Officers’ “Failure” to Allow the Telephone Call.

On Tubbs’ claim that the officers failed to provide him the telephone call required by section 804.20, it is necessary to discuss the matter of error preservation. Tubbs’ trial attorney failed to file a motion to suppress evidence of the defendant’s refusal within forty days after arraignment, as required by Iowa Rule of Criminal Procedure 2.11(4). Nevertheless, his appellate counsel urges us to excuse that failure and consider Tubbs’ argument on its merits because he received ineffective assistance of counsel, thereby excusing any failure to preserve error.

We need not consider Tubbs’ suppression argument in the context of ineffective assistance because the State waived any timeliness objection by failing to raise it in the district court. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (“[Ojne party should not ambush another by raising issues on appeal, which that party did not raise in the district court.”). In fact, the State acknowledges the impact of De-Voss and does not assert a timeliness objection. We deem the preservation issue waived and proceed to Tubbs’ suppression argument on its merits. According to Tubbs, the officers’ failure to permit him to make the call provided for by section 804.20 requires that any evidence of his refusal be excluded. See State v. Vietor, 261 N.W.2d 828, 832 (Iowa 1978).

One purpose of section 804.20, of course, is to allow an arrestee to call an attorney before deciding whether to submit to a chemical test. See id. at 831 (“[Tjhere is a limited statutory right to counsel before making the important decision to take or refuse the chemical test under implied-consent procedures.”). Section 804.20 does not require that an arres-tee call an attorney; the statute is satisfied by giving him the opportunity to call or consult with a family member or an attorney. It also does not require that an arrestee be informed of any right to counsel. Id.

Section 804.20 is to be applied in a pragmatic manner, balancing the rights of the arrestee and the goals of the chemical-testing statutes. See, e.g., id. (balancing arrestee’s right to counsel “against the practical consideration that [under section 321J.6] a chemical test is to be administered within two hours of the time of arrest or not at all”); accord State v. Bowers, 661 N.W.2d 536, 542 (Iowa 2003) (stating that an arrestee’s right to contact a family member under section 804.20 is “considerably diluted” when the requested family member is also in custody for criminal conduct carried on jointly with the arres-tee); Bromeland v. Iowa Dep’t of Transp., 562 N.W.2d 624, 626 (Iowa 1997) (holding an arrestee has the right to contact an attorney, but not a specific attorney who is unavailable when called).

In this case, Tubbs was denied the opportunity to speak with his wife because this would have violated the no-contact order. However, he was not denied the opportunity to talk to another family member or to an attorney. Tubbs failed to ask to talk to an attorney or to anyone besides his wife. Under these circumstances, the officers fulfilled their responsibility under section 804.20.

III. The Jury Selection.

Tubbs also complains that the prosecutor conducted improper voir dire examination of jurors, as set out in this objection made at trial:

[DEFENSE COUNSEL]: ... [The prosecutor] began asking questions of the jurors as to what symptoms they might observe in someone they believed might be intoxicated. A juror started talking about slurred speech. [The prosecutor] continued to follow up with maybe other symptoms that a juror might see in a person who might be intoxicated and my objection is that those type of questions are basically eliciting testimony from the jurors rather than trying to determine whether the juror can be a fair and impartial witness and we would object to that line of questioning.

The jury selection was not reported, and it does not appear that similar questions were asked of other potential jurors. In any event, the court overruled the objection.

Tubbs claims the court abused its discretion by allowing this questioning. Specifically, he claims the questions were improper because (1) they did not relate to any of the enumerated for-cause challenges listed in Iowa Rule of Criminal Procedure 2.18(5), and (2) the questions' were asked to “bias[ ] the panel, or get[ ] jurors to commit to voting any particular way.” At the outset, we note that the district court has broad discretion in the selection of juries. “ ‘Control of jury voir dire is lodged in the sound discretion of the trial court.’ ” State v. Proctor, 585 N.W.2d 841, 844 (Iowa 1998) (quoting State v. Reed, 482 N.W.2d 672, 674 (Iowa 1992)). We will reverse only if the court has manifestly abused its discretion. Id.

With respect to Tubbs’ first argument, he has not cited any cases, and we are aware of none, that have limited voir dire to those matters on the laundry list of challenges for cause contained in rule 2.18(5) (e.g., previous conviction of a felony, having formed or expressed an opinion on guilt or innocence, having been a defendant in a similar case, and other enumerated grounds). To illustrate, we have held that in cases involving racial diversity between a defendant and a victim the court should make or allow counsel to make specific inquiry on voir dire concerning possible racial prejudice, even though racial prejudice is not listed in rule 2.18(5) as a ground for challenge. State v. Windsor, 316 N.W.2d 684, 687 (Iowa 1982).

As to Tubbs’ second voir dire argument, we believe a reasonable view of the questions asked is that the prosecutor was attempting to assess potential jurors’ understanding of what evidence is relevant on the question of intoxication, especially when, as here, there was'no chemical test in evidence. In addition to assisting counsel in bringing challenges for cause, voir dire affords counsel an opportunity to discover information that may be useful in exercising peremptory challenges. See Mu’Min v. Virginia, 500 U.S. 415, 431, 111 S.Ct. 1899, 1908, 114 L.Ed.2d 493, 509 (1991) (“Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.”). We have said that “a wide latitude is necessarily allowed counsel in examining the jurors for the purpose of advising him as to how to exercise his peremptory challenges.” Raines v. Wilson, 213 Iowa 1251, 1253, 239 N.W. 36, 37 (1931). We conclude that the trial court did not abuse its discretion in ruling on the defendant’s objections.

IV. Sufficiency of the Evidence.

Tubbs’ trial counsel moved for a verdict of acquittal in general terms, stating simply “I would make a Motion for Acquittal on the OWI, and two assaults on peace officers, your Honor.”

On -appeal Tubbs argues his trial lawyer was ineffective because he failed to assert insufficiency of the evidence as a specific ground for his motion. We conclude that, even if Tubbs’ trial counsel had been more specific and raised the grounds now urged, the motion was properly overruled. We have said:

The principles of law for reviewing a motion for judgment of acquittal based on sufficiency of the evidence are well established:
When reviewing the sufficiency of evidence, we view the evidence in the light most favorable to the State, including all legitimate inferences and presumptions which may fairly and reasonably be deduced from the evidence in the record. It is necessary to consider all of the evidence and not just the evidence supporting the verdict. A jury verdict is binding upon this court and will be upheld unless the record lacks substantial evidence to support the charge. Substantial evidence means evidence which would convince a rational trier of fact that the [defendant is] guilty of the crime charged beyond a reasonable doubt.

State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984) (quoting State v. Blair, 347 N.W.2d 416, 418-19 (Iowa 1984)). When the evidence is viewed under these principles, we conclude it is clearly sufficient to support the jury’s verdict. Tubbs failed to pull over despite the fact the officers had their lights and siren on, he swerved within his lane, failed to stop when ordered to do so by the officers, smelled of alcohol, appeared disheveled, and had trouble balancing. He failed field-sobriety tests and became combative when the officers attempted to arrest him. At the hospital, he urinated on two examination tables and passed in and out of consciousness. The evidence of intoxication was substantial, and the trial court properly overruled the motion for judgment of acquittal.

Y. The Court’s Instructions.

The defendant’s last issue, also raised as ineffective assistance of counsel because his lawyer failed to object at trial, concerns two of the court’s instructions. Instruction No. 3 informed the jury:

You must determine the Defendant’s guilt or innocence from the evidence and the law in these instructions.

Instruction No. 7 stated:

The Defendant has been charged with three Counts. This is just a method for bringing each of the charges to trial. If you find the Defendant innocent or guilty on any one of the Counts, you may not conclude guilt or innocence on the others. The Defendant’s innocence or guilt must be determined separately on each Count.

Tubbs complains that use of the words “innocence” and “innocent” suggests, erroneously, that the defendant had to prove something, i.e., that he was innocent. We summarily reject that argument; even if Tubbs’ trial counsel had raised a timely objection to these instructions, it would not be a ground for reversal. As Instruction No. 3 states:

You must consider all the instructions together. No one instruction includes all of the applicable law.

When the instructions are considered as a whole, they make it clear that Tubbs was presumed innocent and the State had the burden to prove guilt beyond a reasonable doubt. See State v. Fintel, 689 N.W.2d 95, 104 (Iowa 2004) (rejecting “innocence” argument on same grounds).

We find no basis for reversing Tubbs’ conviction and therefore affirm.

AFFIRMED.


author: /s/Paul H. Anderson Associate Justice

text:
    In re PETITION FOR DISCIPLINARY ACTION AGAINST Michael J. HOOVER, a Minnesota Attorney, Registration No. 47053.
    No. A04-1106.
    Supreme Court of Minnesota.
    Jan. 24, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Michael J. Hoover has committed professional misconduct warranting public discipline, namely, respondent failed to cooperate with the Director’s efforts to monitor court-ordered probation, failed to maintain required trust account books and records, neglected a client matter, failed to return unearned fees to a client, failed to provide an accounting to a client, and failed to cooperate with the Director’s investigation of complaints, in violation of Minn. R. Prof. Conduct 1.3, 1.15(a) and (e), 1.16(d), 3.4, 8.1(a)(3), and 8.4(d), and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

The Director and respondent have filed a stipulation in which they state that respondent is disabled and recommend that respondent be transferred to disability inactive status and that further proceedings on the petition for disciplinary action be stayed until such time as respondent petitions for reinstatement under Rules 28(d) and 18, RLPR. The parties further recommend that the notice requirements in Rule 26, RLPR, be waived.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Michael J. Hoover is transferred to disability inactive status effective immediately. Further proceedings on the pending petition for disciplinary action are stayed until such time as respondent petitions for reinstatement under Rules 28(d) and 18, RLPR. The notice requirements of Rule 26, RLPR, are waived.

BY THE COURT:

/s/Paul H. Anderson Associate Justice


author: HANSON, Justice.

text:
    STATE of Minnesota, Respondent, v. Billy Dawson SLAUGHTER, Appellant.
    No. A03-601.
    Supreme Court of Minnesota.
    Jan. 27, 2005.

      John Stuart, State Public Defender, Sara Lynne Martin, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, D|avid Craig Brown, Hennepin County Attorney Office, Minneapolis, MN, for Respondent.
   OPINION

HANSON, Justice.

Appellant Billy Dawson Slaughter was charged with two counts of aggravated robbery under Minn.Stat. § 609.245, subd. 1 (2004) and one count of simple robbery under Minn.Stat. § 609.24 (2004). After Slaughter waived his right to a jury trial, the district -court acquitted him of the charged robbery offenses, but convicted him of . the uncharged lesser-included offense of felony theft under Minn.Stat. § 609.52, subd. 2(1) (2004). The court of appeals affirmed the conviction. State v. Slaughter, No. A03-601, 2004 WL 615042 (Minn.App. March 30, 2004). ,We granted further review to consider Slaughter’s arguments that (1) the district court improperly denied his motion for judgment of acquittal, (2) the court improperly raised and considered the lesser-ineluded offense of theft, and (3) there was insufficient evidence to sustain his conviction of theft. We affirm.

At 12:51 a.m. on September 8, 2002, Minneapolis Police Officers Jarrod Roer-ing and Nicholas Antila were dispatched to 610 Penn Avenue North. When the officers arrived, Stacy Lov.e was standing at the base of the steps leading to the porch, approximately 6 to 8 feet from Slaughter. Love told the officers that Slaughter had just snatched several gold chains from her neck, and that he had a knife.

Before the officers searched Slaughter, he told them that he had a knife in his pocket. Antila searched Slaughter and found a folded silver-bladed knife with a multi-colored handle. Antila’s report stated that the knife was wrapped in a plastic bag, but Antila could not recall exactly how the bag was wrapped around the knife. The officers did not find any jewelry on Slaughter’s person or within his reach.

While speaking with Love, Roering noticed some scratches on her neck. Love said the scratches felt “like skin burn.” Roering searched the area and found a small piece of a gold necklace in the grass along a sidewalk near 610 Penn. He also found a piece of a necklace dangling off a fence and another piece in the grass near 620 Penn.

Slaughter was charged with two counts of aggravated robbery and one count of simple robbery. He waived his right to a jury trial and the case proceeded to trial before the court.

Love testified for the state. She stated that on the night of September 7, 2002, she was gambling at a friend’s house until the friend’s son told her that Slaughter wanted to see her. When she went outside to talk to Slaughter, he asked her for “[his] 10 dollars” but she did not know what he was talking about. Nonetheless, she walked with Slaughter to a neighbor’s house to find the person who was supposed to have given her Slaughter’s $10.

She stated that after she knocked on the door, and her boyfriend Leroy Jackson came to open it, Slaughter snatched her necklaces from behind and took off running. Love and Jackson chased Slaughter to 610 Penn, where Slaughter ran up on the porch and banged on the door to the house. Love testified that she saw Slaughter holding an object with a “sharp twinkling like a blade or something” in front of him. She thought the object was “a knife or blade or something.” She decided not to approach him and instead called the police on her cell phone and blocked Slaughter from leaving.

Jackson also testified for the state. Jackson admitted to smoking crack and having an altercation with Love earlier that day. He said that he was gambling in the basement of 620 Penn that evening when Love came over. When he went upstairs and opened the door, Love said “he snatched my chains,” and pointed at Slaughter. Jackson thought she looked stunned and shocked. He confirmed Love’s testimony that the two of them chased Slaughter to the porch at 610 Penn. Jackson testified that Slaughter pulled “something shiny” out of his pocket and held it in his hand, and Jackson told Love to call the police.

Alvin Harris, a resident of 610 Penn, also testified for the state. He stated that he opened the door upon hearing the doorbell, and saw Slaughter standing on his porch and a man and woman standing in his yard. Slaughter told Harris to call the police. Harris testified that the woman in the yard said “he snatched my chains,” and Slaughter said that she took off with his $10. Harris went back in the house and his wife called the police. Harris returned to the front door after about 5 minutes. Harris testified that he did not see a knife in Slaughter’s hands, and he did not find any necklaces on his porch. The next morning, he found a necklace on the walkway near his porch.

Slaughter moved for acquittal on all three charges at the close of the state’s case, arguing that the state’s witnesses were not sufficiently credible and that the state had not presented sufficient evidence to prove that Slaughter committed the offenses of simple robbery or aggravated robbery. The district court denied Slaughter’s motion, stating:

I’m going to deny the motion at this time. Denying that, I’m not making any comment on the overall weight and credibility of the evidence which I’m left to judge at the end of the case. But at this time I’m going to deny it.

When court resumed the next morning, the judge told the parties: “from what I have seen from the prosecution’s case, I[am] inclined to offer a — -include a lesser-included offense of theft from person.” The defense objected. The judge responded that he had the right to take into account a lesser-included offense over the defense objection, and that he would reserve final ruling on the lesser-included offense until the close of all testimony.

Slaughter then testified. He stated that on the day of the incident, he was going to his friend’s duplex at 620 Penn when he met Love, who asked him for change for a 10-dollar bill. He said that when he gave her two 5s, she took off running. Slaughter chased her, and she ran into a house three doors down. He waited about 20 minutes for Love to come back outside, and then asked her for the $10. She said that she did not have the money, and that she was going to call the police and tell them that he had robbed her.

Slaughter said that he then went to 610 Penn to call the police. He knocked on the door, and Harris answered. Slaughter told Harris that Love had taken $10 from him, and asked Harris to call the police. Slaughter testified that Jackson, swinging a weighted sock, approached him from the sidewalk. Slaughter said “well, I got a knife in my front pocket and if you assault me or attack me, I'm going to use it,” and then Jackson retreated.

Slaughter also offered the statement of an investigator who had interviewed Greg Lavell Thomas, who was unavailable as a witness during the trial. According to the investigator’s statement, Thomas had known Love for 12 years and was acquainted with Slaughter. Thomas was at 620 Penn on the day of the incident and witnessed a heated argument between Love and Jackson, during which Love accused Jackson of taking money from her. Thomas also saw Slaughter ask Love for the $10 that she owed him. Love yelled at Slaughter, at which point Thomas went back into the house. Thomas’ statement concluded that he “seriously doubts” that Slaughter would try to rob Love, that Love is argumentative and has been “know[n] to make up stories in the past[,]” and “probably made up the robbery story to get [Slaughter] in trouble.”

The court acquitted Slaughter of the two counts of aggravated robbery and one count of simple robbery, having found that the state had not proven beyond a reasonable doubt that Slaughter was armed with a dangerous weapon at the time of the robbery or that force or the threat of imminent force was used during the robbery. The court considered the uncharged theft offense “more problematic.” The court found no witness was particularly credible, but stated: “in areas where there was hard evidence that supported testimony, I am finding it to be credible to an exten[t].” The court considered the recovery of the broken necklaces and scratches on Love’s neck as “absolutely consistent with the testimony that the necklaces were snatched off her neck rather than voluntarily being taken off by her.” Because there was no testimony regarding value, the court valued the necklaces at less than $500. The court found beyond a reasonable doubt that Slaughter “took jewelry from the neck of Stacy Love[,]” and found Slaughter guilty of felony theft.

The court of appeals affirmed Slaughter’s conviction and sentence. We granted review of the conviction but declined review of the sentence.

I.

We first consider the issue of whether the district court erred by denying Slaughter’s motion for judgment of acquittal at the close of the state’s case-in-chief. Minnesota Rule of Criminal Procedure 26.03, subdivision 17(1), provides that a court “shall order the entry of a judgment of acquittal of one or more offenses charged in the tab charge, indictment, or complaint if the evidence is insufficient to sustain a conviction of such offense or offenses.”

A motion for acquittal is procedurally equivalent to a motion for a directed verdict. The test for granting a motion for a directed verdict is whether the evidence is sufficient to present a fact question for the jury’s determination, after viewing the evidence and all resulting inferences in favor of the state. Paradise v. City of Minneapolis, 297 N.W.2d 152, 155 (Minn.1980). The Eighth Circuit has adopted a similar approach for motions to acquit. United States v. Richards, 967 F.2d 1189, 1196 (8th Cir.1992) (“[a] motion for acquittal should be granted only where the evidence, viewed in the light most favorable to the government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged”) (internal quotation and citation omitted).

Slaughter urges us to interpret the district court’s comments, when it ruled on the motion to acquit, as amounting to a reservation of any decision on the motion, not a denial. Such a reservation would violate Minnesota Rule of Criminal Procedure 26.03, subd. 17(2), which reads in relevant part: “If the defendant’s motion is made at the close of the evidence offered by the prosecution, the court may not reserve decision of the motion.” Slaughter relies on the following comments by the district court as showing reservation of the decision on the motion:

I’m going to deny the motion at this time. Denying that, I’m not making any comment on the overall weight and credibility of the evidence, which I’m left to judge at the end of the case.

We recognize the importance of the prohibition against reserving ruling on a motion to acquit. Given the presumption of innocence and the state’s burden to prove the offense, a defendant has no obligation to present any evidence and should not be put at risk of providing evidence that fills gaps in the state’s case. But Slaughter’s argument goes further. He suggests that to avoid violating the rule against reserving decision on a motion to acquit, the court in a bench trial must not only consider the sufficiency of the state’s evidence but also its weight and credibility.

The state responds that the standard for deciding a motion to acquit is the same in a bench trial as in a jury trial. It points out that Rule 26.03, subd. 17(1), which requires acquittal if “the evidence is insufficient to sustain a conviction[,]” makes no distinction between a jury trial and a bench trial. It argues that the sufficiency of the evidence standard does not contemplate that the court will determine the weight and credibility of the evidence but instead requires the court to view the evidence in the light most favorable to the state.

We agree with the state that the district court could properly deny the motion to acquit if it determined that the state’s evidence, when viewed in the light most favorable to the state, was sufficient to sustain a conviction. We also agree that Love’s testimony, corroborated to some extent by Jackson’s testimony and the physical evidence, provided support for the charged offenses.

The state based the first count of aggravated robbery on Slaughter’s possession of a dangerous weapon during the incident. A knife-like object qualifies as a dangerous weapon. See State v. Moss, 269 N.W.2d 732-33, 736 (Minn.1978) (upholding armed robbery conviction where defendant possessed a large pair of scissors during robbery). Both Love and Jackson testified that Slaughter brandished a knife-like object and, upon searching Slaughter, the police found a folding knife wrapped with a plastic bag in his pocket. This evidence was sufficient to sustain a conviction of aggravated robbery.

The state based the second count of aggravated robbery on Slaughter having inflicted bodily harm on Love by causing scratches on her neck during the robbery. Bodily harm is “physical pain or injury, illness, or any impairment of physical condition.” Minn.Stat. § 609.02, subd. 7 (2004). These scratches represent demonstrable physical injury, sufficient to sustain a conviction of aggravated robbery. In addition, thesé scratches provide sufficient evidence of the “use of force” necessary to sustain a conviction of simple robbery. Although a simple purse snatching usually constitutes theft, pushing or grabbing a person during that theft may constitute simple robbery. See State v. Nash, 339 N.W.2d 554, 557 (Minn.1983). Viewing Love’s testimony in the light most favorable to the state, it was sufficient to allow a reasonable fact-finder to find that Slaughter committed simple robbery.

In this context, we interpret the district court’s comments not as reserving decision on the motion to acquit, but as compartmentalizing its decision-making process by denying the motion based on the narrow sufficiency of the evidence standard while recognizing that a broader standard would apply to its fact-finding function at the conclusion of the trial. Accordingly, we conclude that the district court did not err in denying Slaughter’s motion for acquittal.

II.

We now turn to the issue of whether the district court had the discretion to consider and convict Slaughter of the lesser-included offense of theft from the person under Minn.Stat. § 609.52, subds. 2(1) and 3(3)(d)(i) (2004).

We have stated that, in a jury trial, the district court must instruct on a lesser offense if the evidence warrants the instruction. State v. Sessions, 621 N.W.2d 751, 757 (Minn.2001). More specifically, we have said that the court must instruct the jury on a lesser-included offense when: (1) the offense in question is an included offense; and (2) a rational basis exists for the jury to convict the defendant of the lesser-included offense and acquit the defendant of the greater crime. Id.; State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125-26 (1975). The same standard applies in a bench trial. State v. Bouwman, 354 N.W.2d 1, 6-8 (Minn.1984). In fact, in Bomoman, we recognized that the court in a bench trial could grant a.motion to acquit of a greater charged offense but deny the motion as to all lesser-included offenses, including one that was not charged. Id.

Slaughter first argues that Love and Jackson are not to be believed and thus their testimony was not sufficient to support the conviction of theft from person. He presents an alternative explanation of the physical evidence. Slaughter suggests that Love’s necklaces were broken and her neck scratched during the physical altercation she had with Jackson earlier in the day, which was serious enough to involve the police. He argues that Love’s testimony is inconsistent and that Jackson lied to cover up his own responsibility for Love’s injuries. He also argues that Jackson is unreliable because of his frequent use of crack cocaine. Slaughter asserts that his version of the events is supported by the testimony offered by Harris and the police officers.

Although the district court stated that it “didn’t find any of the witnesses particularly credible,” it also stated that it found Love credible to the extent that her testimony was corroborated by the “hard evidence” of scratches on her neck and broken necklaces that were found in various locations between the two houses. Thus, the court could reasonably have rejected Slaughter’s alternative explanation and concluded that Slaughter took the necklaces.

Slaughter next argues that even if there was sufficient evidence to prove that he took Love’s necklaces, there was insufficient evidence to prove that he intended to permanently deprive her of them. Although the court did not specifically find that Slaughter intended to permanently deprive Love of her necklaces, we note that in a trial without a jury, “[i]f the court omits a finding on any issue of fact essential to sustain the general finding, it shall be deemed to have made a finding consistent with the general finding.” Minn. R.Crim. P. 26.01, subd. 2. We have determined that intent is a “subjective state of mind usually established only by reasonable inference from surrounding circumstances.” State v. Schweppe, 306 Minn. 395, 401, 237 N.W.2d 609, 614 (1975). The court reasonably could have concluded that Slaughter intended to permanently deprive Love of her necklace because the evidence supports the inference that he did not return them to her but instead discarded them, broken, between the two houses.

Finally, Slaughter argues that if the testimony of Love and Jackson is to be believed, it was improper to consider theft as a lesser-included offense because there was no rational basis for the court to acquit him of the three robbery charges. Slaughter reasons that the only evidence that he took the necklaces was the testimony of Love and Jackson and that they each testified that he ripped the necklaces from Love’s neck with enough force to leave marks.

Slaughter’s argument assumes a level of precision in fact-finding that is not realistic or required. We conclude that the district court could reasonably weigh the testimony of Love and Jackson in such a way as to provide a rational basis to acquit of robbery. The court could accept the testimony of Love and Jackson that Slaughter took the necklaces but reject their testimony that he did so with sufficient force to constitute robbery. The line between robbery and theft is one that calls for the fact-finder to exercise judgment, particularly when applying a burden of proof of beyond a reasonable doubt. Here, the court was persuaded “beyond a reasonable doubt that [Slaughter] took [the] necklaces,” but was not persuaded “beyond a reasonable doubt that [he] used force or threat of imminent force against Stacy Love to overcome resistance or to compel acquiescence in the taking of the necklaces.” Based on these findings, the district court did not err when it considered and convicted Slaughter of the lesser-included offense of theft from person.

Affirmed.

      . If property is "taken from the person of another[,]” the offense ’ of theft is made a felony under Minn.Stat. § 609.52, subd. 3(3)(d)(i) (2004).

      . Simple robbery requires evidence of the use or threat of imminent use of force, and first-degree aggravated robbery requires evidence that the defendant was armed with a dangerous weapon or inflicted bodily harm. Minn. Stat. §§ 609.24, 609.245, subd. 1 (2004).

      . We also have used the same standard of review for bench trials and jury trials when determining whether the evidence was sufficient to support a conviction. Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999) (citing State v. Hough, 585 N.W.2d 393, 396 (Minn. 1998)).

      . The statute provides: "Whoever, while committing a robbery, is armed with a dangerous weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a dangerous weapon, or inflicts bodily harm upon another, is guilty of aggravated robbery in the first degree[.]" Minn. Stat. § 609.245, subd. 1 (2004).

      .Minnesota Statutes section 609.24 (2004) defines simple robbery: “Whoever, having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person's resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property is guilty of robberyf.] ”

      . Subdivision 2(1) provides that a person commits theft when he "intentionally and without claim of right takes, uses, transfers, conceals or retains possession of movable property of another without the other's consent and with intent to deprive the owner permanently of possession!.]” Subdivision 3(3)(d)(i) makes the theft a felony where the property is “taken from the person of another!.]”

      . Minnesota Statutes section 631.14 (2004) also states that a “defendant may be found guilty of any offense necessarily included in that offense with which the defendant is charged in the indictment or complaint.”