author: SNELL, Justice.

text:
    Timothy Brian WILKER, Appellee, v. Paula Ann WILKER, Appellant.
    No. 00-1384.
    Supreme Court of Iowa.
    July 5, 2001.

      Francesca Passeri, Tipton, for appellant.
    Lawrence L. Lynch of Lynch, Greenleaf & Michael, L.L.P., Iowa City, for appellee.
   SNELL, Justice.

The central concern in this case is physical custody of a child. The issues that stem from that concern are related to due process, a domestic abuse determination under the theory of aiding and abetting, and the admission of two alleged hearsay letters into evidence. Because we agree the best interest of the child can best be met by the husband, we affirm.

I. Factual Background and Procedure

Timothy and Paula Wilker did not have a happy marriage. The turmoil escalated to the point where Timothy asked Paula for a divorce. Paula went to stay with her brother and sister-in-law, Bill and Angie Thumann, for a few days to consider this request. This was a difficult decision for both Wilkers because they had an eight-year-old son, Stephen. Paula left Stephen behind with Timothy during this time.

Paula returned home on a Sunday evening accompanied by Bill, Angie, and their four-year-old child. The following facts are in dispute. Paula claims that she and Angie went inside, while Bill and the child waited in the car outside. Paula told Timothy she would give him a divorce, but only if he let her take Stephen. Paula alleges that Timothy became belligerent and hostile.

During this verbal altercation, Paula claims Angie called Bill into the house “to talk to Tim.” Timothy attempted to call the police, but Angie grabbed the phone to place the call herself, and it became disconnected. Angie sought to take Stephen outside, which Timothy tried to prevent. Bill held Timothy “in a bear hug” to allow Angie and Stephen to exit. Timothy tried to break free and several pieces of furniture were broken in this struggle. Timothy finally got loose and immediately ran to call the police.

Timothy tells a different version of events. Timothy claims that when Paula said she was taking Stephen, he wanted to call police to see what his rights were. Paula stood by while Angie pushed Timothy down on the couch to prevent his call. Paula then let Bill into the house. Timothy got up to attempt to make his call when Bill grabbed him and caused Timothy to fall on a chair, which broke from his fall. Bill then pushed Timothy up against the counter in the kitchen, and Angie pulled the telephone cord out of the wall. Paula did nothing to prevent this situation. Stephen was taken outside and locked in Bill’s truck. Timothy broke free to call the police from his bedroom. Stephen was very upset and crying. Timothy’s attempts to talk to Stephen were thwarted by Paula.

There is no dispute that when police arrived, Bill and Angie were combative and refused to make complete statements. This is corroborated by police. After the police left, Timothy drove himself to the hospital to be treated for his bruises, scrapes, and chest injuries suffered from his contact with Bill Thumann. Timothy then went to the police station to press charges against Bill for assault causing injury and Angie for obstructing emergency communications. He made no criminal allegation against Paula.

Several days later, Timothy decided to file a civil petition against Paula for relief from domestic abuse. He sought a permanent protective order against her and physical custody of their son, Stephen. Following the scuffle, Paula had taken Stephen and refused to return him. Stephen. was returned to Timothy when a temporary protective order was entered against Paula.

In addition to Paula’s part in standing by and letting Bill and Angie assault him, Timothy argued he should have physical custody of Stephen for several reasons: (1) Timothy takes an active role in Stephen’s life by coaching his sports teams and participating in Cub Scouts with him; (2) Paula does not have a driver’s license, and Timothy has always been responsible for Stephen’s transportation needs; (3) Stephen needs medical attention for a potentially serious testicular abnormality which Paula could not provide to him without a driver’s license; (4) Paula suffers from depression and is disinclined to follow treatment orders given to her; and (5) Paula is living in Cedar Rapids with Bill and Angie where Stephen would have to attend a new school and make new friends.

Although Timothy’s petition alleged domestic abuse, it did not indicate Timothy would be asserting an aiding and abetting theory at trial. The trial court allowed Timothy to allege this theory. The trial court also allowed Timothy to admit two alleged hearsay letters into evidence subject to the objection of Paula. The trial court did not state that it relied on any information in these letters to make its ruling. Rather, the court based its decision on Stephen’s medical needs, Paula’s inability to drive him to appointments, Paula’s participation with Angie and Bill “in what [it] believ[ed] to be an assault,” Paula’s living arrangements with people who had physically assaulted Timothy, Paula’s continued ability to harm Timothy by getting the aid of her family, and Stephen’s overall best interest.

As such, the trial court granted physical custody of Stephen to Timothy. It entered a permanent protective order against Paula and her family. Timothy was also allowed to keep the family home for him and Stephen to reside in. Paula was granted visitation of every weekend, Friday 6:00 p.m. to Saturday 6:00 p.m., to occur at a neutral, drop-off site.

Paula appeals the distinct court’s decision alleging: (1) Her due process rights were violated by allowing Timothy to assert an aiding and abetting theory at trial although his petition did not specify this theory; (2) The trial court erred in finding she committed domestic abuse under this theory; (3) The trial court erred in admitting hearsay evidence; and (4) The trial court erred in providing physical custody of Stephen to Timothy.

II. Scope and Standard of Review

“Because child custody and support are matters triable in equity, our review is de novo.” In re Marriage of Fox, 559 N.W.2d 26, 28 (Iowa 1997); Iowa R.App.P. 4. Civil domestic abuse cases are also heard in equity and, thus, deserve a de novo review. Knight v. Knight, 525 N.W.2d 841, 843 (Iowa 1994). Moreover, the same is true when fundamental constitutional rights are raised. Id. As such, we are able to consult the record in its entirety and formulate our own opinion. In re Marriage of Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998) (“We examine the entire record and adjudicate anew rights on the issues properly presented.”). Respectful consideration is given to the trial court’s factual findings and credibility determinations, but not to the extent where those holdings are binding upon us. Iowa R.App.P. 14(f)(7); accord In re Marriage of Knickerbocker, 601 N.W.2d 48, 51 (Iowa 1999).

III. Issues on Appeal

A. Notice

Paula alleges that by asserting an aiding and abetting theory of assault, she had no notice of the charges against her to bring a proper defense for the claim of domestic abuse. We find no merit to this contention. Paula knew that Timothy was alleging she committed domestic abuse against him. She also knew what event caused him to file the suit. Whether he was charging her as the principal or as an aider and abettor of the assault, she knew the conduct she needed to be prepared to refute.

In Iowa, very little is required by way of pleading to provide notice. Iowa R.Civ.P. 69; accord Rieff v. Evans, 630 N.W.2d 278 (Iowa 2001). Civil domestic abuse suits must follow specific statutory procedures, which are prescribed in Iowa Code chapter 236 (1999). Here, the petition was filed on the required domestic abuse form, and Paula was the named defendant. See Iowa Code §§ 236.3, .3A. The affidavit attached to the form described the incident, but did not link the physical violence specifically to one person. Rather, the affidavit said Paula, Bill, and Angie physically assaulted Timothy and forcefully removed Stephen. From this language, it is clear that Timothy intended to treat Paula as a principal. Under our aiding and abetting statute, Paula is just as guilty as the assaulters if she was acting in concert with them. Id. § 703.1. It is not unreasonable to assume then that the same evidence would be presented by Timothy to support his claim that he was assaulted by Paula as a principal or as an aider an abettor.

However, we must recognize that sufficient notice under Iowa Rule of Civil Procedure 69 may not always amount to constitutional due process when significant fundamental interests are at stake. Paula argues that even if she had sufficient notice under Rule 69, because the issues of custody of her son and residence in the family home were involved, more process was due. She argues specifically that she did not receive constitutional notice and an opportunity to be heard because of the petition’s shortcomings.

We must first note that no spouse suffers a “deprivation of a fundamental, constitutionally protected interest when ordered to ‘cease domestic abuse’ of [their spouse].” Knight, 525 N.W.2d at 844 (quoting Iowa Code § 236.5(2)(a)). And while it is certainly true that parental rights enjoy fundamental interest status, this is not a parental rights termination case “where due process requirements are more strict.” Id.; see also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed.2d 645, 652 (1944) (determining that parental rights are a fundamental interest). Instead, we must evaluate this claim

in the context of domestic abuse hearings, hearings that tend to be less than formal.
... Out of necessity domestic abuse procedures are routinely instigated upon a pro se petition and consequently, ... some leeway must be accorded from precision draftsmanship.

Knight, 525 N.W.2d at 843. Paula argues that in Knight, custody and the presumption of awarding the family home to the victim of domestic abuse were not at issue and, therefore, less process was due to the defendant. She maintains that with these interests involved here, something more should have been afforded to her.

We do not require the theory of aiding and abetting to be pled even in a criminal case where the loss of many fundamental interests are at stake. Iowa Code § 703.1 (stating that an aider and abettor is charged as a principal); State v. Black, 282 N.W.2d 733, 735 (Iowa 1979) (“[W]e hold there was no fatal variance between the information charging the defendant as a principal and the proof that he was an aider and abettor to the robber who held the gun”)- We have specifically found: “To have charged defendant as an aider and abettor in the county attorney’s information would have been surplusage.” State v. Rydel, 262 N.W.2d 598, 601 (Iowa 1978).

Any adjudication of domestic abuse may have a potentially negative effect on past, present, or future custody or visitation disputes. Iowa Code § 236.5(2)(d). The fact that such disputes were not involved in Knight does not make the consequences of Knight’s adjudication sufficiently less serious than Paula’s so as to warrant greater due process in her case. Further, the domestic abuse chapter is meant to be “protective rather than punitive in nature ... [and is given] ‘a reasonable or liberal construction which will best effect its purpose rather than one which will defeat it.’ ” Christenson v. Christenson, 472 N.W.2d 279, 280 (Iowa 1991) (quoting Shidler v. All Am. Life & Fin. Corp., 298 N.W.2d 318, 321 (Iowa 1980)).

In Knight, our court allowed the plaintiffs domestic abuse case to be based, in part, on conduct and events not stated in the pleading. Knight, 525 N.W.2d at 843-44. We held there was no due process violation. Similarly, in Smith, notice was not a fatal defect to a domestic abuse petition that did not specifically plead that an assault was committed. Smith v. Smith, 513 N.W.2d 728, 730-31 (Iowa 1994). Neither of these minor shortcomings are at issue in the present domestic abuse petition. Here, the event giving rise to the suit is adequately explained in the petition. There are also sufficient allegations that Timothy was touched in a way he considered to be offensive.

As such, the present petition easily satisfied Rule 69. Further, Paula was present at the hearing, heard Timothy’s testimony, and was able to refute it herself, as well as refute it by calling her sister-in-law, Angie, to testify. She was also represented by counsel. Accordingly, no due process rights were violated.

B. Domestic Abuse by a Preponderance of the Evidence

Because this is a civil proceeding, Timothy needs to prove the occurrence of domestic abuse by a preponderance of the evidence. The two undisputed facts to support Timothy’s allegation of assault are that Bill physically restrained Timothy against his will, and Timothy suffered some minor injuries. In order to prove domestic abuse, sufficient facts of assault must be alleged. The definition of assault is useful to this discussion.

A person commits an assault when, without justification, the person does ...
Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.

Iowa Code § 708.1(1).

It is clear that by Bill putting Timothy in a “bear hug,” he committed an assault on Timothy. Such conduct was committed in Timothy’s home and was unwelcome. The greater weight of the testimony shows that Bill restrained Timothy because he wanted to get Stephen out of the house, not because he was afraid Timothy was a threat. Timothy also testified that Angie physically pushed him down — an act that would be offensive to Timothy. Given these factual findings, and placing considerable weight on the district court’s credibility determinations, there is sufficient evidence to establish by a preponderance of the evidence that an assault occurred.

The key question then is Paula’s involvement in the assault to make her culpable. We have said a person who aids and abets an assault is guilty “whether they directly commit the act constituting the offense.” Id. § 703.1.

To convict one of a crime on the theory of aiding and abetting, the State must produce substantial evidence that the accused
assented to or lent countenance and approval to the criminal act either by active participation in it or by some manner encouraging it prior to or at the time of its commission.
It is true the State must prove the accused knew of the crime at or before its commission. But such proof need not be — and frequently cannot be — established by direct proof. The proof may be either direct or circumstantial.
Although such knowledge is essential, neither knowledge nor proximity to the scene is — standing alone — enough to prove aiding and abetting. But — -as the State points out — such factors in combination with circumstantial evidence such as “presence, companionship, and conduct before and after the offense is committed” may be enough from which to infer a defendant’s participation in the crime.

State v. Lewis, 514 N.W.2d 63, 66 (Iowa 1994) (citations omitted) (quoting State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977); State v. Miles, 346 N.W.2d 517, 520 (Iowa 1984)).

Here, Paula admitted that she brought Bill and Angie along as “insurance” to be able to take Stephen with her. She knew Timothy would oppose such an action should she attempt to take Stephen away by herself. We are persuaded that she called Bill into the house to restrain Timothy when she discovered Timothy would not let her take Stephen. She stood by while Angie shoved Timothy and while Bill struggled with Timothy. She never tried to stop Bill or Angie from touching Timothy. There was also undisputed testimony that this is not the first time Paula has used Bill to assault Timothy. Paula called on Bill to “rough up” Timothy in 1994, which resulted in Bill ripping off Timothy’s shirt and throwing him down on the ground. When the incident at issue here concluded, Paula left with Bill and Angie and returned to their home, taking Stephen with her. No one told police that Timothy had done anything to instigate the physical contact, that his hostility forced them to restrain him and get Stephen outside, or that anyone feared Timothy. Bill and Angie were combative to police questions, and neither they nor Paula would give police a meaningful statement of events.

Although Paula attempts to downplay the event as an inconsequential incident, Timothy was clearly assaulted. We are persuaded that Paula lent countenance to this assault. See State v. Kneedy, 232 Iowa 21, 28, 3 N.W.2d 611, 615 (1942) (“Participation in criminal intent may be inferred from presence, companionship, and conduct before and after the offense is committed.”). As such, we agree that the issue of domestic abuse was proven by a preponderance of the evidence.

C. Admission of Hearsay Subject to Objections

As this was a trial in equity, the court did not need to rule on objections, but could hear all evidence subject to objections. Howard v. Schildberg Constr. Co., 528 N.W.2d 550, 552 (Iowa 1995). The trial court listed the reasons it felt custody should be with Timothy, none of which included any information found within the two alleged hearsay letters. Because we do not find that the district court relied on any information contained in these letters, and because we likewise choose not to incorporate this information into our determination, we need not pass judgment on their admissibility. “The question of admissibility is not controlling ... [if] we arrive at the same result on the merits of the appeal with or without that evidence, under our de novo review.” Stookey v. Stookey, 229 N.W.2d 256, 257-58 (Iowa 1975).

D. Physical Custody Finding

The controlling concern in custody disputes is the best interest of the child. When domestic abuse is involved, safety is also a key consideration. We consider the following factors to determine who should rightfully have physical custody of Stephen: (1) Paula has no driver’s license; (2) Stephen has a potentially dangerous ailment for which he needs medical care; (3) Paula admitted she had no idea that Stephen has a serious medical condition; (4) Paula may suffer from depression, which she does not treat; (5) Timothy is living in the family home near Stephen’s school and friends; (6) Stephen and Timothy share many common interests and participate in sports and Cub Scouts together; (7) Paula committed domestic abuse against Timothy; (8) Paula is living with people who have assaulted Timothy; (9) Timothy testified he had been assaulted by Bill once before at the direction of Paula; (10) Timothy works in the evening; (11) Both testified that they were the primary caregiver; (12) Timothy testified that he is responsible for helping Stephen with his education; (13) Timothy testified that Paula and Stephen’s relationship was unstable and unsupportive; and (14) Paula and Angie testified that Timothy tended to drink a lot, but Timothy denied this allegation.

It is persuasive that at the conclusion of testimony, the district court found Timothy’s testimony more credible and settled the dispute of facts in his favor. We feel there is sufficient evidence to support the district court’s grant of physical custody to Timothy. Clearly, there are some positives and negatives for physical custody in both Timothy and Paula. Giving weight to the district court’s witness credibility determination and factual findings, our court reaches the same conclusion as the district court. Our review of the record indicates Timothy is in the best position to provide for the current and long-term care of Stephen in the safest environment. The best interest of Stephen is properly served by keeping him in a place of normalcy and stability during this volatile time. As such, we uphold the grant of physical custody in Timothy for the duration of the protective order.

AFFIRMED.


source: Caselaw Access Project

author: NEUMAN, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Royce Alan BEACH, Appellant.
    No. 00-0904.
    Supreme Court of Iowa.
    July 5, 2001.

      Linda Del Gallo, State Appellate Defender, and John P. Messina and Martha J. Lucey, Assistant State Appellate Defenders, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Amy Snook, Assistant County Attorney, for appellee.
   NEUMAN, Justice.

This appeal concerns the legality of the sentence imposed by the court upon the defendant’s guilty plea to third-offense operating while intoxicated. Because the court imposed a condition not authorized by the applicable sentencing statute, we vacate the sentence and remand for resen-tencing.

I. Background.

The facts are undisputed. The State charged defendant, Royce Alan Beach, with operating while intoxicated (OWI), third offense, in violation of Iowa Code section 321J.2 (1999). Beach pled guilty as charged. At sentencing, the court committed Beach to the custody of the director of the Iowa department of corrections for a five-year indeterminate term of incarceration under the OWI continuum, with reception at a residential corrections facility operated by the eighth judicial district department of correctional services. See Iowa Code §§ 321J.2(2)(c) (sentencing alternatives), 904.513(1) (continuum of OWI programming under chapter 321J).

There was insufficient space at the residential corrections facility to immediately accommodate Beach. In such event, the sentencing statute authorizes the court to “order an offender to be released to the supervision of the judicial district department of correctional services or held in jail.” Iowa Code § 904.513(1). Here, however, the court’s sentencing order included an alternate no-vacancy plan. It directed that “in the discretion of the Department the Defendant’s custody may be transferred ... to the Iowa Medical and Classification Center, Oakdale, Iowa, for classification and assignment as appropriate.”

The waiting list for placement at the residential corrections facility was estimated to be four to six months long. So corrections officials took custody of Beach at his place of employment and hauled him off to Oakdale pending a vacancy. This appeal by Beach followed.

II. Issue on Appeal/Scope of Review.

Beach contests the legality of the court’s sentencing order, claiming the applicable sentencing statute limits the court’s options regarding temporary placement and prevents the discretionary delegation of authority that occurred here. On appeal, we review a court’s application of a sentencing statute for the correction of errors at law. State v. Stephenson, 608 N.W.2d 778, 784 (Iowa 2000).

The State concedes at the outset that the trial court evidently relied on an older version of section 904.513 when it sentenced Beach. In 1996, Iowa Code section 904.513 was amended to omit language that formerly provided for transfer of the offender to Oakdale pending an opening in a community-based correctional facility. See 1996 Iowa Acts ch. 1165, § 2. The State nevertheless argues that the court’s reliance on an outdated statute does not render Beach’s sentence illegal. Mindful that temporary transfer to Oakdale is not expressly mentioned in the amended statute, it claims the court’s sentence is implicitly justified because incarceration under custody of the director is still very much a part of the “OWI continuum” of supervision and treatment options under section 904.513.

III. Analysis.

The question is what sentencing options the legislature intended by the enactment of section 904.513 as amended. We are guided in that determination by well-established principles. First, legislative intent is expressed by what the legislature has said, not what it could or might have said. State v. Guzman-Juarez, 591 N.W.2d 1, 2 (Iowa 1999). When a statute’s language is clear, we look no further for meaning than its express terms. Id.; State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). Intent may be expressed by the omission, as well as the inclusion, of statutory terms. Marcus v. Young, 538 N.W.2d 285, 289 (Iowa 1995). Put another way, the express mention of one thing implies the exclusion of other things not specifically mentioned. Id. Finally, a change is presumed when a new statute does not contain language included in a former version of the law. Allison, 576 N.W.2d at 373.

The weakness in the State’s argument is that it renders meaningless the changes initiated by the legislature when it amended section 904.513 in 1996. Under the former statute, a court electing to bypass incarceration in favor of community-based sentencing had three alternatives pending placement of the defendant in a residential treatment facility. The defendant could be (1) released on personal recognizance or bond, (2) released to the supervision of the district department of correctional services, or (3) held in jail. Iowa Code § 904.513(l)(e) (1995). If the court committed the defendant to supervision by the district department of correctional services, its choice triggered a further, discretionary decision by the district director (with the approval of the director of the department of corrections) — to transfer the offender to Oakdale until space became available at the local facility. See id. By contrast, the amended statute — applicable to Beach’s sentencing in 2000 — eliminated both the option of releasing the defendant on bond and the option of granting the district director the election to transfer the offender to Oakdale. See Iowa Code § 904.513(1) (1999).

We think the case before us demonstrates the rationale underlying the legislature’s amendment of section 904.513. Beach sought probation, rather than incarceration, so that he could continue to support his family while obtaining treatment for his alcohol dependency. The court, while recognizing the value of not punishing Beach’s family for his crime, rejected probation as an option because of Beach’s history of recidivism. It therefore committed him to an indeterminate five-year term of incarceration but designated a local residential correctional facility as the reception center in accordance with Iowa Code section 904.513.

Had the court stopped there' — or, pursuant to statute, released Beach under supervision by correctional services or held him in jail pending room at the residential correctional facility — it would have fulfilled the evident legislative intent of providing secure but local treatment and supervision, thereby enabling Beach to continue supporting his family. Instead, contrary to the statute, the court authorized the department of corrections, at its discretion, to remove Beach from the community for placement at Oakdale for several months, thereby jeopardizing his job and the support of his dependents. We are convinced it was this latter scenario that the legislature intended to remedy when it eliminated those options by amending section 904.513 in 1996.

Because the court did not follow the options authorized by the legislature in section 904.513(1), the sentence it imposed was illegal and cannot stand. Stephenson, 608 N.W.2d at 784. We therefore vacate the sentence previously imposed and remand for resentencing in accordance with this opinion and the directives of the 1999 Code.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . The former statute provided, in pertinent part:
      If there is insufficient space in a community-based correctional program to accommodate the offender, the court may order the offender to be released on personal recognizance or bond, released to the supervision of the judicial district department of correctional services, or held in jail. If the offender is ordered to the supervision of a judicial district department of correctional services, the district director may request, and the director of the department may approve, the transfer of the offender to the Iowa medical and classification center at Oakdale for classification and assignment, until space is available in a community-based correctional program.

      Iowa Code § 904.513(l)(c) (1995) (emphasis added).


author: TERNUS, Justice.

text:
    STATE of Iowa, Appellee, v. Tyson Fairl TURNER, Appellant.
    No. 99-1247.
    Supreme Court of Iowa.
    July 5, 2001.

      Linda Del Gallo, State Appellate Defender, and Tricia A. Johnston, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Karen B. Doland, Assistant Attorney General, John P. Sarcone, County Attorney, and James Ward, Assistant County Attorney, for appellee.
   TERNUS, Justice.

The. defendant, Tyson Turner, challenges his conviction of the crime of felon in possession of a firearm. See Iowa Code § 724.26 (1997). He claims the court erred in admitting inculpatory statements he made prior to being given Miranda warnings. The State contends Miranda warnings were not required at the time Turner made the statements because Turner was not in custody and the statements were volunteered.

In our de novo review, we conclude that Miranda warnings were required and any incriminating statements made by Turner should have been suppressed. Therefore, we reverse the judgment of conviction and remand for a new trial.

I. Background Facts and Proceedings.

On November 24, 1998, Des Moines police arrested Turner and charged him with three crimes: (1) dominion and control of a firearm by a felon in violation of Iowa Code section 724.26 (count I); (2) trafficking in stolen weapons in violation of Iowa Code section 724.16A (count II); and (3) possession of a controlled substance in violation of Iowa Code section 124.401(5) (count III). At the time of trial Turner waived a jury trial and agreed to submit the case on the minutes of testimony and the record made at an earlier suppression hearing. In return, the State dismissed counts II and III. The trial court found Turner guilty of count I and sentenced him to an indeterminate prison term of five years. The court then suspended this sentence and placed the defendant on probation.

The defendant now appeals the court’s judgment. ■ He asserts the trial court erred in denying his motion to suppress inculpatory statements obtained by the police as a result of a custodial interrogation conducted in violation of Miranda. He also asserts there was insufficient evidence to establish he “knowingly” possessed a firearm, a necessary element of the charge of which he was convicted. See Iowa Code § 724.26. Finally, he asserts that the district court’s finding of guilt was contrary to the weight of the evidence. The record reveals the following facts and circumstances surrounding the defendant’s arrest and subsequent conviction.

Prior to November 24, 1998, Des Moines police suspected drug trafficking at the defendant’s apartment, 1835 Mondamin Avenue, apartment no. 2 in Des Moines. These suspicions were based on a citizen complaint and surreptitious surveillance of the apartment by narcotics investigator, Michael Westlake, and an area patrol officer, Joe Widlowski.

On the evening of November 24, 1998, Officer Widlowski happened to be in the area to serve an arrest warrant on an individual thought to be located in a residence across the street from the apartment under surveillance. Widlowski and another policeman, Officer Cretsinger, were unsuccessful in locating the warranted individual, but noticed “three individuals standing at the base of the stairs of apartment number 2.” Due to the open narcotics complaint at the apartment, Wid-lowski and Cretsinger decided to talk to these individuals to “see what’s going on.” As the officers crossed the street, Turner, one of the three men in the group, started to ascend the stairs to apartment no. 2. Widlowski yelled at Turner several times to come back down, but Turner merely responded “just a minute” and continued up the stairs. Widlowski sped up his pursuit of Turner, but when he reached apartment no. 2, Turner had entered it and locked the door.

Returning to street level, Widlowski and Cretsinger secured the other two individuals and radioed for back-up help. Widlow-ski then returned to the apartment, knocked on the door several times, but received no response. When back-up help arrived, Turner opened the door and walked out. Widlowski immediately placed Turner in handcuffs and did a quick pat down for weapons. No weapons were found. He then placed Turner with the other two secured individuals.

Widlowski next radioed Officer Westlake and advised him of the situation. West-lake testified that Widlowski informed him “the defendant had been arrested.” (Emphasis added.) While waiting for the narcotics officers to arrive, Cretsinger and Widlowski conducted a “safety” search of the apartment to determine whether anyone else was inside. During this search, Widlowski observed marijuana floating in the toilet, a fact he later passed on to Westlake.

When Westlake and his partner, Officer Larine Blad, arrived, they found the defendant handcuffed and sitting outside on some railroad ties. At this point, they took over the investigation, and escorted Turner to their unmarked police car. Once inside the vehicle, the officers told Turner about the narcotics complaint on the residence and requested his permission to search the apartment in order to close out the complaint. Turner verbally agreed to give consent to the search and was taken, still handcuffed, up to the apartment by Officers Westlake, Blad, and Cretsinger. Once inside the apartment Turner’s handcuffs were removed so he could sign the consent-to-search form. Turner was not handcuffed again until a firearm was discovered. At no time was Turner read his Miranda rights.

After written consent was obtained, the officers began searching the residence. During the search, Officer Cretsinger discovered a 9-millimeter handgun in a microwave located in the kitchen. Cretsinger returned to the living room of the small apartment where the defendant and the other officers were located. The officers were aware that Turner was a convicted felon and so, upon discovery of the gun, knew that a crime had possibly been committed.

At this point, Turner made incriminating statements regarding his knowledge of the firearm and its ownership. These statements consisted of a denial of ownership and inconsistent contentions as to the identity of the true owner. (It was later determined that the gun had been stolen from an individual not named by Turner as the owner.) Turner admitted that he knew the weapon was in the apartment. The testimony of the police officers was conflicting as to whether these statements were made in response to questioning by one of the officers.

The officers then placed Turner in handcuffs and arrested him for possession of a firearm as a felon. During his booking at the police station, marijuana was found in Turner’s coat pocket, resulting in the additional charge of possession of a controlled substance.

On January 20, 1999, Turner filed a motion to suppress, asserting that statements he made during the search of his residence occurred in the absence of any Miranda warnings. At the hearing on this motion, Turner argued that the statements resulted from a custodial interrogation. The court rejected the defendant’s argument, finding that at the time the inculpatory statements were made, the defendant “was no longer in custody and therefore no Miranda warnings were required.” This finding made it unnecessary for the district court to decide whether the challenged statements were made in response to interrogation by the officers.

The case was then submitted for a bench trial on a stipulated record. The trial court found Turner guilty of exercising dominion and control over the handgun.

After the defendant filed his appeal, this court entered an order remanding the case to the district court to allow the court to make a factual finding on whether the defendant’s statements were spontaneous or in response to interrogation by the officers. The district court, on remand, found that the defendant “volunteered” the incul-patory statements.

The appeal is now before us for resolution. There are three issues raised: (1) whether the trial court erred in denying Turner’s motion to suppress; (2) whether the evidence was sufficient to support the court’s determination that the defendant was guilty of the charge of felon in possession of a firearm; and (3) whether the district court’s finding of guilt was contrary to the weight of the evidence.

II. Did the District Court Err in Refusing to Suppress the Incriminating Statements Made by the Defendant?

A. Scope of review. The defendant claims his alleged custodial interrogation conducted without the benefit of a Miranda warning violated his Fifth Amendment rights under the United States Constitution. See U.S. Const, amends. V, XIV. Our review of a district court’s refusal to suppress statements allegedly made in violation of constitutional guarantees is de novo. See State v. Countryman, 572 N.W.2d 553, 557 (Iowa 1997). Under this review, we “make an independent evaluation of the totality of the circumstances as shown by the entire record.” State v. Howard, 509 N.W.2d 764, 767 (Iowa 1993). We give deference to the district court’s fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings. See State v. Crravenish, 511 N.W.2d 379, 381 (Iowa 1994).

B. Admissibility of inculpatory statements. The Fifth Amendment to the United States Constitution provides in relevant part, “No person ... shall be compelled in any criminal case to be a witness against himself....” U.S. Const, amend. V. This right against self-incrimination is incorporated into the Due Process Clause of the Fourteenth Amendment and thus applies to the States. See Malloy v. Hogan, 378 U.S. 1, 6-11, 84 S.Ct. 1489, 1492-95, 12 L.Ed.2d 653, 658-61 (1964).

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court stated that a citizen’s privilege against self-incrimination “is fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’ ” 384 U.S. at 460, 86 S.Ct. at 1620, 16 L.Ed.2d at 715 (quoting Malloy, 378 U.S. at 8, 84 S.Ct. at 1493, 12 L.Ed.2d at 659). The Court further noted that because of the “compulsion inherent in custodial surroundings, no statement obtained from [a] defendant can truly be the product of his free choice[,]” unless adequate protective measures are employed. Id. at 458, 86 S.Ct. at 1619, 16 L.Ed.2d at 714. Thus, the Court held that before an individual who is in custody can be subjected to any interrogation, he must be advised of his constitutional rights to remain silent and to have appointed counsel present prior to any questioning. Id. at 478-79, 86 S.Ct. at 1630, 16 L.Ed.2d at 726.

The requirements of Miranda are not triggered “unless there is both custody and interrogation.” State v. Davis, 446 N.W.2d 785, 788 (Iowa 1989). The Court stated in Miranda that custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. We now examine the trial court’s findings that Turner was not in custody and that his statements were not in response to interrogation by law enforcement personnel.

C. Was the defendant in custody so as to be entitled to Miranda learn-ings? The initial question that must be answered is whether Turner was in custody at the time the inculpatory statements were made. See State v. Smith, 546 N.W.2d 916, 920 (Iowa 1996). We employ an objective test: “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82 L.Ed.2d 317, 336 (1984). “[A]ll of the circumstances surrounding the interrogation” are examined. Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1529, 128 L.Ed.2d 293, 298 (1994).

This court’s decision in In re J.D.F., 553 N.W.2d 585 (Iowa 1996), is helpful in evaluating the circumstances of the case before us. In In re J.D.F., a police officer stopped a juvenile to investigate a report that a juvenile had been seen carrying a weapon. 553 N.W.2d at 587. The juvenile ran, but was apprehended. Id. The officer handcuffed the juvenile, placed him in the back of the squad car, and questioned him about his knowledge of a gun. Id. The juvenile eventually led the officer to a loaded pistol hidden under a tree. Id. After delinquency charges were filed against him, the juvenile moved to suppress his statements on the ground that he had not been given Miranda warnings. Id. This motion was denied, and the juvenile was adjudicated to have committed a delinquent act. Id. In ruling on the juvenile’s appeal, this court held that upon “[bjeing handcuffed and placed in the police car by the police officers, JDF was clearly in custody.” Id. at 588.

A very similar situation exists here. Officers handcuffed Turner, “secured” him with the other two individuals being detained, and later placed him in an unmarked police vehicle to conduct further investigation. This detention clearly curtailed Turner’s freedom of movement in a significant way. Even the officers themselves characterized Turner as being “arrested” and being “in custody” at this time.

The trial court, however, concluded that once Turner’s handcuffs were removed in the apartment, “he was no longer in custody and therefore no Miranda warnings were required.” We disagree. Turner’s handcuffs were not removed until it was necessary to allow him to sign the consent form. Thereafter, three officers were always present in the apartment while it was searched. There was no evidence that Turner was told he was free to leave. We do not think the mere fact Turner’s handcuffs were removed so he could sign the consent form would lead a reasonable person in his position to believe that his custodial status had changed. We conclude, therefore, that Turner was in custody at the time he made the incriminating statements.

D. Were the statements made by the defendant the product of interrogation? As previously noted, in order for Miranda rights to attach, there must not only be custody, but interrogation, as well. See Davis, 446 N.W.2d at 788. Statements made after a person is taken into custody are not automatically considered the product of interrogation. See Rhode Island v. Innis, 446 U.S. 291, 299, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 307 (1980). Thus, statements that are volunteered, spontaneous and freely made by an arrested person do not come within the scope of Miranda. See State v. Brown, 176 N.W.2d 180, 182 (Iowa 1970); accord Miranda, 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726 (“Any statement given freely and voluntarily without any compelling influences is ... admissible in evidence.”). Consequently, inculpatory statements that were made prior to any police questioning are generally admissible. See Innis, 446 U.S. at 300-01, 100 S.Ct. at 1689-90, 64 L.Ed.2d at 307.

Turning to the present case, the district court found that Turner “volunteered” the statements with respect to ownership of the gun. We interpret this finding to mean that the court found the statements to be spontaneous and not the product of interrogation.

The evidence in the record on this issue came from Officers Westlake and Blad, who were present during the search of the apartment. Officer Westlake testified that the defendant was not questioned and “just started saying that it [the gun] wasn’t his.” Officer Blad’s testimony on direct examination was not as clear. She said that “[t]here was just a question as to whose gun is it,” but she did not recall whether the defendant was asked any questions before he started talking. On cross-examination, Blad testified that Officer Cretsinger came into the living room with a gun that he had found in the microwave. She said that somebody — either Westlake or Cretsinger — said to Turner, “Whose gun is this?” She acknowledged that it was at that point that Turner “started blabbing on about various explanations for what he knew about the gun.”

Apparently, the trial court found Officer Westlake to be more credible, but the court did not state this conclusion in its ruling nor give any reason for why West-lake’s testimony was more believable. Common sense would point in the other direction. See generally State v. Frake, 450 N.W.2d 817, 819 (Iowa 1990) (stating that reasonableness of a witness’s testimony may be considered in determining believability of testimony). Under West-lake’s version of the events, Turner, simply upon seeing the gun, blurted out denials of ownership and assertions about who owned it. It seems more plausible that the officer who discovered the weapon came into the living room in order to investigate the ownership of the gun and at that point asked Turner what Turner knew about it. In fact, this is exactly what Officer Blad said happened.

Adding to Blad’s credibility is the fact that her testimony was given at the suppression hearing where the focus was on whether Turner’s statements should be held inadmissible because they were the result of a custodial interrogation. Blad knew when she testified that her version would be damaging to the prosecution’s ability to use the challenged evidence. If the officers had any motive to color the facts in one direction or another, it would be in the direction of the statements preceding any questioning, not as Blad testified- — that the questions came first. Whether a witness has “any personal interest, motive or purpose to remember so as to shade meanings of words and actions relating to the testimony” is highly relevant to the witness’s credibility. Gregory v. Gregory, 248 Iowa 672, 678, 82 N.W.2d 144, 148 (1957); accord Frake, 450 N.W.2d at 819 (stating court may consider “the witness’s interest in the trial” to assess witness’s credibility). Thus, the fact that Blad’s testimony was contrary to the State’s interest heightens her credibility.

The State bears a heavy burden to establish the admissibility of statements made by an individual while in custody. See State v. Cullison, 227 N.W.2d 121, 127 (Iowa 1975). We do not think it has met that burden here. We hold, therefore, that Turner’s statements were the product of a custodial interrogation. Because he had not been given his Miranda warnings, the statements were inadmissible.

E. Was the erroneous admission of this evidence harmless error? The State argues that even if Turner’s statements should not have been admitted, any error was harmless. “In order for a constitutional error to be harmless, the court must be able to declare it harmless beyond a reasonable doubt.” State v. Deases, 518 N.W.2d 784, 791 (Iowa 1994). “If substantially the same evidence is in the record, erroneously admitted evidence is not considered prejudicial.” Id.

In the present case, Turner’s statements were used by the State to prove that he was in “dominion and control” of the firearm. Although Turner denied ownership of the gun, his statements indicated that he knew the gun was in the apartment. In addition, his conflicting statements about who did own the gun were another indication of guilt. See State v. Mayberry, 411 N.W.2d 677, 682 (Iowa 1987) (stating that guilt may be inferred from defendant changing his story); State v. Blair, 347 N.W.2d 416, 422 (Iowa 1984) (stating that “a defendant’s inconsistent statements are probative circumstantial evidence from which the jury may infer guilt”). Finally, assuming that Turner volunteered the statements as the trial court believed, his statements could indicate a “consciousness of guilt.” State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993) (“Admissions may be implied by the conduct of the defendant subsequent to a crime, including fabrication, when such conduct indicates a consciousness of guilt.”). Thus, the erroneously admitted statements were prejudicial to Turner’s defense.

The State argues, nonetheless, that any prejudice was harmless because Turner’s dominion and control of the gun was established without his inculpatory statements based on his dominion and control of the apartment. We have long held that “dominion and control” may be shown by constructive, as well as actual, possession. See State v. Reeves, 209 N.W.2d 18, 22 (Iowa 1973) (addressing possession of illegal substances). Constructive possession exists when, although the contraband is not on one’s person, he or she controls the contraband or has the right to control it. See id.

This court discussed in Reeves the circumstances under which such control or right to control may be proved by inference. There are two. “If the premises on which such substances are found are in the exclusive possession of the accused,” the jury may infer constructive possession. Id. at 23 (emphasis added). We specifically noted that joint possession of the premises would not be sufficient to support an inference of control or knowledge of the contraband. Id.; accord United States v. Morrison, 991 F.2d 112, 115 (4th Cir.1993); White v. State, 47 Ark.App. 127, 129, 886 S.W.2d 876, 878 (1994); State v. Mercado, 887 S.W.2d 688, 691 (Mo.Ct.App.1994); Puente v. State, 888 S.W.2d 521, 526 (Tex.App.1994).

The second situation in which we recognized an inference of possession was “when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his [joint or sole] dominion and control.” Reeves, 209 N.W.2d at 22 (emphasis added); accord State v. Wiley, 366 N.W.2d 265, 270 (Minn.1985) (requiring exclusive access); Marshall v. State, 110 Nev. 1328, 1332, 885 P.2d 603, 606 (1994) (applying same rule stated in Reeves). It is important to note that this second scenario focuses on the place where the drugs are found as contrasted to the premises in which they are found.

With these principles in mind, we now turn to the facts of this case. The record shows that Turner resided at the apartment, but there is no evidence that he was the sole resident of the apartment. To the contrary, Officer Westlake testified at the suppression hearing that Turner might have said that he was not on the lease. Officer Blad testified there was some comment by Turner that the apartment was his and his girlfriend’s. This evidence tends to indicate that Turner was not the sole resident of the apartment. As stated in Reeves, joint possession of the premises will not support an inference of dominion and control of contraband found on the premises. 209 N.W.2d at 23. Here, there is not sufficient evidence to prove sole possession of the premises and, hence, constructive possession of the gun under the first Reeves scenario.

Nor is there any evidence that the microwave where the gun was found was “immediately and exclusively accessible” to Turner. Turner was in the living room of the apartment; the gun was found in a different room. Therefore, there are no facts from which the court could find constructive possession of the gun by Turner under the second Reeves scenario.

In summary, the record would not support a finding of constructive possession under the rules announced in Reeves. Therefore, the only evidence supporting a finding that Turner had dominion and control of the gun were his incriminating statements indicating his ownership of the weapon. Thus, the erroneous admission of these statements was not harmless beyond a reasonable doubt.

III. Was the Evidence Sufficient to SuppoH Defendant’s Conviction?

This court reviews challenges to the sufficiency of the evidence for correction of errors at law. See State v. Chang, 587 N.W.2d 459, 462 (Iowa 1998). We will uphold a verdict if it is supported by substantial evidence. See id. We view the evidence in a light most favorable to the State. See Cox, 500 N.W.2d at 24. “Substantial evidence means such evidence as could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt.” Id. We consider all the evidence, not just the evidence supporting the defendant’s guilt. See State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998).

The sole argument made by the defendant to support his claim that the evidence did not support his conviction was that the trial court, as the finder of fact, allegedly expressed doubt as to Turner’s guilt. At sentencing the court stated, “There is some question in my mind, frankly, about your actual knowledge of the presence of this gun in the microwave and how it got there.... ” (Emphasis added.) Turner claims this statement indicates the judge had “significant doubt” as to the knowledge element of the crime. See Iowa Code § 724.26 (defining crime as “knowingly [having] dominion and control ... [of] a firearm”).

We disagree that the court’s statement at Turner’s sentencing indicated a doubt that Turner knowingly possessed the gun. In its ruling finding the defendant guilty of possession of a firearm by a felon, the court stated, “Statements made by defendant [and] admitted by the [c]ourt indicate knowledge by the [defendant of the existence of the firearm inside the residence.” (Emphasis added.) Although the court may have believed that Turner did not know how the gun got in the microwave, the judge apparently had no doubt that Turner knew the gun was somewhere in the residence.

Based on our consideration of the court’s statement in the larger context of the entire trial court proceedings, we do not think the judge expressed doubt as to the defendant’s guilt. Therefore, we reject the defendant’s argument that the evidence was insufficient to support his conviction on this basis.

IV. Summary and Disposition.

The statements made by Turner concerning ownership of the handgun were the product of a custodial interrogation. Because he had not been given any Miranda warnings, the statements were inadmissible. Therefore, the trial court erred in failing to grant Turner’s motion to suppress. This error was not harmless because Turner’s incriminating statements supported the element of “dominion and control” necessary to a finding of guilt, see Iowa Code § 724.26, and' there was no other evidence, standing alone, that would have established dominion and control. We reject the State’s contention that constructive possession was shown by Turner’s possibly joint residency of the apartment where the gun was found.

The trial court did not express doubt as to the defendant’s guilt of the charged offense and, therefore, Turner is not entitled to a judgment of acquittal.

We grant the defendant a new trial based on the trial court’s erroneous admission of his inculpatory statements. This conclusion makes it unnecessary to decide whether Turner is entitled to a new trial based on his claim that the verdict was against the weight of the evidence.

REVERSED AND REMANDED.

      . Iowa Code section 724.26 provides:
      A person who is convicted»of a felony in a state or federal court and who knowingly has under the person’s dominion and control, receives or transports or causes to be transported a firearm or offensive weapon is guilty of a class "D” felony.

      . We take this opportunity to correct a short line of opinions that have mistakenly stated our scope of review with respect to factual findings of the district court in cases alleging constitutional error. In State v. Cadotte, 542 N.W.2d 834 (Iowa 1996), we said, in a case raising Fourth Amendment claims, that "[fjact-findings underlying the district court's ruling ... are binding on us if supported by substantial evidence.” 542 N.W.2d at 836. As authority for this erroneous statement, we relied on State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990), a case involving only issues of statutory interpretation and application. Since our Cadotte decision, this court has cited and relied on Cadotte’s flawed statement of our scope of review in several other cases. See State v. Kubit, 627 N.W.2d 914, 918 (Iowa 2001); State v. Heminover, 619 N.W.2d 353, 356 (Iowa 2000); State v. Gillespie, 619 N.W.2d 345, 350 (Iowa 2000); State v. Cline, 617 N.W.2d 277, 280 (Iowa 2000); State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999). We now disavow the statements made in Cadotte and its progeny with respect to our review of a court’s factual findings in cases raising constitutional questions.


author: HUITINK, Presiding Judge.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Irvin Harold HALTERMAN, Defendant-Appellant.
    No. 00-374.
    Court of Appeals of Iowa.
    April 11, 2001.

      Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Stephen Holmes, County Attorney, and Angelina Newman, Assistant County Attorney, for appellee.
    Considered by HUITINK, P.J., and VOGEL and MAHAN, JJ.
   HUITINK, Presiding Judge.

Defendant appeals the fine and sentence imposed following his conviction for sexual abuse in the third degree, as a habitual offender, and indecent contact with a child. He claims the district court imposed an illegal sentence by imposing a fine upon a habitual offender. He also claims the court failed to exercise discretion in imposing a fine as part of his sentence for indecent contact with a child. We affirm in part and vacate in part.

I. Background Facts and Proceedings.

Irvin Halterman was charged with sexual abuse in the third degree, in violation of Iowa Code section 709.4(2)(b) (1997), and indecent contact with a child, in violation of section 709.12(1). The charges arose due to allegations Halterman, who was sixty-two years old, had sexual contact with a thirteen-year-old friend of his daughter. A jury found him guilty of these charges. The district court determined Halterman was a habitual offender.

The court sentenced Halterman to a term of imprisonment not to exceed fifteen years on the charge of third-degree sexual abuse as a habitual offender. Halterman was sentenced to a term of imprisonment not to exceed two years on the charge of indecent contact with a child. These sentences are to run consecutively. The court ordered Halterman to pay a fine of $500 on each charge. Halterman appeals.

II. Scope of Review.

An illegal sentence may be corrected at any time. State v. Sisk, 577 N.W.2d 414, 416 (Iowa 1998). Where the sentence imposed is beyond the court’s authority, we review for errors at law. State v. Morris, 416 N.W.2d 688, 689 (Iowa 1987).

Where a challenged sentence does not fall outside statutory limits, we review the court’s sentencing decision for an abuse of discretion. State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998). An abuse of discretion is found only if the court’s discretion has been exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999).

III.Fines.

A. Third-Degree Sexual Abuse.

Halterman contends that because he was sentenced as a habitual offender he should not be required to pay a fine. The habitual offender provisions apply to persons convicted of class “C” or class “D” felonies. Iowa Code § 902.8. Sexual abuse in the third degree is a class “C” felony. Iowa Code § 709.4.

The habitual offender statute does not create a crime; it merely enhances punishment. State v. Smith, 282 N.W.2d 138, 143 (Iowa 1979). Because Halterman is a habitual offender, he was sentenced pursuant to section 902.9(2). Section 902.9(2) does not provide for a fine. Although section 902.9(2) does not identify a fine to be imposed against habitual offenders, it does not preclude another statute from imposing such a fine. State v. Carstens, 594 N.W.2d 436, 437 (Iowa 1999) (defendant sentenced as a habitual offender for violating section 124.401(1)(c), which does provide for a fine “in addition to the provisions of section 902.9”).

In the present case, section 709.4 does not contain a separate penalty provision. Those found guilty of violating section 709.4 are sentenced pursuant to the general sentencing statute, section 902.9. See State v. Ayers, 590 N.W.2d 25, 29 (Iowa 1999) (where a statute does not provide for a specific penalty we must look to general sentencing provisions). Section 902.9(3) provides:

A class “C” felon, not an habitual offender, shall be confined for no more than ten years, and in addition may be sentenced to a fine of at least five hundred dollars but not more than ten thousand dollars.

Iowa Code § 902.9(3) (emphasis added). Thus, in the present case, no separate statute imposed a fine against defendant. We determine the district court imposed a fine not provided for by law. The State agrees the fine was improper. We vacate the fine.

B. Indecent Contact With a Child.

In addition to the conviction for sexual abuse in the third degree, Halterman was convicted of indecent contact with a child, which is an aggravated misdemeanor. See Iowa Code § 709.12. In sentencing defendant on this charge, the district court stated:

On the charge of Indecent Contact With a Child, an aggravated misdemean- or, that you be sentenced to a term not to exceed two years in prison and fined the minimum five hundred dollar fine and that that sentence shall run consecutive to the charge and sentence on Sexual Abuse in the Third Degree, Habitual Offender.

On appeal, Halterman contends the district court did not exercise its discretion in imposing the “minimum” $500 fine. He asserts the court improperly believed it did not have any discretion in imposing a fine. He points out the fine could have been suspended. See State v. Ayers, 590 N.W.2d 25, 31 (Iowa 1999).

When a sentencing court has discretion, it must exercise that discretion. State v. Finchum, 364 N.W.2d 222, 225-26 (Iowa 1985). Where a court fails to exercise its discretion because it erroneously believes it has no discretion, a remand for resentencing is required. State v. Lee, 561 N.W.2d 353, 354 (Iowa 1997).

We find the district court did not fail to exercise its discretion. There is no indication in the record the court felt the $500 fine was mandatory. Furthermore, there is nothing to show the parties felt the fine was mandatory. The prosecutor stated, “based on the length of time I am recommending for incarceration, I believe that the minimum financial or monetary penalty would be sufficient.... ” Defense counsel did not mention the fine during argument. Defendant has failed to show the district court did not exercise its discretion in imposing a fíne against him.

We affirm Halterman’s convictions and the sentence against him for indecent contact with a child. We vacate the fine portion of his sentence for sexual abuse in the third degree, habitual offender.

AFFIRMED IN PART AND VACATED IN PART.

      . Iowa Code section 902.9(2) (1997) is now found at section 902.9(3) (2001).

      . Iowa Code section 902.9(3) (1997) is now found at section 902.9(4) (2001).


author: MAHAN, Judge.

text:
    PEKIN INSURANCE COMPANY, Plaintiff-Appellant, v. AUTO-OWNERS INSURANCE COMPANY, Defendant-Appellee.
    No. 00-1007.
    Court of Appeals of Iowa.
    April 11, 2001.

      Joseph M. Barron, John M. Wharton, Peddicord, Wharton, Spencer & Hook, P.C., Des Moines, for appellant.
    Jason T. Madden, Mark L. Tripp, Mark A. Teigland, Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellee.

      Heard by HUITINK, P.J., and VOGEL and MAHAN, JJ.
   MAHAN, Judge.

Plaintiff insurance carrier appeals following the grant of summary judgment for the defendant insurance carrier on plaintiffs declaratory judgment action. Plaintiff contends the court erroneously inferred the defendant’s insured intentionally caused the accident in question, thereby barring automobile insurance coverage pursuant to the policy’s intentional act exclusion. We reverse and remand.

Background Facts and Proceedings. Pekin Insurance Company (Pekin) provided automobile liability insurance coverage, including uninsured motorist and un-derinsured motorist coverage, to Brent Buckingham. Auto-Owners Insurance Company (Auto-Owners) provided automobile liability insurance coverage to Dennis Vinson.

On April 8, 1994, Vinson was following a vehicle driven by Buckingham. While en route to their destination, Vinson began an impromptu game of “bump and run.” During this game, the trailing vehicle drives as close as it can to the lead vehicle, at highway speeds, to the point where the two vehicles actually make contact. Vinson and Buckingham had played impromptu games of “bump and run” on three or four previous occasions. Both men had served as the “trailing” vehicle that would start the game. Any contact between vehicles had not resulted in personal injury or property damage. On this occasion, however, Vinson’s vehicle struck Buckingham’s vehicle as Buckingham was slowing down to make a turn. Vinson was traveling at approximately fifty to fifty-five miles per hour when the vehicles made contact. Buckingham lost control of his vehicle, went off the shoulder of the road, and was injured. As a result of the incident, Vinson received a citation for following too closely.

Auto-Owners denied coverage to Vinson on the basis of the intentional act exclusion contained in its liability policy. Pekin provided coverage to Buckingham on the basis of its uninsured motorist coverage. Vinson assigned his claim against Auto-Owners to Buckingham and Pekin. Pekin filed a declaratory judgment action against Auto-Owners to recover amounts paid by Pekin to its insured, Buckingham, pursuant to his uninsured motorist coverage. Pekin sought a determination Vinson did not intentionally injure Buckingham and therefore the insurance policy issued by Auto-Owners to Vinson provided coverage for the accident.

The parties filed cross-motions for summary judgment, raising the intentional act exclusion issue. The district court concluded Vinson had no actual intent to injure Buckingham, but his intent to injure could be inferred from the totality of circumstances surrounding the accident. The court found it “reasonably foreseeable that striking a moving vehicle at a high rate of speed will result in that vehicle leaving the roadway and bodily injury to its occupants.” It denied Pekin’s motion for summary judgment, granted Auto-Owner’s motion for summary judgment, and dismissed Pekin’s petition. Pekin appeals.

Standard of Review. We review a summary judgment ruling for errors at law. Iowa R.App.P. 4; St. Ansgar Mills, Inc. v. Streit, 613 N.W.2d 289, 292 (Iowa 2000). Summary judgment is appropriate where the moving party shows no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Iowa R.Civ.P. 237(c); Swartzendruber v. Schimmel, 613 N.W.2d 646, 649 (Iowa 2000). We examine the record before the district court to determine whether any genuine issue of material fact exists and whether the court correctly applied the law. Schoff v. Combined Ins. Co. of America, 604 N.W.2d 43, 46 (Iowa 1999).

Intentional Act Exclusion. An intentional act exclusion bars coverage if the insured intended both (1) to do the act which caused the injury, and (2) to cause some kind of bodily injury. Allied Mut. Ins. Co. v. Costello, 567 N.W.2d 284, 286 (Iowa 1996) (quoting AMCO Ins. Co. v. Haht, 490 N.W.2d 843, 845 (Iowa 1992)). The burden of establishing an exclusion rests upon the insurer. Id. The parties agree Vinson intended to “bump” Buckingham’s vehicle on the date of the accident, thereby satisfying the first part of the test. The parties, however, dispute whether Vinson intended to cause some kind of bodily injury.

The intent to cause the injury may be either actual or inferred. American Family Mut. Ins. Co. v. Wubbena, 496 N.W.2d 783, 784 (Iowa Ct.App.1992) (quoting Haht, 490 N.W.2d at 845). Intent may be inferred from the nature of the act and the accompanying reasonable foreseeability of harm. Id. Once intent to cause injury is established, it is immaterial the actual injury caused is of a different character or magnitude than that intended. American Family Mut. Ins. Co. v. DeGroot, 543 N.W.2d 870, 871 (Iowa 1996).

The district court concluded, “Even though Vinson had no actual intent to injure Buckingham, his intent to injure should be inferred from the totality of circumstances surrounding this unfortunate incident.” We disagree with the district court’s inference of intent in this case, where no actual intent to injure exists.

The case before us differs from Iowa cases in which the court has inferred intent to injure, thus triggering an intentional act exclusion. Those cases dealt with actions prompted by anger, frustration, or non-consensual activity, none of which is present here. See Costello, 557 N.W.2d at 285 (insured lost his temper during a dispute and assaulted his secretary); DeGroot, 543 N.W.2d at 870 (frustrated and angry thirteen-year-old babysitter hit child’s head on the floor three times); Altena v. United Fire and Cas. Co., 422 N.W.2d 485, 485-86 (Iowa 1988) (insured committed repeated non-consensual sex acts upon the victim); Wubbena, 496 N.W.2d at 783 (angry fifteen-year old shot BB gun twice at another boy). Vinson and Buckingham were friends. Vinson intended merely to bump Buckingham’s vehicle. Previous games of “bump and run” between the two had not resulted in injury, thus decreasing the foreseeability of harm.

We believe two cases from other jurisdictions more closely resemble the facts before us. In Morrill v. Gallagher, 370 Mich. 578, 122 N.W.2d 687 (1963), defendants threw a firecracker into a room in which plaintiff was working, to frighten him. Id. at 688. The result was more serious than anticipated, causing injury to plaintiff. Id. Defendant’s policy excluded from coverage injury “caused intentionally by or at the direction of the insured.” Id. at 689. The court concluded the exclusion did not bar coverage:

Some emphasis is placed on [the intentional injury exclusion] on the ground that in the instant case the firecracker was thrown intentionally. Unquestionably such was the case, but it will be noted that under the language of the excluding clause the injury must be caused “intentionally.” There is nothing in this case to justify a conclusion that either Gallagher or Canfield intended to cause any physical harm to plaintiff. The language of the policy is binding on appellant, and if ambiguous it must be construed against appellant’s claims in the instant controversy. It may not be interpreted as barring liability under the policy.

Id. at 691.

A similar set of facts, but a different outcome, is found in Pachucki v. Republic Ins. Co., 89 Wis.2d 703, 278 N.W.2d 898 (1979). In Pachucki, defendants entered the room where Pachucki, a co-employee, was working and started a “greening pin war,” an activity comparable to shooting paper clips with rubber bands. Id. at 899. On a previous occasion, one of the defendants suffered an injury and bled after being struck with a greening pin. Id. at 903. This particular “war” game began spontaneously, and was not the result of any provocation or animosity. Id. at 900. Defendants intended only to “sting” Pa-chucki. Id. at 903. Pachucki and defendants all fired greening pins during the game. Id. at 900. A greening pin struck Pachucki in the right eye, causing an injury to his cornea. Id. at 899.

Defendants’ policy excluded coverage for bodily injury “which is either expected or intended from the standpoint of the insured.” Id. at 900. The court held the exclusion applied to bar coverage. Id. at 904. It distinguished the case from Mor-rill:

Some courts might characterize the defendants’ conduct in this case as “horseplay” as there was no specific intent to do harm. However, the boys’ actual knowledge based upon prior experience that a greening pin will cause harm when it strikes, especially when fired at the close range of six feet, distinguishes this case from the classic “horseplay” case of [Morrill ].... In Morrill the remote possibility of harm cannot be equated with the substantial certainty that harm would result under the facts of this case.

Id. at 903.

Here, as in Pachucki, the parties had engaged in “bump and run” on previous occasions. Similarly, Vinson began the “bump and run” game spontaneously, not out of provocation or animosity. In contrast to Pachucki, however, Vinson and Buckingham had no “actual knowledge based upon prior experience” that harm would result from playing “bump and run.” See Pachucki, 278 N.W.2d at 903. Unlike Pachucki, neither Vinson nor Buckingham suffered injuries during previous games of “bump and run.” Thus, the case before us more closely resembles Morrill, because “there is nothing in this case to justify a conclusion that [Vinson] intended to cause any physical harm to [Buckingham].” See Morrill, 122 N.W.2d at 691. We will not infer intent in this situation, where the record clearly shows no actual intent existed. To do so, based upon the record on appeal, would result in an unnecessary expansion of the intentional injury exclusion. We reverse the judgment of the district court and remand for further proceedings consistent with this decision.

REVERSED AND REMANDED.

      . The exclusion provided: "Liability Coverage does not apply: 1. To any person who inlen-tionally causes bodily injury or property damage.”


author: PORITSKY, Judge.

text:
    STATE of Minnesota, Appellant, v. Janet Kay ANHALT, Respondent.
    No. C2-00-2238.
    Court of Appeals of Minnesota.
    June 19, 2001.

      Mike Hatch, Attorney General, St. Paul; and James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Assistant County Attorney, Dakota County Judicial Center, Hastings, (for appellant).
    Lawrence Nichols, Eagan, (for respondent).
    Considered and decided by STONEBURNER, Presiding Judge, SCHUMACHER, Judge, and PORITSKY, Judge.
   OPINION

PORITSKY, Judge.

The district court determined that a no-knock search warrant executed at respondent Janet K. Anhalt’s residence was improperly issued because the warrant application lacked sufficient facts to justify an unannounced entry. The district court granted Anhalt’s motion to suppress and dismissed appellant state’s case against Anhalt, despite the fact that the officers knocked and announced before executing the warrant. We reverse and remand.

FACTS

In April 2000, South St. Paul Police Officer Sneitzer investigated “possible drug sales or usage” at respondent Janet K. Anhalt’s residence. Sneitzer initiated this investigation because he had received complaints “about heavy traffic of persons coming and going” from Anhalt’s residence. On April 20, 2000, Sneitzer applied for a warrant to search Anhalt’s residence. In the application, Sneitzer indicated that Anhalt was involved in the sale and/or use of narcotics. He also stated that within 24 hours prior to applying for the warrant, he had searched Anhalt’s garbage and found items indicative of methamphetamine use. These items included charred pieces of aluminum foil and clear plastic sandwich bags. The Minneapolis Health Lab analyzed these items and detected methamphetamine in one of the clear plastic bags.

Sneitzer requested authorization to enter Anhalt’s residence unannounced, claiming it would be necessary

to prevent the loss, destruction or removal of the objects of the search [and] to protect the safety of the peace officers * * * because: drugs are easily disposable, and through previous experience, I have learned that [d]rug dealers are known to possess firearms to protect their interest.

On April 20, 2000, the district court issued a search warrant authorizing an unannounced entry.

Officers arrived at Anhalt’s residence on April 27, 2000, at approximately 6:00 p.m., to execute the warrant. Sneitzer and Burnsville police officer Jeffrey Pfaff both testified that Sneitzer knocked loudly on Anhalt’s metal porch door. Sneitzer yelled out, “Police, search warrant.” When no one answered, the officers entered the porch through the metal door. Upon entering the porch, they noticed a second door leading directly into Anhalt’s house, which was ajar. The officers entered this second door without knocking. Once inside the house, the officers announced that they were police officers executing a search warrant. Anhalt was in the home during the search. Anhalt’s children testified that they were also in the home when the warrant was executed, but did not hear the officers knock before entering. Inside Anhalt’s residence, the officers found methamphetamine and drug paraphernalia.

On April 28, 2000, Anhalt was charged with one count of third-degree controlled substance crime and one count of fourth-degree controlled substance crime. On August 11, 2000, Anhalt filed a motion to suppress the evidence taken from her home during the police search, contending that the search warrant lacked sufficient justification for an unannounced entry. On August 18 and 28, 2000, a contested omnibus hearing was held. On December 21, 2000, the district court issued an order

(1) concluding that the no-knock warrant was improperly issued in violation of An-halt’s Fourth Amendment rights and (2) suppressing the evidence seized during the search,

Regarding the sufficiency of information contained in the search warrant application, the district court found that the “application for the search warrant contained boilerplate language in support of a request for a no-knock entry.” The court also found that there was an insufficient showing in the application that an announced entry would result in the destruction of evidence or in danger to the officers executing the warrant. But the court found

[b]efore entering the residence, the officers knocked on the screen door leading to the front porch of [Anhalt’s] home. The officers knocked several times and announced their entry by calling “Police, search warrant” as they entered the home.

The district court did not make a finding as to whether sufficient facts had been presented to the magistrate to support a finding of probable cause to search the home.

ISSUE

Did the district court clearly err in suppressing evidence seized from Anhalt’s house where the search warrant contained a void no-knock provision, but the police knocked and announced their entry before conducting the search?

ANALYSIS

Normally [an appellate] court will only reverse a pre-trial decision of the [district] court suppressing evidence if the State demonstrates clearly and unequivocally that the [district] court has erred in its judgment and that, unless reversed, the error -will have a critical impact on the outcome of the trial.

State v. Othoudt, 482 N.W.2d 218, 221 (Minn.1992) (citation and quotation omitted). “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” State v. Scott, 584 N.W.2d 412, 416 (Minn.1998) (citation omitted). Here, the district court’s decision to suppress evidence terminated the state’s case against Anhalt and therefore, the suppression will have a critical impact. See State v. Kim, 398 N.W.2d 544, 551 (Minn.1987) (stating critical impact has been shown in cases “where the lack of the suppressed evidence completely destroys the state’s case,” and “in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution”).

“When reviewing the legality of a seizure or search, an appellate court will not reverse the [district] court’s findings unless clearly erroneous or contrary to law.” In re Welfare of G.M., 560 N.W.2d 687, 690 (Minn.1997) (citation omitted). But where “[t]he district court’s order is based upon an interpretation of law” the appellate court’s “review [is] de novo.” State v. Robb, 605 N.W.2d 96, 99-100 (Minn.2000) (citation omitted).

Here a factual dispute existed: the police testified that they knocked loudly before entering Anhalt’s home, but her children testified that they did not hear any knocking and that they would have heard it if the police had knocked. The trial court’s finding that the police knocked is supported by the record and is not clearly erroneous.

In determining whether the district court’s application of the law was correct, the proper inquiry begins with an analysis of the warrant application. Police seeking a search warrant authorizing an unannounced entry “must inform the issuing magistrate of the circumstances which they believe justify the unannounced entry and obtain specific advance authorization for it.” State v. Lien, 265 N.W.2d 833, 838 (Minn.1978). The police are required to make a strong showing “that an announced entry will result in the destruction of evidence or in danger to the officers executing the warrant.” Id. The police “must do more than simply make a showing that drugs are involved.” Id. Moreover, boilerplate language without particularized reasons for an unannounced entry is insufficient to show that an announced entry “would be dangerous or allow the destruction of evidence.” State v. Wasson, 615 N.W.2d 316, 320 (Minn.2000); see State v. Martinez, 579 N.W.2d 144, 147-48 (Minn.App.1998) (finding that officer’s statement that “because of his experience he knew that the occupants would likely have and use weapons” was a generalization), review denied (Minn. July 16, 1998).

In requesting a no-knock warrant, Sneitzer merely made general observations, regarding what drug dealers are known to do and how drugs may be discarded easily, none of which were specific to Anhalt. Accordingly, the district court correctly concluded that the no-knock request was improperly granted.

We disagree, however, with the district court’s conclusion that because the no-knock warrant was improperly issued, the entire search of Anhalt’s house was tainted, particularly where the police adhered to knock-and-announce procedures prior to conducting the search. Before executing a search warrant, officers must knock, identify themselves as law-enforcement officers, and state that they have a search warrant. See State v. Linder, 291 Minn. 217, 219, 190 N.W.2d 91, 93 (1971).

In the present case, the district court found that before the officers entered An-halt’s residence they knocked and that as they entered they “announced their entry by calling ‘Police, search warrant.’ ” Because the officers knocked and announced their entry, we conclude that the factual situation is the equivalent to one in which a search is executed pursuant to a warrant without a no-knock provision. Consequently, if the magistrate properly found probable cause to issue the warrant, the evidence should not be suppressed. See State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (reviewing courts should defer to a magistrate’s determination of probable cause). If, on the other hand, the magistrate did not have sufficient information to make a finding of probable cause, the district court’s decision to suppress should be affirmed. The trial court did not make a finding on whether the magistrate had sufficient facts to find probable cause. Therefore we reverse the district court’s decision suppressing the evidence and remand for findings on the issue of whether sufficient facts were presented to the magistrate to support a finding of probable cause to issue the warrant without a no-knock provision,

DECISION

We reverse and remand this case for the district court to determine whether the magistrate properly found probable cause to issue the search warrant.

Reversed and remanded.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.