source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    In re the DETENTION OF Loren G. HUSS, Jr. Loren G. Huss, Jr., Appellant.
    No. 02-1642.
    Supreme Court of Iowa.
    Oct. 6, 2004.

      Mark C. Smith, First Assistant State Public Defender, and Greg Bal, Assistant Public Defender, for appellant.

      Thomas J. Miller, Attorney General, and Roxann M. Ryan, Assistant Attorney General, for appellee.
   CARTER, Justice.

Loren G. Huss, Jr., who was acquitted of a charge of first-degree murder by reason of insanity, appeals from a subsequent judgment committing him as a sexually violent predator. He urges that there were procedural irregularities in the commitment proceedings that violated his constitutional rights and further contends that he was subjected to an improper judgment by default as a sanction for his failure to submit to a psychological examination. After reviewing the record and considering the arguments presented, we vacate the challenged orders and remand the case to the district court for further proceedings.

This case is another chapter in a line of appeals regarding Huss’s criminal and civil detainment. Huss was charged with first-degree murder in July of 1986, as a result of his involvement in the death of Marilyn Sheets. Mental examinations of Huss at that time provided a strong indication that, although he was then presently competent to stand trial, he was not aware of the consequences of his actions at the time of Sheets’ death nor able to form the requisite intent to commit murder.

Anticipating a verdict of not guilty by reason of insanity, the State and Huss submitted the case on stipulated facts and agreed to a bench trial. Contrary to the parties’ expectations, the court found that Huss had not established his insanity defense. In order that he not be prejudiced by his jury waiver, the court agreed to set the matter for jury trial on the merits of the murder charge. The jury waiver was withdrawn, and the case proceeded to jury trial. Huss was convicted of first-degree murder on June 22, 1987. His appeal to this court on double-jeopardy grounds was unsuccessful. State v. Huss, 430 N.W.2d 621, 624-25 (Iowa 1988).

Following the affirmance of his conviction in state court, Huss sought a writ of habeas corpus from the United States District Court for the Southern District of Iowa. The federal district court denied that request, but the court of appeals determined that a retrial to a jury of the issues originally submitted for determination at the bench trial violated the double-jeopardy protection of the federal constitution. Huss v. Graves, 252 F.3d 952, 958 (8th Cir.2001). The court further determined, however, that, because the bench trial had been aborted -without a decision on the merits, the matter could be resubmitted for a second bench trial on the same record made at the first bench trial. Id. The second bench trial resulted in a finding of not guilty by reason of insanity. An effort to reassert a double-jeopardy challenge based on the second bench trial was unsuccessful. State v. Huss, 657 N.W.2d 447, 453-54 (Iowa 2003).

The present proceedings to commit Huss as a sexually violent predator were commenced in July of 2001 following the filing of the federal habeas corpus opinion in Huss v. Graves. The Anamosa correctional facility gave written notice pursuant to Iowa Code section 229A.3(1) (2001) that Huss may meet the definition of a sexually violent predator. On July 10, 2001, a multidisciplinary team was convened as provided in Iowa Code section 229A.3(4) and determined that Huss met the definition of a sexually violent predator. The multidisciplinary team so notified the attorney general.

The attorney general, on October 16, 2001, filed the petition to commit Huss that is the subject of the current litigation. The district court made a preliminary determination of probable cause on October 16, 2001, and a renewed determination of probable cause following a formal hearing on February 15, 2002. In conjunction with the latter determination, the court, at the State’s request, ordered Huss to submit to a psychological examination by the State’s designated expert. Other than the procedures to which we have referred, the attorney general’s petition for Huss’s commitment was held in abeyance until the conclusion of both his second bench trial and the mandatory civil commitment hearing that was triggered by the finding of not guilty by reason of insanity. See Iowa R.Crim. P. 2.22(8).

Following the verdict, a rule 2.22(8) hearing resulted in a finding by the district court that Huss was presently dangerous and should be committed for treatment of a bipolar disorder, antisocial personality disorder, and other dangerous mental traits. On an appeal from that ruling, this court found that the evidence that had been presented at the rule 2.22(8) hearing was insufficient because of the absence of a recent overt act and reversed the district court’s order. State v. Huss, 666 N.W.2d 152, 160-62 (Iowa 2003).

Following the district court’s ruling on the rule 2.22(8) commitment issue, and before the determination of that issue on appeal, Huss filed a motion to dismiss the pending petition for commitment as a sexually violent predator. The district court denied that motion. The grounds for the motion were that the State did not comply with the procedural requirements of section 229A.3(l)(c). Huss’s primary contentions in that regard were that (1) following the vacation of his conviction by the federal court of appeals, he was no longer in the legal custody of the Anamosa correctional facility; and (2) the attorney general’s petition was prematurely filed. Both of these contentions are reasserted as issues on this appeal. On March 26, 2002, Huss filed a motion for an order allowing his attorney to be present during any psychological evaluation that would be undertaken of him at the State’s request. This request was denied, and the ruling has not been made an issue on appeal.

Huss later refused to submit to a psychological evaluation by the State’s designated expert on the ground, among others, that this would defeat the constitutional protection afforded him by Iowa Code section 229A.7(1). On June 25, 2002, Huss filed a motion to dismiss the present proceeding on the grounds that the trial had not been held within ninety days of the probable-cause hearing as specified in Iowa Code section 229A.7(2). The district court denied that motion. This ruling has been made an issue on appeal.

The district court set a date of October 4, 2002, for the statutory hearing required by Iowa Code section 229A.7(1). Eight days later the court ruled that, as a sanction for Huss’s refusal to submit to a psychological examination, the elements that the State had to prove at the section 229A.7(1) hearing and at the final hearing under section 229A.7(2) (see Iowa Code section 229A.7(3)) would be deemed to have been established. That ruling served as the foundation for an October 21, 2002 ruling granting the State’s motion for a summary judgment ordering Huss’s commitment as a sexually violent predator. Other facts and procedural history of importance will be provided in our discussion of the legal issues presented on the appeal.

I. Procedural Challenges.

A. Custody issue. Iowa Code section 229A.3(1) provides:

1. When it appears that a person who is confined may meet the definition of a sexually violent predator, the agency with jurisdiction shall give written notice to the attorney general and the multidisciplinary team established in subsection 4, no later than ninety days prior to any of the following events:
a. The anticipated discharge of a person who has been convicted of a sexually violent offense from total confinement, except that in the case of a person who is returned to prison for no more than ninety days as a result of revocation of parole, written notice shall be given as soon as practicable following the person’s readmission to prison.
b. The discharge of a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial pursuant to chapter 812.
c. The discharge of a person who has been found not guilty by reason of insanity of a sexually violent offense.

Huss contends that, under this statute, only the agency with legal custody of a person in penal confinement may give notice of an impending discharge to the attorney general and the multidisciplinary team. In this case, Huss urges, the agency with jurisdiction would have been the Polk County Sheriff and not the Anamosa correctional facility. According to Huss’s argument, that is because prior to the giving of the notice the conviction for which he had been incarcerated was set aside by a federal court, and he was awaiting a new trial on the charge.

The answer to Huss’s contention is, as the State points out, that the giving of notice under section 229A.3(1) is not an essential step in the process for filing a petition under section 229A.4(1). The notice provided is only intended to be a heads-up to an approaching discharge date in case a determination to file a section 229A.4(1) petition appears to be a possibility-

13, 4] B. Premature filing. Huss argues that the filing of the attorney general’s petition was premature because it was done prior to the time that he was found not guilty by reason of insanity, a triggering event for such petitions. The answer to this contention is that this is not the only triggering event for the filing of a petition under section 229A.4. The argument confuses a petition filed pursuant to section 229A.4(1) with a petition filed under section 229A.7(2). Petitions filed under the former paragraph need not be related to or influenced by a finding of not guilty by reason of insanity. All that is necessary for a section 229A.4(1) filing is a determination that “it appears that a person presently confined may be a sexually violent predator and the prosecutor’s review committee has determined that the person meets the definition of a sexually violent predator.... ” These requirements were adhered to in the present case.

C. Failure to hold final hearing within ninety days of probable-cause determination. Iowa Code section 229A.7(2) provides:

2. Within ninety days after either the entry of the order waiving the probable cause hearing or completion of the probable cause hearing held under section 229A.5, the court shall conduct a trial to determine whether the respondent is a sexually violent predator. The respondent or the attorney for the respondent may waive the ninety-day trial requirement as provided in this section; however, the respondent or the attorney for the respondent may reassert a demand and the trial shall be held within ninety days from the date of filing the demand with the clerk of court. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced.

Huss maintains that he was prejudiced by a failure to hold the final hearing within ninety days of the probable-cause determination. As we have noted, Huss has heretofore refused to submit to the psychological evaluation mandated by Iowa Code section 229A.5(5). This examination is a critical stage in the proceedings, and its absence would have substantially prejudiced the State. That fact alone justifies the action of the district court in delaying the final hearing.

II. Preclusive Effect of Decision in Rule 2.22(8) Commitment Proceeding.

Huss urges that the basis for holding him in future confinement has been resolved against the claims of the State by our decision in State v. Huss, 666 N.W.2d 152 (Iowa 2003). As we have noted, the determination in that case was premised on the lack of a recent overt act, which was deemed to be necessary for a rule 2.22(8) commitment. As discussed in a subsequent division of this opinion, the existence of a recent overt act is not an essential requirement with respect to a petition for commitment as a sexually violent predator filed under Iowa Code section 229A.4(1). In re Detention of Gonzales, 658 N.W.2d 102, 104-05 (Iowa 2003). Consequently, Huss’s preclusion issue must fail.

III. Sanctions for Refusal to Submit to a Psychological Examination.

The primary issue on appeal is Huss’s challenge to the sanction imposed by the district court for his refusal to submit to a psychological examination. As Huss correctly notes, that ruling had the effect of a default judgment, as it determined that all matters that the State had to establish at the section 229A.7(1) hearing and at the final hearing under section 229A.7(2) would be deemed to have been established. The ruling provided the foundation for a summary adjudication that Huss was a sexually violent predator and should be committed as such.

Discovery sanctions are reviewed under an abuse-of-discretion standard. Krugman v. Palmer Coll, of Chiropractic, 422 N.W.2d 470, 473 (Iowa 1988); Suckow v. Boone State Bank & Trust Co., 314 N.W.2d 421, 425 (Iowa 1982). In attacking the sanctions that served to default him on the State’s commitment petition, Huss asserts that a default judgment or the equivalent thereof should be used sparingly and only in extreme situations and should not be used if an alternative, less drastic sanction is just as effective. Our rules of civil procedure provide:

When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a health care practitioner or to produce for examination the person in the party’s custody or legal control.

Iowa R. Civ. P. 1.515. Prior to imposing the challenged sanctions, the court had entered an order requiring Huss to submit to a mental examination by a health-care practitioner of the State’s selection, as required by Iowa Code section 229A.5(5). This was the equivalent of a discovery order of the type specified in rule 1.515. Huss refused to comply with this order.

Sanctions available for failure to comply with discovery orders include the following:

An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order, and
An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting such party from introducing designated matters in evidence.

Iowa R. Civ. P. 1.517(2)(5 )(1), (2). We are satisfied that, if Huss’s refusal to be examined was undertaken without any colorable excuse, the drastic sanction invoked by the district court would have been entirely proper as it pertained to the determination of his sexually violent predator status under section 229A.7(2). The examination that had been ordered is an essential step in the proceedings and is mandated by section 229A.5(5). It is very probable that such examination would be necessary in order for the State to prove its claim. The only effective sanction to keep Huss’s continued recalcitrance from blocking the State’s ability to prove its case would be to consider the elements that the examination might have revealed as being established.

On the other hand, it was indicated prior to imposition of the sanctions that Huss’s refusal was only temporary and that he would consent to be examined following the section 229A.7(1) hearing. It was his belief that the question of whether he had been charged with a sexually violent offense would be determined at that hearing, and he viewed this issue as potentially outcome determinative. The district court believed that the statutory element of “having been convicted of or charged with a sexually violent offense” could be established by resort to Huss’s 1981 conviction for sexual abuse and perhaps by showing that the facts on which a 1980 robbery conviction was based involved an attempt to commit sexual abuse. The district court was not correct in that belief. The attorney general’s petition against Huss was filed pursuant to Iowa Code section 229A.4(1), which is a statute dealing with persons who are “presently confined.” In Gonzales, 658 N.W.2d at 104-05, we held that, in order for a petition to be filed under the “presently confined” alternative, the current confinement must be for a sexually violent offense. Gonzales, 658 N.W.2d at 104-05. That is because under section 229A.4(1) the offense leading to the current confinement may be a substitute for the requirement of showing a recent overt act if it was a sexually violent offense. Id. Filing a petition under the alternative provided in section 229A.4(2) was not an option for the State in the present case because of the absence of a recent overt act. Consequently, if, at the time the attorney general’s petition was filed, Huss was not being held for a sexually violent offense, the petition was not authorized, and he must be released.

Huss contended that, as a result of the protections that section 229A.7(1) borrows from criminal jurisprudence and elevates to rules of evidence, his right to avoid potential adverse findings at the section 229A.7(1) hearing might be compromised by submitting to the proposed examination at which, it appears without dispute, he would have been extensively interrogated. The State and the district court read section 229A.7(1) as only providing the subject of a hearing under that statute with protection against self-incrimination in future criminal prosecutions. Huss maintains that the statute at issue here protects him from self-incrimination with regard to possible adverse findings in the section 229A.7(1) hearing. We are satisfied .that Huss has the better argument on this issue.

In determining the meaning of statutes, we follow the rule that laws are to be interpreted in a manner consistent with the purpose with which they were intended to serve. Goodenow v. City Council of Maquoketa, 574 N.W.2d 18, 25 (Iowa 1998); Probasco v. Iowa Civil Rights Comm’n, 420 N.W.2d 432, 434 (Iowa 1988). Section 229A.7(1) elevates the borrowed constitutional rights to rules of evidence for purposes of the section 229A.7(1) hearing. By doing this, the legislature must have intended to establish the rules of evidence that are to be applied at the civil hearing required by section 229A.7(1). The State avowed that it intended to use the examination results at this hearing. Although any misgivings that Huss entertained concerning the denial of these borrowed constitutional rights could have been obviated by a directive from the court that the results of the examination could not be used as evidence in the section 229A.7(1) hearing, the only immunity that the court granted Huss was with regard to future criminal prosecutions. Based on the circumstances that existed, we find that Huss did have a colorable excuse for not submitting to the examination prior to the conclusion of the section 229A.7(1) hearing.

The State, Huss, and the district court all perceived that the issues to be determined at the section 229A.7(1) hearing included a determination of whether the murder offense for which Huss was tried was a sexually violent offense. Our reading of the statute convinces us that this was not a matter to be determined at that hearing. We do not consider one portion of the statute in isolation but, rather, interpret it in context with other portions of the act. In re B.B., 516 N.W.2d 874, 878 (Iowa 1994); John Deere Dubuque Works v. Weyant, 442 N.W.2d 101, 104 (Iowa 1989). The statute provides that, when a person has been found not guilty of “a sexually violent offense” by reason of insanity, “the court shall first hear evidence and determine whether the person did commit the act or acts charged.” Iowa Code § 229A.7(1).

Under the definition of a sexually violent offense contained in Iowa Code section 229A.2(8), some crimes are sexually violent per se. Other crimes, although not sexually violent per se, may be shown to be such if they involve “sexual abuse, attempted sexual abuse, or intent to commit sexual abuse,” see Iowa Code § 229A.2(8)(6), or involve acts which have been determined beyond a reasonable doubt to have been sexually motivated. See Iowa Code § 229A.2(8)(#). With respect to that category of crimes that are not sexually violent offenses per se, this determination may be made “during civil commitment proceedings pursuant to [Iowa Code chapter 229A].” Id. We must decide at what stage of the proceedings this determination is most properly to be made. The argument that most strongly supports having the “sexually violent offense” determination made at the section 229A.7(1) hearing is that under the statute there is no authority to hold that hearing unless a sexually violent offense is involved. That argument would be very persuasive were it not for another eonsid-eration that tilts our decision in the other direction.

The definition of a sexually violent predator is as follows:

[A] person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.

Iowa Code § 229A.2(11). Having been convicted of or charged with a sexually violent offense is an element that the State must prove in order to successfully establish that a subject should be committed as a sexually violent predator. In the present case, as we have previously noted, this must have been in regard to the offense for which Huss was confined at the time the petition was filed. The hearing provided in section 229A.7(1) is a trial to the court. The final hearing at which it is to be determined whether the subject is a sexually violent predator contemplates a right to jury trial. We are persuaded that the critical issue of whether Huss was charged with a sexually violent offense is more properly to be determined at the final hearing under section 229A.7(2) wherein the right to jury trial is available. The right to jury trial would be substantially diluted if an important element in the determination of sexually violent predator status could be determined in a preliminary bench trial.

Notwithstanding our conclusion as to when this issue should be determined, Huss’s view of that matter at the time of the discovery dispute, which was shared by the State and the district court, created a situation in which he had reason not to subject himself to the examination until the section 229A.7(1) hearing was completed. This circumstance, coupled with his willingness to submit to the examination prior to the final hearing, convinces us that the district court’s sanctions should not be allowed to stand.

We vacate the district court’s sanction order and also vacate the order granting summary judgment. The case is remanded to the district court for further proceedings, which shall include (1) establishing a time for Huss to be examined, (2) fixing a section 229A.7(1) hearing date, and (3) fixing a final hearing date that shall afford the parties sufficient time to request a trial by jury as provided in Iowa Code section 229A.7(3). The time for Huss’s psychological examination need not await the conclusion of the section 229A.7(1) hearing. All costs of appeal are assessed to the State.

ORDERS VACATED AND CASE REMANDED.

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

      . Iowa Code section 229A.7(1) provides that, if a person charged with a sexually violent offense has been found not guilty by reason of insanity, "the court shall first hear evidence and determine whether the person did commit the act or acts charged.” Iowa Code § 229A.7(1). The statute further provides:
      At the hearing on this issue, the rules of evidence applicable in criminal cases shall apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, shall apply.

        Id.

      . These protections borrowed from criminal jurisprudence have not been extended to the final hearing under Iowa Code section 229A.7(2).


author: STREIT, Justice.

text:
    Lisa SMITH, Appellant, v. SHAGNASTY’S INC. d/b/a Shagnasty’s, Appellee.
    No. 03-1010.
    Supreme Court of Iowa.
    Oct. 6, 2004.

      Hugh G. Albrecht of the Tom Riley Law Firm, P.L.C., Cedar Rapids, for appellant.
    Jennifer E. Rinden of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appel-lee.
   STREIT, Justice.

An unidentified drunk woman in a bar whacked another patron about the face with a beer bottle. The injured patron sued the bar under Iowa’s dramshop statute. The district court threw out her lawsuit because on the facts presented a jury could not reasonably conclude the bar sold and served the assailant alcohol and did so when it knew or should have known she was or would become intoxicated. The court of appeals found sufficient evidence of a sale and service, but held the evidence of the bar’s knowledge insufficient and affirmed. Because we think the plaintiff has generated a genuine issue of material fact on both issues, we reverse and remand for further proceedings.

I. Facts and Prior Proceedings

Viewed in a light most favorable to the plaintiff, Lisa Smith, the facts are as follows:

In the early morning hours of August 18, 2001, Lisa Smith and her friend, Susan Isaac, ventured out to Shagnasty’s (a/k/a “Shag’s”), a bar in Cedar Rapids, to celebrate their upcoming birthdays. Upon arrival, they found Shagnasty’s swarming with humanity. Smith and Isaac walked around the bar, surveying the terrain, and promptly headed for the restroom.

Somewhere in the vicinity of the toilets, Smith encountered an unidentified female (“Jane Doe”). Smith later recalled what transpired:

I was standing there and [Jane Doe] ... pushed me. She was going to look in the mirror ... and I was in the way. And I didn’t say anything to her.... She pushed me again and I said, “Excuse you,” and she walked out saying, “I don’t have to say excuse you, bitch”....

According to Isaac, Smith was not the only person Doe ran into that night. Doe “was bumping into everybody” as she left the restroom.

After a brief interlude, Smith and Isaac walked out of the restroom together. They found Doe waiting. Doe was muttering something unintelligible under her breath and holding a beer bottle in her hand. It seems she had acquired the beer after leaving the restroom. Smith and Isaac concluded Doe was intoxicated.

Smith asked Doe why she had spoken to her so rudely in the restroom. Doe, whom Smith later characterized as a “loudmouth,” “got smart” with Smith and retorted “F* * * you, bitch, I don’t have to say excuse me.” In light of Doe’s intoxication, Smith did not want to “get smart back.” In reply, Smith simply lobbed the pervasive retort of our times, “whatEVER,” and walked away.

Without warning, Doe hit Smith upside the face with her beer bottle, slicing up Smith’s face. Recoiling from the blow, Smith started to fall. On her way down Smith managed to grab Doe’s hair. A fight ensued.

Five Shagnasty’s bouncers sprang into action. They tried to separate the two, but Smith refused to let go of Doe’s hair unless the bouncers promised to detain Doe until police arrived. The bouncers eventually agreed, and Smith let loose her grip on Doe’s locks. The bouncers pulled Smith out of a sea of hair and blood and rushed her off to a back room.

By the time the police arrived the bouncers had let Doe slip into the night. Doe was never identified. A cocktail waitress at Shagnasty’s later intimated to Smith’s cousin that the unidentified assailant was underage.

Smith sued Shagnasty’s under Iowa’s dramshop statute. See Iowa Code § 123.92 (2001) (providing cause of action for injuries sustained as a result of bar patron’s intoxication). She sought recovery for injuries to her left eye and lip.

The district court granted Shagnasty’s motion for summary judgment. Passing on the threshold question of whether Doe was intoxicated at the time of the attack, the court ruled Smith had failed to generate a genuine issue of fact as to whether Shagnasty’s (1) sold and served an intoxicating liquor to Doe or (2) knew or should have known Doe was or would become intoxicated at the time of service.

Smith appealed. The court of appeals held Smith had generated a genuine issue of fact as to whether (1) Doe was intoxicated and (2) Shagnasty’s sold and served Doe alcohol. The court affirmed the district court’s grant of summary judgment, however, because it concluded the record contained no “substantive evidence from which it could be shown or inferred that employees of Shagnasty’s observed [Doe’s behavior] or otherwise knew she was or would become intoxicated” at the time of service. See id. (plaintiff must show liquor licensee or permittee “sold and served any beer, wine, or intoxicating liquor to the intoxicated person when [it] knew or should have known the person was intoxicated, or who sold to and served the person to a point where [it] knew or should have known the person would become intoxicated” (emphasis added)). Smith sought further review, which we granted.

II. Standard of Review

Review of a grant of summary judgment is for correction of errors at law. See Delaney v. Int'l Union UAW Local No. 91, 675 N.W.2d 832, 834 (Iowa 2004) (citation omitted). “Summary judgment is proper only if the record made shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Id.; accord Iowa R. Civ. P. 1.981(3). We view the record “in the light most favorable to the resisting party, affording that party all reasonable inferences that the record will bear.” Delaney, 675 N.W.2d at 834 (citation omitted). In sum, we “indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question.” Coralville Hotel Assocs., L.C. v. City of Coralville, 684 N.W.2d 245, 247-48 (Iowa 2004) (quoting Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000)).

An inference is legitimate if it is “rational, reasonable, and otherwise permissible under the governing substantive law.” On the other hand, an inference is not legitimate if it is “based upon speculation or conjecture.”

McIlravy v. N. River Ins. Co., 653 N.W.2d 323, 328 (Iowa 2002) (citations omitted).

The burden of showing the nonexistence of a fact question rests with the moving party. See Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 677 (Iowa 2004). “If reasonable minds may differ on the resolution of an issue, a genuine issue of material fact exists.” McIlravy, 653 N.W.2d at 328.

III. Merits

Iowa’s dramshop statute provides a remedy against a licensee or per-mittee for injuries sustained as a result of the sale and service of alcohol to an intoxicated person. Grovijohn v. Virjon, Inc., 643 N.W.2d 200, 203 (Iowa 2002). The statute provides as follows:

Any person who is injured ... by an intoxicated person ... has a right of action for all damages ... against any licensee or permittee ... who sold and served any beer, wine, or intoxicating liquor to the intoxicated person when the licensee or permittee knew or should have known the person was intoxicated, or who sold to and served the person to a point where the licensee or permittee knew or should have known the person would become intoxicated.

Iowa Code § 123.92. The dramshop statute is designed to “place a hand of restraint” on those authorized to sell and serve intoxicating liquors. Thorp v. Casey’s Gen. Stores, Inc., 446 N.W.2d 457, 467 (Iowa 1989) (quoting Atkins v. Baxter, 423 N.W.2d 6, 9 (Iowa 1988)). We thus construe our dramshop statute “liberally to discourage the selling of excess liquor.” Id.

At various stages in the litigation of this case, Shagnasty’s has challenged three elements of Smith’s claim. These three elements are: (1) whether Doe was intoxicated; (2) whether Shagnasty’s “sold and served” Doe alcohol; and (3) whether the requisite knowledge or scienter can be attributed to Shagnasty’s. We now examine each issue in turn. See Bokhoven v. Klinker, 474 N.W.2d 553, 557 (Iowa 1991) (“[W]e may review any or all of the issues initially raised on appeal ... whether or not they are specifically brought to our attention in the applications for further review.”); cf. State v. Doggett, 687 N.W.2d 97, 99 (Iowa 2004) (declining to address all issues); State v. Powell, 684 N.W.2d 235, 237-38 (Iowa 2004) (same).

A. Doe’s Intoxication

As the court of appeals recognized, there is ample evidence from which a jury could conclude Doe was intoxicated at the time of her attack upon Smith. Although intoxication is a somewhat nebulous concept,

A person is .... intoxicated when one or more of the following are true:
(1) the person’s reason or mental ability has been affected; (2) the person’s judgment is impaired; (3) the person’s emotions are visibly excited; and (4) the person has, to any extent, lost control of bodily actions or motions.

Garcia v. Naylor Concrete Co., 650 N.W.2d 87, 90 (Iowa 2002) (defining intoxication for purposes of defense to workers’ compensation award) (quoting Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 355 (Iowa 1995) (defining intoxication for purposes of an insurance-policy exclusion)); accord State v. Pierce, 65 Iowa 85, 88, 21 N.W. 195, 197 (1884) (“[A] person is drunk in legal sense when he is so far under the influence of intoxicating liquor that his passions are visibly excited or his judgment impaired by the liquor.”); State v. Huxford, 47 Iowa 16, 18 (1877) (‘When any person, from the use of intoxicating liquors, has affected his reason or his faculties, or has rendered him incoherent of speech, or has caused him to lose control in any manner, or to any extent, of the action or motions of his person or body, such person, in contemplation of law, is intoxicated.”) Evidence of a person’s blood-alcohol level, if available, is important evidence of intoxication. Garcia, 650 N.W.2d at 90; Benavides, 539 N.W.2d at 355.

“No particular degree of intoxication is required.” Benavides, 539 N.W.2d at 355. “[T]here are degrees of intoxication varying all the way from slight stimulation to complete coma.” State v. Yates, 132 Iowa 475, 478, 109 N.W. 1005, 1006 (1906). Utilizing the four Garcia/Be-navides subjects of inquiry, the question is simply whether the person is “under the influence of liquor so as not to be ... [herself], so as to be excited from it, and not to possess the clearness of intellect and that control of [herself] that [she] otherwise would have.... ” Benavides, 539 N.W.2d at 355 (quoting State ex rel. Cosson v. Baughn, 162 Iowa 308, 311, 143 N.W. 1100, 1101 (Iowa 1913)).

In the case at bar, there is a genuine issue of material fact as to whether Doe was intoxicated at the time of her attack upon Smith. Smith and Isaac thought Doe was intoxicated. Doe was a “loudmouth” who hurled opprobrious epithets at Smith. Cf. Horak v. Argosy Gaming Co., 648 N.W.2d 137, 148 (Iowa 2002) (“increasingly loud and obnoxious” behavior evidence of intoxication for dramshop claim); Baughn, 162 Iowa at 312, 315, 143 N.W. at 1101, 1102 (mayor “repeatedly made use of expressions such as ‘damn it,’ ‘God damn,’ ‘sons of bitches,’ and the like”; sufficient evidence a mayor, in 1913, was intoxicated, thus warranting removal from office, when “he used profane language and indulged in opprobrious epithets, and talked so loudly that he could be heard far away”). Doe was also “bumping into everybody” in the restroom. Cf. Baughn, 162 Iowa at 313, 143 N.W. at 1102 (pointing out intoxicated man could not stand steadily). Her actions culminated in a sudden and vicious attack upon another human being. Cf. Catania v. 124 In-To-Go, Corp., 287 A.D.2d 476, 731 N.Y.S.2d 207, 208 (App.Div.2001) (proof of intoxication where assailant suddenly turned around and struck plaintiff in head with brass knuckles). Importantly, Doe was holding a beer in a bar that sold alcohol. This fact tends to show that alcohol may have played a role in Doe’s actions, and not some other substance. In sum, there was sufficient evidence to show Doe was intoxicated, and summary judgment for want of proof on this issue is not justified.

B. The “Sold and Served” Requirement

One can also legitimately infer Shagnasty’s “sold and served” beer to Doe. Doe was holding a beer in a bar that sold beer. That Smith has not mustered any direct evidence that a particular Shag-nasty’s employee served Doe this beer is not fatal to her claim. A plaintiff need not produce the actual server or servers of the alcohol in order to prove a dramshop claim. Horak, 648 N.W.2d at 148. Circumstantial evidence is equally probative as direct evidence. Iowa R.App. P. 6.4(6)(p).

A plaintiff may meet [the “sold and served” requirement with proof] that an establishment where alcohol is sold generally holds itself out as a place where persons are “served” in the ordinary sense of the word, i.e., one providing premises where orders are taken, patrons are waited on, and drinks are supplied in open containers.

Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 346 (Iowa 1991); see also Iowa Code § 123.110 (“It shall not be necessary in every case to prove payment in order to prove a sale within the meaning and intent of this chapter.”). Shagnasty’s does not dispute that it is such an establishment. For these reasons, the district court’s grant of summary judgment to Shag-nasty’s on the “sold and served” element of Smith’s dramshop claim was improper.

C. Scienter

The thorniest issue in this case is whether Smith can prove Shagnasty’s sold and served Doe alcohol with the level of knowledge or scienter required by our dramshop statute. The court of appeals held there was no substantive evidence in the record from which a jury might reasonably infer employees of Shagnasty’s knew or should have known Doe was or would become intoxicated at the time of service. The court recognized the fact Shagnasty’s let Doe abscond could give rise to an unfavorable “spoliation inference,” but determined this inference, standing alone, was insufficient to generate a jury question. Cf. 29 Am. Jur. 2d Evidence § 244 (1994) (spoliation inference, i.e., an inference arising from the intentional destruction of evidence within a party’s control, “does not amount to substantive proof and cannot take the place of proof of a fact necessary to the other party’s cause”).

We conclude the facts and circumstances of this case are sufficient to generate a jury question as to whether Shagnasty’s knew or should have known at the time of service that Doe was or would become intoxicated. We do not decide whether spoliation evidence standing alone is sufficient to withstand a motion for summary judgment.

As the legislature’s use of the locution “known or should have known” demonstrates, proof of scienter in a dram-shop action may be shown by employing “either a subjective or an objective standard in establishing the defendant’s knowledge.” Hobbiebrunken v. G & S Enters., Inc., 470 N.W.2d 19, 22 (Iowa 1991). For example, we have upheld a jury instruction that required the plaintiff in a dramshop action to show “the defendant must have [had] actual knowledge or that a reasonably observant person under the same or similar circumstances would have had knowledge.” Id. Insofar as proof of a defendant’s subjective intent is pursued, it must be remembered that “[d]irect proof of the intent with which an act was committed is not to be had in many cases, and, when that is true, circumstantial evidence may be sufficient.” State v. Debolt, 104 Iowa 105, 110, 73 N.W. 499, 500 (Iowa 1897); see Horak, 648 N.W.2d at 148. We must also reiterate that Smith does not need to prove the actual server of the alcohol in order to prevail on her dram-shop claim. Horak, 648 N.W.2d at 148.

Two inferences, taken together, lead us to the conclusion that there is a genuine issue of material fact on the scienter requirement of Smith’s dramshop claim. The first inference arises from Doe’s intoxicated condition shortly after the apparent time of service; the second redounds from the bouncers’ actions that resulted in Doe’s unknown identity.

1. Subsequent Intoxicated Condition Inference

As indicated earlier in this opinion, at the time of the attack a jury could reasonably find (1) Doe was intoxicated and (2) Shagnasty’s sold and served her alcohol. If one also bears in mind the commonsense inference that the solitary beer in Doe’s hand at the time of the attack did not solely cause her intoxication, then an inference arises that at the time of service Shagnastsy’s knew or should have known Smith was or would become intoxicated. In affording Smith all legitimate inferences, we simply recognize that if (1) one beer does not a drunk make, (2) Shag-nasty’s sold and served Doe a beer, and (3) Doe was shortly thereafter in a visibly intoxicated condition, then it stands to reason that (4) Doe was also noticeably intoxicated at the time of service. Moreover, if a patron was likely visibly intoxicated at the time of service, a jury could find (5) the bar knew or, at the very least, should have known of her intoxication. As the Indiana Court of Appeals recently recognized,

when viewed most favorably to the non-moving party, the fact that [a bar] served even one beer to a person who shortly thereafter was in a state of serious intoxication gives rise to a question of fact whether [the intoxicated person] was visibly intoxicated at the time [of service].

Ward v. D & A Enters. of Clark County, Inc., 714 N.E.2d 728, 730 (Ind.Ct.App.1999) (emphasis added). But see Richard Smith, Note, A Comparative Analysis of Dramshop Liability and a Proposal for Uniform Legislation, 25 J. Corp. L. 553, 559 (2000) (“[Testimony of the intoxicated person’s demeanor at the time of injury is often held insufficient to establish the person’s condition when the dramshop sold the alcohol.”). We recognize that such a “subsequent intoxicated condition inference” might not be appropriate in every case, but in this case the inference is warranted because of the presumably short timeframe between service and the attack: for at the time of the attack, Doe was still in the bar, holding a beer, in a visibly intoxicated state. In this case, the inference tends to show that when Shagnasty’s sold and served Doe the beer in question, Shagnastsy’s knew or should have known she (1) was already intoxicated or (2) would become intoxicated.

2. An Unidentified Assailant

The conclusion that Shagnasty’s sold and served Doe alcohol when it knew or should have known Smith was intoxicated or would become intoxicated is bolstered when one also considers the evidence in the record that tends to show Shagnasty’s intentionally let Doe abscond after agreeing to hold her. Although the court of appeals framed this second supporting inference as a matter of “spoliation,” at this stage in the proceedings we need not entangle ourselves in that thorny doctrine. See State v. Hartsfield, 681 N.W.2d 626, 630 (Iowa 2004) (“[T]he general principle [is] that when evidence is intentionally destroyed, ‘the fact finder may draw the inference that the evidence destroyed was unfavorable to the party responsible for its spoliation.’ ” (Citation omitted.)); see, e.g., The Bermuda, 70 U.S. (3 Wall.) 514, 550, 18 L.Ed. 200, 204 (1865) (burning letters and throwing boxes overboard “warranted] the most unfavorable inferences as to [ship’s] ownership, employment, and destination”); Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450-51 (4th Cir.2004) (discussing applicability of spoliation inference where employee of corporation allowed witness to leave scene of personal injury accident unidentified). Viewing the facts in a light most favorable to Smith, we simply think that one could -infer that Shagnasty’s sold and served Doe alcohol when it knew or should have known Doe was or would become intoxicated from the fact that Doe was allowed to leave before she was identified. Doe’s condition — let alone her potential testimony — would clearly have been admissible evidence at trial. In fact, there is evidence the bouncers intentionally let Doe abscond; Doe was permitted to leave after the bouncers assured Smith they would detain Doe until police arrived. Even if the bouncers did not have the authority to detain Doe, they could have, at the very least, obtained identifying information from Doe in lieu of the promised detention of Doe, so Smith could ascertain the identity of her assailant. In short, one could conclude Shag-nasty’s gave Smith the run-around. Cf. Hartsfield, 681 N.W.2d at 631-33 (evidence of spoliation in criminal case where jailhouse video tape destroyed). As a result, this potential evidence was lost when Doe was permitted to leave the bar before police arrived. For this reason, a jury could infer an admission by conduct of the weakness of Shagnasty’s case, i.e., that Shag-nasty’s sold and served Doe alcohol when it knew or should have known Doe was or would become intoxicated.

In sum, we hold that two inferences, taken together, lead us to the conclusion that a reasonable jury could find a genuine issue of material fact on the scienter requirement of Smith’s dramshop claim. The first inference arises from Doe’s intoxicated condition shortly after the presumed time of service, the second from the bouncers’ actions that resulted in Doe’s unknown identity. Summary judgment on the issue of scienter was not proper.

IV. Conclusion

We vacate the decision of the court of appeals and reverse the district court judgment. When viewed in a light most favorable to Smith, we think she has generated a genuine issue of material fact on three elements of her claim, i.e., whether (1) Doe was intoxicated; (2) Shagnasty’s sold and served Doe alcohol; and (3) Shag-nasty’s did so when it knew or should have known Doe was intoxicated or would become intoxicated. Summary judgment was not proper, and the case must be remanded for further proceedings not inconsistent with this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

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

      . For example,
      A man is said to be dead drunk when he is perfectly unconscious — powerless. He is said to be stupidly drunk when a kind of a stupor comes over him. He is said to be staggering drunk when he staggers in walking. He is said to be foolishly drunk when he acts the fool. All these are cases of drunkenness — of different degrees of drunkenness.

        State ex rel. Cosson v. Baughn, 162 Iowa 308, 311, 143 N.W. 1100, 1101 (Iowa 1913) (quoting Elkin v. Buschner, 16 A. 102, 104 (Pa.1888)).

      . To borrow from the verbiage of Baughn, there is sufficient evidence to show Doe was stupidly, staggering, and foolishly drunk (but not dead drunk).

      . As a consequence, nothing in this opinion should be construed as mandating a spoliation instruction or the factfinder's drawing of a spoliation inference after such an instruction.

      . Indeed, there is no reason why this inference must be limited to the scienter issue. Because the inference is, in essence, an admission by conduct of the weakness of Shag-nasty's case, it also bolsters Smith's claims that (1) Doe was intoxicated and (2) Shag-nasty's sold and served Doe alcohol.