author: COLLINS, Judge .

text:
    STATE of Minnesota, Appellant, v. Raymond Vanshaw RICHMOND, Respondent.
    No. A06-2092.
    Court of Appeals of Minnesota.
    April 17, 2007.

      Lori Swanson, Attorney General, St. Paul, MN, Janelle P. Kendall, Stearns County Attorney, Chad T. May, Assistant County Attorney, St. Cloud, MN, and Patrick C. Diamond, Special Assistant Stearns County Attorney, Minneapolis, MN, for appellant.
    John M. Stuart, State Public Defender, Mark D. Nyvold, Special Assistant Public Defender, St. Paul, MN, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge; KALITOWSKI, Judge; and COLLINS, Judge.
   OPINION

COLLINS, Judge .

The state appeals from a pretrial order dismissing on equal-protection grounds a complaint charging respondent Raymond Richmond with a third-degree eontrolled-substance crime for selling 0.2 grams of cocaine. The state argues that the district court clearly erred when it ruled that prosecuting Richmond under the third-degree statute for conduct purportedly also prohibited under the fourth-degree statute, which carries a lesser penalty, violates the guarantee of equal protection under the law. The state argues that although cocaine is defined as a narcotic drug and is listed as a schedule II controlled substance, the prosecutor retains discretion to charge under either statute absent a showing of a disparate impact or discriminatory enforcement. Because we hold that the legislature intended the sale of less than three grams of cocaine to constitute a third-degree rather than a fourth-degree eontrolled-substance crime, we reverse and remand to the district court for further proceedings.

FACTS

The facts on this appeal are undisputed. On November 21, 2005, St. Cloud police officers assigned to a gang strike task force arranged for a known and reliable confidential informant to make a controlled buy of cocaine from respondent Raymond Richmond. Police observed the confidential informant purchase from Richmond what was later determined to be 0.2 grams of cocaine.

In January 2006, the state charged Richmond with third-degree controlled-substance crime in violation of Minn.Stat. § 152.023, subd. 1(1) (2004) (proscribing the sale of one or more mixtures containing a narcotic drug). In May, Richmond moved to dismiss the complaint, contending that prosecuting him for sale of cocaine as a narcotic drug under the third-degree controlled-substance-crime statute violates the federal and state constitutions’ equal-protection provisions because the statute punishes more severely identical behavior proscribed by the fourth-degree controlled-substance-crime statute, Minn.Stat. § 152.024, subd. 1(1) (2004) (proscribing the sale of a schedule I, II, or III controlled substance).

Following a hearing, the district court granted Richmond’s pretrial motion and dismissed the complaint. The district court found subdivision 1(1) of the third-degree controlled-substance-crime statute unconstitutional as applied because the court could not discern any rational basis for punishing the sale of cocaine as a narcotic drug more severely than the sale of cocaine as a schedule II controlled substance. The court specifically found that “[a]n arbitrary distinction allows for arbitrary enforcement.” The court concluded that because the elements of third-degree and fourth-degree eontrolled-substance crimes are identical with regard to cocaine, the third-degree controlled-substance-crime statute is unconstitutional as applied to this case. The court denied the state’s motion for reconsideration, and this appeal follows.

ISSUE

Did the district court err by finding that prosecuting the sale of cocaine as a third-degree crime under Minn.Stat. § 152.023, subd. 1(1) (2004), violates equal-protection principles because it punishes more severely conduct also purportedly proscribed as a fourth-degree crime by Minn.Stat. § 152.024, subd. 1(1) (2004)?

ANALYSIS

“In an appeal from a pretrial order, this court will reverse the district court’s dismissal of charges only if the state clearly and unequivocally shows that the district court erred in its judgment and that the error, unless reversed, will critically affect the outcome of the prosecution.” State v. Meyer, 646 N.W.2d 900, 902 (Minn.App.2002). It is not disputed that dismissing the complaint against Raymond had the requisite critical impact on the prosecution. The state must therefore show error. Because the district court based its ruling on the construction of a statute and the application of a constitutional provision, our review is de novo. Id.

Appellate courts are “ordinarily loathe to intrude or even inquire into the legislative process on matters of criminal punishment.” State v. Clausen, 493 N.W.2d 113, 115 (Minn.1992) (quoting State v. Russell, 477 N.W.2d 886, 888 n. 2 (Minn.1991)). The power to declare a statute unconstitutional should be “exercised with extreme caution and only when absolutely necessary.” State v. Behl, 564 N.W.2d 560, 566 (Minn.1997) (quotation omitted). The party challenging the constitutionality of a Minnesota statute bears the very heavy burden of establishing beyond a reasonable doubt that the statute violates a constitutional provision. Id. When possible, a reviewing court must construe and interpret a statute to uphold its constitutionality. Fedziuk v. Comm’r of Pub. Safety, 696 N.W.2d 340, 344 (Minn.2005); see also Minn.Stat. § 645.16 (2006) (obliging courts to effectuate the legislature’s intent).

I.

The state argues that the district court erred by finding the third-degree controlled-substance-crime statute, Minn. Stat. § 152.023, subd. 1(1) (2004), unconstitutional as applied. Specifically, the state argues that Richmond failed to show that the statute was unconstitutional beyond a reasonable doubt because he made no showing that the third- and fourth-degree controlled-substance-crime statutes are in fact unconstitutionally applied. The state also argues that there is a genuine and substantial reason for differentiating between the sale of narcotic drugs and other schedule II controlled substances. Our review of the statutory scheme for controlled-substanee crimes convinces us that the legislature intended to treat cocaine specifically as a schedule II narcotic drug rather than as a generic schedule II controlled substance, and intended to prohibit the sale of cocaine, depending on the total weight at issue, as either a first-, second-, or third-degree, but not as a fourth-degree, controlled-substance crime. See State v. Vail, 274 N.W.2d 127, 135-36 n. 14 (Minn.1979) (recognizing and upholding constitutionality of statutory scheme that separately defines and penalizes violations with narcotic drugs included in schedules of controlled substances in three tiers: (1) narcotic drugs, (2) other scheduled controlled substances, and (3) marijuana); see also Clausen, 493 N.W.2d at 118 (holding that creation of degrees of punishment based on possession of greater amounts of controlled substances is valid legislative action).

Chapter 152 of the Minnesota Statutes defines “cocaine” in part as “coca leaves and any salt, compound, derivative, or preparation of coca leaves, including ... the salts and isomers of cocaine and eego-nine, and the salts of their isomers and any salt, compound, derivative, or preparation thereof that is chemically equivalent or identical with any of those substances.” Minn.Stat. § 152.01, subd. 3a (2004). Specifically included within the statute’s definition of a “narcotic drug” are coca leaves, “[a] compound, manufacture, salt, derivative, or preparation of ... coca leaves,” and “any compound, manufacture, salt, derivative, or preparation thereof, which is chemically identical” to coca leaves. Id., subd. 10 (2004). By contrast, “controlled substance” is broadly defined as “a drug, substance, or immediate precursor in Schedules I through V of section 152.02.” Id., subd. 4 (2004). Cocaine is listed in schedule II of controlled substances. Id. § 152.02, subd. 3(1)(d) (2004). The schedules of controlled substances were first enacted by the legislature in 1971, and the classification system is based on the federal Uniform Controlled Substances Act of 1970. Vail, 274 N.W.2d at 135; 1971 Minn. Laws ch. 937, § 12, at 1925-31.

The clear import from these statutory definitions is that, under Minnesota’s classification system, all narcotic drugs are controlled substances, but not all controlled substances are narcotic drugs. While cocaine could therefore be considered a schedule II controlled substance, under the plain language of these statutory definitions, cocaine is more precisely a schedule II narcotic drug. See State v. Benniefield, 678 N.W.2d 42, 44 (Minn.2004) (stating that cocaine is a schedule II narcotic drug); State v. Vernon, 283 N.W.2d 516, 518-19 (Minn.1979) (holding that statutorily listing cocaine in schedule II and classifying it as a narcotic drug is rational and does not violate equal protection).

This distinction is significant when construing the controlled-substance-crime statutes at issue here. “We are to read and construe a statute as a whole and must interpret each section in light of the surrounding sections to avoid conflicting interpretations.” Am. Family Ins. Group v. Schroedl, 616 N.W.2d 273, 277 (Minn.2000); see also Minn.Stat. § 645.17(2) (2006) (providing that courts should presume legislature intended entire statute to be effective). The statutory scheme of Minnesota’s controlled-substance-crime statutes, which the legislature initially codified in 1989, specifically proscribes and punishes in multiple tiers the sale and possession of cocaine as a schedule II narcotic drug, in decreasing degrees of severity depending on the total weight involved. Minn.Stat. §§ 152.021-152.025 (2004); 1989 Minn. Laws ch. 290, art. 3, §§ 8-12, at 1596-1601. Selling a mixture containing a total weight of ten grams or more of cocaine, or possessing a mixture containing a total weight of 25 grams or more of cocaine, is a first-degree eontrolled-sub-stance crime. Minn.Stat. § 152.021, subds. 1(1), 2(1). The second-degree controlled-substance-crime statute proscribes the sale of a total weight of three grams or more of cocaine and the possession of a total weight of six grams or more of cocaine. Id. § 152.022, subds. 1(1), 2(1); The sale of a mixture “containing a narcotic drug” and the possession of a total weight of three grams or more of cocaine constitute a third-degree controlled-substance crime. Id. § 152.023, subds. 1(1), 2(1). Similarly, the sale or possession of “a narcotic drug other than cocaine, heroin, or methamphetamine” is proscribed by the first-, second-, and third-degree controlled-substance-crime statutes depending on the narcotic drug’s total weight. See, e.g., §§ 152.021, subd. 1(2) (proscribing sale of 50 grams or more), 152.022, subd. 1(2) (proscribing sale of ten grams or more), 152.023, subd. 2(2) (proscribing possession of ten grams or more). By contrast, the fourth-degree controlled-substance-crime statute proscribes only selling or possessing with intent to sell “a controlled substance classified in schedule I, II, or III” and makes no reference to “narcotic drugs.” Id. § 152.024, subds. 1(1), 2(2).

Even when proscribed acts are generally related to each other, “it is certainly within the legislative power to determine that each particular act engenders different types and degrees of harm to society ... and therefore should be treated separately.” State v. Witt, 310 Minn. 211, 216, 245 N.W.2d 612, 616 (1976) (discussing statutory provisions penalizing aggravated criminal-sexual conduct with varying severity). Construing, as we must, the statutory scheme as a harmonious whole and in light of each section to avoid conflicting interpretations, we find that the legislature clearly intended to prohibit the sale or possession of “narcotic drugs” — including cocaine — as a first-, second- or third-degree, but not as a fourth-degree, controlled-substance crime. Because Richmond allegedly sold less than three grams of cocaine, the state properly charged him with third-degree controlled-substance crime.

The district court reasoned that, because cocaine is defined as a narcotic drug and classified as a schedule II controlled substance, the sale of cocaine violates both the third- and fourth-degree controlled-substance-crime statutes, which provide different penalties. This construction is plausible facially only if the third- and fourth-degree statutes are read in isolation and without due regard to legislative intent. But the nominal inclusion of a narcotic drug within a particular schedule of controlled substances is of little import because “the classification is not a controlling factor in the scheme of punishment.” Vail, 274 N.W.2d at 135 (finding nominal inclusion of marijuana within schedule I had little impact in determining whether controlled-substance classification scheme violates equal-protection guarantees).

Extending the district court’s construction to its logical conclusion would seemingly eviscerate the entire controlled-substance-crime statutory scheme. For example, the state would be required to charge the sale of ten grams of cocaine as a second-degree offense rather than a first-degree offense because the total weight is “three grams or more” of cocaine. To permit the state to charge the crime as a first-degree offense arguably would raise the same equal-protection concerns that Richmond propounds here. We refuse to construe the statutory scheme in a way that would lead to such an absurd and unreasonable result. See Minn.Stat. § 645.17(1) (2006) (presuming that legislature does not intend absurd or unreasonable result); State v. Koenig, 666 N.W.2d 366, 372-73 (Minn.2003) (specifying applicable rules for construction of a criminal statute); Septran, Inc. v. Indep. Sch. Dist. No. 271, 555 N.W.2d 915, 919 (Minn.App.1996) (noting that well-established rules of statutory construction require appellate courts to harmonize apparently conflicting provisions when possible), review denied (Minn. Feb. 26, 1997); In re Appeal of Crow Wing County Attorney, 552 N.W.2d 278, 280 (Minn.App.1996) (noting basic rule of statutory construction that laws are to be construed together, if possible, to give effect to both provisions, even if they apparently conflict), review denied (Minn. Oct. 29, 1996). Rather, applying accepted principles of statutory construction, we hold that the legislature intended the sale of a mixture containing a total weight of less than three grams of cocaine, that is, a mixture “containing a narcotic drug,” to be punished as a third-degree, and not as a fourth-degree, controlled-substance crime.

Our holding also leads us to conclude that the third-degree and fourth-degree controlled-substance-crime statutes are not irreconcilably in conflict because, under the statutory scheme as a whole, they proscribe different crimes. See State v. Williams, 396 N.W.2d 840, 845-46 (Minn.App.1986) (analyzing whether two statutes covered same conduct to create irreconcilable conflict). . Criminal statutes may conflict when they have the same elements but differing penalties. State v. Craven, 628 N.W.2d 632, 635 (Minn.App.2001) (citing State v. Kalvig, 296 Minn. 395, 398, 209 N.W.2d 678, 680 (1973)), review denied (Minn. Aug. 15, 2001). The essential elements of third-degree controlled-substance crime require the state to prove that the defendant: (1) unlawfully sold one or more mixtures containing a narcotic drug; and (2) knew or believed that the substance sold was a narcotic drug. Minn.Stat. § 152.023, subd. 1(1); 10A Minnesota Practice, CRIMJIG 20.16 (2006). The essential elements of a fourth-degree offense require proof that the defendant: (1) unlawfully sold one or more mixtures containing a schedule I, II, or III controlled substance; and (2) knew or believed that the substance sold was such a controlled substance. Minn.Stat. § 152.024, subd. 1(1); 10A Minnesota Practice, CRIMJIG 20.24. Because, as previously noted, a narcotic drug is specifically and narrowly defined, not all schedule I, II, or III controlled substances are narcotic drugs, and therefore not all sales of those controlled substances will also constitute a third-degree controlled-substanee crime. See State v. Barnes, 713 N.W.2d 325, 331-32 (Minn.2006) (finding domestic-abuse murder and depraved-mind murder statutes do not irreconcilably conflict in part because even if all domestic-abuse incidents could be considered eminently dangerous, a depraved-murder element, not all eminently dangerous acts constitute domestic abuse); Williams, 396 N.W.2d at 844 (finding forgery and false-representation statutes not irreconcilably in conflict in part because acts prohibited under false representation statute may not constitute offense of forgery statute). The third- and fourth-degree controlled-substanee-crime statutes therefore are not irreconcilably in conflict.

But even if we construed the third- and fourth-degree controlled-substance-crime statutes as irreconcilably in conflict with respect to cocaine, we would reach the same result by applying established statutory-construction principles for overlapping statutes. Ordinarily, when a general provision of one statute conflicts with a specific provision of another statute, courts should construe the two statutes to give effect to both when possible. Minn. Stat. § 645.26, subd. 1 (2006). But when the two statutes’ provisions irreconcilably conflict, the more specific provision should prevail over the more general provision unless the legislature intended the general provision to control. Id.; Kalvig, 296 Minn. at 398-99, 209 N.W.2d at 680; see also Williams, 396 N.W.2d at 843-44 (noting that for Kalvig to apply, statutes must have identical elements but differing penalties, conflict, and be incapable of reconciliation). The provision of the third-degree statute at issue here is expressly limited to the sale of “narcotic drugs,” and therefore is more specific than the fourth-degree statute, which generally proscribes the sale of schedule I, II, or III controlled substances, a much broader classification. Compare Minn.Stat. § 152.023, subd. 1(1), with id. § 152.024, subd. 1(1). The proscription against the sale of less than three grams of cocaine, a schedule II narcotic drug, is therefore controlled by the more specific third-degree controlled-substance-crime statute. See Craven, 628 N.W.2d at 637 (holding that death resulting while fleeing police officer is covered by specific fleeing-causing-death statute rather than general felony-murder statute).

Richmond’s suggested “fix” for the statutory scheme of expressly excluding cocaine (and presumably every other narcotic drug listed in schedules I, II, or III) from the fourth-degree statute is more properly directed to the legislature than to the judiciary, but we note that under our construction such an amendment is unnecessary. See State v. Anderson, 280 Minn. 461, 462, 159 N.W.2d 892, 894 (1968) (recognizing that the definition of crimes and penalties lies within the province of the legislature). We hold that the clear legislative intent of the multi-tiered controlled-substance-crime statutory scheme is to proscribe the sale of a mixture containing less than three grams of cocaine as a third-degree controlled-substanee crime.

II.

Normally, our construction of a statute that resolves an issue on appeal would not necessitate reaching the constitutional issue raised. See In re Senty-Haugen, 583 N.W.2d 266, 269-70 n. 3 (Minn.1998) (noting general practice is to avoid constitutional ruling if case can be decided on another basis). But we choose to address the constitutional challenge as well. Richmond argued to the district court, and the court found, that the third-degree controlled-substance-crime statute violates equal-protection guarantees as applied because it provides more severe punishment for purportedly the same conduct proscribed under the fourth-degree statute and committed under the same circumstances by similarly situated persons.

“The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445, 43 S.Ct. 190, 191, 67 L.Ed. 340 (1923) (quotation omitted). The equal protection clauses of both the United States and Minnesota constitutions “mandate that all similarly situated individuals shall be treated alike.” Scott v. Minneapolis Police Relief Ass’n, 615 N.W.2d 66, 74 (Minn.2000). But it is only “invidious discrimination” that is deemed constitutionally offensive in an equal-protection claim. Id. Thus, “[a]n individual challenging a statute on equal protection grounds must demonstrate that the statute classifies individuals [either on its face or in practice] on the basis of some suspect trait.” State v. Frazier, 649 N.W.2d 828, 833-34 (Minn.2002). A statute challenged on equal-protection grounds, therefore, is presumed constitutional unless a fundamental right or suspect class is involved. Benniefield, 678 N.W.2d at 45. A party may raise an equal protection challenge to a statute based on the statute’s express terms, that is, a “facial” challenge, or based on the statute’s application, that is, an “as-applied” challenge. See Frazier, 649 N.W.2d at 832-33 (discussing as-applied challenge to facially neutral crime-for-benefit-of-gang statute on racially disparate-impact basis); Witt, 310 Minn. at 213-14, 245 N.W.2d at 615 (discussing facial challenge to former aggravated-rape statute that purportedly singled out particular class of male offenders).

“By definition, a facial challenge to a statute on equal-protection grounds asserts that at least two classes are created by the statute, that the classes are treated differently under the statute, and that the difference in treatment cannot be justified.” In re McCannel, 301 N.W.2d 910, 916 (Minn.1980). Richmond does not assert that the third-degree controlled-substance-crime statute establishes classifications based on some suspect class or trait; the statute is facially neutral and applies to all persons. Richmond must therefore demonstrate beyond a reasonable doubt that the third-degree statute violates equal-protection guarantees as applied in practice. See Frazier, 649 N.W.2d at 834 (stating that, when statute challenged on racially disparate-impact grounds is facially neutral, challenging party must demonstrate that statute creates a racial classification in practice).

A facially neutral statute can violate the guarantee of equal protection if it is applied in a way that makes distinctions between similarly situated people without a legitimate government interest. R.B. v. C.S., 536 N.W.2d 634, 637 (Minn.App.1995). “A statute violates the equal protection clause when it prescribes different punishments or different degrees of punishment for the same conduct committed under the same circumstances by persons similarly situated.” Frazier, 649 N.W.2d at 837. “An essential element of an equal protection claim is that the persons claiming disparate treatment must be similarly situated to those to whom they compare themselves.” Peterson v. Minn. Dep’t of Labor & Indus., 591 N.W.2d 76, 79 (Minn.App.1999) (quotation omitted), review denied (Minn. May 18, 1999).

But Richmond did not assert that the state charged him with the third-degree offense based on his membership in some suspect class or that others similarly situated were charged for the same conduct (namely, selling less than three grams of cocaine) under the fourth-degree controlled-substance-crime statute. Neither did the district court make such a finding. Rather, the district court — without differentiating its analysis between the federal and state equal-protection provisions — relied primarily on the potential for unfettered prosecutorial discretion in electing whether to charge a defendant under the statute with the harsher penalty. In United States v. Batchelder, the Supreme Court rejected this exact analysis as “factually and legally unsound.” 442 U.S. 114, 124, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979). The Batchelder Court affirmed a long-standing principle by holding that “when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.” Id. at 123-24, 99 S.Ct. at 2204. The Court reasoned that “there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements.” Id. at 125, 99 S.Ct. at 2205. Although a prosecutor “may be influenced by the penalties available upon conviction, ... this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause.” Id. And while selectivity in enforcement of criminal laws is subject to constitutional constraints, the Equal Protection Clause prohibits selective enforcement only when it is based on an unjustifiable standard such as race, religion, or another arbitrary classification. Id. at 125 & n. 9, 99 S.Ct. at 2204-05 & n. 9; see also United States v. Bass, 794 F.2d 1305, 1310 & n. 5 (8th Cir.1986) (relying on Batchel-der and rejecting equal-protection claim based on prosecutor electing to charge defendant under enhanced-penalty statute when defendant failed to allege any discriminatory prosecution). We therefore hold that the third-degree controlled-substance-crime statute does not violate the federal equal-protection provision.

Similarly, under Minnesota law, “[t]he possibility that a law may actually fail to operate with equality is not enough to invalidate it.” John Hancock Mut. Life Ins. Co. v. Comm’r of Revenue, 497 N.W.2d 250, 254 (Minn.1993) (quotation omitted). Several Minnesota appellate court decisions have cited Batchelder with approval and held that generally, absent a contrary legislative intent or discrimination against a particular class of defendants, a prosecutor may charge under any statute that is violated regardless of the penalty. See, e.g., State v. Love, 350 N.W.2d 359, 362 (Minn.1984) (addressing charging under criminal-sexual-conduct versus intrafamilial-sexual-conduct statute); State v. Chryst, 320 N.W.2d 721, 722-23 (Minn.1982) (addressing charging under theft versus odometer-tampering statute); State v. Walker, 319 N.W.2d 414, 416 (Minn.1982) (addressing charging under theft versus cattle-rustling statute); Williams, 396 N.W.2d at 842-43 (addressing charging under forgery versus false-representation statute). Indeed, as early as 1897, the supreme court stated that “[i]t is well settled that the same act may constitute an offense ... under several different statutes, and the prosecutor may proceed under whichever law or statute he sees fit.” State v. Holt, 69 Minn. 423, 425, 72 N.W. 700, 701 (1897). The fact that there may be reasons, such as a lesser penalty, for a defendant wanting to be prosecuted under one statute rather than another “does not mean that a prosecutor is obligated to prosecute him that way.” Love, 350 N.W.2d at 361.

As noted, the guarantee of equal protection mandates that similarly situated individuals shall be treated alike. Reed v. Albaaj, 723 N.W.2d 50, 55 (Minn.App.2006). “Essential to a ruling that equal protection has been denied by discriminatory administration of the laws is a finding that the persons treated disparately are similarly situated.” State by Spannaus v. Lutsen Resorts, Inc., 310 N.W.2d 495, 497 (Minn.1981). But Richmond fails to make any showing that others similarly situated were prosecuted under the less severe fourth-degree statute rather than the third-degree statute. When a defendant fails to show that he is being treated differently from similarly situated individuals, his as-applied equal-protection argument fails. Reed, 723 N.W.2d at 55 (holding that servicemember confined in military prison for crimes committed while in military service is not similarly situated to servicemembers not so confined). Because Richmond relies merely on the potential for discriminatory enforcement and has not shown that others similarly situated were charged under the statute with a lesser penalty, his as-applied equal-protection claim fails.

DECISION

Construing the statutory scheme of the controlled-substance crimes as a whole evinces a clear legislative intent that the sale of less than three grams of cocaine, a schedule II narcotic drug, constitutes a third-degree, and not a fourth-degree, controlled-substance crime. Because Richmond failed to show that he was charged with a third-degree offense based on some suspect classification or trait, or that others similarly situated were charged instead with a fourth-degree offense, his equal-protection claim fails. We conclude that the district court erred by finding the third-degree controlled-substance-crime statute unconstitutional as applied. Accordingly, we reverse the judgment of the district court, order the complaint reinstated, and remand to the district court for further proceedings consistent with this opinion.

Reversed and remanded.

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


source: Caselaw Access Project

author: VANDE WALLE, Chief Justice.

license: Public Domain

text:
    2007 ND 52
    STATE of North Dakota, Plaintiff and Appellee v. Marie A. WESTMILLER, Defendant and Appellant.
    No. 20060246.
    Supreme Court of North Dakota.
    April 10, 2007.

      Brandi Sasse Russell, Assistant State’s Attorney, Bismarck, ND, for plaintiff and appellee.
    Steven Balaban, Bismarck, ND, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Marie A. Westmiller appealed from a criminal judgment entered upon her conditional plea of guilty to the offense of driving under the influence. Westmiller argues the district court erroneously denied her motion to suppress evidence because the arresting officer illegally stopped her vehicle. We conclude the officer had reasonable and articulable suspicion that Westmiller committed a traffic violation, and we affirm.

I

[¶ 2] Shortly before midnight on February 1, 2006, Burleigh County Sheriffs Deputy Casey Kapp stopped Westmiller’s vehicle on County Highway 10 near 353rd Street. Deputy Kapp was patrolling westbound on the two-lane highway when he encountered Westmiller’s vehicle, which was traveling eastbound. The deputy was using his low-beam headlights at the time. When Westmiller was about an eighth of a mile away from Deputy Kapp’s vehicle, she turned her headlights from dim to bright three times. At that point, Deputy Kapp activated his emergency lights and stopped Westmiller’s vehicle. The deputy approached Westmiller and informed her that she had been stopped “because she flashed her headlights at [him] approximately three times.” As a result of the traffic stop, Westmiller was arrested for driving under the influence of alcohol.

[¶ 3] Westmiller moved to suppress any evidence gathered through the stop of her vehicle, arguing that the stop was illegal. At the suppression hearing, Deputy Kapp testified that he stopped Westmiller for two reasons. The deputy stated, “The first one being it’s a traffic violation to fail to dim headlights when required, and the second reason being kind of the community caretaker responsibility.” On cross-examination, Deputy Kapp had the following exchange with Westmiller’s counsel about the reason for the stop.

Q. And when she flashed her high beams at you, were they flashed at you as if your high beams were on and she was telling you to dim yours, or were they just on and then off in a slow fashion? How was the flashing of the high beams?
A. I guess I would describe it as they were turned in a manner to where she was trying to indicate me to dim my headlights is what I had assumed from it.
Q. And that was the only reason for the stop; correct?
A. Well, and as I said earlier, too, it could be an indication that there’s something going wrong in the vehicle. I mean, I’m not sure, somebody flashing their lights at you, it could mean two things. Like I said, they are trying to get you to dim your lights, or there’s something wrong in the vehicle.
Q. But she didn’t pull over and waive [sic] you down. She kept driving; correct?
A. Correct.

[¶ 4] Deputy Kapp also testified in some detail about the distance between the vehicles at the time Westmiller flashed her bright headlights. On direct examination, he recounted that Westmiller’s vehicle was about an eighth of a mile away from him. Westmiller’s counsel further questioned the deputy about this distance on cross-examination.

Q. According to the statute you cite on failing to dim high beams, how far away does somebody have to be before they dim their high beams?
A. I’d have to review the statute. I believe it’s 500 feet. I’d have to review the 39 Code.
Q. You don’t know for sure?
A. Not exactly, no.
Q. And you stated she was an eighth of a mile away?
A. With the — it’s—she was very close. I mean, she wasn’t very far away. It was almost like we were coming around a curve and kind of met. It might have been less than an eighth of a—
Q. Officer or Deputy, my question was your testimony was that she was about an eighth of a mile away; is that correct?
A. Correct.

[¶ 5] After considering the evidence, the district court denied Westmiller’s motion to suppress. In response to Westmil-ler’s argument that she was more than 500 feet away from the officer, and therefore not in violation of the statute, the district court had the following exchange with defense counsel.

Mr. Balaban: Driving with high beams on is not illegal; and according to the officer, outside that 500 feet [sic] zone it’s still legal. And according to his testimony, she was outside of that zone.
The Court: Well, but they were moving; right?
Mr. Balaban: They were moving.
The Court: Your calculation is that’s when he said he first saw her. It doesn’t take very long to cover that 150 feet if that’s an issue.
Mr. Balaban: That’s true, Your Honor. Well, any doubt in that is, I believe, according to case law, is supposed to be conferred in favor of the defendant when there is a doubt as far as that goes. The Court: Well, there isn’t a doubt in my mind that they were moving, and that he would cover the 150 feet pretty quickly.

[¶ 6] Westmiller also argued that flashing bright headlights within 500 feet was not prohibited by the statute, and that the deputy was not acting as a community caretaker. With regard to the statute, the district court observed that it viewed failing to dim headlights and flashing headlights as two different things. The district court stated:

In this situation I guess I would agree with Mr. Balaban that it was not likely a violation of the law for her to flash her lights.
However, the constitutional provision we’re dealing with talks about unreasonable seizures, and I don’t think that the officer proceeded unreasonably. I think it would be unreasonable for a person to think that if they met an officer on the road and flashed their lights at them three times, he wouldn’t respond in some way. And I think the fact that it may have not have been [sic] in his report is not conclusive evidence. I don’t think it’s unreasonable that the officer felt there was some need to further investigate the situation when, as I said, he — from his — and I agree with you, Mr. Balaban, you have to look at the officer’s point of view and whether it’s reasonable from the officer’s perspective. And in this case he’s driving down the road, car meets him, flashes her lights at him three times; I think it’s perfectly reasonable for him to take the steps he did.
You know, I guess we could argue, you know, if he thought there was a traffic violation, whether that gives a— he thought there was a violation, whether we agree with that here in the courtroom today, or not, I don’t know is really the issue.
We have to, again, as you said, Mr. Balaban, look at it from his perspective. Number one, he thought that she was committing a violation by flashing her lights three times at him, and he was going to make a traffic stop. Number two, I don’t think it’s unreasonable for him to think that there may have been something else going on or some problem in the vehicle when a person is flashing their lights at him.

II

[¶ 7] When reviewing a district court’s ruling on a motion to suppress, we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. State v. Graf, 2006 ND 196, ¶ 7, 721 N.W.2d 381. We recognize that the district court is in a superior position to assess the credibility of witnesses and weigh the evidence. State v. Goebel, 2007 ND 4, ¶ 11, 725 N.W.2d 578. We will affirm a district court’s decision on a motion to suppress if there is sufficient competent evidence fairly capable of supporting the district court’s findings, and the decision is not contrary to the manifest weight of the evidence. Graf, at ¶ 7. Questions of law are fully reviewable on appeal, and whether the findings of fact meet a legal standard is a question of law. Goebel, at ¶ 11.

[¶ 8] Westmiller argues the district court should have granted her motion to suppress because Deputy Kapp did not have reasonable suspicion to stop her vehicle. Specifically, Westmiller claims she did not violate N.D.C.C. § 39-21-21 when she flashed her high-beam headlights three times at the deputy’s oncoming vehicle.

[¶ 9] Investigatory stops for traffic violations are governed by well-settled principles in our case law. In order to stop a moving vehicle for investigative purposes, an officer must have at least a reasonable and articulable suspicion that the motorist has violated or is violating the law. Gabel v. N.D. Dep’t of Transp., 2006 ND 178, ¶ 9, 720 N.W.2d 433. Although reasonable suspicion is the minimum quantum of evidence required for an investigatory traffic stop, see, e.g., State v. Johnson, 2006 ND 248, ¶¶ 9, 12, 724 N.W.2d 129, we will also uphold a stop on the basis of probable cause if that evidentiary standard has been satisfied. See, e.g., State v. Fields, 2003 ND 81, ¶ 7, 662 N.W.2d 242 (upholding an investigatory stop because the officer had probable cause to believe Fields’ vehicle registration was expired); State v. Loh, 2000 ND 188, ¶¶ 6, 14, 618 N.W.2d 477 (concluding the officer had not only reasonable suspicion, but also probable cause for a traffic stop when he observed a vehicle weaving and crossing the lane lines). It is well-established that traffic violations, even if considered common or minor, constitute prohibited conduct and therefore provide officers with requisite suspicion for conducting investigatory stops. Hanson v. N.D. Dep’t of Transp., 2003 ND 175, ¶ 15, 671 N.W.2d 780.

[¶ 10] Reasonable suspicion requires more than a mere hunch. State v. Smith, 2005 ND 21, ¶ 15, 691 N.W.2d 203. Reasonable suspicion for a stop exists when a reasonable person in the officer’s position would be justified by some objective manifestation to suspect potential unlawful activity. Johnson v. Sprynczynatyk, 2006 ND 137, ¶ 9, 717 N.W.2d 586; Smith, at ¶ 15. The reasonable suspicion standard is objective and does not hinge upon the subjective beliefs or motivations of the arresting officer. State v. Leher, 2002 ND 171, ¶ 11, 653 N.W.2d 56. In order to determine whether an investigative stop is valid, we consider the totality of the circumstances and examine the information known to the officer at the time of the stop. Gabel, 2006 ND 178, ¶ 11, 720 N.W.2d 433; State v. Torkelsen, 2006 ND 152, ¶ 13, 718 N.W.2d 22. The reasonable suspicion standard does not require an officer to rule out every possible innocent excuse for the behavior in question before stopping a vehicle for investigation. State v. Decoteau, 2004 ND 139, ¶ 14, 681 N.W.2d 803.

[¶ 11] In this case, Deputy Kapp stopped Westmiller’s vehicle because he believed she violated N.D.C.C. § 39-21-21 by flashing her high-beam headlights three times at his oncoming vehicle. Section 39-21-21 provides, in relevant part:

Whenever a motor vehicle is being operated on a roadway or shoulder adjacent thereto during the times specified in section 39-21-01, the driver shall use a distribution of light, or composite beam, directed high enough and of sufficient intensity to reveal persons and vehicles at a safe distance in advance of the vehicle, subject to the following requirements and limitations:
1. "Whenever a driver of a vehicle approaches an oncoming vehicle within five hundred feet [152.4 meters], such driver shall use a distribution of light, or composite beam, so aimed that the glaring rays are not projected into the eyes of the oncoming driver. The lowermost distribution of light, or composite beam, specified in subsection 2 of section 39-21-20 must be deemed to avoid glare at all times, regardless of road contour and loading.

The plain language of the statute requires the use of low-beam headlights within 500 feet of an oncoming vehicle. While we recognize that drivers may be accustomed to quickly flashing their high-beam headlights at an oncoming vehicle as a signal to dim headlights, there is no evidence in this case that the officer was driving with his high-beam headlights. Furthermore, the statute does not provide any exceptions for the momentary flashing of high-beam headlights. Thus, we must conclude the statute prohibits the use of high-beam headlights within 500 feet of an oncoming vehicle, for any length of time and for any purpose.

[¶ 12] We recognize that at least one other appellate court has interpreted similar statutory language and reached the opposite conclusion. See Waukesha County v. Meinhardt, 2001 WI App 146, ¶¶ 9-10, 630 N.W.2d 277 (holding that Meinhardt did not commit a violation by flashing his high-beam headlights two times at an oncoming vehicle, because the plain language of the statute did not prohibit the quick flashing of high-beam headlights). In another case involving a similar statute, State v. Woods, 86 Ohio App.3d 423, 621 N.E.2d 523, 525 (1993), the court held that the defendant’s “momentary flick onto high beam followed immediately by a return to low beam” was not a violation. However, in Woods, the evidence showed that the defendant met the oncoming vehicle as both parties were rounding a right-hand curve, and she dimmed her bright lights at the instant the approaching vehicle was visible. Id. at 524-25. Thus, Woods is quite different factually from the case at hand.

[¶ 13] Furthermore, the plain language of the statute does not make any exceptions for the momentary flashing of high-beam headlights. When a statute is clear and unambiguous, it is improper for courts to attempt to go behind the express terms of the provision so as to legislate that which the words of the statute do not themselves provide. Preference Personnel, Inc. v. Peterson, 2006 ND 35, ¶ 6, 710 N.W.2d 383. The letter of the statute cannot be disregarded under the pretext of pursuing its spirit because legislative intent is presumed to be clear from the face of the statute. Id.

[¶ 14] Because N.D.C.C. § 39-21-21 prohibits any use of high-beam headlights within 500 feet of an oncoming vehicle, Deputy Kapp had reasonable suspicion to stop Westmiller for violating the statute. The deputy testified that Westmiller turned her headlights from dim to bright three times as their vehicles approached each other on County Highway 10. The deputy testified that he was about an eighth of a mile away from Westmiller’s vehicle when the flashing began. The district court reasoned that the parties were moving and would have entered the 500-foot zone “pretty quickly.” Based on these objective facts, Deputy Kapp reasonably suspected that Westmiller had committed a violation of N.D.C.C. § 39-21-21. Therefore, we conclude the investigative stop of Westmiller’s vehicle was constitutionally permissible.

[¶ 15] Because of our conclusion on this issue, we do not reach the State’s argument that Deputy Kapp was acting as a community caretaker when he stopped Westmiller.

Ill

[¶ 16] We affirm the criminal judgment.

[¶ 17] CAROL RONNING KAPSNER, MARY MUEHLEN MARING, and DANIEL J. CROTHERS, JJ., concurs.

DALE V. SANDSTROM, J., I concur in the result.


author: ZINTER, Justice. SABERS, Justice

text:
    2007 SD 27
    STATE of South Dakota, Plaintiff and Appellee, v. Fadi Omar ZAKARIA, Defendant and Appellant.
    No. 24051.
    Supreme Court of South Dakota.
    Argued Nov. 28, 2006.
    Decided March 14, 2007.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Julie Hofer, Minnehaha County Public Advocate’s Office, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Fadi Zakaria was convicted of first degree robbery and committing or attempting to commit a felony with a firearm. He appeals claiming: the introduction of a taped police interview of a co-defendant violated his Sixth Amendment right of confrontation; the trial court erred in admitting a gun found after the robbery; and questioning in taped police interviews impermissibly commented on his credibility. We affirm.

Facts and Procedural History

[¶2.] On March 2, 2004, an employee and one customer were inside the Royal Flush Casino in Sioux Falls, South Dakota. At approximately 8 p.m. two men entered the casino wearing ski masks. One of the men was holding a pillowcase. One of the men pointed a pistol at the employee and demanded money. The gun was described by the witnesses as silver or black, small, shiny, and nickel-plated. The employee gave the man with the pillowcase $1,556.25. The customer observed the men leave in an easterly direction and enter an alley. The customer stopped a passing car and told the occupants what had happened. The occupants of the car also observed two men running in the alley. As they proceeded north, the two men ran out in front of the passing car. One of the men got into a white car located approximately one and a half blocks northeast of the casino, while the other continued running. Witnesses recorded the license plate number of the white car.

[¶ 3.] Two men were eventually linked to this crime. Footprints consistent with Zakaria’s shoes were found .between the casino and the white car. The car was registered to Autumn Hooker. Shortly after the robbery police found the white car about a block away from Hooker’s house. Footprints consistent with Zakaria’s shoes led from the car to the Hooker house. Zakaria was Hooker’s boyfriend, and he lived at that residence. There was also testimony that it was normal for Zakaria to use Hooker’s car.

[¶ 4.] William Reath was also apprehended shortly after the robbery. He was found on Cliff Avenue, approximately three blocks east and six blocks south of the white car. Cliff Avenue is a through street providing a direct route to Hooker’s residence. Reath also lived at the Hooker residence.

[¶ 5.] Police obtained a search warrant for the house and the car. Inside the car they found a black ski mask and a blue pillowcase that contained $256. In the basement of the house, under the sheets of a bed, they found a cigar box containing $1,260.

[¶ 6.] The next day, a yellow coat matching a description of that worn by one of the robbers was found about two and a half blocks northeast of the casino. On May 11, 2004, a little over two months after the robbery, a pistol was found about three blocks northeast of the casino by a man cleaning his yard. The gun was about one inch deep in mud. It was loaded and was found on a line extending from the place where one man entered the white car to the place where the yellow jacket was discarded and, finally, to the yard in which the pistol was found. Reath was found approximately seven blocks east and south of the pistol on Cliff Avenue.

[¶ 7.] Zakaria and Reath were tried together. Video recordings of police interviews of both Zakaria and Reath were admitted, but neither defendant testified. Reath was found not guilty. Zakaria was convicted. He appeals raising the following issues:

1. Whether the trial court committed a Bruton error in conducting a joint trial in which Reath’s taped police interview was admitted without an opportunity for Zakaria to cross-examine Reath.
2. Whether the trial court erred in admitting the gun into evidence.
3. Whether the trial court erred in admitting Zakaria’s taped police interview that contained statements by police questioning his credibility.

Decision

Bruton and the Right of Confrontation

[¶8.] Zakaria first alleges that playing the videotape of co-defendant Reath’s interview violated Zakaria’s right of confrontation under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Alleged violations of constitutional rights are reviewed de novo. State v. Carothers, 2005 SD 16, ¶ 7, 692 N.W.2d 544, 546.

[¶ 9.] Bruton held that limiting instructions do not cure a confrontation violation when hearsay evidence, given by a co-defendant, incriminates the other defendant. Id. at 137, 88 S.Ct. at 1628, 20 L.Ed.2d at 485-486. However, Bruton is not applicable when statements of co-defendants are not inculpatory. The Supreme Court has noted:

There is an important distinction between this case and Bruton, which causes it to fall outside the narrow exception we have created. In Bruton, the codefendant’s confession “expressly im-plieat[ed]” the defendant as his accomplice. [391 U.S.] at 124, n. 1, 88 S.Ct. at 1621, n. 1 (1968). Thus, at the time that confession was introduced there was not the slightest doubt that it would prove “powerfully incriminating.” Id. at 135, 88 S.Ct. at 1627. By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial....

Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176, 186 (1987). We have also recognized this distinction. See State v. Johnson, 509 N.W.2d 681, 686 (S.D.1993) (concluding no error in refusal to sever, because the statements were not inculpatory); compare Iron Shell v. Leapley, 503 N.W.2d 868, 870 (S.D.1993) (concluding that under Bruton, the admission of inculpatory statements violates the Sixth Amendment).

[¶ 10.] In this case, Reath’s statements did not expressly implicate Zakaria. The only arguably incriminatory matter involved the question of whether the two were together that day. And on that question, each defendant’s statement was internally inconsistent.

[¶ 11.] More specifically, Reath, in his statement, initially denied going out stating: “I was home all day today.” Then he stated that he did go out looking for work between 7 a.m. and 3 p.m. But he also initially insisted that he did not accompany Zakaria: “I didn’t go nowhere with Fadi ... me and Fadi was not in the car.” Later, however, he said that “me and Fadi we went to get his girlfriend.” In comparison, Zakaria admitted that Reath was with him that day. “I just drove around ... I went to my friend’s house ... I can’t say his name ... [Reath] was with me.” However, Zakaria later indicated concern about what would happen if his alibi witness indicated that they had been doing something wrong. He then said, “Alright man, I lied man, I wasn’t with nobody.” A review of the videotaped interview does not reflect whether Zakaria meant that he lied about being with his Mend, or about being with Reath, or both. Ultimately, however, both men’s statements consistently denied any involvement in the robbery, and neither Zakaria nor Reath ever implicated the other in the robbery.

[¶ 12.] Therefore, this case falls within the rule of Richardson rather than Bru-ton. Bruton involved a confession by a co-defendant that directly implicated Bruton with “powerfully incriminating” evidence. Richardson, 481 U.S. at 208, 107 S.Ct. at 1707, 95 L.Ed.2d at 186. In contrast, neither Reath nor Zakaria confessed or implicated the other. Because Reath’s statements were not inculpatory, and certainly were not powerfully incriminating, the trial court did not violate Bruton by refusing to sever and utilizing a limiting instruction.

[¶ 13.] Zakaria also argues that he was entitled to severance under SDCL 23A-11-2, Rule 14 of the Rules of Criminal Procedure. When considering severance under the Rules, “[t]he trial court’s refusal to grant a severance motion will be reversed on appeal only if the defendant demonstrates an abuse of discretion.” State v. Jenner, 434 N.W.2d 76, 80 (S.D.1988) (citations omitted). “The defendant establishes an abuse of discretion by showing substantial prejudice which constitutes a denial of a fair trial.” Id. (emphasis in original) (citations omitted). “ ‘A certain amount of prejudice to a defendant is regarded as acceptable given the judicial economies that result from joinder.’ ” Id. (quoting United States v. Carpentier, 689 F.2d 21, 27 (2d Cir.1982)). “ ‘The [trial] court must consider not only possible prejudice to the defendant ... but also possible prejudice to the government because of two time-consuming, expensive, and duplicitous trials.’” State v. Johnson, 2004 SD 135, ¶ 13, 691 N.W.2d 319, 323 (quoting State v. Andrews, 393 N.W.2d 76, 79 (S.D.1986)).

[¶ 14.] In considering the analogous Federal Rules of Criminal Procedure, the Supreme Court held that severance is not required simply because there are conflicting defenses. Zafiro v. United States, 506 U.S. 534, 538-539, 113 S.Ct. 933, 937-938, 122 L.Ed.2d 317, 324-325 (1993). Instead “when defendants properly have been joined ... a ... court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539, 113 S.Ct. at 938, 122 L.Ed.2d at 325. In this context we have stated that:

To cause the type of prejudice that prevents co-defendants from obtaining a fair trial, the defenses must be more than merely antagonistic. They must conflict to the point of being irreconcilable and mutually exclusive so that acceptance of one defendant’s defense will preclude the acquittal of the other defendant.

Jenner, 434 N.W.2d at 80 (citations omitted). Even “one defendant’s desire to exculpate himself by inculpating a co-defendant does not necessarily render the defenses irreconcilable and mutually exclusive.” State v. Shape, 517 N.W.2d 650, 656 (S.D.1994) (citing Jenner, 434 N.W.2d at 81).

[¶ 15.] In this case, the defenses (and statements) were not so irreconcilable and mutually exclusive that acceptance of Reath’s statements precluded acquittal of Zakaria. As previously noted, Reath’s statement did not implicate Zakaria. Furthermore, both defendants’ statements were internally inconsistent in that both defendants alternately admitted and denied being with the other at some point during the day. And finally, the acceptance of either version of Reath’s statement would not have precluded the acquittal of Zakaria. Under these circumstances, the trial court did not abuse its discretion in refusing to sever under SDCL 23A-11-2.

[¶ 16.] Zakaria, however, argues that even if severance was not required under the Rules of Criminal Procedure or Bruton, the admission of Reath’s statement without opportunity to cross-examine violated Zakaria’s Sixth Amendment right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Issues involving this constitutional right are reviewed de novo. Carothers, 2005 SD 16 at ¶ 7, 692 N.W.2d at 546.

[¶ 17.] “Where [the admission of] testimonial [hearsay] is at issue,[] the Sixth Amendment demands what the common-law required: unavailability and a pri- or opportunity for cross-examination.” Crawford, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d 177. Reath was unavailable for cross-examination because he was a co-defendant, but he was not previously cross-examined concerning his statement. Therefore, Zakaria asserts a Crawford violation.

[¶ 18.] However, we need not address the merits of this issue because, even assuming there was a Crawford error, it was harmless. It is now well accepted that admission of a co-defendant’s statement without opportunity to cross-examine is subject to harmless error analysis. United States v. McClain, 377 F.3d 219, 222-223 (2d Cir.2004) (stating that Crawford does not change harmless error review of confrontation violations). See also United States v. Pugh, 405 F.3d 390 (6th Cir. 2005); United States v. Summers, 414 F.3d 1287 (10th Cir.2005); United States v. Rodriguez-Marrero, 390 F.3d 1 (1st Cir.2004); State v. Nguyen, 281 Kan. 702, 133 P.3d 1259 (2006). We have also applied harmless error analysis in similar circumstances. See State v. Herrmann, 2004 SD 53, ¶ 23, 679 N.W.2d 503, 510 (finding that any Sixth Amendment violation was harmless error); State v. Frazier, 2001 SD 19, ¶¶ 27-33, 622 N.W.2d 246, 257-259 (finding that confrontation error in the admission of hearsay was not harmless).

[¶ 19.] “The harmless error doctrine preserves the essential purpose of criminal trials: to decide a defendant’s guilt or innocence. The rule ‘promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.’ ” Frazier, 2001 SD 19, ¶ 30, 622 N.W.2d at 258 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684-685 (1986)). “The harmless error rule governs ... provided the court is able to declare a belief beyond a reasonable doubt that the error was harmless and did not contribute to the verdict obtained.” State v. Michalek, 407 N.W.2d 815, 819 (S.D.1987) (citations omitted). “ ‘[HJarmlessness must ... be determined on the basis of the remaining evidence.’ ” Frazier, 2001 SD 19 at ¶ 31, 622 N.W.2d at 258 (quoting Coy v. Iowa, 487 U.S. 1012, 1021-1022, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857, 867 (1988)).

[¶ 20.] In this case, the remaining evidence at Zakaria’s trial included footprints consistent with those of Zakaria found between the casino and the white car, as well as leading from the white car to Hooker’s home. A pillowcase was found in the car, and an amount of money consistent with that taken was found secreted in the pillowcase and at Zakaria’s residence. Additionally, a pistol appeared in Zakaria’s room shortly before the robbery and disappeared after the incident. Finally, Za-karia made highly incriminatory admissions in videotaped conversations with Hooker. During one conversation, Zaka-ria stated: “I shouldn’ta did it.” Hooker asked him, “What were you thinking?” Zakaria responded, “[I] told you I wasn’t thinking.” He also said, “I wanted to see if I could get away.” Zakaria told Hooker what he wanted her to tell detectives, and instructed her to get his jacket and “Take it somewhere.”

[¶ 21.] Considering the nature of these statements, the physical evidence, and Za-karia’s ties to the crime scene, we believe beyond a reasonable doubt that the admission of Reath’s statement did not contribute to the verdict obtained.

The Gun

[¶ 22.] Zakaria next contends that there was no evidence connecting the gun to him, to Reath, or to the robbery. He therefore argues that admission of the gun was evidentiary error. Evidentiary rulings are presumed correct and are reviewed under the abuse of discretion standard. State v. Krebs, 2006 SD 43, ¶ 19, 714 N.W.2d 91, 99.

[¶ 23.] This record reflects sufficient evidence connecting the gun to the robbery. The gun at issue was a pistol that was silver except for a black handle, roughly matching the descriptions given by the casino employee and customer. Further, the gun was found on a route approximately four blocks in length that ran northeast from the casino, to the first place the two men were observed running, to the location where the two men approached the white car, to the place where the discarded jacket was found, and to the place where the gun was later found.

[If 24.] There was also testimony by Hooker that “a couple of days before” the robbery she observed a gun in her closet that she had not put there. Although she was unable to describe the gun (other than saying it was small) she also testified that she had not observed it thereafter. Considering the similar appearance of the pistol, its proximity to the scene of the crime, and Hooker’s testimony, there was a sufficient connection to make the gun relevant and admissible. The trial court did not abuse its discretion.

Officers’ Statements

[¶ 25.] The interviews of Reath and Zakaria contained a number of accusations by the police that Reath and Zaka-ria were lying. Zakaria contends that the admission of these interviews constituted impermissible opinion testimony on his character. Admission of such videotaped evidence is reviewed under the abuse of discretion standard. State v. Running Bird, 2002 SD 86, ¶34, 649 N.W.2d 609, 616.

[¶ 26.] It must first be noted that in making this argument, Zakaria relies on cases that are not applicable because they either involve trial testimony by police directly impugning a defendant’s veracity or they applied a different rule of law. In this case the police accusations were not trial testimony concerning Zakaria’s character. Instead, the accusations were made in a taped interview shortly after the crime. Most importantly, the accusations of untruthfulness were not opinion testimony on Zakaria’s character. Instead, they were a part of the police officers’ psychological tactics used to attempt to elicit statements during the interrogation. Indeed, the tape of that interview rather clearly reflects that a reasonable juror would have discerned the difference between these interrogation tactics and opinion testimony. This understanding is supported by the officer’s explanation , of those techniques to the jury prior to the showing of the videos.

Q. During the course of your interview, do you employ any investigative techniques in this particular interview, Sergeant?
A. We employ — I have been to several interview schools. I use the Reid, advanced Reid and some other interview techniques that we pick up along the way.
Q. When you talk about the Reid technique, what is the Reid technique?
A. The one I think you are talking about is the advanced Reid where you give people options. You try to lessen the degree of seriousness in their mind to get them to admit to what they did. Sometimes you tell them things that aren’t necessarily true. Not so that you would get an innocent person to confess but something that would make a person that is guilty realize that you know we had him and he would talk.
Q. So in the course of this interview are you saying things to Mr. Zakaria that aren’t true?
A. That we don’t know for sure, yes.

This conclusion is also supported by the fact that before the tape of Zakaria’s interview, the trial court specifically instructed the jury that: “Questions and statements by the police are not evidence.... ” After seeing Reath’s interview, the jury was again instructed that police statements were not evidence.

[¶ 27.] This Court considered a similar situation in Running Bird, 2002 SD 86 at ¶¶ 31-35, 649 N.W.2d at 616. We concluded that it was not an abuse of discretion to admit a videotaped interview in which a defendhnt’s credibility was questioned because the officer’s statements were not “direct testimony,” and the trial court gave a limiting instruction. Id. at ¶ 35, 649 N.W.2d at 616. Because the same situation is present here, we find no abuse of discretion in admitting the videotape containing the officers’ accusations.

[¶ 28.] Affirmed.

[¶ 29.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 30.] SABERS, Justice, concurs in result.

SABERS, Justice

(concurring in result).

[¶ 31.] I concur in result because I am unwilling to approve conduct of police officers where they lie to the suspects to get them to make admissions against themselves or their companions. Here, “the police were untruthful,” by falsely stating, in separate interviews with Reath and Za-karia, “that each had incriminated the other.” This is conceded by the majority opinion and constitutes conduct unworthy of approval by this Court.

      . Zakaria's appellate counsel did not represent him at trial.

      . Although Zakaria argues that Reath’s statement damaged Zalearías alibi defense, Zaka-ria did not give notice of an alibi defense as required by SDCL 23A-9-l(Rule 12.1(a)).

      . The trial court gave limiting instructions concerning the use of the statements, which can best be categorized as inferentially incriminating. "[Wjith regard to inferential incrimination the judge's instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget.” Richardson, 481 U.S. at 208, 107 S.Ct. at 1708, 95 L.Ed.2d at 186.
      In this case, a preliminary jury instruction told the jury that "a particular item of evidence is sometimes received for a limited purpose. [The judge will] tell you when that occurs, and instruct you on the purposes for which the item can and cannot be used.” Then, before publishing the first of the taped interviews, the trial court gave the following instruction:
      Questions and statements by the police are not evidence. Statements made by the defendant are evidence but only may be considered in your deliberation regarding the charges against that person. In this trial with two defendants, you must make a distinction and only consider this evidence with regard to the defendant who made the statements.
      An almost verbatim instruction was given again after Reath’s interview was published.

      . Federal Rules of Criminal Procedure 8(b) and 14. The same rules are found in SDCL 23A-6-24 (Rule 8(b)) (Joinder of two or more defendants in same indictment or information), and SDCL 23A-11-2 (Rule 14) (Relief from prejudicial joinder of offenses or defendants).

      . The Sixth Circuit stated:
      While we are firmly convinced that the district court abused its discretion and violated the rule established in Crawford and [U.S. v. Cromer, 389 F.3d 662 (6th Cir. 2004)], we must also address whether this violation was a harmless error. See Jordan v. Hurley, 397 F.3d 360, 363 (6th Cir.2005) (“Confrontation Clause violations are subject to harmless error review.”). "In determining whether an error is harmless, the reviewing court 'must take account of what the error meant to [the jury], not singled out and standing alone, but in relation to all else that happened.' ” United States v. Hardy, 228 F.3d 745, 751 (6th Cir.2000) (citing Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (alteration in original). In other words, we must find "that it was more probable than not that the error materially affected the verdict.” United States v. Trujillo, 376 F.3d 593, 611 (6th Cir.2004).

        U.S. v. Pugh, 405 F.3d 390, 400-401 (6th Cir.2005).

      . In People v. Allen, 222 A.D.2d 441, 442, 635 N.Y.S.2d 40 (1995), the prosecutor asked "a detective’s opinion on the truth of the defendant’s statement, the effect of which was to solicit his opinion of the defendant's credibility.” Similarly, in State v. Engesser, 2003 SD 47, 661 N.W.2d 739, “[a]fter the tape [of defendant’s interview] was played, the trial court allowed [the trooper] to express his opinion on [defendant’s] truthfulness in the interview.” Id. ¶ 30, 661 N.W.2d at 749. In both cases, the statements involved trial opinion testimony on credibility that was later determined to be harmless error. Id. ¶ 35, 661 N.W.2d at 751; Allen, 222 A.D.2d at 442, 635 N.Y.S.2d 40.

      . Pennsylvania categorically requires redaction of such statements from recorded interviews used at trial. Commonwealth v. Kitchen, 730 A.2d 513, 521-522, 1999 PA Super 100, ¶¶ 30-31. Kansas also bars such statements, reasoning that they are inappropriate through live witnesses, and therefore, are inappropriate on video. State v. Elnicki, 279 Kan. 47, 57, 67, 105 P.3d 1222, 1229, 1236 (2005).
      There is, however, a split of authority on this issue. See Elnicki, 279 Kan. at 54-57, 105 P.3d at 1227-1229 (discussing the holdings of various jurisdictions on allowing videotape evidence containing assertions by police). The Ninth Circuit holds that admission of taped interviews is not error; and even if it is error, it can be cured by limiting instructions. Dubria v. Smith, 224 F.3d 995, 1000-1003 (9th Cir.2000). Idaho applies harmless error analysis. State v. Cordova, 137 Idaho 635, 639-642, 51 P.3d 449, 453-456 (Idaho App.2002). Missouri holds that police statements on interrogation videos are not error. State v. Palmes, 964 S.W.2d 241, 243-244 (Mo.App. S.D.1998). In a split opinion, Washington concluded that admission of videos was not error, or if it was, it was subject to harmless error analysis. State v. Demery, 144 Wash.2d 753, 30 P.3d 1278 (2001).
      We have declined to apply a categorical rule of exclusion. See State v. Running Bird, 2002 SD 86, ¶¶ 31-35, 649 N.W.2d 609, 616. Therefore, Zakaria’s authorities are inapposite.

      . The police were untruthful with Reath and Zakaria by falsely stating, in separate interviews, that each had incriminated the other.


author: LARSON, Justice.

text:
    Don WALDERBACH, Appellant, v. ARCHDIOCESE OF DUBUQUE, INC., Appellee.
    No. 05-0793.
    Supreme Court of Iowa.
    April 13, 2007.
    Robert F. Wilson, Cedar Rapids, for appellant.

      Brendan T. Quann and Davin C. Curtiss of O’Connor & Thomas, P.C., Dubuque, for appellee.
   LARSON, Justice.

The plaintiff, Don Walderbach, sued the Archdiocese of Dubuque, contending he had suffered sexual abuse at the hands of Father Nicholas Cigrand, a teacher and assistant pastor in the Archdiocese. The defendant moved for summary judgment under Iowa Rule of Civil Procedure 1.981 on the ground there were no genuine issues of material fact that could support the plaintiffs claim. The district court granted the motion, and we affirm.

I. Facts.

As a young man, Don Walderbach attended St. Patrick’s School and served as an altar boy at St. Patrick’s Church, both located in Ryan, Iowa, and part of the defendant Archdiocese. Father Nicholas Cigrand was an assistant pastor at the church and served as one of Walderbaeh’s teachers and as his supervisor as an altar boy. Walderbach alleges that Father Cigrand sexually abused him on several occasions between 1966 and 1969. These incidents occurred in the rectory of St. Patrick’s Church and in the church school.

According to Walderbach’s deposition testimony, his memory of sexual abuse faded when he stopped attending St. Patrick’s School and was no longer an altar boy. However, he claims he has had emotional problems all of his life due, at least in part, to the abuse by Father Cigrand. In April 2002 Walderbach’s memory of these events returned after hearing about a cardinal in Florida who was arrested for abuse.

Upon ' regaining his memory of the events, Walderbach filed suit against the Archdiocese. Walderbach asserted the following claims against the Archdiocese: (1) assault and battery, (2) intentional infliction of emotional distress, (3) negligence based on a special relationship of the defendant and Father Cigrand, and (4) negligent supervision. In addition, Wald-erbach alleged vicarious liability under the doctrine of respondeat superior. The plaintiff alleged, as to the claims of assault and battery, intentional infliction of emotional distress, and negligent supervision, that the defendant “knew or should have known” of Father Cigrand’s actions. Because Father Cigrand was an employee of the Archdiocese, the Archdiocese owed the plaintiff a duty of care, according to the plaintiff.

The Archdiocese moved for summary judgment, arguing Walderbach’s claims were untimely (not an issue on appeal). In addition, the defendant contended there was no genuine issue of material fact that (1) the Archdiocese knew, or should have known, of any sexual abuse by Father Cigrand; (2) the Archdiocese was Father Cigrand’s employer; or (3) even if it were his employer, the acts alleged were within the scope of that employment.

II. Scope of Review.

Review of a district court’s ruling on a motion for summary judgment is for correction of errors at law. Schlote v. Dawson, 676 N.W.2d 187, 188 (Iowa 2004). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Iowa R. Civ. P. 1.981(3). A question of fact exists “if reasonable minds can differ on how the issue should be resolved.” Walker v. Gribble, 689 N.W.2d 104, 108 (Iowa 2004). In reviewing the district court’s ruling, the evidence presented must be viewed in the “light most favorable to the party opposing the motion for summary judgment.” Kelly v. Iowa Mut Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000); Gen. Car & Truck Leasing Sys., Inc. v. Lane & Waterman, 557 N.W.2d 274, 276 (Iowa 1996). However, the opposing party “may not rest upon the mere allegations of his pleading but must set forth specific facts showing the existence of a genuine issue for trial.” Hlubek v. Pelecky, 701 N.W.2d 93, 95 (Iowa 2005); see also Iowa Rule Civ. P. 1.981(5). Speculation is insufficient to create a genuine issue of material fact. Hlubek, 701 N.W.2d at 96.

III. Defendant’s Alleged Negligence.

The defendant’s motion for summary judgment challenged the sufficiency of the plaintiffs evidence to show a genuine issue of material fact on two issues necessary to establish a duty of care: whether the defendant knew of Father Cigrand’s acts and whether an employer/employee relationship existed between the Archdiocese and Father Cigrand. The plaintiffs resistance to summary judgment was very general with respect to the defendant’s duties toward the plaintiff. His resistance stated:

The duties that the Archdiocese owed Walderbach and its other parishioners were based on its possession of jurisdictional authority over the selection, ordination, assignment, supervision, training, instruction, and retention in good standing of the diocesan priests it assigned to parishes within its jurisdiction, an administrative relationship fixed within the hierarchy of the Catholic Church.

First, the plaintiff contends he established a genuine issue of fact on the issue of whether an employer/employee relationship existed between the Archdiocese and Father Cigrand. Interestingly, the plaintiffs claim is based largely on an affidavit by Monsignor James O. Barta, which was introduced by the Archdiocese in support of its motion for summary judgment. This affidavit stated that

Father Nicholas Cigrand was never an employee of The Archdiocese of Du-buque. St. Patrick’s Church, Ryan, Iowa, is a corporation with Articles of Incorporation and Bylaws. It is a separate legal entity from The Archdiocese of Dubuque. While serving as an Assistant Pastor at St. Patrick’s Church, Ryan, Iowa, Father Nicholas Cigrand was an independent contractor, receiving a salary from St. Patrick’s Church. He was never an employee of The Archdiocese of Dubuque.

Factors indicating a relationship of employer and employee include: the right of selection or employment at will, the responsibility to pay wages, the right to terminate the relationship, the right to control the work, the benefit received by the alleged employer, and the intent of the parties. Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 541-42 (Iowa 1997). We have said that “[i]n cases presenting a choice between categorizing a person as an employee or an independent contractor, the primary focus is on the extent of control by the employer over the details of the alleged employee’s work.” Id. at 542.

Walderbach contends that he has established enough evidence to prevail on the summary judgment issue by showing the Archdiocese has jurisdictional authority and assigns priests to parishes within its jurisdiction. He also contends that a priest owes duties of obedience and submission to the Archdiocese and that Father Cigrand was appointed and supervised by the Archdiocese and acted under its control and authority.

The Archdiocese responds that Father Cigrand was not an employee, but rather an independent contractor. In support of this argument, the Archdiocese relies on the vicar general’s affidavit in which he states that Father Cigrand was not an employee, but was an independent contractor; that St. Patrick’s Church is a separate legal entity with its own articles of incorporation and bylaws; and that Father Cig-rand was paid a salary by St. Patrick’s Church, not the Archdiocese. The Archdiocese contends that the “facts” Walder-bach relies on to support his contention that an employer/employee relationship existed are not based on evidence contained in the summary judgment record, but on Walderbach’s own arguments.

We agree with the district court that the plaintiffs evidence fails to generate a genuine issue of fact to establish an employer/employee relationship between the Archdiocese and Father Cigrand.

The plaintiff contends that the Archdiocese owed him a duty of care because of the defendant’s knowledge of Father Cigrand’s actions. The plaintiff contends that he presented evidence to show a material issue of fact on the issue of the Archdiocese’s knowledge because the Archdiocese had custody of all of the church records from St. Patrick’s Church. According to the plaintiffs argument, the Archdiocese would therefore necessarily be on notice of the details of Father Cig-rand’s “employment,” including the acts of abuse. The problem is that nothing in the records even suggests any abuse by Father Cigrand. As Monsignor Barta stated in his affidavit, he had examined the files of the Archdiocese, and they showed Father Cigrand served as an assistant pastor of St. Patrick’s Church from 1965 to 1968. His affidavit stated that no evidence appeared in the records to show Father Cig-rand had committed abuse or even that there were any allegations of abuse.

The plaintiff also attempts to show the defendant had constructive knowledge of the abuse because, according to the plaintiffs deposition, a priest, “probably Father Cooney, the Pastor of St. Patrick’s Church, witness[ed] at least one of Father Cig-rand’s acts of abuse.” The plaintiff argues that this incident was sufficient to put the defendant Archdiocese on “constructive notice” of the abuse because the priest who presumably saw the incident would surely have reported it to the Archdiocese.

Based on the summary judgment record, a fact finder would necessarily have to speculate about who actually observed the act or acts of abuse and, if it was Father Cooney, that he reported this to the Archdiocese so as to put the Archdiocese on notice of the alleged abuse. This hypothesis is merely speculative and fails to generate a genuine issue of fact to establish the Archdiocese knew of Father Cigrand’s alleged abuse.

The district court properly granted summary judgment as to all of the counts alleging direct negligence of the Archdiocese based on the alleged acts of Father Cigrand. This leaves the issue of vicarious liability.

IV. Vicarious Liability.

The plaintiff also argues that the Archdiocese is vicariously liable for the acts of abuse committed by Father Cig-rand. A claim of vicarious liability under the doctrine of respondeat superior rests on two elements: proof of an employer/employee relationship (or employment as an independent contractor), and proof that the injury occurred within the scope of that relationship. See Biddle v. Sartori Mem. Hosp., 518 N.W.2d 795, 797 (Iowa 1994). For the reasons already discussed, no genuine issue of material fact was generated to establish an employer/employee relationship.

The plaintiff also argues that, if Father Cigrand was not an employee, he was an independent contractor of the Archdiocese. He contends that, while sexual abuse is an intentional tort not ordinarily considered to be within the scope of one’s employment, the Archdiocese could be held liable for the acts of abuse here because it “constructively ratified” Father Cigrand’s acts. The plaintiff, however, failed to show a genuine issue of fact as to the Archdiocese’s knowledge of the acts, so it could not be found liable on the basis it “constructively ratified” them.

We conclude that the trial court properly granted summary judgment in favor of the Archdiocese.

AFFIRMED.


author: HECHT, Justice.

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Kermit Lee DUNAHOO, Respondent.
    No. 06-1754.
    Supreme Court of Iowa.
    April 13, 2007.

      Charles L. Harrington and Wendell J. Harms, Des Moines, for complainant.
    Kermit Dunahoo, Des Moines, pro se.
   HECHT, Justice.

The Iowa Supreme Court Attorney Disciplinary Board filed a complaint against Kermit Dunahoo alleging he violated several Iowa Rules of Professional Responsibility: DR 1-102(A), DR 6-10KA), DR 7-101(A), DR 7-lQ2(A)(8), and DR 9-102(B)(3). Dunahoo and the Board filed a stipulation of facts. The Grievance Commission adopted the parties’ stipulation of facts, concluded Dunahoo violated DR 1-102(A), DR 6-101(A), and DR 9-102(B)(3), and recommended a public reprimand. Upon our de novo review of the Commission’s findings and recommendation, we find Dunahoo violated DR 1-102(A)(1), DR 6-101(A)(3), and DR 9-102(B)(3) and impose a public reprimand.

I. Background Facts.

We find the following facts by a convincing preponderance of the evidence.

A) Wheeler Matter.

Phillip Wheeler retained Dunahoo to represent him with regard to a charge of operating while intoxicated (OWI), second offense. Neither Wheeler nor Dunahoo attended Wheeler’s arraignment scheduled for July 11, 2000. The court continued the arraignment. The same day, Dunahoo filed Wheeler’s written arraignment, waiver of speedy trial and plea of not guilty. Wheeler later changed his plea to guilty and received the mandatory minimum sentence.

Wheeler paid Dunahoo $1100 as an initial retainer. On four occasions, Dunahoo withdrew funds from Wheeler’s trust account, but did not provide an accounting to Wheeler.

B) Winter Matter.

Victoria and James Winter hired Duna-hoo to handle the estate of their father, Luke Winter, who died testate on April 4, 1996. Dunahoo opened the estate on February 18, 1997. The clerk of court issued a probate delinquency notice in December of 2000 because the estate had not been closed. Upon receipt of the notice, Duna-hoo sought and obtained an order extending the time to cure the delinquency. Du-nahoo discovered that the attorney who had been assisting him with the Winter estate had taken the Winter estate file with him when the attorney severed his relationship with Dunahoo’s law firm. After meeting with no success in his effort to retrieve the firm’s estate file, Dunahoo made copies of the court’s file and hired an attorney from outside the firm to finish the work required to close the Winter estate. The estate was closed on May 1, 2001, with no pecuniary loss or delay in distribution of estate assets to the beneficiaries.

C)Meyer Matter.

Amy Meyer retained Dunahoo on July 12, 2000, to represent her in a dissolution of marriage action. Dunahoo filed an application for hearing on temporary custody, temporary child support and visitation on August 16, 2000. The Meyers were ordered to engage in mediation as to these temporary matters before September 9, 2000. A proposed stipulation requiring Meyer’s husband to pay guideline-based temporary child support in the amount of $457.12 per month was prepared by Duna-hoo and mailed to Meyer, but the document was never signed by the parties. Meyer contacted Dunahoo’s office and disclosed that her husband would agree to pay no more than $300 per month for child support. A hearing on temporary matters was not held, however, because Meyer requested it be cancelled after she and her husband executed a handwritten agreement calling for Mr. Meyer to commence guidelines-based child support payments on January 1, 2001. Meyer expressed satisfaction with the agreement on temporary matters in a conversation with Dunahoo’s legal assistant.

An associate attorney in Dunahoo’s law firm began managing the case approximately one week prior to the pretrial conference, which was held on December 8, 2000. The associate attorney apparently relied upon opposing counsel to prepare a wage withholding order. Meyer’s husband did not begin to pay child support on January 1, 2001, as he had agreed. He deceived his attorney and Meyer by representing that child support was being withheld from his paycheck. This deception caused Dunahoo’s associate to make inquiries of the Child Support Recovery Unit and place telephone calls to opposing counsel seeking an explanation as to why Meyer was not receiving child support payments. By the time Meyer and Dunahoo’s associate attorney discovered the truth, March had arrived. The parties continued to negotiate a resolution of their dispute as the March 22, 2001, trial date approached, and Meyer’s husband agreed to pay child support retroactive to January 1. Settlement negotiations continued, and a draft of a proposed dissolution decree was prepared by Dunahoo’s associate attorney. For reasons that are not clear in the record, the trial did not occur as scheduled, and Meyer terminated the attorney-client relationship. Meyer did not begin receiving child support payments from her husband until after Dunahoo and his associate withdrew as her attorneys on April 26, 2001.

II. Scope and Standards of Review.

Our review of attorney disciplinary proceedings is de novo. Iowa Supreme Ct. Att’y Disciplinary Bd. v. Walker, 712 N.W.2d 683, 684 (Iowa 2006). The Board must prove attorney misconduct by a convincing preponderance of the evidence. Id. This burden is less than proof beyond a reasonable doubt, but more than the preponderance standard generally applied in civil cases. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004). If misconduct is proved, we “may impose a lesser or greater sanction than the discipline recommended by the grievance commission.” Id.

III. Analysis.

A) Failure to Account.

DR 9 — 102(B)(3) requires attorneys to “[m]aintain complete records of all funds ... of a client coming into the possession of the lawyer and render appropriate accounts to the client regarding them.” Du-nahoo failed to render an account to Wheeler, in violation of DR 9 — 102(B)(3). See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Dull, 713 N.W.2d 199, 205 (Iowa 2006) (finding an attorney’s failure to render a timely account to her client violated DR 9-102(B)); Iowa Supreme Ct. Att’y Disciplinary Bd. v. Moonen, 706 N.W.2d 391, 399 (Iowa 2005) (finding that an attorney “who took fees without accounting for his time” violated DR 9 — 102(B)); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Apland, 577 N.W.2d 50, 57 (Iowa 1998) (concluding lawyers who accept advance fee payments must notify their clients in writing of the time, amount, and purpose of any withdrawal of the fee together with a complete accounting).

B) Neglect.

DR 6-101(A)(3) directs that attorneys shall not neglect clients’ legal matters. The rule requires an attorney to attend to matters entrusted to his care and to do so in a reasonably timely manner. See Dull, 713 N.W.2d at 204 (“Application of the rule should require a lawyer to complete legal matters entrusted to him in a reasonably timely manner.”); Comm. on Prof'l Ethics & Conduct v. Freed, 341 N.W.2d 757, 759 (Iowa 1983) (suspending an attorney’s license for filing an appeal and taking no further action).

We find by a convincing preponderance of the evidence that Dunahoo neglected the Winter estate. Although Dunahoo assigned the file to a person he describes as “a subordinate case attorney,” he concedes that he remained ultimately responsible for the handling of the estate. Dunahoo failed to monitor the legal services provided to the estate until he was notified by the clerk of court on December 1, 2000, that the estate had not been closed. The record contains no evidence tending to prove the estate involved complex matters. As a consequence of Dunahoo’s neglect of his professional responsibilities, the estate remained open for more than four years.

We disagree with the Commission’s finding that the Board proved Dunahoo violated DR 6-101(A) by failing to attend Wheeler’s arraignment. Because Dunahoo filed a written arraignment on the day of the arraignment, we are not convinced Du-nahoo neglected the Wheeler matter in a fashion that would constitute a violation of DR 6-101(A)(3).

We also disagree with the Commission’s finding that Dunahoo neglected Meyer’s interests. Any error in assuming that a wage withholding arrangement was in place to increase the likelihood that Meyer’s husband would pay child support was not the result of neglect of either Dunahoo or the attorney over whom he had managerial responsibility. Acts or omissions resulting from mere inadvertence or errors of judgment made in good faith do not generally justify attorney discipline. Comm, on Prof'l Ethics & Conduct v. Rogers, 313 N.W.2d 535, 536 (Iowa 1981). Furthermore, DR 6-101(A)(3) does not proscribe mere delay. Discipline is imposed under this rule only if the attorney’s conduct constitutes neglect. Although Meyer’s receipt of child support payments was delayed until after the attorney-client relationship with Dunahoo was terminated, we are not persuaded under the circumstances of this case that the delay constituted neglect attributable to Dunahoo or the attorney working under his supervision.

C) Failure to Represent a Client Zealously and Within the Bounds of the Law.

We note that although the Board alleged Dunahoo violated DR 7-101(A)(1)-(3) and DR 7-102(A)(8), the Commission made no findings of fact and stated no conclusions of law on the claim. DR 7-101(A)(1)-(3) provides that a lawyer “shall not intentionally ... [f]ail to seek the lawful objectives of a client,” “[flail to carry out a contract of employment,” or “[prejudice or damage a client during the course of the professional relationship.” (Emphasis added.) DR 7-102(A)(8) provides that a lawyer must not "[k]nowingly engage in other illegal conduct or conduct contrary to a disciplinary rule.” (Emphasis added.) Because we find Dunahoo’s conduct was neither “intentional” nor “knowing” as contemplated in these rules, we find no sanctionable violation of Duna-hoo’s duty to represent his clients zealously and within the bounds of the law.

D) Other Misconduct.

DR 1-102(A)(1) provides that a lawyer must not “[v]iolate a disciplinary rule.” DR 1 — 102(A)(6) provides that a lawyer must not “[e]ngage in any ... conduct that adversely reflects on the fitness to practice law.” Because Dunahoo has violated DR 6 — 101(A)(3) and DR 9-102(B)(3), and violation of these rules adversely reflects on his fitness to practice law, we conclude he violated DR 1 — 102(A)(1). See Comm. on Prof'l Ethics & Conduct v. Durham, 279 N.W.2d 280, 285 (Iowa 1979) (“Any violation of the Code of Professional Responsibility necessarily reflects adversely on the fitness of an attorney to practice law.”).

IV. Sanction.

In determining an appropriate sanction, “we consider the respondent’s fitness to continue in the practice of law, deterrence of others from similar conduct, and the assurance to the public that the courts will maintain the ethics of the profession.” Iowa Supreme Ct. Att’y Disciplinary Bd. v. Zenor, 707 N.W.2d 176, 185 (Iowa 2005) (citation omitted) (internal quotation marks omitted). We also consider any aggravating and mitigating circumstances. Id.

Although the record does not support a finding of unreasonable delay in the distribution of the Winter estate’s assets, the long delay in closing the estate did provoke the filing of a complaint by family members of the decedent. To his credit, once alerted by the clerk of court that the estate had not been closed, Dunahoo promptly sought and obtained an order extending the time to cure the default and hired an attorney to conclude the matter at Dunahoo’s expense.

We also note that Dunahoo was cooperative with the Board throughout these proceedings and has accepted full responsibility for his conduct. However, cooperation is “expected and required” and therefore is not a significant mitigating circumstance. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Bell, 650 N.W.2d 648, 653 (Iowa 2002).

Two aggravating circumstances are established in this case. First, Dunahoo has substantial experience in the practice of law. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Vinyard, 656 N.W.2d 127, 131 (Iowa 2003) (citing Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Gallner, 621 N.W.2d 183, 188 (Iowa 2001); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 730 (Iowa 1999)) (noting substantial experience is an aggravating circumstance). Dunahoo has practiced law for approximately thirty-five years and has operated his own firm for twenty-five years. Second, he has a prior record of discipline for neglect. See Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Adams, 623 N.W.2d 815, 819 (Iowa 2001) (noting prior violations of disciplinary rules are an aggravating circumstance). In 1999, Dunahoo was reprimanded for violation of DR 6 — 101(A)(3), EC 9-2 and DR 7-101(A)(3). Three months later, he was admonished for violating DR 6-101(A)(3). In 2005, he was again admonished for violating DR 6-101(A)(3).

Our decision to impose a public reprimand rather than a suspension is affected in this case by measures taken by Duna-hoo in the years after the events that are the subject of this case. He no longer handles probate matters. Although his representations to the court that he has reduced the size of his practice, no longer has any associates to supervise, and will retire and close his practice in early 2007 do not diminish the significance of violations of the rules of professional responsibility, we conclude under the circumstances of this case a more severe sanction is not required to deter Dunahoo from future ethical misconduct.

V. Conclusion.

We conclude Dunahoo violated DR 1-102(A), DR 6 — 101(A)(3), and DR 9-102(B)(3). Under the circumstances of this case, we conclude a public reprimand is the appropriate sanction. The costs of this proceeding are assessed against Duna-hoo in accordance with Iowa Court Rule 35.25(1).

RESPONDENT REPRIMANDED.

      . Current Iowa Rules of Professional Conduct 32:5.1 (requiring a lawyer with managerial authority in a law firm to make reasonable efforts to ensure the firm has in effect "measures giving reasonable assurance that [other] lawyers in the firm conform to the Iowa Rules of Professional Conduct”) and 32:8.4(a) (proscribing misconduct committed through the acts of another) were not in effect at the time of the occurrences that are the subject of this case. However, we view the parties' stipulation that Dunahoo was responsible for the services provided to the clients in this case as a concession that he may be sanctioned for the neglect, if any, of the lawyer who performed the delegated work subject to his supervision under the rules of professional responsibility prevailing at the time the legal services were provided.