author: LAVORATO, Chief Justice.

text:
    STATE of Iowa, Appellee, v. Frederick Darnell CARTER, Appellant.
    No. 03-0807.
    Supreme Court of Iowa.
    May 6, 2005.

      Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller,, Attorney General, Mary E. Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and Charles Kenville, Assistant County Attorney, for appellee.
   LAVORATO, Chief Justice.

The district court in a bench trial found the defendant, Frederick Darnell Carter, guilty of possession of a controlled substance (crack cocaine) with intent to deliver. The controlled substance was found in the vehicle Carter was driving at the time he was stopped by the police. He appealed, contending that the district court erred in denying his motion to suppress because the police lacked probable cause to search the vehicle. He also contended that there was insufficient evidence to support his subsequent conviction. We transferred the ease to the court of appeals. That court reversed, finding there was insufficient evidence for the conviction.

We granted the State’s application for further review. On that review, we now conclude that the district court correctly denied Carter’s motion to suppress and that there was sufficient evidence to sustain the conviction. We therefore vacate the court of appeals decision and affirm the district court judgment.

I. Background Facts.

Des Moines Police Officers Sean Wis-sink and Jeff Edwards were on' patrol together in their police vehicle during the evening of December 16, 2002 and the early morning hours of December 17. Wissink was driving:

While the officers were stopped for a red light at the intersection of 19th and Clark Street, they saw a black 1991 Chevy Blazer with its front license plate in the dash rather than affixed to the bumper in violation of Iowa Code section 321.37 (2001) (display of plates). • The officers were northbound on 19th, and the Blazer was westbound on Clark.

Wissink got behind the Blazer and tried to stop it by activating the emergency equipment' of the police vehicle. Rather than stopping, the Blazer turned onto M.L. King Jr. Parkway, crossed three lanes of traffic, struck the curb, and just missed a light pole. While all of this was going on, Wissink saw the driver of the Blazer making movements with his right hand all the way down to the floorboard, causing his head to go down so he could not see the road.

After the Blazer struck the curb, the driver quickly exited the vehicle, left the door open, and appeared nervous. Wis-sink thought he would have to chase the driver on foot so he exited the police vehicle and handcuffed him. Wissink asked the driver for identification but he had none. However, the driver did identify himself as Daryl Saunders and quickly provided the officer a birth date and social security number. Wissink then walked the driver to Edwards, who was between the two vehicles.

After walking the driver to Edwards, Wissink went back to the Blazer, which was still running, looked inside to make sure the car was in park, and saw two inches of a baggie sticking out of the ashtray of the center console. The baggie was in the same area toward which the driver of the Blazer was moving his hand just prior to the stop.

Wissink’s observation of the baggie, coupled with the driver’s movements and erratic driving, led the officer to believe that the baggie contained narcotics and that the driver was trying to conceal the baggie by putting the baggie under the ashtray. Wissink had seen baggies used, in connection with narcotics before and had made many narcotics arrests out of vehicles in this same area. Up to this time, Wissink had worked in the neighborhood area of the stop for nearly six years. Wissink lifted the ashtray and found in the baggie what appeared to the officer to be six individually wrapped rocks of crack cocaine. A later field test confirmed the items in the baggie were cocaine.

The driver of the Blazer expressed surprise at the discovery of the drugs and claimed they were not his. He had $6.09 on his person, did not have a cell phone, pager, or drug notes.

At the time of the stop, Edwards focused on the passenger, who identified himself as Sidney Saunders. Saunders remained in the Blazer. Edwards approached the passenger side of the Blazer and removed Saunders from it. At this point Saunders was not in handcuffs because he was compliant.

After Wissink relayed the driver’s identifying information to Edwards, Edwards ran a warrant and driver’s license check on Sidney Saunders and Daryl Saunders. The checks on Daryl Saunders came back clear while the checks on Sidney Saunders revealed that he had two outstanding warrants for his arrest. Edwards then .placed Sidney Saunders under arrest. Saunders had $295.75 on his .person.

Upon the field confirmation that the items in the baggie were crack cocaine, the officers placed the driver under arrest for possession of a controlled substance with intent to deliver and failure to display a registration plate. The officers also arrested Sidney Saunders for possession of a controlled substance with intent to deliver. As events unfolded, it was determined that the driver of the Blazer was not Daryl Saunders but actually Frederick Darnell Carter.

II. Proceedings.

On January 17, 2003, the State charged Carter with possession of a controlled substance with intent to deliver in violation of Iowa Code section 124.401(l)(c )(3). Later, Carter filed a motion to suppress the cocaine seized from the Blazer. He alleged that the stop and seizure of his person and subsequent search of the Blazer lacked probable cause, a warrant, and voluntary consent. He also alleged that the stop, seizure, and search did not fall within any of the recognized exceptions to the Fourth Amendment to the federal constitution and article I, section 8 of the Iowa Constitution.

Following a hearing on the motion, District Judge Douglas F. Staskal denied it, concluding that because Wissink had probable cause to search the Blazer and because of the mobility of the vehicle, the search was proper.

Carter waived his right to a jury trial, and the case was tried to District Judge Glenn E. Pille, who found Carter guilty as charged. Judge Pille imposed a sentence of incarceration not to exceed ten years, suspended that sentence, and placed Carter on probation.

Carter appealed, contending the district court erred in overruling his motion to suppress. He also contended that there was insufficient evidence to convict him of possession of a controlled substance with intent to deliver.

We transferred the case to the court of appeals. The court of appeals reversed the judgment of conviction and remanded the case for entry of an order of dismissal. The court based its decision on Carter’s sufficiency-of-the-evidenee challenge and did not reach the motion-to-suppress issue.

We granted the State’s application for further review.

III. Issues.

On Carter’s application for further review, we consider two issues: whether the district court erred in (1) overruling Carter’s motion to suppress and (2) finding there was sufficient evidence to support his conviction.

IV. Scope of Review.

Because Carter’s motion to suppress was based on alleged constitutional violations, our review of that ruling is de novo. State v. McConnelee, 690 N.W.2d 27, 30 (Iowa 2004). We evaluate the totality of the circumstances found in the record. State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004). In our review of the suppression ruling, we consider not only the evidence at the suppression hearing but also the evidence at trial. State v. Crawford, 659 N.W.2d 537, 541 (Iowa 2003). We give deference to the district court’s fact findings because of that court’s ability to assess the credibility of the witnesses. Id. However, we are not bound by those findings. Id.

We recently stated the standards governing review of an appeal based on a challenge to the sufficiency of the evidence:

We review sufficiency-of-the-evidence claims for correction of errors at law. We uphold a verdict if substantial evidence supports it. “Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.” Substantial evidence must do more than raise suspicion or speculation. We consider all record evidence not just the evidence supporting guilt when we make sufficiency-of-the-evidence determinations. However, in making such determinations, we also view the “evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the record evidence.”

State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005) (citations omitted).

V.The Suppression Ruling.

Carter contends here as he did in the district court that the officers did not have probable cause to search the vehicle and therefore the search was in violation of the Fourth Amendment of the federal constitution and article 1, section 8 of the Iowa Constitution. Both provisions protect persons from unreasonable searches and seizures. Reinders, 690 N.W.2d at 81. “Evidence obtained in violation of these provisions is inadmissible ‘no matter how relevant or probative the evidence may be.’ ” Id. (citation omitted). The Fourteenth Amendment of the federal constitution makes the Fourth Amendment binding on the states. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961).

“Because the federal and state search-and-seizure clauses are nearly identical,” federal cases interpreting the federal provision are persuasive in our interpretation of the state provision. Reinders, 690 N.W.2d at 81-82. However, such cases are not binding on this court regarding our interpretation of the state provision. Id. at 82. Because Carter has not asserted and we have not found a basis to distinguish the protection afforded by the Iowa Constitution from those afforded by the federal constitution under the facts of this ease, our analysis applies equally to both the state and federal grounds. See id.

Carter does not challenge the stop, only the search. Our analysis is therefore restricted to the search.

A warrantless search like the one here is per se unreasonable unless it falls within a recognized exception. State v. Cline, 617 N.W.2d 277, 282 (Iowa 2000), overruled on other grounds by State v. Turner, 630 N.W.2d 601, 606 n. 2 (Iowa 2001). One of those exceptions exists when there is probable cause for the search, and exigent circumstances require that the search be conducted immediately. Id. Evidence obtained in violation of the constitutional provisions against unreasonable searches is inadmissible unless the State proves by a preponderance of the evidence that this exception applies. Crawford, 659 N.W.2d at 541.

A police officer has probable cause to search a motor vehicle

“when the facts and circumstances would lead a reasonably prudent person to believe that the vehicle contains contraband. The facts and circumstances •upon which a finding of probable cause is based include ‘the sum total ... and the synthesis of what the police [officer has] heard, what [the officer] knows, and what [the officer] observe[s] as [a] trained officer[ ].’ ”

State v. Gillespie, 619 N.W.2d 345, 351 (Iowa 2000) (omission in original) (alterations in original) (citation omitted), overruled on other grounds by Turner, 630 N.W.2d at 606 h. 2. “The determination of probable cause, as the name implies, is based on probabilities and not mere suspicion.” Id. Nor must it rise to the level of certainty beyond a reasonable doubt. Carter v. MacMillan Oil Co., 355 N.W.2d 52, 57 (Iowa 1984).

Exigency exists when the vehicle is mobile and its “ ‘contents may never be found again if a warrant must be obtained.’” Gillespie, 619 N.W.2d at 351 (citation omitted). Carter makes no claim regarding the absence of exigency here. So we focus our analysis on whether there was probable cause for the search.

Applying these principles here and considering the totality of the circumstances, we find, for reasons that follow, that the State has proven by a preponderance of the evidence probable cause to search the vehicle.

The officers were patrolling late at night in an area where -Officer Wissink had in the past made many narcotics arrests out of vehicles. Their attention was drawn to the Blazer because of .a license plate violation. When Wissink signaled the Blazer to stop, he saw Carter digging around the area of the center console with his right hand and ducking below the dash. While this was happening, the Blazer crossed three lanes of traffic and struck a curb. Carter exited the vehicle so quickly that he left the door open, and' he appeared nervous. Because Wissink thought Carter would run, he hurriedly handcuffed him. Carter had no identification on his person and identified himself as Daryl Saunders, the real owner of the Blazer.

Approaching the Blazer, Wissink looked in and saw in plain view two inches of a baggie sticking out of the ashtray of the center console. The baggie was in the area where Carter was digging around just after Wissink signaled him to stop. In his experience as a police officer, Wissink has seen baggies used in narcotics. At trial when asked about the baggie, Wissink testified as follows:

I pretty much knew it was narcotics. It was pretty consistent. Nothing else would be hidden under an ashtray in a baggie.
Q. What else about that is — that made you sure that that was going to be narcotics? A. It was right where he was digging with his hand during the furtive movement when he was trying to turn the corner, failed to do so.

The sum total of these facts together with Wissink’s experience and knowledge would lead a reasonable person to believe that evidence of a crime would be discovered under the ashtray. Armed with such probable cause, Wissink could lawfully search under the ashtray. See California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619, 634 (1991) (police may search an automobile and containers within it when they have probable cause to believe contraband or evidence is contained in those places). The district court did not err in overruling Carter’s motion to suppress.

Other courts have found that a plastic baggie is a commonly used container for narcotics and when seen in an unusual setting can tip the scales in favor of probable cause for a search. See, e.g., People v. Hilt, 298 Ill.App.3d 121, 232 Ill.Dec. 395, 698 N.E.2d 233, 236 (1998) (following traffic stop in early morning hours, police officer’s observation of torn and knotted baggie in plain view inside car, together with officer’s knowledge of drug packaging and that drug dealing often occurred in the area in early morning hours, provided officer with probable cause to conduct war-rantless search of car).

That brings us to the question of whether there was sufficient evidence to sustain Carter’s conviction.

VI. Sufficiency of the Evidence.

The district court convicted Carter of possessing cocaine with the intent to deliver in violation of Iowa Code section 124.401(l)(c )(3). This provision provides in relevant part that “it is unlawful for any person to ... possess with the intent to ... deliver, a controlled substance.” Iowa Code § 124.401(1). The only issue here is whether Carter possessed the controlled substance.

To prove unlawful possession of a controlled substance, the State must prove that the defendant

(1) exercised dominion and control [i.e., possession] over the contraband, (2) had knowledge of its presence, and (3) had knowledge that the material was a controlled substance. Proof of opportunity of access to the place where contraband is found will not, without more, support a finding of unlawful possession.

State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003) (citation omitted).

Possession can be either actual or constructive. Actual possession occurs when the controlled substance is found on the defendant’s person. Constructive possession occurs when the defendant has knowledge of the presence of the controlled substance and has the authority or right to maintain control of it.

Id. at 138 (citations omitted).

Contrary to the State’s contention, we find that Carter did not have actual possession of the controlled substance because it was not found on his person. What remains then is whether Carter had constructive possession.

The State is aided in its burden to prove constructive possession by recognized inferences:

possession may be imputed when the [controlled substance] is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.

State v. Reeves, 209 N.W.2d 18, 22 (Iowa 1973). This inference is not available here because Carter did not have exclusive access to the place where drugs were found; the passenger in his car also had access to the console where the drugs were discovered.

Reeves also recognized an inference arising from the exclusive possession of the premises where contraband is found:

If the premises on which such substances are found are in the exclusive possession of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over such substances may be inferred.... But where the accused has not been, in exclusive possession of the premises but only in joint possession, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof.

Id. at 23 (emphasis added). Because Carter and his passenger were in joint possession of the vehicle in which the drugs were located, the inference of possession arising from exclusive possession of premises cannot assist the State in this case. Thus, Carter’s constructive, possession of the cocaine found in his vehicle must be supported by other facts and circumstances shown by the record.

When the accused has not been in exclusive possession of the premises, several factors are considered in determining whether the accused had constructive possession of the controlled substance. Such factors include: (1) incriminating statements made by the accused, (2) incriminating actions of the accused upon the police’s discovery of a controlled substance among or near the accused’s personal belongings, (3) the accused’s fingerprints on the packages containing the controlled substance, and (4) any other circumstances linking the accused to the controlled substance. State v. Webb, 648 N.W.2d 72, 79 (Iowa 2002).

When the “premises” involve a motor vehicle, a court may consider these additional factors: (1) was the contraband in plain view, (2) was it with the accused’s personal effects, (3) was it found on the same side of the car seat as the accused or immediately next to him, (4) was the accused the owner of the vehicle, and (5) was there suspicious activity by the accused. State v. Kemp, 688 N.W.2d 785, 789 (Iowa 2004) (citing State v. Atkinson, 620 N.W.2d 1, 4 (Iowa 2000)). We have pointed out that all of these factors are only a guide in determining whether the State has established constructive possession. Id. And

“[e]ven if some of these facts are present, we are still required to determine whether all of the facts and circumstances ... allow a reasonable inference that the defendant knew of the [controlled substance’s] presence and had control and dominion over [it].”

Id. (ellipsis in original) (citation omitted); see also Reeves, 209 N.W.2d at 22 (“Knowledge of the narcotic character ... of the drug, as well as of their presence ... maybe shown by the conduct, behavior and declarations of the accused.”).

Constructive possession cannot rest on mere proximity to the controlled substance. State v. Cashen, 666 N.W.2d 566, 572 (Iowa 2003); see also Atkinson, 620 N.W.2d at 3, 4. Moreover, furtive movements alone cannot support a finding of constructive possession. Atkinson, 620 N.W.2d at 4. In addition, the right to maintain control is something more than the “raw physical ability” to exercise control over the controlled substance. Bash, 670 N.W.2d at 139. Rather, the accused must have “some proprietary interest or an immediate right to control or reduce the controlled substance to the [accused’s] possession.” Id.

Carter correctly points out that the controlled substance itself was not in plain view, the controlled substance was found in the center console underneath an ashtray which did not contain any of Carter’s personal effects, and the center console was close and equally accessible to the driver and the passenger. Moreover, although Carter was driving the Blazer, he was not the owner, and he denied knowledge of the controlled substance. Nor was there any evidence of fingerprints on the package, or that Carter was under the influence of a controlled substance, or that he had any drug paraphernalia on his person.

On the other hand, Carter engaged in suspicious activity before and after the stop. When Wissink signaled for him to stop, Carter did not do so immediately. In fact, he turned onto another street, began rummaging to the right of him, veered across three lanes of traffic while his head was down, and struck the curb while his attention was focused on the console area rather than driving. When the Blazer came to a stop, Carter quickly exited the vehicle, left the driver’s door open, and appeared nervous. Wissink thought he would have to chase ■ Carter on foot. In the almost six years, Wissink has worked in this particular neighborhood, he has made many narcotics arrests out of cars. When asked for identification, Carter did not give his true name. When asked why the collision with the curb occurred, Carter said the Blazer stalled. Yet when Wissink approached the Blazer, the engine was still running. ■

The controlled substances were found on the driver’s side of the console; they were within close reach of Carter while he was operating the Blazer. Although the controlled substances were not in plain view, their container- — a baggie — was. Baggies are known for their use in the drug trade, and Wissink has seen baggies used for holding narcotics. The baggie was in a location where one would not ordinarily leave a plastic baggie — underneath an ashtray. The place where the controlled substances were found is the same place toward which Carter was rummaging while the police were attempting to stop the vehicle. Neither officer saw the passenger making any furtive movements. Following the stop, the passenger denied the controlled substances were his and cooperated with the police. Cf. State v. Henderson, 696 N.W.2d 5, 9 (Iowa 2005) (drugs were found on premises occupied by the defendant and her guest; defendant was belligerent towards police whereas guest was cooperative, acted like she had nothing to hide, and denied the drugs were hers; such disparate reactions supported permissible inference that the drugs belonged to the defendant).

Viewing all of the evidence in the light most favorable to the State, we think the district court could reasonably infer that Carter was exhibiting a proprietary interest in the controlled substances by desperately trying to hide them while the police were pursuing him, resulting in his losing control of the Blazer. Moreover, Carter’s furtive movements in contrast to the passenger’s lack of such movements would further support such an inference. Wis-sink’s explanation of what happened is a reasonable one:

I believe he was placing narcotics under the ashtray trying to conceal them. And when the vehicle struck the curb, he didn’t have enough time to stick the baggie down in there, leaving the two inches out of it. That’s why he exited the vehicle. If he had the opportunity, he would have run off with it.

All in all, we think this evidence was sufficient for the district court to reasonably infer that Carter knew of the controlled substances’ presence and exercised control and dominion over them. Because Carter does not contend there was insufficient evidence on intent to deliver, that issue is conceded. We would, however, note that there was ample record evidence on this element. In short, there was sufficient evidence to support the conviction.

VII. Disposition.

Because we find there was probable cause and exigent circumstances for the search, we conclude the district court correctly denied the motion to suppress. In addition, we conclude there was sufficient evidence to sustain Carter’s conviction of possession of a controlled substance with intent to deliver. We therefore vacate the court of appeals decision and affirm the judgment of the district court.

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


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    In the Matter of the John B. RINALDO REVOCABLE TRUST and the Ruth Bauer Rinaldo Revocable Trust Gerald Bauer and Beverly Bauer, Appellees, v. Lisabeth A. Sterling, Robin Sterling Brewer, Debra Dean Sterling, Mary Pat Glaves, Peter M. Ramsey, Timothy R. Ramsey, David W. Rinaldo, Marjory Rinaldo-Lee, John M. Rinaldo, Phillip S. Rinaldo III, Heather Amaral, and Jennifer Peatman, Appellants, and Randal B. Caldwell and Peter M. Rinaldo, Trustees.
    No. 03-2051.
    Supreme Court of Iowa.
    May 6, 2005.

      John F. Fatino of Whitfield & Eddy, P.L.C., Des Moines, for appellants.
    Edward E. Johnson, Cynthia A. Hurley, and Megan M. Althoff Wolfe of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellees.
    Randal B. Caldwell of Caldwell, Caldwell & Caldwell; P.L.C., Newton, for the trustees.
   CARTER, Justice.

The nieces' and nephews of John B. Ri-naldo, who are distributees of certain trust assets, appeal from a district court decree requiring contribution toward federal and Iowa estate tax liability that those assets generated in the taxable estate of Ruth Bauer Rinaldo. The appellees are Gerald Bauer, a distributee of other assets from the John B. Rinaldo Trust, who sought the order compelling contribution, and his wife, Beverly Bauer. Parties to the appeal also include Randal B. Caldwell and Peter M. Rinaldo, as trustees of the trust. The trustees sided with the nieces and nephews in the district court, but argue no position on the appeal.

The trust instrument provided that, on the death of John B. Rinaldo’s surviving spouse, Ruth Bauer Rinaldo, one subtrust (the marital trust) was to pour over into another subtrust (the family trust) from which distribution was to be made to Ri-naldo’s nieces and nephews and to Gerald Bauer. The assets designated to pour over consisted of stock in a closely held family corporation and assets contained in a brokerage account with Merrill Lynch. All of the stock in the closely held corporation was ultimately to be distributed to the nieces and nephews plus a portion of the brokerage account. Gerald Bauer was to receive the remainder of the brokerage account. The trust instrument provided that, before pouring over into the family trust, the assets of the marital trust, which consisted of the closely held corporate stock and the Merrill' Lynch brokerage account, should be used by the trustees to pay a proportionate share of any federal or Iowa estate tax liability that those assets generated in the estate of Ruth Bauer Rinaldo.

Gerald Bauer petitioned the district court requesting an order providing that the federal and Iowa estate tax liability generated in the Ruth Bauer Rinaldo estate by the closely held stock and the brokerage account assets be satisfied by depleting both the closely held stock and the Merrill Lynch assets in a manner proportionate to the value of each of those classes of assets. The district court so ordered and also ordered indemnification of Gerald Bauer to the extent that he had been aggrieved from a failure to adhere to that plan of abatement in the administration of the trust. After reviewing the record and considering the arguments presented, we affirm the district court’s decree, although for reasons somewhat different than those expressed in that court’s ruling.

The parties base the factual portion of their arguments on the “Stipulation of Facts for Purposes of Hearing on Combined Petition Concerning the Internal Affairs of Trusts and Granting” filed on August 19, 2003, in the Iowa District Court for Polk County. The district court relied upon this stipulation for its decision. The stipulated facts included the following. Appellants, Lisabeth A. Sterling, Robin Sterling Brewer, Debra Dean Sterling, Mary Pat Glaves, Peter M. Ramsey, Timothy R. Ramsey, David W. Rinaldo, Marjory Rinaldo-Lee, John M. Rinaldo, Phillip S. Rinaldo III, Heather Amaral, and Jennifer Peatman (nieces and nephews), are beneficiaries of the John B. Rinaldo Revocable Trust created under the John B. Rinaldo “1st Amended and Substituted Revocable Trust Agreement” (John B. Rinal-do Trust) and the Ruth Bauer Rinaldo Revocable Trust created under the “Ruth Bauer Rinaldo 1st Amended and Substituted Revocable Trust Agreement” (Ruth Bauer Rinaldo Trust). Appellee, Gerald Bauer, is also a beneficiary under both trusts.

John B. Rinaldo died on November 27, 1999. He was survived by his widow, Ruth Bauer Rinaldo. Mr. Rinaldo’s property passed pursuant to the terms of the John B. Rinaldo Trust, which was executed on January 15, 1997. At the time of Mr. Rinaldo’s death, the property of the John B. Rinaldo Trust consisted primarily of 3080 shares of stock in Flexible Steel Lacing Co. (stock) and various publicly held investments in a Merrill Lynch brokerage account (Merrill Lynch account). The stock was valued at $1,389,080. The Merrill Lynch account was valued at $2,367,360.

Under the terms of the John B. Rinaldo Trust, if Mrs. Rinaldo survived her husband,. two subtrusts, would be created. Because Mrs. Rinaldo survived her husband, a family trust and a marital trust were created in accordance with the terms of the John B. Rinaldo Trust. Article III of the John B. Rinaldo Trust provided that a portion equal to the amount that could legally be sheltered from federal estate tax be allocated to the family trust. The applicable shelter amount at the time of Mr. Rinaldo’s death was $650,000. The remaining property in the John B. Rinaldo Trust was to be allocated to the marital trust. Following Mr. Rinaldo’s death, the assets of the John B. Rinaldo Trust were allocated in this manner: (1) a portion of the Merrill Lynch account in the amount of $650,000 was placed in the family trust and (2) all 3080 shares of the stock and the remaining portion of the Merrill Lynch account ($1,717,360) were placed in the marital trust.

On March 21, 2001, Mrs. Rinaldo passed away. She had a general power of appointment with regard to the principal of the marital trust; however, she did not exercise this power. As a result, the property of the marital trust passed to the family trust pursuant to the default provisions in Article V of the John B. Rinaldo Trust. It was expressly provided, however,

before such distribution to the FAMILY TRUST, the Trustee shall pay from the principal of the MARITAL TRUST its pro rata share of all inheritance, estate, succession, or other similar taxes otherwise payable by the Trustor’s spouse’s estate, or the recipients thereof, resulting from the inclusion of the MARITAL TRUST assets in the Trustor’s spouse’s estate.

The property contained in the family trust, including the assets poured over from the marital trust, were to be distributed as follows, pursuant to Article VI, paragraph B, subparagraphs 1 and 2 of the John B. Rinaldo Trust:

Any interest held by the trust in Flexible Steel Lacing Co., or its successor in interest, shall be distributed in equal shares to Settlor’s nieces and nephews ....
3. The remaining assets of the trust shall be distributed as follows:
(a) One-quarter (1/4) of said assets shall be distributed to Settlor’s brother-in-law, Gerald L. Bauer_
(b) Three-quarters (3/4) of said assets shall be distributed in equal shares to the nieces and nephews of Settlor....

The value of the assets in the marital trust, as determined for federal and Iowa estate tax purposes, was $3,607,477. The value of the closely held stock was $1,478,400, and the value of the assets in the brokerage account was $2,129,077. Thus, the assets in the brokerage account constituted fifty-nine percent of the total value of the marital trust, and the closely held stock constituted forty-one percent of that total value.

I. Scope of Review.

This matter was tried in the probate court as an equity matter under Iowa Code section 633.33 (1999). In an equity action, review by the appellate court is de novo. In re Estate of Roehlke, 231 N.W.2d 26, 27 (Iowa 1975); Iowa R.App. P. 6.4.

II. The District Court’s Decision.

Gerald Bauer’s request for a pro rata abatement of the closely held stock and the brokerage account assets for purposes of paying the federal and Iowa estate taxes that those assets generated was resisted by the nieces and nephews. They contended that the distribution scheme of the trust created two categories of assets, one of which, the closely held stock, constituted specific bequests, and the other, the brokerage account assets, constituted residual bequests. Based on that premise, the nieces and nephews urged that the residuary bequest, i.e., the brokerage account assets, should abate first, as is the case with testamentary bequests pursuant to Iowa Code sections 633.436 and 633.449.

Gerald Bauer argued in the district court that the abatement statutes relied on by the nieces and nephews had no application to a revocable inter vivos trust. The district court rejected that contention and concluded that sections 633.436 and 633.449 were generally applicable to trusts of this type. The court determined, however, that those statutes had no application in the present dispute because the trust instrument expressly designated which assets should abate for purposes of paying the federal and Iowa estate taxes generated by the trust assets as a whole.

After determining that the abatement provisions in section 683.436 and 633.449 did not apply, the district court concluded that equitable principles supported a pro rata abatement of the two categories of assets that were to pour over from the marital trust to the family trust. The court further concluded that, unless a pro rata abatement of those assets was ordered, the result would be a violation of federal law as expressed in 26 U.S.C. § 2207. The court directed that the trustees make payment of the federal and Iowa estate taxes resulting from marital trust property by abating the brokerage account assets with regard to fifty-nine percent of the resulting tax liability and abating the closely held corporate stock with regard to forty-one percent of that liability. The court further ordered that, to the extent Gerald Bauer had been aggrieved from a failure to adhere to that plan of abatement in the administration of the trust, he should be indemnified by the trust or its other distributees.

III. Analysis.

A. Application of Iowa Code sections 633436 and 633419. The contention of the nieces and nephews is premised on a scheme of abatement contained in Iowa Code sections 633.436 and 633.449. These statutes, set forth in inverse order, provide as follows:

All federal and state estate taxes (as distinguished from state inheritance taxes) owing by the estate of a decedent shall be paid from the property of the estate, unless the will of the decedent, or other trust instrument, provides expressly to the contrary.

Iowa Codé § 633.449.

Except as provided in section 633.211 and 633.212, shares of the distributees shall abate, for the payment of debts and charges, federal and state estate taxes, legacies, the shares of children born or adopted after the making of a will, or the share of the surviving spouse who elects to take against the will, without any ■ preference or priority as between real and personal property, in the ' following order:
1. Property not disposed of by the will;
2. Property devised to the residuary devisee, except property devised to a surviving spouse who takes under the will;
3. Property disposed of by the will, but not specifically devised and not devised to the residuary devisee, except property devised to a surviving spouse who takes under the will

Iowa Code § 633.436.

The nieces and nephews equate the assets in the Merrill Lynch brokerage account with “property devised to the residuary devisee,” for purposes of applying section 633.436(2). Although the district court concluded that these statutes were generally applicable to revocable inter vi-vos trusts of this type, we entertain considerable doubt as to whether that conclusion was correct. We need not decide that matter, however, because, as the district court noted, there is another valid reason for rejecting the contentions of the nieces and nephews.

The abatement provisions in section 633.449 are qualified by the words “unless the will of the decedent, or other trust instrument, provides expressly to the contrary.” The general order for abatement set forth in section 633.436 is qualified by the provisions of section 633.437(1), which provide:

When provisions of the will, trust or other testamentary instrument of the decedent provide explicitly for an order of abatement contrary to the provisions of section 633.436, the provisions of the will or other testamentary instrument shall determine the order of abatement.

The trust instrument in the present case provided that payment of a pro rata share of the state and federal estate taxes was to be made by the trustee from the assets contained in the marital trust. This was an explicit order of abatement different from that contained in the statutes on which the nieces and nephews rely.

We considered an analogous situation in a formal probate setting in In .re Estate of Ohrt, 585 N.W.2d 259 (Iowa 1998). In that case, there was both real and personal property in the estate. The will provided that all debts and taxes should be paid from the personal property before any distribution was made to beneficiaries. Relying on section 633.436, a beneficiary who had received a bequest of specific items of personal property contended that the personal property passing under the will’s residuary clause should abate first. We rejected that contention, holding that, because the will provided that the debts were to be first paid from personal property “without regard to the character of the disposition of that property,” all personal property should abate ratably. Ohrt, 585 N.W.2d at 262. The district court’s conclusion that the two classes of assets in the marital trust should abate ratably for purposes of satisfying the tax liability generated by those assets is consistent with Ohrt.

B. Scheme of abatement in the absence of Iowa statutory law. In ordering a pro rata abatement of all assets contained in the marital trust without regard to their character, the district court relied on equitable principles and was also influenced by federal law. Section 2207 of 26 U.S.C. provides:

Unless the decedent directs otherwise in his will, if any part of the gross estate on which the tax has been paid consists of .the value of property included in the gross estate under § 2041, the executor shall be entitled to recover from the person receiving such property by reason of the exercise, nonexercise, or release of a power of appointment such portion of the total tax paid as the value of such property bears to the taxable estate. If there is more than one person the executor shall be entitled to recover from such persons in the same ratio.

A regulation accompanying 26 U.S.C. § 2205 provides:

If any portion of the tax is paid by or collected out of that part of the estate passing to, or in the possession of, any person other than the duly qualified executor or administrator, that person may be entitled to reimbursement, either out of the undistributed estate or by contribution from other beneficiaries whose shares or'interests in the estate would have been reduced had the tax been paid before distribution of the estate

Treas. Reg. § 20.2205-1. The district court concluded that 26 U.S.C. § 2207 and the regulation accompanying 26 U.S.C. § 2205 provide for a pro rata abatement of assets to satisfy the tax and, in addition, provide Gerald Bauer with a right of indemnification from the trust or other trust distributees if a disproportionate share of the federal estate tax was paid from assets otherwise distributable to him. We are not convinced that these federal statutes and regulations may be applied as rules of decision governing the present controversy-

The situations at which these statutes are directed do not exist in the present ease. Section 2205 contemplates a situation in which the tax has been paid from or collected out of a portion of the taxable estate not within the control of the executor or trustee. That cannot happen here because the trustees are required to pay the tax from explicitly designated assets prior to their distribution. Section 2207 contemplates a situation in which an executor or trustee may reach out to distributions passing by a power of appointment and compel contribution with regard to the tax those assets have generated. The statute expressly provides that this should not occur if the decedent directs otherwise in his will. To the extent that 26 U.S.C. § 2207 may apply to dispositions made through a trust, consistency requires that the statutory provisions not apply where, as here, the settlor establishes a different abatement scheme in the trust instrument.

We are satisfied that this is a case properly decided under state law. In interpreting an identical version of 26 U.S.C. § 2205 as it appeared in the Internal Revenue Code of 1939, the Supreme Court concluded:

[W]hile the federal statute normally contemplates payment of the tax before the estate is distributed, provision is made for collection of the tax if distribution should precede payment. If any distrib-utee is thus called upon to pay the tax, [the statute] provides that such person “shall be entitled to reimbursement out of any part of the estate still undistributed or by a just and equitable contribution by the persons whose interest in the estate of the decedent would have been reduced if the tax had been paid before the distribution of the estate”. By that section Congress intend,ed to protect a distributee against bearing a greater burden of the tax than he would have sustained had the tax been carved out of the estate prior to distribution ....

Riggs v. Del Drago, 317 U.S. 95, 100-01, 63 S.Ct. 109, 112, 87 L.Ed. 106, 112 (1942) (citations omitted). The Court went on to say in Riggs: “[T]he final impact of the tax shall be the same as though it had first been taken out of the estate before distribution, thus leaving to state law the determination of where that final impact shall be.” Id. at 101, 63 S.Ct. at 112, 87 L.Ed. at 112-13.

Clearly, the provisions in 26 U.S.C. § 2205 are not intended to be applied as general rules of abatement that supplant state law. If that were the case, the laws of a majority of jurisdictions that call for payment of the federal estate tax from the residue of the estate would be rendered unconstitutional. This was recognized in United States v. Goodson, 253 F.2d 900, 904-05 (8th Cir.1958), in which the court reiterated that, as determined in Riggs, the final impact of the tax should be left to state law. Goodson, 253 F.2d at 902.

Notwithstanding our conclusion that federal law does not apply, we are convinced that, under controlling state law, the district court’s decision was correct both as to the federal estate tax and the Iowa estate tax. As previously noted, the district court’s order for a pro rata abatement of the two types of assets contained in the marital trust is wholly consistent with our decision in Ohrt with respect to trusts or wills designating the abatement of a general class of property without further distinction as to character. Ohrt, 585 N.W.2d at 262. The nieces and nephews argue that the settlor of the trust did not intend the result arrived at by the district court due to the ready liquidity of the Merrill Lynch account and the settlor’s desire to keep a family business intact. However, the bequest to the nieces and nephews of a substantial portion of the Merrill Lynch account assets provides a means for satisfying the latter desire. Moreover, we believe the nieces’ and nephews’ advocacy of the settlor’s intent based on circumstantial evidence is outweighed by the disproportionate effect their proposed abatement would have on the distributive scheme that the settlor established. As we have recognized in an analogous case in which we determined priority between devises of the same class:

“[T]he recognized rule is that where [general legacies] are mere bounties as distinguished from legacies given upon some consideration, they abate pro rata, unless an intention to create a preference may be gathered either from the express terms of the will or the reasonable implications thereof. The presumption is that equality was intended, and the burden is on the legatee to show an intention that he should have a preference.”

In re Estate of DeVoss, 474 N.W.2d 542, 545 (Iowa 1991) (quoting 80 Am. Jur. 2d Wills § 1741, at 795 (1975)).

We also believe that the district court’s disposition is consistent with the equitable principles to which this court resorted in Kintzinger v. Millin, 254 Iowa 173, 192, 117 N.W.2d 68, 79 (1962), in apportioning the burden of the federal estate tax. Although Kintzinger no longer applies to situations in which sections 633.436 and 633.449 now apply, see Bergren v. Estate of Mason, 163 N.W.2d 374, 377 (Iowa 1968), those statutes have no application here. The Kintzinger case also supports that portion of the district court’s order that requires Gerald Bauer be indemnified to the extent that he has been aggrieved from a failure of the trustees.to adhere to the plan of abatement that the court has directed. Kintzinger, 254 Iowa at 193, 117 N.W.2d at 80 (ordering indemnification of executor by distributee of nonprobate property for purposes of equalizing burden of estate, tax among probate and nonpro-bate distributees).

We have considered all arguments presented and conclude that the decree of the district court should be affirmed.

AFFIRMED.

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

      . In this regard, the language of Article V, paragraph B, subparagraph 2 of the trust instrument provides: "Any of the principal of this trust over which the Trustor’s spouse does not effectively exercise his [her] general power of appointment shall be distributed to the Trustee of the FAMILY TRUST....”

      . The statute from which this regulation is-derived provides:
      If the tax or any part thereof is paid by, or collected out of, that part of the estate passing to or in the possession of any person other than the executor in his capacity as such, such person shall be entitled to reimbursement out of any part of the estate still undistributed or by a just and equitable contribution by the persons whose interest

        in the estate of the decedent would have been reduced if the tax had been paid before the distribution of the estate or whose interest is subject to equal or prior liability for the payment of taxes, debts, or other charges against the estate, it being the purpose and intent of this chapter that so far as practicable and unless otherwise directed by the will of the decedent the tax shall be paid out of the estate before its distribution.
      26 U.S.C. § 2205.


author: PAGE, Justice.

text:
    STATE of Minnesota, Appellant, v. Antoine Edward Eugene COURTNEY, Respondent State of Minnesota, Appellant, v. Antoine Edward Eugene Courtney, Respondent.
    Nos. A03-790, A03-791.
    Supreme Court of Minnesota.
    May 12, 2005.

      Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, St. Paul, MN, Richard Jackson, Jr., Houston County Attorney, Caledonia, MN, for Appellant.
    Mark D. Nyvold, St. Paul, MN, for Respondent.
    Beverly Balos, A. Sage Van Voorhis, Carolyn Ham, Minneapolis, MN, for Amici.
   OPINION

PAGE, Justice.

Respondent Antoine Edward Eugene Courtney was charged with second-degree assault in violation of Minn.Stat. § 609.222, subd. 1 (2004), terroristic threats in violation of Minn.Stat. § 609.713, subd. 1 (2004), two counts of domestic assault in violation of Minn.Stat. § 609.2242, subd. 1(1) and (2) (2004), and fourth-degree criminal damage to property in violation of Minn.Stat. § 609.595, subd. 3 (2004), for assaulting his girlfriend S.B. in September 2001. As the result of a separate incident that took place in November 2001 in which he allegedly pointed a handgun at a police officer, Courtney was charged with second-degree assault in violation of Minn.Stat. § 609.222, subd. 1, possession of a firearm with an altered serial number in violation of Minn.Stat. ,§ 609.667 (2004), and possession of marijuana in violation of Minn.Stat. §§ 152.027, subd. 4(a), and 152.02, subd. 2(3) (2004). The marijuana charge was ultimately dismissed. The charges arising from the two incidents were tried separately and in each case the jury found Courtney guilty as charged.

In a consolidated appeal, the court of appeals reversed both convictions and remanded, holding, among other things, that: (1) the admission of a videotaped interview by S.B.’s six-year-old daughter, S.G., in the domestic assault case violated-Courtney’s right to confrontation; (2) the error was not harmless; (3) the trial court abused its discretion when it denied Courtney’s motion for a continuance in the domestic assault case to allow his new attorney more time to prepare for the tidal; and (4) the trial court abused its discretion by admitting a portion of the complaint from the domestic assault case in the officer assault trial. State v. Courtney, 682 N.W.2d 185, 205 (Minn.App.2004). The state appealed. We granted limited review on the above issues.

After briefing, but before oral argument at the court of appeals, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Relying on Crawford, the court of appeals, in the domestic assault case, held that Courtney’s right to confront witnesses against him under the Sixth Amendment to the United States Constitution was violated when the trial court admitted into evidence a videotaped statement made by S.G., who was unavailable to testify at trial. Courtney, 682 N.W.2d at 197. The court of appeals concluded that, if harmless error analysis applied, the erroneous admission of S.G.’s videotaped statement was not harmless. Id. The court of appeals further held in the domestic assault case that the trial court abused its discretion when it denied Courtney’s motion for a continuance to allow his recently retained attorney more time to prepare for trial. Id. at 200. The court of appeals also reversed in the officer assault case, holding that the trial court erred in admitting evidence related to Courtney’s domestic assault of S.B. Id. at 198. The court of appeals concluded that, because it had reversed the conviction in the domestic assault case, the introduction of other crimes evidence from that case impermis-sibly tainted the officer assault case. Id. The court of appeals did not perform a harmless error analysis with respect to the admission of the other crimes evidence. See id.

The facts giving rise to Courtney’s convictions are as follows. On September 21, 2001, Caledonia Police Chief Duane St. Mary responded to a domestic incident at S.B.’s apartment. Chief St. Mary described S.B. as in “pretty bad shape” when he arrived, with red marks along the left side of her jaw and a black left eye. The right side of SJB.’s face and upper cheek were swollen, with discoloration under her right eye and a broken blood vessel in her right eye.

Before Chief St. Mary could ask S.B. what her name was, S.B. began talking about what Courtney, the father of two of her four children, had done to her. She said that Courtney came to her apartment on Wednesday, September 19, and became upset when S.B. received a call from a man who had dialed the wrong number. As a result of this call, Courtney demanded to know who the man was. According to S.B., Courtney said if she did not tell him who the caller was he would choke the information out of her. Courtney then proceeded to choke and beat S.B. Chief St. Mary observed that the marks on S.B.’s neck were consistent with S.B. having been choked. S.B. said her neck.was so swollen that she could hardly swallow. According to S.B., Courtney hit her “like [she were] a man,” assaulting her in both the living room and the bedroom. The assault included grabbing S.B. by her hair, banging her head against a wall, and hitting her in the stomach and face. At some point, S.B.’s nose started to bleed, resulting in blood splatters on a bedroom wall. Afraid that Courtney was going to kill her, S.B. grabbed a knife, which Courtney took away from her and held to her throat. According to S.B., the physical assault continued on September 20, with Courtney taking S.B. into the bathroom, hitting her head against the bathtub, and choking her until she passed out. Evidently the beating resumed and, even though S.B. did not have the phone number of the man who called, she eventually told Courtney that she would give him the phone number. She lied to Courtney because she thought if she did not give him a phone number he was going to kill her. Having been told that she was going to give him the number, Courtney stopped choking S.B. On the morning of September 21, Courtney broke S.B.’s two telephones, took some of S.B.’s belongings, and said he was going to come back and take more. He told S.B. that he would kill her if she did not open the door upon his return and that if she acted like she was not home he would shoot her.

S.B. was treated by Dr. Alan Fleisch-mann on September 22, 2001. She told the doctor that she had been beaten by her children’s father on September 19 and 20. She also told the doctor that Courtney punched her in the face and chest and “throttled” her twice and that she thought she was going to die when he did that. In his testimony, Dr. Fleischmann described S.B.’s injuries, including a bruise to her head, a black eye, hemorrhaging in her other eye, tender jaw joints, tenderness in the rib cage, and a swollen face, as well as bruises on the left side of S.B.’s throat that were consistent with finger marks. It was Dr. Fleischmann’s opinion that S.B.’s explanation of the assault was consistent with her injuries.

On October 8, 2001, Child Protection Investigator Kristi Peterson interviewed six-year-old S.G. regarding her knowledge of Courtney’s assault of her mother. The interview was arranged by Chief St. Mary and was conducted in a Houston County Human Services interview room while Chief St. Mary watched on closed-circuit television.

Sometime in October 2001, S.B. applied for an order for protection against Courtney, which was evidently granted,' and then was subsequently dismissed at S.B.’s request. On November 14, 2001, S.B.’s mother called the police out of concern for S.B.’s safety. As a result, three police officers went to S.B.’s apartment to check on her welfare. Officer James Stemper was talking to S.B. at the front door of her apartment when he saw Courtney leaving through the rear door. He chased Courtney down the hall and at some point, according to Officer Stemper, Courtney pointed a handgun at him. The two officers who accompanied Officer Stemper to S.B.’s apartment did not see Courtney point a gun at Officer Stemper. Courtney was eventually captured and arrested. At the time of his arrest, Courtney did not have a gun on his person, but one was found in the area. That gun had a round in the chamber and at least ten bullets in its magazine clip. While Courtney was in the squad car awaiting transport, S.B. talked to one of the officers and recanted her earlier statements about the September 19, 20, and 21 assaults.

Sometime in early 2002, Courtney drove S.B. to his attorney’s office where S.B., in Courtney’s presence, signed an affidavit prepared by the attorney recanting her statements, to Chief St. Mary that Courtney had choked her and threatened her with a knife.

S.B. was subpoenaed by the state on November 27, 2002, to appear on December 19, 2002, at Courtney’s domestic assault trial. On- December 11, 2002, the prosecutor in the domestic assault case telephoned S.B. at work to talk to her about the case. She indicated that, although she could not talk then, she would call him back later. She did not do so, however. Other attempts by the prosecutor to talk with S.B. also failed. When S.B. did not appear at trial, the court granted the state’s request for a continuance, held S.B. in contempt, and issued a bench warrant for her arrest. On February 11, 2003, S.B. called the prosecutor, angry that the state had continued to try to serve her with a subpoena. She indicated that she had lied to the police, was not assaulted, and that she wanted the charges against Courtney dismissed.

Courtney was appointed a public defender on November 19, 2001. On December 26, 2001, a private attorney was substituted as counsel. Courtney’s trial on the domestic assault charges was set for December 19, 2002. Because S.B. did not comply with the subpoena to appear in court for the trial, the state was granted a continuance and the trial was rescheduled to January 23, 2003. On December 31, 2002, Courtney’s private attorney moved for leave to withdraw from both the domestic assault and officer assault cases. On January 14, 2003, Courtney obtained a new private attorney in the officer assault case. On January 17, 2003, in light of the attorney changes, the trial court granted the defense’s motion for a continuance and reset the officer assault trial to March 10, 2003, and the domestic assault trial to March 12, 2003. By Notice of Jury Trial dated January 21, 2003, Courtney was notified of the new trial date for the domestic assault case. On January 21, 2003, the court granted the first private attorney’s motion to withdraw from both cases. Although the officer assault trial was scheduled for March 10, Courtney’s attorney in that case requested and was granted a continuance due to the unavailability of a defense witness, and the trial was rescheduled to April 2003. Sometime during the week of March 3, 2003, Courtney obtained an attorney to represent him at the March 12, 2003, trial in the domestic assault case. Evidently Courtney did not tell the attorney that his trial was scheduled to com-naence on March 12 until March 10. A pretrial hearing was held on March 11, during which the trial court denied a motion by Courtney to again continue the trial.

The domestic assault jury trial commenced as scheduled on March 12. At trial, over Courtney’s objection, the court permitted the state to introduce S.G.’s videotaped statement because she was not available. Although the state was unsuccessful in its attempts to subpoena S.B. to appear, S.B. did appear as a defense witness on the last day of the trial. Indeed, S.B. rode to the courthouse that day with Courtney. S.B. testified that she fought with Courtney on September 19, 2001, but denied any other violence between them over the next two days. She also denied that Courtney choked her or used a knife to threaten her. Courtney also testified. He admitted throwing a stool at S.B. in self-defense, but denied hitting S.B., except to the extent necessary to protect himself from her knife attack, and denied assaulting her in the bathroom. He also denied using a knife against S.B. and choking her. Courtney was found guilty on March 14, 2003.

The officer assault trial began on April 16, 2003. Neither S.B. nor Courtney testified. Over the defense’s objection, the trial court allowed the state to introduce a portion of the complaint in the domestic assault case into evidence. On April 18, 2003, the jury found Courtney guilty as charged. -

I.

We first consider whether Courtney is entitled to a new trial in the domestic assault case based on his claim that the admission into evidence of S.G.’s videotaped statement to the child protection investigator violated his confrontation rights under the Sixth Amendment. Resolution of this issue raises two questions: (1) whether the admission of S.G.’s videotaped- statement violated Courtney’s right to confront witnesses against him; and (2) if admission of the statement violated Courtney’s right to confrontation, whether the error in admitting the statement was harmless. Because we are satisfied that any error in admitting S.G.’s videotaped statement into evidence was harmless beyond a reasonable doubt, we need not decide whether Courtney’s confrontation rights under the Sixth Amendment were violated.

The court of appeals concluded that the admission of S.G.’s statement into evidence was error in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The court of appeals also concluded that the state “sorely needed” S.G.’s statement to corroborate S.B.’s pretrial statement because S.B. recanted at trial. Courtney, 682 N.W.2d at 197. The court of appeals held that Courtney was entitled to a new trial, noting that “the error was not harmless, if even a harmless error analysis can be reached by the state.” Id.

Although the Court in Crawford did not discuss the applicability of harmless error analysis, it is well settled that violations of the Confrontation Clause are subject to such analysis. United States v. McClain, 377 F.3d 219, 222 (2d Cir.2004). For such a violation to be deemed harmless, it must be harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Moreover, we also have stated that the admission of evidence at trial in violation of the United States Constitution does not automatically require reversal of the defendant’s conviction and the granting of a new trial. See State v. Juarez, 572 N.W.2d 286, 291 (Minn.1997). The conviction may stand so long as the erroneous admission of the evidence was harmless beyond a reasonable doubt. Id. An error is harmless beyond a reasonable doubt if the guilty verdict actually rendered was “surely unattributable” to the error. Id. at 292. When determining whether the jury’s verdict was surely unattributable to an error, we examine the record as a whole. Id. In doing so, we consider the manner in which the evidence was presented, whether the evidence was highly persuasive, whether it was used in closing argument, and whether it was effectively countered by the defense. Townsend v. State, 646 N.W.2d 218, 223 (Minn.2002). Evidence of the defendant’s guilt is also a relevant consideration, but it is not the sole factor. See id. at 224.

The videotape of S.G.’s interview was played for the jury during Peterson’s testimony. During the videotaped interview, S.G. told Peterson that she and her siblings were upstairs when she heard Courtney breaking “stuff’ and her mother crying downstairs. She said that Courtney asked her mother to look for the phone number of the man who called earlier. She also said that the next night when she was in the living room, Courtney and her mother went in the bathroom next to the living room. She then heard “something go blom, blom, blom” and knew that Courtney was hitting her mother. She later saw her mother crying on the stairs. She did not see what went on in the bathroom because the bathroom door was closed. She denied hearing Courtney say he was going to kill her mother. She also denied seeing Courtney with a knife, but indicated that Courtney had a gun at some point. After S.G. mentioned Courtney having a gun, Chief St. Mary requested that Peterson have S.G. draw a picture of the gun.

First, we note that with the exception of her reference to seeing Courtney with a gun, S.G. told Peterson about what she heard, not what she saw. Moreover, her statement added little, if anything, in the way of detail relating to the evidence against Courtney. What she said she heard was S.B. and Courtney fighting and arguing. Although S.B. and Courtney denied fighting on September 20 and 21, they both testified that they fought on September 19. Chief St., Mary testified in detail about what he observed and was told by S.B. about Courtney’s assault over the three-day period. Dr. Fleischmann also testified about his examination of S.B. and what she told him about Courtney’s assault. Given the testimony of Chief St. Mary and Dr. Fleischmann, S.G.’s statement was, at most, cumulative. Further, the statement was not inconsistent in any substantive way with the testimony of either S.B. or Courtney. Therefore, we conclude that the statement was not highly persuasive.

Moreover, other than playing the videotape of the interview, the state made limited use of S.G.’s statement. In both the opening statement and closing argument, the state noted only that S.G. heard banging and cursing during the assaults. The state’s only other reference to the interview occurred when Chief St. Mary was asked why S.G. was interviewed. His response was that S.G. “might be old enough to talk to.” The state made no further use of the statement. On cross-examination, Courtney was able to establish that Peterson failed to follow ordinary procedures to determine whether S.G.’s statement was tainted by S.G.’s having talked personally with anyone else about what had happened," thus calling into question the value of the statement. Courtney was also able to establish that Peterson used leading questions to elicit some of S.G.’s statement. In establishing these facts, Courtney effectively countered S.G.’s videotaped statement by undermining the statement’s evidentiary value.

At the same time, evidence of Courtney’s guilt was strong. Chief St. Mary, who took a statement from S.B. and photographed her injuries on September 21, 2001, described in detail what S.B. told him, what he observed of S.B.’s injuries, and what the photos of those injuries showed. Specifically, he testified that S.B. said that she was “hit like a man” — very hard — and that Courtney grabbed a knife from her and held it to her throat. Chief St. Mary observed that S.B.’s neck had “red marks” that were consistent with her being choked and beaten. He also saw blood-like splatters on one side of a bedroom wall. He testified that S.B. said that she had a bloody nose from the beating and showed him the splatters, saying, “That’s my blood.” S.B. also said that the second night Courtney hit her head on the corner of the bathtub and dropped her head in the toilet while the children were in the living room. S.B.’s statement was consistent with Chief St. Mary’s description that S.B. had a “terribly swollen” face and “a humongous black eye.”

Chief St. Mary’s testimony was corroborated by Dr. Fleischmann, who examined and treated S.B. on September 22. Dr. Fleischmann testified that S.B. stated that she was punched in the face and chest and was “throttled” twice by Courtney. Dr. Fleischmann observed that S.B. had a “black eye” on the left, a “fading black eye” on the right, finger marks or bruises consistent with finger marks on her neck, and other injuries. He testified that her injuries were consistent with her statement about the assaults. Given the testimony of Chief St. Mary and Dr. Fleischmann, there was strong circumstantial evidence of guilt independent of S.G.’s and S.B.’s statements. We, therefore, reject the court of appeals’ conclusion that the state “sorely needed” S.G.’s videotaped statement to corroborate S.B.’s pretrial statement.

Because we conclude that S.G.’s videotaped statement was not highly persuasive, that its use was limited, that the defense was able to effectively counter the statement, and, in addition, that the evidence against Courtney was strong, we also conclude that the jury verdict was “surely unattributable” to the admission of S.G.’s statement. We hold, therefore, that any error in admitting S.G.’s videotaped statement was harmless beyond a reasonable doubt and Courtney’s conviction in the domestic assault trial stands.

II.

Next, we turn to the trial court’s ruling denying Courtney’s request for a continuance. We review the trial court’s ruling on a defendant’s request for a continuance for abuse of discretion. See In re Welfare of T.D.F., 258 N.W.2d 774, 775 (Minn.1977). A defendant must show that he was prejudiced to justify reversal. Id.

We recognize that a defendant’s constitutional right to assistance of counsel includes a fair opportunity to secure counsel of his own choice. State v. Fagerstrom, 286 Minn. 295, 298, 176 N.W.2d 261, 264 (1970). However, “[a] defendant may not obtain a continuance by discharging his counsel for purposes of delay or by arbitrarily choosing to substitute counsel at the time of trial.” Id. at 299, 176 N.W.2d at 264. “The matter of continuance to permit substitution of counsel is traditionally within the discretion of the trial judge; his decision is to be based on the facts and circumstances surrounding the request.” Id.;-176 N.W.2d at 264. A motion for a continuance is properly denied when the defendant has not been diligent in procuring counsel or in preparing for trial. See id. at 297-99, 176 N.W.2d at 263-64 (holding that the trial court properly denied the defendant’s motion for continuance when the defendant expressed a desire to secure an attorney through the Bureau of Indian Affairs, but produced no evidence that he could have done so or that he was dissatisfied with his former attorney).

In this case, the state argues that Courtney was engaged in intentional stalling and the court of appeals’ decision was contrary to the facts. The state further argues that Courtney was not prejudiced by the denial of the continuance. In response, Courtney argues that he was prejudiced because his new attorney only had one day to prepáre for the domestic assault trial:

The record shows that Courtney was initially appointed a public defender. On December 26, 2001, he substituted the public defender with a private attorney, Michael York, for both the domestic assault and officer assault cases. On December 31, 2002, after working with Courtney for a year, York moved for leave to withdraw, citing as reasons that Courtney requested that he withdraw, that Courtney’s lack of cooperation exceeded his worst expectation, and that Courtney failed to pay as agreed. On January 14, 2003, Richard Shane 'was substituted for York in the officer assault case. On January 21, 2003, York’s motion for leave to withdraw from both cases was granted. The record shows that all subsequent court correspondence relating to the domestic assault ease was sent directly to Courtney. Sometime during the week of March 3, 2003, Courtney contacted Gregory Schultz to represent him in the domestic assault case. Evidently, Courtney did not tell Schultz the date set for trial until two days before the trial. A pretrial hearing for the domestic assault trial was held on March 11, during which the trial court denied Courtney’s motion for a continuance. The domestic assault trial commenced as scheduled on March 12.

It is clear from the record that Courtney was aware of his difficult working relationship with York and had almost two months to secure new counsel in the domestic assault case after York withdrew, but failed to do so in a timely manner. Also, once Courtney retained new counsel the week of March 3, he failed to timely inform his hew counsel about the impending trial date. While we cannot on this record say unequivocally that Courtney was engaged in an intentional effort to manipulate the domestic assault trial date, we can say that his lack of diligence in both obtaining counsel and, once having obtained counsel, his failure to inform counsel of the selected trial date was the cause of his counsel’s limited preparation time. Balancing Courtney’s right to counsel of his choice against the public interest of maintaining an efficient and effective judicial system, and in light of Courtney’s lack of diligence, we conclude that the trial court did not abuse its discretion when it denied Courtney’s motion for a continuance.

III.

Finally, we turn to whether the trial court abused its discretion in admitting the evidence of domestic violence in Courtney’s officer assault trial. We review a trial court’s decision on whether to admit other crimes evidence for an abuse of discretion. State v. Kennedy, 585 N.W.2d 385, 389 (Minn.1998).

At trial, the state read the following portion of the complaint from the domestic assault case into the record:

On the evening of September 19, 2001, the defendant was at [S.B.’s] apartment at 103 North Gjere Avenue, # 5, in Caledonia. Defendant told [S.B.] that he was going to choke the truth out of her. The defendant choked [S-B.] and struck her repeatedly around the face. The defendant choked [S.B.] around the neck, causing it to be so swollen that she could hardly swallow. After defendant choked [S.B.], she ran for a knife to protect herself. When she grabbed the knife, the defendant took it from [S.B.] and held it up to her face saying that he would stab her face.

The state argues that the admission of this other crimes evidence was relevant to prove Courtney’s intent to cause fear. The state further argues that there are similarities between the domestic assault and the officer assault because they were close in time and both involved Courtney’s holding a dangerous weapon in a threatening position, a knife in the domestic assault case and a gun in the officer assault case. The state also argues that the other crimes evidence was necessary because Courtney’s defense was his lack of specific intent to cause fear in the officer. The state finally argues that any error in admitting the evidence was harmless.

Courtney contends that his argument at trial was not his lack of intent but instead that he did not point a gun at the officer. He further argues that the state’s case was not weak, that the evidence was not relevant, that the evidence was prejudicial, and that its erroneous admission was not harmless.

Evidence of other crimes, frequently referred to as Spreigl evidence, generally may not be admitted to prove the defendant’s character for committing crimes, but can be admitted to show motive, intent, absence of mistake, identity, or a common scheme or plan. Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488,139 N.W.2d 167 (1965). Spreigl evidence can be admitted only if:

(1) notice is given that the state intends to use the evidence; (2) the state clearly indicates what the evidence is being offered to prove; (3) the evidence is clear and convincing that the defendant participated in the other offense; (4) the Spreigl evidence is relevant and material to the state’s case; and (5) the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.

Kennedy, 585 N.W.2d at 389. If it is unclear whether other crimes evidence is admissible, the benefit of the doubt should be given to the defendant and the evidence should be excluded. Id. In this case, the parties mainly dispute the fourth and fifth prongs of the Kennedy test.

In determining the relevancy and materiality of other crimes evidence, the trial court should consider the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place, or modus operandi. Id. at 390.

In this case, the state offered the other crimes evidence specifically to prove intent. In that Courtney’s defense was that he did not point a gun at the officer, we fail to see the need for the state to establish his intent in pointing the gun. In the context of these proceedings, explaining to the jury why Courtney may have pointed a gun at the officer is not probative of whether he pointed a gun at the offiber. We also fail to see how the portion of the complaint that was read into the record is relevant to the charged offense. Although the incidents were close in time and occurred at the same location, the description of Courtney’s domestic assault of S.B. sheds no light on whether or why he pointed a gun at Officer Stemper. Therefore, the court of appeals was correct in concluding that the admission of the other crimes evidence was error. The court of appeals failed, however, to consider whether that error was harmless. We conclude that it was.

When a trial court has erroneously admitted other crimes evidence, we must determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. State v. Bolte, 530 N.W.2d 191, 198 (Minn.1995) (quoting State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn.1994)). Here, the state’s witnesses testified in detail about' Courtney’s attempted escape and possession and use of a gun. Further, the trial court instructed the jury to limit the use of the other crimes evidence and not to convict Courtney based on that evidence. The jury is presumed to have followed the instruction. State v. James, 520 N.W.2d 399, 405 (Minn.1994). Finally, the state did not dwell on the other crimes evidence in its closing argument. Therefore, because we further conclude that it is not reasonably likely that the erroneous admission of the domestic assault evidence had significantly affected the jury’s verdict, we hold that the error was harmless.

Reversed.

      . Before oral argument, Courtney moved this court to strike the transcript of S.B.’s June 23, 2004, contempt proceeding from the appellate record. We grant Courtney's motion.

      . An issue raised at the court of appeals but not in this court addressed whether a statement S.B. gave to a police officer on September 21, 2001, was admitted in violation of Crawford because it was testimonial. The court of appeals concluded that the statement was properly admitted because S.B. testified at trial and was available for cross-examination. Courtney, 682 N.W.2d at 196. The court of appeals went on to conclude that the statement was testimonial. Id. In that the, statement was properly admitted because S.B. was available to testify' at trial, the court of appeals did not need to determine whether the statement was testimonial. While the issue of whether S.B.’s statement to the police officer is not before us for decision, we want to make clear that whether the statement is testimonial is an open question and that this opinion should not be read as either agreeing or disagreeing with the court of appeals’ ruling on that point.

      . While S.G. mentioned seeing Courtney with a gun in her videotaped statement, it is not clear from her statement when and where she saw the gun. Courtney was not charged with possessing a gun or using a gun in threatening S.B. in the domestic assault case. Nor did the state build its domestic assault case against Courtney based on his possession or use of a gun. Therefore, we conclude that S.G.'s statement with respect to the gun had no impact on the persuasiveness of S.G.’s statement or the verdict returned by the jury.

      . Although not argued by the state, we note that some evidence relating to Courtney’s domestic assault of S.B. may have been admissible at the officer assault trial to explain why the officers were present at S.B.’s apartment the night that the assault of Officer Stemper occurred.


author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Jane E. BROOKS, a Minnesota Attorney, Registration No. 171499.
    No. A04-1896.
    Supreme Court of Minnesota.
    May 19, 2005.

      Kenneth L. Jorgensen, Director, Thomas Ford Ascher, Assistant Director, Office of Láwyers Professional Responsibility, St. Paul, MN, for Appellant.
    Jane E. Brooks, Roseville, MN, for Respondent.
   OPINION

PER CURIAM.

This attorney discipline action arose from a petition 'filed by the Director of the Office of Lawyers Professional Responsibility alleging that respondent Jane E. Brooks violated Minn. R. Prof. Conduct (MRPC) 1.3, 1.4, 1.15(a), 1.16(d), 8.1(a)(3), and 8.4(c)-(d); Rule 25, Rules on Lawyers Professional Responsibility (RLPR); and Lawyers Professional Responsibility Board Opinion "Nos. 9 and 12. Because Brooks has failed to respond to the petition or to cooperate with the investigation despite the Director’s repeated efforts, we granted the Director’s motion, under Rule 13(b), RLPR, that the allegations be deemed admitted; the only issue before us is the appropriate discipline to impose. We agree with the Director’s recommendation and order that Brooks be suspended from the practice of law for a minimum of -two years, with conditions for reinstatement as set forth in Rule 18, RLPR.

The allegations in the petition were based on two client complaints and a notice of an overdraft on Brooks’s client trust account. The first client complaint arose from Brooks’s agreement, in May 2003, to represent a client in a civil dispute involving the client’s business. The client paid Brooks $1,000 in attorney fees and $250 for a filing fee. Brooks filed the summons and complaint, but she did not file an executed affidavit the client had provided for a motion in connection with the action or take any further action on the lawsuit. The client attempted, unsuccessfully, to contact Brooks multiple times over several months in 2003. The last time the client heard from Brooks was September 2003. Brooks returned only some of the client’s file materials. The client eventually settled the dispute involved in the lawsuit on his own.

The second client complaint arose from Brooks’s agreement, in April 2002, to represent a client in a bankruptcy, which Brooks never filed. By February 2003, the client had paid Brooks $300 for attorney fees and $200 for a filing fee. Brooks deposited the $200 for the filing fee in her client trust account. From November 2003 through March 2004, the client made numerous attempts to contact Brooks, but Brooks never responded. Nor has Brooks returned the client’s file or the $200 filing fee.

The last incident of misconduct involves Brooks’s client trust account, which had a negative balance between December 30, 2003, and January 16, 2004, and again after January 27, 2004. The bank holding the client trust account notified the Director of the overdrafts in January 2004, pursuant to MRPC 1.15(j)-(o). The bank closed Brooks’s client trust account in May 2004, with a negative balance of $470.89. The Director obtained bank statements from mid-November 2003 through mid-May 2004, which indicate that Brooks used her client trust account as a general business and a personal account.

The Director asked Brooks to provide a response for each of these three incidents of misconduct. In late 2003, Brooks faxed a response to the first client complaint explaining that her father had died and that she needed to assist her mother, who lived outside of Minnesota. In her response, Brooks did not address the complaint’s allegations and the documents that she attached were incomplete and disorganized. Brooks has otherwise failed to respond or cooperate. She has also failed to pay her attorney registration fee and has been suspended for fee nonpayment since January 1, 2004.

Alleging that Brooks has committed professional misconduct warranting public discipline, the Director charged Brooks for (1) neglecting client matters, failing to communicate with clients, and failing to return clients’ files in violation of MRPC 1.3, 1.4, and 1.16(d); (2) converting the $200 filing fee to her own use in violation of MRPC 1.15(a), 8.4(c)-(d); (3) failing to properly maintain her trust account in violation of MRPC 1.15(a) and 8.4(d) and Lawyers Professional Responsibility Board Opinion Nos. 9 and 12; and (4) failing to cooperate with the disciplinary investigation in violation of MRPC 8.1(a)(3) and Rule 25, RLPR.

The Director served the charges on Brooks and informed her that her appearance was required at a prehearing meeting, which Brooks failed to attend. The Director then made a motion to the Panel Chair to file a petition for disciplinary action under Rule 12, RLPR, which the Panel Chair authorized. The petition for' disciplinary action was personally served on Brooks, but she again failed to respond. The Director moved for summary relief requesting that the allegations in the petition be deemed admitted based on Brooks’s failure to respond to the petition for disciplinary action. We granted the motion and allowed the parties to submit written proposals regarding the appropriate discipline to be imposed.

Brooks has been licensed to practice law in Minnesota since December 6, 1985, and has been disciplined on five prior occasions. Three of the disciplinary actions involved trust account violations. In January 1993, Brooks was publicly reprimanded and placed on unsupervised probation for two years for failing to properly maintain client funds in trust, resulting in the misapplication of client funds; failing to maintain proper trust account books and records; and falsely certifying that she properly maintained such books and records on her 1991 and 1992 attorney registration forms. In re Brooks, 494 N.W.2d 876, 877 (Minn.1993). In February 1995, this probation period was extended two years because of continuing trust account violations. In re Brooks, 527 N.W.2d 834, 834 (Minn.1995). In March 1993, Brooks also received an admonition for issuing checks on a closed business account, failing to notify the check recipient that the account had been closed, and failing to cooperate in the investigation of the complaint. For other misconduct, Brooks received an admonition in 1996 for concurrently representing a husband and wife in a divorce proceeding. In 2003, Brooks received an admonition for failing to communicate adequately with a client, failing to act promptly to recover a client’s bond, and failing to provide the client with his complete file.

In considering a petition for attorney discipline, we have the ultimate responsibility for determining the appropriate sanction. In re Oberhauser, 679 N.W.2d 153, 159 (Minn.2004). “The purposes of disciplinary sanctions for professional misconduct are to protect the public, to protect the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.” Id.

We consider four factors when determining the appropriate sanction: (1) the nature of the misconduct, (2) the cumulative weight of the violations of the rules of professional conduct, (3) the harm to the public, and (4) the harm to the legal profession. Id. We impose disciplinary sanctions on a case-by-case basis, considering the specific acts of misconduct and any aggravating or mitigating circumstances, while looking to similar cases for guidance. In re Perez, 688 N.W.2d 562, 567 (Minn. 2004).

A continuing pattern of client neglect is serious misconduct often warranting indefinite suspension by itself when no evidence of mitigating circumstances is present. In re Cutting, 671 N.W.2d 173, 174 (Minn.2003). We have also considered whether the neglect has hurt the clients financially. See id. at 174-75.

We take trust account violations seriously and have warned that misuse of trust accounts will “almost invariably result in lengthy suspension at the very least.” In re Lochow, 469 N.W.2d 91, 98 (Minn.1991). We are particularly concerned when the attorney misappropriates client funds and will often disbar an attorney for misappropriation unless the attorney presents clear and convincing evidence of substantial mitigating circumstances showing that the attorney did not intentionally convert the funds. In re Graham, 609 N.W.2d 894, 896 (Minn.2000). An attorney misappropriates client funds whenever the funds are not kept in trust and are used for a purpose other than one specified by the client. In re Samborski, 644 N.W.2d 402, 407 (Minn.2002).

Failure to cooperate with the disciplinary process constitutes separate misconduct warranting discipline independent from the conduct underlying the petition. Cutting, 671 N.W.2d at 175. We have stressed that failure to cooperate with a disciplinary investigation, in and of itself, constitutes an act of misconduct that warrants indefinite suspension. See In re Engel, 538 N.W.2d 906, 907 (Minn.1995).

When an attorney is before us on a disciplinary charge for a second time, we review the discipline to be imposed in light of the earlier misconduct. In re Getty, 452 N.W.2d 694, 698 (Minn.1990). We generally impose more severe sanctions when the current misconduct is similar to misconduct for which the attorney has already been disciplined. Cutting, 671 N.W.2d at 175. Brooks’s previous discipline involved misconduct similar to the current allegations, including mishandling her trust account, failing to communicate with her clients, and failing to cooperate in the disciplinary process. We conclude that more severe discipline is warranted for her repeated violations.

Brooks’s neglect of her clients and failure to cooperate with the disciplinary process hurts both the clients and the legal profession as a whole. We are especially concerned that Brooks has failed to respond to the Director’s requests for information for more than one year and that Brooks has failed to return the $200 filing fee for the bankruptcy she never filed. Mitigating factors can include the death of a family member. See, e.g., In re Terrazas, 581 N.W.2d 841, 846 (Minn.1998). But we find it difficult to consider mitigating factors in this case because Brooks has failed to provide sufficient information about the circumstances.

Although we have often disbarred attorneys for misappropriating funds because of the critical need for public trust and confidence in the legal profession, we note that we do not have complete information of the surrounding circumstances and the amount involved here is small. Although any amount of misappropriation can be grounds for disbarment, we nevertheless do not believe that disbarment is the appropriate discipline here. It appears that Brooks has abandoned her legal practice and has not practiced law for more than a year. We have granted the Director’s motion to be appointed trustee of the client files that remain at her former legal office. At oral arguments, the Director indicated that he believed that the only active files remaining at the office belonged to the two clients who filed complaints against Brooks. The extent of the harm to the two clients is unclear from the record.

The discipline that the Director recommends is consistent with discipline we have imposed in other cases. In In re Klein, 609 N.W.2d 230, 234 (Minn.2000), we ordered indefinite suspension for a minimum of two years where the attorney, with three prior admonitions and a six-month suspension, displayed a pattern of dishonesty and client neglect, and also committed trust account violations and failed to cooperate and participate in the disciplinary process. The referee in Klein found no mitigating factors. Id. We also ordered indefinite suspension for a minimum of two years in a case where the attorney neglected seven client matters, failed to properly maintain a client trust account, failed to communicate with clients, and failed to cooperate with the disciplinary investigation. In re Campbell, 603 N.W.2d 128, 131, 133 (Minn.1999).

Based on the record before us, we conclude that Brooks engaged in serious misconduct warranting discipline. Accordingly, we order that Jane E. Brooks:

1. Be indefinitely suspended from the practice of law pursuant to Rule 15(a)(2), RLPR, with no right to apply for reinstatement for a period of two years from the date of this decision;
2. Comply fully with the requirements of Rule 18, RLPR, should Brooks apply for reinstatement; and
3. Pay to the Director appropriate costs and disbursements pursuant to Rule 24, RLPR.

So ordered.

      . Rule 18, RLPR, provides that unless this court orders otherwise, this court shall hold a hearing to consider the petition of an attorney seeking reinstatement. Rule 18 also contains other requirements that an attorney seeking reinstatement must complete, unless this court specifically waives those requirements.