author: MEIERHENRY, Justice.

text:
    2003 SD 41
    STATE of South Dakota, Plaintiff and Appellee, v. Ronald Louis TALARICO, Defendant and Appellant.
    No. 22334.
    Supreme Court of South Dakota.
    Argued Jan. 14, 2003.
    Decided April 16, 2003.

      Lawrence E. Long, Attorney General, Patricia Archer, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Suzanne M. Dardis, Hood, Nies & Dar-dis, Spearfish, for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Ronald Talarico (Talarico) appeals his convictions for one count of grand theft, three counts of third degree burglary and one count of first degree petty theft on March 18, 2002. We affirm.

FACTS

[¶ 2.] This case arises from charges brought against Talarico in Meade County, South Dakota. He and his companion Judy Lakin (Lakin) embarked on a car trip that took them from California through several states arriving in Sturgis, South Dakota, in August 2001 for the motorcycle rally. Evidence at trial, indicated they had financed their cross-country trip by pawning items acquired from several burglaries and thefts in the course of the trip. Meade County law enforcement first became aware of Talarico and Lakin when called to a domestic dispute disturbance at a Burger King restaurant in Sturgis. When the officers arrived, Talarico sped away in his vehicle hitting an occupied vehicle and after a short pursuit, was apprehended. From this incident he was charged with aggravated assault, simple assault, reckless driving, eluding a police vehicle, and failure to stop his vehicle after an accident.

[¶ 3.] Lakin, when speaking with law enforcement officers, told them about burglaries and thefts she and Talarico had committed in the area. She showed them the sites of three burglaries in Meade County. The officers were able to recover some of the stolen items that had been pawned. As a result of this information, Talarico was charged with three counts of third degree burglary, two counts of grand theft, and one count of petty theft. He requested and was given a court appointed attorney for both indictments. Being unsatisfied with the court appointed attorney, Talarico requested new counsel. The trial court granted his request and another attorney was appointed to represent him. Consistently throughout the pre-trial proceedings, Talarico complained about his representation. Each time he complained, the trial court specifically canvassed Talar-ico as to the specifics of his complaints. Finding no merit to them, the court refused to substitute counsel a second time.

[¶ 4.] On December 10, 2001, court-appointed counsel went to see Talarico at the Meade County jail. Talarico informed the attorney that he no longer considered him his attorney. A hearing was held on January 7, 2002. A jury trial on the assault charges was to begin two days later. At this hearing Talarico again expressed his discontent with his attorney and requested new counsel. Once more Talarico stated lack of communication, failure to contact witnesses, and the attorney’s personal preference not to represent him as reasons to substitute counsel. When the trial court inquired further into Talarico’s request for substitute counsel, Talarico went into a tirade causing the judge to order him out of the courtroom. The trial court set a hearing for later that day and directed the deputies to advise Talarico that he would be allowed to come back if he could maintain his temper and avoid another outburst.

[¶ 5.] Talarico appeared at the rescheduled hearing. The court warned Talarico that his disruptive behavior may cause him to be removed from the courtroom. Talar-ico launched into an invective discourse expressing his dissatisfaction with his attorney and the judicial system in general. Once more the court found that the defendant was not entitled to substitute counsel. Two days later all parties, including Talari-co, appeared for the first trial involving the assault charges. Talarico remained throughout the entire first trial, testified on his own behalf and was acquitted of the aggravated assault and simple assault charges and convicted of the remaining misdemeanor charges.

[¶ 6.] Talarico’s second trial began February 26, 2002. Before voir dire at the pre-trial hearing, Talarico again requested substitute counsel because he claimed his attorney failed to subpoena three witnesses. Talarico threatened to be disruptive, offensive and uncooperative if the court refused his request. He declared that if he did not get new counsel he wanted to go back to his jail cell. When the trial court denied his request, Talarico made good on his threat exhibiting very abusive, disruptive behavior in the courtroom. After a lengthy discourse with Ta-larico and upon Talarico’s request, the trial court sent him back to his cell.

[¶ 7.] The court discussed with the attorneys various options of proceeding in defendant’s absence. After considering the morning’s events, all prior hearings and appearances of Talarico including his prior jury trial, the court determined that Talar-ico had voluntarily absented himself and proceeded with the trial. During the trial, the trial judge, on several occasions, sent the deputy to Talarico’s cell to ask if he wished to return to court. Each time Ta-larico responded that he did not. The entire trial was conducted in his absence.

[¶ 8.] The State called eleven witnesses including its main witness — Lakin, Talari-co’s accomplice. After a two-day trial, the jury found Talarico guilty of one count of grand theft, three counts of third degree burglary and one count of first degree petty theft.

[¶ 9.] Talarico appeals the following issues:

1. Whether the trial court erred in conducting the trial in the defendant’s absence.
2. Whether the trial court abused its discretion in denying the defendant’s motion for substitute counsel.
3. Whether the trial court erred in refusing to allow the defendant to proceed pro se.
4. Whether the trial court erred in failing to strike the jury panel due to prejudicial remarks made by a potential juror.
5. Whether the trial court properly instructed the jury regarding specific intent.
6. Whether the trial court erred in allowing testimony from Judy La-kin, defendant’s alleged spouse.
7. Whether the trial court erred in denying the defendant’s Motion for Judgment of Acquittal.
8. Whether counsel was ineffective rising to the point of plain error.
9. Whether the defendant is entitled to a new trial based on the cumulative effect of errors.
DECISION
1. Whether the trial court erred in conducting the trial in the defendant’s absence.

[¶ 10.] We review the trial court’s decision to proceed with the trial in absence of the defendant de novo. “Because the application of a statute to particular facts involves a question of law, we review the circuit court’s conclusions de novo.” State v. Guthrie, 2001 SD 61, ¶ 61, 627 N.W.2d 401, 424; Lucero v. VanWie, 1999 SD 109, ¶ 6, 598 N.W.2d 893, 895.

[¶ 11.] Talarico claims that SDCL 23A-39-1 (Rule 43(a)) prohibits the State from trying him in absentia because he was not present at the beginning of his trial. This is an issue of first impression for this Court. Rule 43(a) requires the presence of a defendant at every stage of his trial with two exceptions.

A defendant shall be present at his arraignment, at the time of his plea, at every stage of his trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided by § § 23A-39-2 and 23A-39-3.

23A-39-1 (Rule 43(a)).

[¶ 12.] The first exception is when the defendant is “initially present,” but “voluntarily absents himself after the trial has commenced,” the second exception is when the defendant’s own conduct justifies his exclusion. SDCL 23A-39-2 (Rule 43(b)) provides:

The further progress of a trial to and including the return of a verdict shall not be prevented whenever a defendant who was initially present:
(1) In noncapital cases, voluntarily absents himself after the trial has commenced; or
(2) Engages in conduct which justifies his being excluded from the courtroom.

[¶ 13.] Prior to codification of the Federal Rule 43 [which is equivalent to SDCL 23A-39-2 (Rule 43(a) and (b)) ], the United States Supreme Court in Diaz v. United States, determined that a defendant can waive his right to be present during certain portions of a trial. 223 U.S. 442, 454, 32 S.Ct. 250, 253, 56 L.Ed. 500 (1912). In Diaz, the defendant, out on bail, absented himself twice during the later stages of his trial in the Philippines. He had sent a note to the court that the trial should proceed without him. Id. at 453, 32 S.Ct. 250. He appealed his conviction, in part, on the premise that he could not waive his presence and the court did not have the power to proceed in his absence because the law expressly stated he was entitled to appear at every stage of the proceedings. Id. The Court found no infringement of the law and that the defendant could waive his presence during portions of the trial. Id. at 459, 32 S.Ct. 250.

[¶ 14.] Talarico relies on a later U.S. Supreme Court case of Crosby v. United States, wherein, the Court held that the Federal Rule 43 did not permit “the trial in absentia of a defendant who absconds prior to trial and is absent at its beginning.” 506 U.S. 255, 256, 113 S.Ct. 748, 750,122 L.Ed.2d 25 (1993). In Crosby, the defendant did not appear the day of the scheduled trial and could not be found. Id. The district court postponed the trial several days in an effort to find the defendant and, upon determining that he had absconded, tried him in absentia. Id at 257, 113 S.Ct. 748. Approximately six months later the defendant was apprehended in Florida and brought back for sentencing. Id. The Supreme Court reversed the lower court based upon its interpretation of Federal Rule 43.

[¶ 15.] The Court determined that “Rule 43 does not allow full trials in absentia. The Rule declares explicitly: ‘The defendant shall be present ... at every stage of the trial ... exce-pt as otherwise provided by this rule’ ” (emphasis added). Id. at 258-59, 113 S.Ct. 748. Crosby was not present prior to trial and the Court clearly distinguished between the pretrial flight of Crosby and the midtrial absence of Diaz. The Court based the distinction partly on the premise that midtrial flight or absence exhibits a knowing and voluntary waiver of a defendant’s right to be present. The Court stated, “Whether or not the right constitutionally may be waived in other circumstances — and we express no opinion here on that subject — the defendant’s initial presence serves to assure that any waiver is indeed knowing.” Id. at 261, 113 S.Ct. 748.

[¶ 16.] Talarico maintains he was escorted from the courtroom before the trial began and was, therefore, not present at the commencement of trial which is required for a valid waiver under the statute. The Rule states that the trial can proceed “whenever a defendant who was initially present ... voluntarily absents himself after the trial has commenced.... ” Consequently, the threshold question is whether the trial had “commenced” for purposes of SDCL 23A-39-2 (Rule 43(b)).

[¶ 17.] Prior to and during the trial, Ta-larico was in custody. He was brought into the courtroom for all scheduled proceedings. On the day of trial Talarico was physically present in the courtroom where the trial was to be held, all parties were present, the jurors had reported and were waiting to be brought into the courtroom. Talarico understood that the proceedings against him were underway. The trial judge announced as he started the proceeding, “We’re on the record outside the presence of the jury, it’s February 26 th, this is the time and place set for a trial in the matter of State of South Dakota versus Ronald Louis Talarico.” Talarico immediately began to protest and requested a different attorney. To which the court again replied, “The time and place for the trial is today, we have gone through this before.... ” Talarico tells the court:

You know, you can either give me a week’s continuance and subpoena my witnesses and I’ll represent myself or send me on back to my cell, Judge, because I really don’t want to act like an asshole here. What good is it going to do any of you people if I spit in his face in front of the jury? Because that’s what I’m going to do, man. So send me back to my cell, have your little kangaroo court and convict me. You know, I mean that’s the bottom line here.

After farther discussion with Talarico and his attorney concerning Talarico’s request for a continuance, the following dialogue transpired:

THE COURT: Well, Mr. Talarico, the— what you’re asking right now, because I’ll tell you I’m going to deny your request for substitute counsel, I’m going to deny your request for a continuance, and what you’re asking is at this point before the jury is even selected, before they have even come in to have any kind of — -you have been through it, I mean, you know — •
THE DEFENDANT: Yeah, I know exactly what’s going on.
THE COURT: Okay. So before that even starts you’re just saying, “Judge, please let me go?”
THE DEFENDANT: Absolutely, if he’s representing me, yeah.
THE COURT: Okay. Well, HI — I mean, I — again, I think the law provides that you can voluntarily absent yourself. THE DEFENDANT: Okay.
THE COURT: ... But, I’m going to do this: every time we have a break I’m going to send word back through the jail to tell you that we’re on a break and re-invite you.
THE DEFENDANT: Okay, well, you might as well save your breath because I’m not going back as long as he’s here.

We find that under this set of facts for the purposes of SDCL 23A-39-2 that Talarico was “initially present,” and that the trial had commenced.

[¶ 18.] The second question is whether Talarico “voluntarily waived” his presence. Although we have not addressed the issue of waiver as it relates to presence at trial, we have done so as it relates to other procedural and constitutional rights. In State v. Tuttle, we held that in order to prove a valid waiver of one’s Miranda rights the state must show that “(1) the relinquishment of the defendant’s rights was totally voluntary and (2) the defendant was fully aware that those rights were being waived and of the consequences of waiving them.” 2002 SD 94, ¶ 9, 650 N.W.2d 20, 26. In State v. Martin, we stated that, “There are no formal requirements for a valid waiver [of the 180-day rule]....; ‘[s]o long as there is an indication, on the record, that the waiver is the informed and voluntary decision of the defendant, it will be accorded prima facie validity.’” 493 N.W.2d 223, 226. The Court further remarked that although there were no formal requirements the state still must show that “any waiver was the product of an informed and voluntary decision.” Id. The New Mexico Supreme Court in a recent case applied its version of Rule 43 and found that a defendant can waive his right to be present during jury selection. State v. Padilla, 132 N.M. 247, 46 P.3d 1247 (2002). In determining the validity of the waiver, the court said a valid waiver “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Id. at 1254 (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). “Although no particular litany of questions may be required, there must be a sufficient colloquy to satisfy the trial court’s responsibilities; a knowing and voluntary waiver cannot be inferred from a silent record.” Id.; see Camley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962).

[¶ 19.] It is clear from the record that Talarico was well versed in the nature of the proceedings and his rights. The record is replete with lengthy discourse from the defendant about his concern with his lawyer, the system, and his right to a fair trial. He was clearly able to articulate his concerns to the trial court and understand his rights. Before Talarico was escorted from the courtroom, the trial court asks again:

THE COURT: [Y]ou have a right to participate in this trial, we want you here, you have a constitutional right to be here, and I said it several times, probably when you have been in here, you have a right to confront and cross-examine witnesses, that means you have a right to be here, you have a right to have a trial, in fact our statutes and our constitution is all designed so that you are here.
THE DEFENDANT: Gees. It’s not going to work.
THE COURT: Well.
THE DEFENDANT: It’s not going to work.
THE COURT: Okay.
THE COURT: ... If you choose not to participate in this trial I want to make absolutely certain that you understand that you have a right to be here.
THE DEFENDANT: Yeah.
THE COURT: And that if you choose to go back that you’re doing it voluntarily-
THE DEFENDANT: Yes.

[¶ 20.] The trial court determined that the defendant had voluntarily waived his right and returned Talarico to his cell. Despite this determination, the trial court sent the deputy to Talarico’s jail cell on three separate occasions to ask if he would like to return to trial to which the defendant responded, he did not. Talarico was not present for any portion of his trial except sentencing.

[¶ 21.] Under the circumstances of this case, the trial court did not err in determining that Talarico had voluntarily waived his right to be present. Talarico had appeared before the trial court numerous times prior to this trial. The trial judge took great care in explaining Talari-co’s rights including his right to be present at trial. He allowed Talarico to express his dissatisfactions and listened to his complaints. He explained Talarico’s options including remaining in the courtroom shackled and restrained. In fact, at the first trial the court had contemplated allowing law enforcement to use a stun belt in the event they needed to subdue him. The court had sufficient interaction with Talarico to know his behavior, his intellect and his demeanor. Talarico was no stranger to court proceedings or his right to be present. He had just completed a jury trial in which he participated a few weeks before. Additionally, the court did a sufficient job of canvassing Talarico the morning of trial to ensure his request to absent himself was knowing and voluntary. Based upon the foregoing facts, we find that the defendant was present at the commencement of trial and that the trial court’s determination that Talarico had voluntarily waived his right to be present at trial was not error. We affirm.

2. Whether the trial court abused its discretion in denying the defendant’s motion for substitute counsel.

[¶ 22.] Talarico claims the trial court erred in denying his motion for substitute counsel. We review the denial of a motion for substitute counsel under an abuse of discretion standard. State v. Loftus, 1997 SD 94, ¶ 13, 566 N.W.2d 825, 827.

[¶ 23.] Talarico asserts that due to irreconcilable disputes over defense strategy and a break down in communication, his motion for substitute counsel should have been granted. We have held, “[a]ppointment of substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process.” State v. Irvine, 1996 SD 43, ¶ 9, 547 N.W.2d 177, 180. In addition this Court held in State v. Fender, “ ‘[W]hen [a] defendant alleges the existence of a dispute leading to a destruction of communication and a breakdown in the attorney-client relationship, the judge is obligated to inquire whether such allegations are true.’ ” 484 N.W.2d 307, 309 (S.D.1992) (quoting People v. Bass, 88 Mich.App. 793, 279 N.W.2d 551, 555 (1979)). Furthermore, this Court in Fender, held that a defendant must be given an opportunity to “present his ‘good cause’ justifying a change in counsel.” Id.

[¶ 24.] The trial court followed these procedures with Talarico. The trial court held a hearing on November 19, 2001, January 7, 2002, and on February 26, 2002 to discuss Talarico’s repeated request for substitute counsel. At each hearing the trial court asked the defendant why he needed substitute counsel. He claimed that he and his attorney had irreconcilable differences about his defense and that they had a break down in communication. At each request, the trial court took note of Talarico’s complaints and questioned him in depth to determine their basis. After consideration, the trial court found the defendant’s reasons insufficient.

[¶ 25.] A defendant’s right to counsel “does not contemplate that an accused may take charge of the case after an attorney has been appointed, or dictate its course, or make counsel’s educated judgment the pawn of an unreasonable and obdurate malefactor.” State v. Pieschke, 262 N.W.2d 40, 46 (S.D.1978). Moreover, any problems with communication were due to Talarico’s refusal to cooperate with his attorney. At the January 7, 2002 hearing the trial court asked the defendant, “[A]nd that’s your choice not to cooperate, isn’t it?” To which the defendant replied, “You bet it is, yeah.” A defendant is not entitled to substitute counsel when the break down in communications is caused by the defendant’s admitted refusal to cooperate. Irvine, 1996 SD 43, ¶ 13, 547 N.W.2d at 181. Additionally, the trial court expressed concern that the defendant would not be satisfied with any counsel. We do not find that the trial court abused its discretion in denying the defendant’s motion for substitute counsel.

3. Whether the trial court erred in refusing to allow the defendant to proceed pro se.

[¶ 26.] During the pre-trial hearing on the morning of the trial, Talarico stated, “you can either give me a week’s continuance and subpoena my witness and I’ll represent myself or send me back to my cell.” Talarico claims that he unequivocally requested to represent himself.

[¶ 27.] Although a defendant has a constitutional right to represent himself, his request must be clear and unequivocal. Irvine, 1996 SD 43, ¶ 18, 547 N.W.2d at 182; State v. Chamley, 1997 SD 107, ¶ 35, 568 N.W.2d 607, 618. Talarico gave the court an ultimatum. Either the court grant his continuance, so he could represent himself, or he wished to return to his cell. At this point the trial court denied his request for continuance. Talar-ico did not ask again to represent himself. In fact, at the same hearing Talarico said “and without my witnesses I don’t stand a chance, ... and without proper representation I don’t stand a chance, so why should I sit here for you.... ” In addition, the trial court sent the Deputy Sheriff to clarify this issue of proceeding pro se. Talarico told the Deputy that he did not wish to represent himself, as “he was not qualified, he needs an attorney.” “A court must ‘indulge in every reasonable presumption against [a defendant’s] waiver’ of his right to counsel and require the defendant to make a knowing, intelligent, voluntary, and unequivocal request before concluding that he has waived his right to counsel and invoked his right to represent himself.” Irvine, 1996 SD 43, ¶18, 547 N.W.2d at 182 (citing Hamilton v. Groose, 28 F.3d 859, 861-62 (8th Cir.1994)). We cannot say that the trial court erred in denying the defendant his right to proceed pro se.

4. Whether the trial court erred in failing to strike the jury panel due to prejudicial remarks made by a potential juror.

[¶ 28.] Prior to voir dire the court had a discussion with counsel concerning the absence of the defendant and the impact it would have on the jury. The court fashioned a jury instruction explaining Ta-larieo’s right to be absent at trial which explained that no inference of guilt or innocence was to be drawn from his absence. During voir dire counsel for Talar-ico discussed the jury instruction with the potential jurors. One potential juror in particular took issue with the defendant’s absence. The juror stated that she felt that the defendant should be present and his absence “definitely” implied guilt. The juror was removed for cause. Subsequently, the court commented, “the decision on whether or not Mr. Talarico is here or not is mine.” Next, the court reread the instruction concerning the defendant’s absence from trial. Defense counsel ultimately passed the panel for cause.

[¶ 29.] Since defense counsel did not object at trial, Talarico seeks to invoke the plain error rule on appeal. Talarico claims that the court committed reversible plain error when it failed to strike the entire jury panel after the allegedly prejudicial remarks by the one juror.

[¶ 30.] This Court has held that it will only invoke the plain error rule in “exceptional circumstances, such as, where a miscarriage of justice has occurred because the defendant is innocent or because the error may seriously affect the fairness, integrity, or public reputation of the judicial proceedings.” State v. Dufault, 2001 SD 66, ¶ 8, 628 N.W.2d 755, 757 (citations omitted) (internal quotes omitted). The defendant bears the burden of proving prejudicial error. Id. A burden he has not met.

[¶ 31.] Talarico claims that it is clear from the voir dire conducted after the juror’s comments that the jurors were tainted and failure to dismiss the jury panel was prejudicial. Talarico refers to a potential juror who stated, that he would prefer that the defendant be present as he wanted to watch him “squirm.” During further questioning the potential juror stated that “it would be easier if he was here, but I will do my best.” This juror did not serve on the jury. Defendant also points to another potential juror who commented about having to accept the fact that the defendant was gone. This Court has held that it is the juror’s inability to set aside those preconceptions and render an impartial verdict that requires excusal. State v. Verhoef, 2001 SD 58, ¶ 12, 627 N.W.2d 437, 440. Further questioning of the jurors who made the comments indicated they could be impartial and that they had not predetermined the defendant’s guilt. We find that the defendant failed to show prejudicial error.

5. Whether the trial court properly instructed the jury regarding specific intent.

[¶ 32.] Talarico claims that the trial court erred in not giving a separate specific intent instruction for grand theft and petty theft. The trial court gave one instruction on specific intent. Instruction No. 10 reads as follows:

In the crime of theft, there must exist in the mind of the perpetrator the specific intent to take or exercise control over property of another with intent to deprive the other person of it. If specific intent did not exist, this crime has not been committed.

Furthermore, Instruction No. 16 stated:

An element of the crime of third degree burglary is that the unlawful entering in an unoccupied structure was with the specific intent to commit the crime of theft, that is, with the specific intent of taking or exercising control over the property of another with the intent to deprive the owner of it. The offense is complete when the unlawful entering is made with such specific intent, regardless of whether any property is actually taken and carried away.

Talarico argues that the reference to theft in Instruction No. 10 was vague and an instruction for grand theft and petty theft should have been given.

[¶33.] During the settling of the jury instructions, defense counsel did not object to the proposed instruction on specific intent and did not propose any instructions. This Court has held “[fjailure to object to the jury instruction or propose an alternative instruction waives the issue for appeal.” State v. Hage, 532 N.W.2d 406, 412 (S.D.1995) (citations omitted). Therefore, this issue was not preserved for appeal and we will not address it unless plain error is shown. Id. (citing State v. Holloway, 482 N.W.2d 306, 309 (S.D.1992)). As previously stated the plain error rule is only invoked in “exceptional circumstances.” The defendant has the burden of establishing prejudice. Dufault, 2001 SD 66, ¶ 8, 628 N.W.2d at 757. “Further, to reverse a conviction for failure to give a proposed instruction, the defendant must show that the jury would have returned a different verdict if the proposed instruction was given.” State v. Webster, 2001 SD 141, ¶ 7, 637 N.W.2d 392, 394 (citations omitted).

[¶ 34.] Talarico claims Instruction No. 10 was too vague and not specific enough to grand theft or petty theft. It appears that the defense is alleging that Instruction No. 10 should have been given twice in reference to grand theft and petty theft. We do not find this argument persuasive. Ta-larico has provided no evidence or authority in support of this proposition. In addition Talarico has failed to show that had the instruction been offered twice that there would have been a different verdict. Talarico has shown no prejudice. The instructions given were proper. We affirm.

6. Whether the trial court erred in allowing testimony from Judy La-kin, defendant’s alleged spouse.

[¶ 35.] “A trial court’s eviden-tiary rulings are presumed correct and are reviewed under an abuse of discretion standard.” State v. Owens, 2002 SD 42, ¶ 78, 643 N.W.2d 735, 755; State v. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d 12, 15. Talarico’s attorney asserted that the marital communications privilege applied and moved to bar Lakin from testifying at trial. Talarico maintains that the trial court should not have allowed Lakin to testify. Lakin testified at a pretrial motion hearing and at trial that she and the defendant were divorced. However, there is no evidence in the record of when the divorce occurred. The trial court indicated that it would rule on that issue at a subsequent pretrial hearing. It is not apparent from the record if the court ever ruled on this motion, however, Talarico’s attorney objected during Lakin’s testimony at trial. The court denied the objection.

[¶ 36.] First of all, the marital privilege only covers communication, not observations. State v. Lorenz, 2001 SD 17, ¶ 8, 622 N.W.2d 243, 245 (citing State v. Hart, 391 N.W.2d 677 (S.D.1986)). Secondly, even if married, the testimony is admissible under the “joint-participant” exception to the marital communications privilege. The exception provides that “the communication is not protected if it is one criminal, or potential criminal, talking to another.” State v. Witchey, 388 N.W.2d 893, 895 (S.D.1986). The testifying spouse must be more than a receptor of a statement from the spouse that committed the crime. Id. “Active participation in, or furtherance of, patently criminal activity by the witness-spouse must be shown.” Id. (citations omitted). In this case Lakin, by her own admissions, was an active participant. In fact, Lakin received immunity from being prosecuted for her role in the crimes in exchange for her testimony. In addition, the trial court found as a matter of law, that she was an accomplice. The joint participant exception applies in this case. We affirm on this issue.

7. Whether the trial court erred in denying the defendant’s Motion for Judgment of Acquittal.

[¶ 37.] At trial Talarico moved for judgment of acquittal. The court denied Talarico’s motion. On appeal Talarico asserts that the trial court erred. Talarico claims that there was insufficient evidence to corroborate Lakin’s testimony connecting Talarico to the crimes.

[¶ 38.] The standard of review for a motion for acquittal is “whether [the] State set forth sufficient evidence from which the jury could reasonably find the defendant guilty of the crime charged.” State v. Larson, 1998 SD 80, ¶ 9, 582 N.W.2d 15, 17 (citations omitted). The trial court found as a matter of law that Lakin was an accomplice. Under SDCL 23A-22-8:

A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.

[¶ 39.] Corroborating evidence need not be sufficient alone to sustain a conviction. State v. Phyle, 444 N.W.2d 380, 382 (S.D.1989). Evidence is sufficient to corroborate the testimony of an accomplice if it tends to “affirm the truth of the testimony of the accomplice and establish the guilt of the accused.” Id. Whether corroborating evidence is sufficient is a question for the jury. Id. After a review of the record we are convinced that the corroborating evidence, although not overwhelming, was sufficient to satisfy SDCL 23A-22-8.

[¶ 40.] Lakin was the primary witness in the state’s case-in-chief. At trial Lakin testified to a series of burglaries which she claimed were committed by the defendant. Lakin testified as to the location of the thefts, the items taken, and the disposition of the stolen goods. Lakin testified that the first of three incidences took place in early August at a construction job site. As recounted by Lakin, Talarico kicked in the door to the garage breaking the doorknob and the lock box. Talarico entered the garage and took a table saw. He scratched the company name off of the saw so that it could be pawned, and pawned it in Rapid City.

[¶ 41.] Lakin testified that after Talarico pawned the table saw, they went to another house that was under construction. Ta-larico entered the garage and stole a black air compressor and put it in the trunk of the car. This time it was Lakin who pawned the stolen item at a different Rapid City pawn shop. Lakin stated that the air compressor was too heavy for her to lift so Talarico lifted the compressor in and out of the trunk, but that she was able to drag it on its wheels into the pawnshop.

[¶ 42.] Lakin described a third incident which took place at a home that was also under construction. According to Lakin, Talarico entered the construction trailer on the site and took a miter saw. They left the home and later, Talarico decided he wanted to return to the same site. They returned and stole a laser transit. Talarico pawned the miter saw in Spearfish, South Dakota and the laser transit was pawned by Lakin in Gillette, Wyoming.

[¶ 43.] At trial the state presented eleven witnesses in its case-in-chief including Lakin. Although not every piece of La-kin’s testimony was corroborated, such is not the standard. At trial the testimony presented by the state was enough to confirm the truth of the accomplice testimony and establish the guilt of the defendant.

[¶ 44.] The locations, descriptions of the scene, identification of the property stolen and the fact the property was pawned was substantiated from the testimony of nine other witnesses. The testimony present by the state was as follows:

1. Dale Tipton, testified that a laser transit and a miter saw had been stolen from his construction site. Mr. Tipton testified that he found the door to his construction trailer open, the padlock was broken and his laser transit and miter saw were missing.
2. Jeff Mehlhaff gave testimony that a Makita table saw was stolen from the garage of a house he was building. Mr. Mehlhaff testified that he found his doorknob broken and his lock box lying on the ground.
3. William McCarty, testified that his air compressor had been stolen. Mr. McCarty recalled that it weighed approximately 85 pounds.
4. Alton Shumaker, a pawnbroker at a pawnshop in Spearfish, SD, testified that a miter saw was pawned by a gentleman he identified as Ronald Talarico.
5. Dick Baker, a pawnbroker at a pawnshop in Gillette, Wyoming, testified that a woman pawned a laser transit at his shop.
6. Stanley Butolth, a pawnbroker in Rapid City, South Dakota, testified that it was Ronald Talarico who pawned a table saw in early August.
7. Deputy Sheriff Rhoden responded to the call that there had been a burglary. Rhoden met with Dale and Shawn Tipton. Rhoden testified that at the scene he determined that the burglar obtained entry by prying loose a padlock on the trailer.
8. Deputy Sheriff Beug responded to the call that there had been a theft at the Mehlhaff site. Beug testified that when he arrived at the scene he noticed that the garage door had been kicked in. Beug recalled seeing a key box on the ground.
9. Deputy Sheriff Harmon investigated the thefts. Harmon testified that he interviewed Lakin. Lakin agreed to take Harmon to the locations of the burglaries. Harmon testified that he talked with the victims. Harmon described his role in contacting the pawn shops and recovering some of the stolen property. Harmon’s testimony basically described how he had proceeded in investigating the crime.

[¶45.] The evidence placed the defendant in the area at the time the thefts were committed. Two witnesses identified the defendant in possession of stolen property. Property that was stolen from the same site was pawned by both Lakin and Talarico. The' court properly instructed the jury that accomplice testimony must be corroborated and to determine if there is evidence apart from the accomplice testimony to connect the defendant to the crime. We find there was sufficient evidence to corroborate Lakin’s testimony. We affirm.

8. Whether counsel was ineffective rising to the point of plain error.

[¶ 46.] Talarico claims he was denied a fair trial due to ineffective assistance of counsel. Talarico asserts that his attorney failed: 1) to secure a ruling on his objection to Lakin’s testimony on the grounds of spousal communications, 2) to object to Lakin’s testimony based on spousal privilege, 3) to investigate Talari-co’s defense strategy, 4) to determine whether the potential jurors were influenced by the remarks made by other jurors, and 5) to object to Jury Instruction No. 10 on specific intent.

[¶ 47.] A claim for ineffective assistance of counsel is normally not addressed on direct appeal. State v. Picotte, 416 N.W.2d 881, 881 (S.D.1987). Claims of ineffective assistance of counsel are best addressed on habeas corpus proceedings. The purpose behind this rule is that a habeas proceeding allows the attorney to explain his actions and his tactics revealing a more complete picture of what occurred so that a meaningful review may be had. State v. Dillon, 2001 SD 97, ¶28, 632 N.W.2d 37, 48. We declme to address defendant’s claim for ineffective assistance of counsel at this time.

9. Whether the defendant is entitled to a new trial based on the cumulative effect of errors.

[¶ 48.] Talarico claims the cumulative effect of all the trial court’s alleged errors supports a finding of “a denial of the constitutional right to a fair trial.” This Court said “it is not required that the defendant receive a perfect trial, only that he receive a fair trial.” McDowell v. Solera, 447 N.W.2d 646, 649 (S.D.1989). The defendant has not provided this Court with evidence that he did not receive a fair trial. We affirm.

[¶ 49.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . Appellate counsel was not trial counsel.

      . The Philippine laws, Comp. Stat.1907, contain the following provisions, bearing upon the presence of the accused at the proceedings upon a charge for felony:
      'Sec. 3270. In all criminal prosecutions the defendant shall be entitled (a) to appear and defend in person and by counsel at every stage of the proceedings....
      'Sec. 3271_ If the charge is for felony {delito), the defendant must be personally present at the arraignment; ...
      'Sec. 3280. A plea of guilty can be put in only by the defendant himself in open court....
      ‘Sec. 3296. The defendant must be personally present at the time of pronouncing judgment, if the conviction is for a felony;

        Diaz, 223 U.S. at 453, 32 S.Ct. 250.

      . That portion of Rule 43 which the court addressed states:
      "(a) PRESENCE REQUIRED. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.
      “(b) CONTINUED PRESENCE NOT REQUIRED. The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant, initially present,
      "(1) is voluntarily absent after the trial has commenced.

        Crosby, 506 U.S. at 258, 113 S.Ct. 748.

      . The following jury instruction was given on accomplice testimony:
      A person cannot be convicted of a crime upon the testimony of an accomplice unless the accomplice is corroborated by other evidence which tends to connect the defendant with the commission of the offense. The corroborative evidence is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.
      You are hereby instructed that as a matter of law Judy Lakin is to be considered an accomplice.
      Corroborative evidence is additional evidence to the same point and although it need not be sufficient standing alone to support a conviction, it must relate to some act or fact which is an element of the offense with which the defendant is charged. It must, in and of itself and independent of the evidence which it supports, fairly and logically tend to connect the defendant with the commission of the alleged offense. Corroborative evidence may consist of other evidence of circumstances, the testimony of a witness other than an accomplice, or the testimony or admissions, if any, of the defendant.
      In determining whether an accomplice has been corroborated you must first assume the testimony of the accomplice to be removed from the case. You must then determine whether there is any remaining evidence which tends to connect the defendant with the commission of the offense. If there is none you must acquit the defendant. If there is such evidence his testimony is corroborated. But before you may convict the defendant you must find from all the evidence beyond a reasonable doubt that the defendant is guilty.


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Reese Edward GARDNER, Jr., Appellant.
    No. 01-1879.
    Supreme Court of Iowa.
    May 7, 2003.
    Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kim Griffith, Assistant County Attorney, for appellee.
   TERNUS, Justice.

The judge who presided at the defendant’s criminal trial was subsequently listed as a witness in the minutes of testimony filed by the State in support of a habitual violator allegation. The defendant, Reese Gardner, claims the judge’s dual roles violated Gardner’s due process right to a fair trial and contravened Iowa Rule of Evidence 5.605. Although we discourage the course employed by the prosecution in this case, we conclude the defendant’s rights were not compromised. Accordingly, we affirm the judgment of conviction and sentence.

I. Background Facts and Proceedings.

In August 2001 a jury found the defendant guilty of second-degree robbery in a trial over which Judge George Stigler presided. After the verdict, the State filed amended minutes of testimony in support of a habitual violator allegation made in the trial information. See Iowa Code §§ 902.8, .9 (2001) (providing for sentencing enhancement when defendant is a habitual violator). These minutes included Judge Stigler as a witness, stating the judge would testify he presided over a 1989 case in which the defendant pled guilty to second-degree robbery.

The habitual violator allegation proceeded to trial. District Judge Jon Fister presided. After testimony from an employee of the clerk of court’s office, the defendant elected to forego a jury trial and the case then proceeded on the minutes of testimony. Based on the minutes, including the summary of Judge Stigler’s anticipated testimony, Judge Fister found that the defendant was the same person who was convicted of second-degree robbery in 1989. The court made similar findings with respect to two other felony convictions alleged in the amended trial information. Judge Fister then adjudged the defendant to be a habitual violator.

A few weeks later, the defendant appeared before Judge Stigler for sentencing. Judge Stigler sentenced the defendant to the term of incarceration required by the applicable sentencing laws. See id. §§ 902.9, .12.

The defendant appeals, claiming he was denied a fair trial as guaranteed by the Due Process Clauses of the United States and Iowa constitutions because Judge Stigler presided over his criminal trial while also being used by the State as a witness on the habitual violator allegation. See U.S. Const. amend. XIV, § 1; Iowa Const. art. I, § 9. The defendant also relies on Iowa Rule of Evidence 5.605, which precludes a presiding judge from being a witness. We review the claimed constitutional violation de novo and the alleged rule violation for correction of errors of law. See State v. Tovar, 656 N.W.2d 112, 114 (Iowa 2003).

II. Applicable Legal Principles.

“A fair trial in a fair tribunal is a basic requirement of constitutional due process.” State v. Larmond, 244 N.W.2d 233, 235 (Iowa 1976); accord In re Murchison, 349 U.S. 133,136, 75 S.Ct. 623, 625, 99 L.Ed. 942, 946 (1955); see also State v. Hemandez-Lopez, 639 N.W.2d 226, 238 (Iowa 2002) (stating procedural due process “requires government action resulting in the deprivation of a liberty interest to be implemented in a fair manner”). A judge cannot be fair and impartial, however, when he or she is called upon to assess his or her own credibility in determining a matter. See Keith v. Cmty. Sch. Dist., 262 N.W.2d 249, 260-61 (Iowa 1978).

The basis for this conclusion is apparent: how can a judge presiding in a case in which the judge is also a witness be expected to do otherwise than find himself or herself to be credible? We agree with the following observations of the Eighth Circuit on this point:

We think it runs against the grain of fairness to say that the same judge may consider his own crucial testimony and recollection rebutting petitioner’s claim and simultaneously pass upon the credibility of all witnesses in weighing the evidence. A member of the judiciary has no peculiar competence in factual recollection of unrecorded events. In fact, the many cases a trial judge participates in may well cloud vivid recollection of detail in a specific case. A party should be permitted to test a judge’s recollection, as a witness presenting factual material testimony, as he would any other witness upon cross-examination.
It has long been recognized under similar circumstances that a judge cannot serve as a material witness as well as the trier of fact.
“Indeed, a judge presiding at a trial is not a competent witness, for the duties of a judge and a witness are incompatible. If he testifies he would have to pass upon the competency of his own testimony; and as a witness he might be regarded a partisan, and would be subject to embarrassing conflicts with counsel. The danger to the dignity of the bench, of subjecting its impartiality to doubt and of placing the defendant at an unfair disadvantage by admitting the presiding judge as a witness is very obvious.”

Tyler v. Swenson, 427 F.2d 412, 415 (8th Cir.1970) (citations omitted).

Iowa Rule of Evidence 5.605 addresses similar concerns by prohibiting a presiding judge from testifying as a witness. The underlying justification for this rule, like its constitutional counterpart, is the idea that a presiding judge’s assumption of the role of witness is inconsistent with the impartiality expected of the court. State v. Baird, 259 Neb. 245, 609 N.W.2d 349, 353 (2000); O’Quinn v. Hall, 77 S.W.3d 438, 448 (Tex.App.2002); 3 Joseph M. McLaughlin, Weinstein’s Federal Evidence § 605.02[2], at 605-5 (2d ed.2002) [hereinafter Weinstein’s Federal Evidence]. This rule is violated whenever the judge functions as a witness, even though the judge may not actually take the stand to testify. See Lillie v. United States, 953 F.2d 1188, 1191 (10th Cir.1992); Tyler, 427 F.2d at 416; O’Quinn, 77 S.W.3d at 448; Weinstein’s Federal Evidence § 605.07[1], at 605-21.

III. Application of Law to This Case.

When the procedural posture of the matter before us is examined in light of the rationale underlying the prohibition against a presiding judge serving as a witness, we conclude the defendant was not denied his right to a fair trial, nor was rule 5.605 violated. Judge Stigler was listed as a witness for the State on the habitual offender allegation. Judge Stigler did not, however, preside at the trial of this issue, nor did he make any factual determinations based on the record made at that trial. Thus, Judge Stigler did not preside at the proceeding in which he served as a witness.

The defendant argues, nonetheless, that Judge Stigler served as a witness in the same matter over which he presided because the habitual violator allegation did not charge a separate offense. See State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000) (‘When the State alleges that a defendant is an habitual offender, the State is not charging a separate offense.”). While it is true that the habitual violator allegation was not a distinct charge, that fact does not change the procedural stance of this matter, namely, that the habitual violator issue was tried in a separate proceeding where Judge Fister, not Judge Stigler, presided. Because Judge Fister, not Judge Stigler, made the necessary factual determinations, Judge Stigler was not called upon to assess his own credibility. Consequently, the defendant’s due process right to a fair trial was not compromised, and for the same reason, rule 5.605 was not violated. See Gold v. Warden, 222 Conn. 312, 610 A.2d 1158, 1157 (1992) (“A judge is not disqualified and is a competent witness to testify at a new trial or collateral proceeding to observed facts that occurred before him or her at a former trial or proceeding.”).

Although we find no basis for reversal in this case, our ruling should not be taken as an approval of the practice followed by the prosecution. To the contrary, we strongly discourage the routine designation of judges as witnesses for purposes of proving prior convictions in the habitual violator phase of a case. First, it is generally unnecessary. (In the present case, four witnesses in addition to the judge were fisted to prove the 1989 conviction.) More importantly, however, while this practice is not automatically a constitutional or rule violation, it causes laypersons to question the fairness of a process that allows a judge to switch roles from one proceeding to the next. Thus, as the State concedes in its brief, “the better, and certainly safer, practice would be to prove an accused’s prior convictions through witnesses other than the judge who presided over them.”

In conclusion, we find no basis for reversal. The defendant’s habitual violator status was heard by a fair and impartial decision maker as required by the Due Process Clause, and Judge Stigler was not precluded by rule 5.605 from testifying in the habitual violator proceeding. Therefore, the defendant’s judgment of conviction and sentence is affirmed.

AFFIRMED.


author: LARSON, Justice.

text:
    TRADE PROFESSIONALS, INC. and Virginia Surety Co., Appellants, v. Bobby SHRIVER, Appellee.
    No. 02-0409.
    Supreme Court of Iowa.
    May 7, 2003.

      Peter J. Thill of Betty, Neuman & McMahon, L.L.P., Davenport, for appellants.
    David D. Drake of Lawyer, Lawyer, Dutton & Drake, L.L.P., West Des Moines, for appellee.
   LARSON, Justice.

Trade Professionals, Inc. and its workers’ compensation insurance carrier, Virginia Surety Co., appeal from a district court judgment affirming workers’ compensation benefits awarded by the industrial commissioner. We affirm.

I. Facts and Prior Proceedings.

This workers’ compensation claimant, Bobby Shriver, injured his back on June 11, 1998, while working in Cedar Rapids as a pipe fitter for Trade Professionals. Trade Professionals and its insurance carrier (collectively the employer) admitted the injury arose out of and in the course of Shriver’s employment and named an orthopedic surgeon to treat Shriver’s back strain. Shriver took no time off work for his injuries and continued to work full-time at his normal duties at a new job site until a company-wide layoff occurred on June 24, 1998. Shriver returned to his home in Missouri and took a job at a hog facility, power washing hog crates. He continued to have pain in his back and between his shoulder blades. He consulted Dr. Nelson, an orthopedic surgeon who was the employer-authorized treating doctor, in Des Moines. Shriver saw Dr. Nelson on September 10, 1998. Dr. Nelson told Shri-ver to do stretching exercises, take two weeks of physical therapy, and go back to work in two weeks. Dr. Nelson saw Shri-ver twice, once just after the injury and once in May of 1999. This doctor indicated there was no permanent injury. Shri-ver sought treatment from his chiropractor in Missouri, Dr. Henson, in September 1998. He considers Dr. Henson to be his regular treating doctor, but the employer did not authorize treatment by Dr. Henson, and it so notified Shriver. Dr. Henson referred Shriver to a neurologist, Dr. Rowe, and a “physiatrist” (doctor who specializes in physical medicine and rehabilitation), Dr. Tait. Neither doctor recommended surgery; Dr. Tait recommended treatment with medication. The employer sent Shriver to an independent neurologist, Dr. Boarini, who said his back pain was due to degenerative changes in his lower back and was not due to any injury. He further found that nothing indicated a permanent impairment. He recommended an aggressive back exercise program.

Shriver filed a petition with the industrial commissioner on November 24, 1998. A hearing was scheduled for October 12, 2000. Despite an assignment order stating that all case preparation should be completed sixty days before the hearing, Shriver submitted a report dated October 4, 2000, from Dr. Henson. That report for the first time indicated that Shriver had a permanent partial impairment as a result of his injury. The deputy commissioner excluded the report because it was not submitted sixty days before the hearing. The deputy found against Shriver on the ground there was no evidence that he was entitled to temporary total disability, healing-period benefits, or that he had any permanent disability. Shriver filed an in-tra-agency appeal.

On Shriver’s appeal the chief deputy workers’ compensation commissioner reversed the deputy commissioner’s exclusion of Dr. Henson’s letter, on the ground that admission of the letter was required by this court’s decision in Schoenfeld v. FDL Foods, Inc., 560 N.W.2d 595 (Iowa 1997). The chief deputy gave greater weight to Dr. Henson’s opinions than those of the other doctors and gave Shriver an industrial disability rating of twenty-five percent. He also allowed payment of Dr. Henson’s fees, despite the fact she was not the authorized physician, on the ground the employer lost the right to control care by claiming Shriver’s condition was not causally related to the work injury.

On the employer’s petition for rehearing, the chief deputy concluded that, while the admission of the late report was required by Schoenfeld, any resulting prejudice could be cured by allowing the employer thirty days to submit new evidence in response to the report. The employer submitted new evidence, in the form of letters from the treating physician and another neurosurgeon who also had examined Shriver. The chief deputy reaffirmed his ruling.

The employer petitioned for judicial review, claiming the chief deputy erred in (1) admitting the late-filed report, (2) refusing to remand the case to the deputy commissioner who first heard it, (3) finding that Shriver sustained a twenty-five percent industrial disability, and (4) assessing the unauthorized medical expenses of Dr. Henson to the employer.

The court on judicial review found that any prejudice to the employer from the admission of the report was cured by allowing the employer thirty days to respond, and the agency did not abuse its discretion in admitting the report. The court also found that the decision to keep the case, rather than to remand it to the original deputy commissioner, was within the agency’s discretion. The court also found the twenty-five percent industrial disability rating was supported by substantial evidence and, since the employer disputed its liability for the ongoing pain of the worker, the employer lost the right to direct medical care, and it was therefore liable for Dr. Henson’s bills.

II. Admission of the Medical Report.

In Schoenfeld, the commissioner excluded the medical evaluation report of the treating physician because it was completed after the deadline for discovery. Schoenfeld, 560 N.W.2d at 596. We reversed, finding that the report should not have been excluded under the unique circumstances of that case, since its admission did not unfairly surprise or prejudice the employer. Id. at 598. As the treating physician and one who had been submitting medical information to the employer from the date the injury occurred, it was logical to have his evaluation of the permanency of the injury, and the employer could not reasonably claim surprise.

In this case Dr. Henson claims she received authorization from the company representing the employer’s insurance company and had been paid by the employer for the first three visits Shriver made to her office in November 1998. She also received a request for medical records from the company handling the claim for the employer. Shriver claims the employer was well aware that Dr. Henson had been treating Shriver. The key difference in this case from Schoenfeld is that this doctor was not the authorized treating physician. Also, unlike in Schoenfeld, this employer did not know there was a medical opinion stating that Shriver had a permanent impairment. That knowledge did not come until the October 5 letter.

Schoenfeld should not be read so broadly as to require admission of evidence received after the cutoff date on the basis the employer merely knew of the existence of the reporting doctor. We believe the chief commissioner’s solution to the prejudice argument, giving the employer an additional thirty days to respond, provides a reasonable balancing of the parties’ interests. The employer had sufficient time to consult both the treating physician and an outside expert, and did so. The employer did not depose Dr. Henson, but there is no indication it could not have done so.

The circumstances of this case are very similar to those in Schoenfeld in which we stated that the “exclusion of the evaluation report, under these circumstances, would run contrary to the primary purpose of the workers’ compensation statute, which is for the benefit of the worker.” Id. at 599. In any event, as we noted Schoenfeld, these rulings are discretionary. Id. at 598. We believe, in light of the thirty days allowed the employer to rebut the report, the admission of the report was not an abuse of discretion.

III. The Finding of Industrial Disability.

The standard of review is substantial evidence on the record to support the agency’s decision. “The fact that a different or opposite result may have been fully justified by the record is of no importance.” Carstensen v. Bd. of Trustees, 253 N.W.2d 560, 562 (Iowa 1977); see also Stephenson v. Furnas Elec. Co., 522 N.W.2d 828, 881 (Iowa 1994). “The substantial evidence test accords respect to the expertise of the administrative tribunal and helps promote uniform application of the law.” City of Davenport v. PERB, 264 N.W.2d 307, 312 (Iowa 1978).

When viewing the evidence as a whole, including the report of Dr. Henson, there is substantial evidence to support this decision. To evaluate an unscheduled disability, courts use the industrial method, which measures an employee’s loss of earning capacity. Simbro v. Delong’s Sportswear, 332 N.W.2d 886, 887 (Iowa 1983). Criteria to consider include an employee’s work experiences, age, educational level, qualifications, experiences, and the extent to which the injury prevents the employee from engaging in work to which he is fitted. Id. Shriver was forty-seven years old at the time of the hearing, had a high school education, had only worked at manual labor jobs, and had been placed on restrictions by Dr. Henson that drastically reduced his ability to perform manual labor. The agency, in its role as fact finder, determines whether to accept or reject expert testimony and what weight to give it. Sherman v. Pella Corp., 576 N.W.2d 312, 321 (Iowa 1998). The agency chose to give more weight to Dr. Henson, who had the most direct contact with Shriver, than it did to Drs. Nelson and Boarini, whose contacts with Shriver were more limited. This clearly falls within the discretion of the agency.

Dr. Henson did not assess a permanent impairment percentage, but as the district court concluded, the lack of a permanent impairment percentage was not dispositive. It “is not essential that a percentage of disability be specified by any witness.” Olson v. Goodyear Serv. Stores, 255 Iowa 1112, 1120, 125 N.W.2d 251, 257 (Iowa 1963). Industrial disability is determined by the effect the injury has on the employee’s earning capacity. Bearce v. FMC Corp., 465 N.W.2d 531, 535 (Iowa 1991). Here, the commissioner looked at relevant factors and determined Shriver’s age, combined with the restrictions placed on him by Dr. Henson and his prior work history at manual jobs, led to a reduction in his earning capacity. That decision is supported by substantial evidence in the record and should be affirmed.

IV. Payment of Medical Bills of No-nauthorized Doctor.

The employer argues that Shri-ver did not file an application for alternative care and chose not to be treated by the doctor authorized by the employer. Since Shriver’s care with Dr. Henson was not authorized, the employer should not have to pay for it, according to the employer. The agency and the court both determined that, once the employer contested its liability for the continuing pain Shriver was experiencing, it lost the ability to control the treatment. The Iowa Administrative Code provides:

Application cannot be filed under this rule [the rule for applying for alternative care] if the liability of the employer is an issue. If an application is filed where the liability of the employer is an issue, the application will be dismissed without prejudice.

Iowa Admin. Code r. 876 — 4.48(7) (2001). The industrial commissioner has interpreted this section to mean that,

in Iowa, an employer and its insurer have the right to control the medical care claimant receives, with two exceptions. The first is where the employer has denied liability for the injury. The second is where claimant has sought and received authorization from this agency for alternative medical care.

Freels v. Archer Daniels Midland Co., # 1151214 (7/30/2000).

The employer contends that, since it admitted the injury and directed Shriver’s care, including designation of Dr. Nelson as the treating physician, it should be allowed to continue to direct medical care. On the petition for rehearing, the chief deputy found “[defendants cannot admit an injury arising out of and in the course of employment and claim the right to control the medical treatment, but at the same time deny that the disabling condition is causally connected to the injury and therefore they are not liable for the disability.” We agree.

Iowa Code section 85.27 (2001) provides that “the employer is obliged to furnish reasonable services and supplies to treat an injured employee, and has the right to choose the care. The treatment must be offered promptly and be reasonably suited to treat the injury without undue inconvenience to the employee.” The authorized treating physician in this case was in Des Moines. Shriver lived more than a hundred miles away in Trenton, Missouri. The employer did offer Shriver the option of visiting a Dr. Vale, in Columbia, Missouri; Columbia is three hours away from his house, according to Shriver. Even if the employer did still have the right to control treatment, neither of these options appears to offer Shriver treatment “without undue inconvenience.”

V. Decision Not to Remand to Original Deputy Commissioner.

The employer contends that the original deputy commissioner, who had the opportunity to assess Shriver’s credibility, should be the one to make the determination on the merits of all the issues and that it was an abuse of discretion under the facts of this case not to remand to her. Iowa Code section 86.24(2) states: “In addition to the provisions of section 17A.15, the workers’ compensation commissioner may affirm, modify, or reverse the decision of a deputy commissioner or the commissioner may remand the decision to the deputy commissioner for further proceedings.” Iowa Code § 86.24(2) (emphasis added). The Iowa Administrative Procedure Act provides that,

[o]n appeal from or review of the proposed decision, the agency has all the power which it would have in initially making the final decision except as it may limit the issues on notice to the parties or by rule. The agency may reverse or modify any finding of fact if a preponderance of the evidence will support a determination to reverse or modify such a finding....

Iowa Code § 17A.15(3). The only time final findings of fact must be prepared by the person who heard the case originally is in cases in which “demeanor of witnesses is a substantial factor.” Iowa Code § 17A.15(2). The employer does not argue that demeanor is a factor in this case. The agency was within its discretion in refusing to remand the case.

VI. Conclusion.

The decision of the industrial commissioner was supported by substantial evidence. Under the circumstances of this case, the admission of the late-filed report was within the discretion of the chief deputy commissioner. Further, the case was not required to be remanded within the agency, and the employer was properly ordered to pay the medical fees of Dr. Henson. We accordingly affirm.

AFFIRMED.

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


text:
    Gerald and Judy BECKER, Appellees, v. IOWA DEPARTMENT OF HUMAN SERVICES, Appellant.
    No. 02-0416.
    Supreme Court of Iowa.
    May 7, 2003.

      Thomas J. Miller, Attorney General, and Charles K. Phillips, Assistant Attorney General, for appellant.
    Elizabeth A. Rosenbaum, Sioux City, for appellees.
   LARSON, Justice.

The Iowa Department of Human Services (DHS) appeals from a district court ruling that grandparents are entitled to an adoption subsidy under Iowa Code section 600.20 (2001). Because we disagree with the district court’s interpretation of the statute, we reverse and remand.

I. Issues and Prior Proceedings.

Samantha and Nicole are twin girls born December 4, 1990. The parental rights of their parents were terminated on February 1, 2000, and guardianship and custody of the girls were placed with their paternal grandparents, Gerald and Judy Becker. In the court’s termination ruling, it noted that the Beckers had taken adoption classes, had educated themselves on addictions (from which the children’s parents suffered), and had received a positive home study. The court urged that the Beckers protect the girls from their parents’ harmful influence and put the needs of the twins above those of their parents. Although the agency disagreed with the grandparent placement, it did not appeal the decision to place the children with them. The court stated it would retain jurisdiction over the children until an adoption or guardianship was completed.

On September 27, 2000, the Beckers’ attorney wrote to DHS requesting an adoption subsidy pursuant to Iowa Code section 600.20 (1999), claiming the Beck-ers would be financially unable to adopt the girls without the subsidy. The DHS informally responded that Iowa Code section 600.20 provided an adoption subsidy only if the children were in the guardianship of the State immediately prior to the adoption. Because the Beckers, not the State, had custody and guardianship of the children, the Beckers did not meet the requirements of the statute, according to the DHS. Although the DHS’s opinion was that the Beckers could not qualify, it sent an application for the subsidy to be completed by the Beckers. The application was completed, but the DHS rejected it. An administrative law judge affirmed the denial of the subsidy, based on Iowa Code section 600.20 and its requirement that custody of the children be with the state immediately prior to adoption. This decision was adopted as the final decision of the agency, and the Beckers sought judicial review. The Woodbury County District Court reversed the agency ruling and held that section 600.20 did not bar the granting of the subsidy.

The DHS appealed, arguing that the statute specifies that the children must be adopted from state custody and that the statute does not violate the Federal Adoption Assistance and Child Welfare Act, as alleged by the plaintiffs. The DHS argues that the intent of the federal law was to move hard-to-place children out of the state system, and children who are already outside the system do not qualify. The Iowa statute therefore follows the principles of the federal law and is not preempted by it.

II. The Statutes and Administrative Code Rules.

This case turns on our interpretation of Iowa Code sections 600.17 and 600.20 and the Administrative Code provisions implementing them. Iowa Code section 600.17 provides:

Financial assistance.
The department of human services shall, within the limits of funds appropriated to the department of human services and any gifts or grants received by the department for this purpose, provide financial assistance to any person who adopts a child with physical or mental disabilities or an older or otherwise hard-to-place child, if the adoptive parent has the capability of providing a suitable home for the child but the need for special services or the costs of maintenance are beyond the economic resources of the adoptive parent....

Iowa Code § 600.17 (2001). This statute, however, is limited by section 600.20: Availability of assistance.

Financial assistance shall be available only if the child to be adopted was under the guardianship of the state, county, or a licensed child-placing agency immediately prior to adoption....

Iowa Code § 600.20 (emphasis added). The State, like the ALJ, focused on the language “immediately prior” to deny the subsidy.

The Iowa Administrative Code established guidelines for the subsidies. Rule 441-201.3 defines the conditions of eligibility-

The child is eligible for subsidy when the department or a private agency has documented that it has been unable to place the child in an appropriate adoptive home without a subsidy and the child is determined to be a child with “special needs” based on one or more of the following reasons:....
f The child is aged eight or over and Caucasian....
h. The child is a member of a sibling group of three or more who are placed in the same adoptive home, or a sibling group of two if one of the children has special needs because of one of the above reasons.

Iowa Admin. Code r. 441-201.3 (2001). These children clearly fit these guidelines. They are Caucasian, a sibling group of two, and they are over the age of eight. See Iowa Admin. Code r. 441-201.3(l)(f), (⅛).

The Beckers contend that section 600.20 conflicts with federal law, specifically, “The Adoption Assistance and Child Welfare Act of 1980,” P.L. 96-272, passed by Congress in an effort to provide, with states, federal financial assistance to aid in the adoption of children. The Children’s Bureau of the Department of Health and Human Services, which coordinates the federal portion of the program, explains the purpose of the act:

This landmark legislation was intended to provide, for the first time, Federal financial participation with States in a program of incentives and supports to families adopting certain children who, because of a variety of specific factors or conditions [later defined as including age, ethnic background, emotional, physical or mental handicap, or membership in a minority or sibling group], could not be adopted without assistance.

U.S. Dep’t. of Health & Human Servs. Federal Policy Statement, ACYF-PIQ-90-02 (October 2,1990).

III. Application of the Statute and Rules.

The Beckers rely on this conclusion in the district court’s ruling:

In this instance, it is clear that the legislature’s intention was to have the Iowa Department of Human Services do whatever is in the best interest of the children. Specifically, [Iowa Code section] 600.20 is intended to provide adoption assistance for children with special needs.

We agree with the district court and the Beckers that these children fit the profile of special-needs children. In fact, the DHS does not challenge that. The problem is not with the children, but with the circumstances under which their custody arrangements have been made. They are not presently in state custody, so they cannot qualify for the subsidy because of the requirement of section 600.20 that they be “under the guardianship of the state, county, or a licensed child-placing agency immediately prior to adoption.”

A dictionary defines “immediate” as acting or being without the intervention of another object, cause, or agency: DIRECT, PROXIMATE ... being or occurring without reference to other states or factors: ... having no individual intervening: being next in line or relation: not secondary or remote ... characterized by contiguity: existing without intervening space or substance....

Webster’s Third New International Dictionary 1129 (unabr. ed.1986).

We believe the word “immediately,” as used in section 600.20, connotes a temporal feature, as to which some argument might be made if the adoption is “soon,” or “close in time,” to the state’s guardianship. We believe, however, it also suggests a functional immediacy, “acting or being without the intervention of another object, course, or agency; DIRECT, PROXIMATE ... characterized by contiguity.” As to this latter definition of immediate, there can be no argument in this case. To qualify for the subsidy, we believe, the adoption must be contiguous in function, i.e., without any intervening agency or individual, in order to qualify. This lends certainty to the application of section 600.20 because, in every case, there clearly is or is not an intervening agency or person. It also furthers the goal of the adoption subsidy program, which is to move children out of public or private agencies by encouraging private involvement through financial incentives. The DHS argues that this is the interpretation to be given section 600.20 because the funds available for this purpose are limited, and they must be applied for the purpose of moving children out of limbo, not to finance adoptive parents for children who are already out of the state system. We give weight to administrative interpretations of statutes that agencies administer. See Iowa Code § 4.6(6); City of Waterloo v. Black Hawk Mut. Ins. Ass’n, 608 N.W.2d 442, 445 (Iowa 2000); In re G.J.A., 547 N.W.2d 3, 6 (Iowa 1996).

This interpretation is also consistent with federal regulations, which suggest the adoption subsidy is to be used as an incentive to place children with “appropriate parents” and should be used only if other efforts to that end are unsuccessful. For example, under the regulations,

the State must determine that there exists a specific factor or condition because of which it is reasonable to conclude that the child cannot be placed with adoptive parents without providing title IV-E adoption assistance....
The State must determine that in each case a reasonable, but unsuccessful, effort to place the child with appropriate parents without providing adoption assistance has been made.

U.S. Dep’t of Health & Human Servs., Policy Announcement, ACYF-CB-PA-01-01, at 2 (January 23, 2001).

IV. The Federal Preemption Argument.

Beckers dispute that federal regulations such as these suggest that adoption subsidies should be used solely to encourage otherwise unlikely cases of adoption to go forward rather than as an aid to all children who qualify. In fact, Beckers argue that imposition of this “immediate” custody requirement is contrary to, and thus preempted by, federal statutes, which are not so limited. This argument was presented to, but rejected by, the Pennsylvania Supreme Court, which said:

“Although, unlike Pennsylvania law the [federal] Child Welfare Act does not specify that a child be in agency custody in order to be eligible for adoption assistance, both [the federal] statute by its terms, and its history contemplate providing assistance only to children in state custody. The federal law refers to a state’s “placement” of a “foster child” for adoption and requires that the state agency determine that the child cannot be placed for adoption because of specified factors and/or conditions, after the agency has made an unsuccessful effort to place the child with adoptive parents.”

C.B. & J.B. v. Commonwealth, 567 Pa. 141, 786 A.2d 176, 182 (2001) (quoting dissent in lower court in same case, Barczynski v. Dep’t of Pub. Welfare, 727 A.2d 1222, 1226 (Pa.Cmmw.Ct.1999) (Colins, J., dissenting)). After discussing the history of the Pennsylvania and federal acts, the Pennsylvania Supreme Court stated,

for all of these reasons, we hold that the Pennsylvania Act’s requirement of agency custody does not conflict with the federal Act and, therefore, the requirement [of state custody] is not preempted.

Id. at 183. (The Pennsylvania Supreme Court ruled that the subsidy could be paid in that case — not because the state custody requirement was invalid but because, the court concluded, the children were actually in state custody. Id. at 185-86.).

V. Conclusion.

Based on the DHS’s interpretation of the statute, the federal regulations quoted above, and our own analysis, we conclude the plaintiffs are not entitled to receive the adoption subsidy under Iowa Code section 600.20. We reverse and remand for an order dismissing the-petition.

REVERSED AND REMANDED.

      . The language of the 1999 version of the statutes and the 2001 version used by the district court are identical. For convenience, all references to the Code will be to the 2001 edition.


author: PER CURIAM.

text:
    In the Matter of William P. RICKABAUGH, A Practicing Attorney.
    No. 02-1145.
    Supreme Court of Iowa.
    May 7, 2003.
    Norman G. Bastemeyer and Charles L. Harrington, Des Moines, for complainant.
    William P. Rickabaugh, Tabor, pro se.
   PER CURIAM.

The Nebraska Supreme Court disbarred attorney William Rickabaugh for various ethical violations, including accepting a legal matter he was not competent to handle, neglect, and creating fictitious legal documents. The Nebraska court forwarded a copy of the decision to our clerk, and we issued a reciprocal discipline notice and order under Iowa Court Rule 35.18. Ric-kabaugh filed a timely objection, and a hearing was held before a panel of this court.

At the hearing, Rickabaugh conceded he could not challenge the merits of the underlying Nebraska judgment, but maintained his acute anemia prevented him from adequately conducting discovery and defending his interests in the disciplinary proceedings. He also asserted a Nebraska disbarment differs from an Iowa disbarment, and an Iowa disbarment would be too severe a sanction. See Iowa Ct. R. 35.18(2).

Upon our review en banc, we conclude the Nebraska proceeding afforded Ricka-baugh an adequate opportunity to defend his interests, a Nebraska disbarment does not differ significantly from an Iowa disbarment, and the appropriate sanction in this case is an indefinite suspension of Rickabaugh’s license to practice law in Iowa, with no possibility of reinstatement for three years.

I. Background Facts and Proceedings.

The Nebraska Supreme Court summarized the relevant findings in this case as follows:

In regard to count I, respondent advised Randall Davis and his business associate David Mutum (the clients) regarding collective bargaining agreements but failed to inform them that he was not qualified, either by experience or training, to give such advice. Respondent also represented the clients and their companies as defendants in a lawsuit concerning the collective bargaining agreements which was filed in federal court. Respondent failed to inform the clients that he was not qualified, either by experience or training, to handle the representation of a lawsuit in federal court. Respondent faded to keep the clients advised of developments in the case, including settlement negotiations, and failed to review settlement documents with the clients or to explain to them the import of such documents.
In regard to count II, respondent created fictitious pleadings and forged a judge’s signature in an attempt to persuade Davis that respondent had filed a lawsuit and obtained a judgment in favor of one of Davis’ companies against another company. The referee rejected respondent’s asserted defense that he had created the fictitious pleadings to appease Davis in order to prevent possible unspecified violence by Davis. Respondent could not identify any specific threat of violence which may have been made.

Nebraska ex rel. Counsel for Discipline v. Rickabaugh, 264 Neb. 398, 399-400, 647 N.W.2d 641, 642 (2002).

The foregoing factual findings from the Nebraska proceeding are conclusive and not subject to readjudication. Iowa Ct. R. 35.18(2); In re Kirshen, 451 N.W.2d 807, 808 (Iowa 1990). Similarly, because neither party filed exceptions to the Nebraska referee’s report and recommendation regarding Rickabaugh, the Nebraska Supreme Court considered the referee’s findings final and conclusive. See Neb. Ct. R. of Discipline 10(L) (rev.2001); Nebraska ex rel. Counsel for Discipline v. Apker, 263 Neb. 741, 748, 642 N.W.2d 162, 169 (2002).

Based on these findings, the court concluded Rickabaugh violated “DR 1-102(A)(1), (4), (5) and (6); DR 6-101(A)(l), (2) and (3); and DR 7-102(A)(3) and (5)” as well as his attorney’s oath of office, and determined he should be disbarred.

II. Rickabaugh’s Challenge to the Findings.

Rickabaugh claims his anemia prevented him from conducting the discovery necessary to acquire evidence supporting his claim that he created the fictitious documents to prevent Davis from committing domestic violence. He also asserts his condition rendered him unable to defend himself against the charges. We reject these claims. Rickabaugh raised the issue of his anemia before the Nebraska referee, and testified at length at the hearing, without seeking breaks or other respite. He failed to file an exception to the referee’s report, and did not assert his anemia defense again before the Nebraska Supreme Court. We will not now allow him to conduct his discovery and retry his case anew in our court. There is no evidence his anemia was so debilitating as to rise to the level of a due process deprivation. See Iowa Ct. R. 35.18(3)(⅛).

Rickabaugh’s actions in accepting a legal matter which he was not competent to handle, neglecting a client’s legal matter, and misrepresenting the status of an action and creating fictitious pleadings, including a forged judge’s signature, constituted clear violations of comparable provisions of our disciplinary rules. We therefore turn to his claims regarding the appropriateness of the sanction.

III. Sanction.

A. Identical discipline. Rickabaugh notes that while Iowa’s reinstatement rule, Iowa Court Rule 35.13, does not provide for reinstatement after disbarment, disbarred attorneys may seek reinstatement in Nebraska after 5 years. See Neb. Ct. R. of Discipline 10(L) (rev.2001). He argues this means that an Iowa disbarment is more severe than a Nebraska disbarment, and therefore does not constitute identical discipline. Counsel for our Board of Professional Ethics and Conduct responds that despite the formal availability of reinstatement after disbarment, a Nebraska disbarment is virtually a permanent revocation. Counsel cites an affidavit by the Counsel for Discipline of the Nebraska Supreme Court that out of 118 attorneys disbarred since 1981, none of them have been reinstated.

We previously noted the distinction Ric-kabaugh makes in our Kirshen case, but we did not definitively resolve the issue at that time. In re Kirshen, 451 N.W.2d 807, 809 (Iowa 1990). We stated:

We recognize that we are unable to conclude with certainty from this difference in procedural rules that disbarment in Iowa is a more severe sanction than disbarment in Nebraska. We do not have significant data as to how Nebraska has treated disbarred attorneys who have sought reinstatement under its rules. Moreover, there is no way to predict how the Supreme Court of Nebraska will treat attorney Kirshen should he seek reinstatement after the five-year period.

Kirshen, 451 N.W.2d at 809.

Although the apparent difference between the reinstatement rules in Nebraska and Iowa renders Rickabaugh’s claim facially appealing, we now conclude that disbarment in the two states is essentially an identical sanction for purposes of rule 35.18. Disbarment or license revocation is the highest available sanction in both states. Compare State ex rel. Neb. State Bar Ass’n v. Miller, 258 Neb. 181, 198, 602 N.W.2d 486, 499 (1999) (inexcusable circumstances warrant the “most severe sanction” of disbarment), with Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bell, 650 N.W.2d 648, 653 (Iowa 2002) (sparing attorneys the “ultimate sanction” of revocation). The Nebraska Supreme Court has identified the distinction between disbarment and suspension this way: “Disbarment is the severance of the status and privileges of an attorney, whereas suspension is the temporary forced withdrawal from the exercise of office, powers, prerogatives, and privileges of a member of the bar.” State ex rel. Neb. State Bar Ass’n v. Butterfield, 172 Neb. 645, 648, 111 N.W.2d 543, 546 (1961) (citations omitted). We similarly view disbarment or revocation in Iowa as a more permanent sanction than a suspension. The right to apply for reinstatement after disbarment after a period of years does not render similar sanctions dissimilar.

Although Iowa’s reinstatement rule does not formally reference reinstatements after disbarment, the court has entertained such applications and, on very rare occasions, has even granted them:

License revocations are ordinarily permanent in Iowa. Indeed our rules spell out no special procedure for applying for readmission by a lawyer whose license has been revoked. On occasion we nevertheless consider such applications under our inherent power and, in extremely rare cases, have granted them. These rare cases have arisen where, in long retrospect, it appears the need for permanent revocation was debatable, and where there has been a demonstrated reformation on the part of the lawyer so that the public interest would not be compromised by readmission.

Comm. on Prof'l Ethics & Conduct v. Brodsky, 487 N.W.2d 674, 675 (Iowa 1992); see In re Reinstatement of Stephenson, No. 99-1120 (Iowa Sup.Ct. Oct. 8, 1999) (disbarred attorney reinstated); In re Reinstatement of Green, No. 90-1565 (Iowa Sup.Ct. Feb. 14, 1991) (disbarred attorney reinstated contingent on passing bar examination). Viewed in this light, we think— contrary to Rickabaugh’s argument — a Nebraska disbarment may be more severe. In Iowa, although reinstatement is rare, a disbarred lawyer need not wait a minimum period before seeking reinstatement.

B. Appropriate Sanction. Determining a revocation in Nebraska is the same as a revocation in Iowa does not end our inquiry. We still must address Ricka-baugh’s claim that the disbarment imposed in Nebraska is more severe than the sanction he would have received in Iowa for the same conduct. See Iowa Court R. 35.18(3)(c) (authorizing supreme court to impose identical discipline unless “[t]he misconduct established warrants substantially different discipline in this state”).

Rickabaugh’s disciplinary violations are serious indeed. He accepted legal work knowing he was not competent to handle it, he neglected his client’s legal matters, and he even forged a judge’s signature on a fictitious order. His misconduct harmed his clients’ interests. Like the disciplinary authorities in Nebraska, we give little weight to Rickabaugh’s claim he created the fictitious pleadings to prevent domestic violence. Even if he had produced credible evidence that his client was prone to spousal abuse and Rickabaugh’s failures would have ignited his client’s anger, his solution exhibits the exact sort of “ethical myopia” noted by the Nebraska referee.

When combined with other serious misconduct, tendering a false document to the court may warrant disbarment in Iowa. Comm. on Prof'l Ethics & Conduct v. Wenger, 469 N.W.2d 678, 679 (Iowa 1991). Rickabaugh’s action, fortunately, fell short of such fatal misconduct. This is only a minor mitigating factor here, however, because — due to Rickabaugh’s neglect— there was no case in which to file the forged document.

Considered in the light of similar misconduct by other Iowa lawyers, we conclude the appropriate sanction for Ricka-baugh is a lengthy suspension rather than a revocation. See, e.g., Comm. on Prof'l Ethics & Conduct v. Harris, 524 N.W.2d 179, 181 (Iowa 1994) (“gross misconduct” including misleading client and trust account violation warrants three-year suspension); Wenger, 469 N.W.2d at 681 (three-year suspension for tendering false testimony and document during disciplinary proceeding); Comm. on Prof'l Ethics & Conduct v. Nadler, 467 N.W.2d 250, 254-55 (Iowa 1991) (neglect, attempt to limit liability to client, conflict of interest and failure to cooperate with disciplinary committee warrants three-year suspension).

We therefore suspend William Ricka-baugh’s license to practice law in Iowa for an indefinite period, with no possibility of reinstatement for at least three years after the date of filing of this opinion. This suspension applies to all facets of the practice of law. Iowa Ct. R. 35.12(3). Upon application for reinstatement, Rickabaugh must establish that he has not practiced law during the suspension and that he has in all other ways complied with the requirements of Iowa Court Rule 35.21. Costs of this action are taxed to Ricka-baugh pursuant to Iowa Court Rule 35.25.

LICENSE SUSPENDED.