author: MEIERHENRY, Justice.

text:
    2008 SD 15
    STATE of South Dakota, Plaintiff and Appellee, v. Chad Thomas DUBOIS, Defendant and Appellant.
    No. 23976.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 7, 2008.
    Decided Feb. 27, 2008.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

      James A. Eirinberg, Sioux Falls, South Dakota, Attorney for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] A jury found Chad Dubois guilty of five counts of possession of child pornography. Dubois appeals and we affirm.

FACTS

[¶ 2.] Dubois met Derek St. John, an adult, on an internet dating site. St. John contacted Dubois via his 1-800 telephone number and the two began to date. During this relationship, St. John had access to Dubois’ computers. While on Dubois’ desktop computer, St. John observed a couple of pornographic pictures depicting children approximately “six to eight years old.”

[¶ 8.] Apparently disturbed by the pictures, St. John reported the pictures to his probation officer, Kathy Christenson. Christenson put St. John in contact with Shannon Riter, a special agent for the South Dakota Division of Criminal Investigation (DCI), who investigated the allegations and obtained a warrant to search Dubois’ apartment. Upon executing the search warrant, the authorities obtained possession of two computers, a laptop and a desktop.

[¶4.] The State Forensic Laboratory (Lab) analyzed the computers’ hard drives for pornographic images of children. A forensic computer analyst for the Lab discovered sixteen images that he believed were of persons below the age of eighteen on both computers’ hard drives. One of the individuals depicted in a few of the pictures was later identified as A.J., a male minor who met Dubois in an internet chat room.

[¶ 5.] A.J., who was twelve or thirteen at the time the pictures were taken, testified that Dubois contacted him in the chat room, and they communicated about various topics including sex. A. J. also testified that when he told Dubois his age, Dubois was “pretty cool about it.” After Dubois provided A.J. with his 1-800 telephone number, the two had contact by telephone. Many of the communications between Du-bois and A.J. were sexually charged, covering both anal and oral sex.

[¶ 6.] During one of these conversations, Dubois elicited pictures from A.J. stating: “I will show you mine, if you show me yours.” Dubois later sent pictures of himself naked to A.J. and succeeded in convincing A.J. to reciprocate by sending naked pictures of himself to Dubois. A.J. testified that Dubois requested pictures that displayed A. J.’s penis.

[¶ 7.] At trial, the State presented the jury with numerous pictures depicting alleged child pornography as well as other evidence which tended to prove Dubois had solicited the images. After viewing the evidence, the jury found Dubois guilty of five counts of possession of child pornography under SDCL 22-24A-3. The court sentenced Dubois to thirty years in the South Dakota State Penitentiary.

[¶ 8.] Dubois appeals raising the following issues:

1. Whether the trial court erred when it denied Dubois’ motion to suppress evidence gained from the search of his home.

2. Whether the trial court erred when it permitted the State to present a chat room discussion engaged in by Dubois.

8. Whether there was sufficient evidence to convict Dubois of possessing child pornography.

4. Whether the sentence constitutes cruel and unusual punishment.

ANALYSIS

1. Denial of Dubois’ Motion to Suppress

[¶ 9.] Dubois contends there was no probable cause for the issuance of the search warrant; therefore, the executed search violated the Fourth Amendment of the United States Constitution and Article VI, section 11 of the South Dakota Constitution. We disagree.

[¶ 10.] When considering the sufficiency of evidence supporting a search warrant we are required to “look ‘at the totality of the circumstances to decide if there was at least a “substantial basis” for the issuing judge’s finding of probable cause.’” State v. Helland, 2005 SD 121, ¶ 12, 707 N.W.2d 262, 268 (citations omitted).

[0]ur inquiry is limited to determining whether the information provided to the issuing court in the warrant application was sufficient for the judge to make a “ ‘common sense’ determination that there was a ‘fair probability’ that the evidence would be found on the person or at the place to be searched.” On review, we are limited to an examination of the facts as contained within the four corners of the affidavit. Furthermore, we review the issuing court’s probable cause determination independently of any conclusion reached by the judge in the suppression hearing.

Id. (citations omitted).

[¶ 11.] Probable cause cannot be determined by some “formulaic solution.” Id. ¶ 15. Probable cause “lies somewhere between mere suspicion and the trial standard of beyond a reasonable doubt.” Id. (citations omitted). We are required to assess the “probabilities in a particular context” and balance “the government’s need to enforce the law with the citizen’s right to privacy.” Id. (citations omitted).

We have previously articulated the standard for determining the existence of probable cause sufficient to support the issuance of a search warrant:
There need not be a prima facie showing of legal evidence of a suspected act. The standard of probable cause for the issuance of a search warrant is a showing of probability of criminal activity. In addition to the reasonable ground to believe that some violation of the law exists, probable cause for a search warrant necessarily implies that there is a violation in respect to some property located on some premises, or on some person, which can be identified expressly or by reasonable inference from the information given in the affidavit so as to be capable of being particularly described in the warrant.

Id. ¶ 16 (quoting State v. Kaseman, 273 N.W.2d 716, 723 (S.D.1978)) (other citations omitted). Furthermore, we are “not empowered to conduct an after-the-fact de novo probable cause determination; on the contrary, the issuing court’s legal basis for granting the warrant is examined with ‘great deference.’ ” Id. ¶ 17 (quoting State v. Jackson, 2000 SD 113, ¶ 9, 616 N.W.2d 412, 416 (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983))). “[W]e will draw every reasonable inference possible in support of the issuing court’s determination of probable cause to support the warrant.” Id. (citing State v. Habbena, 372 N.W.2d 450, 456 (S.D.1985) (citing State v. Wellner, 318 N.W.2d 324, 327 (S.D.1982))).

[¶ 12.] Dubois contends the warrant was invalid as a result of a flawed affidavit, on the basis of the following assertions: 1) it failed to inform the magistrate the informant had a criminal past (including crimes of dishonesty), and was currently on probation; and 2) the officer did not corroborate the information provided by the informant.

[¶ 13.] The affidavit did omit the informant’s criminal record; however, this omission does not vitiate probable cause. See State v. Corum, 663 N.W.2d 151, 160 (N.D.2003) (holding that the omission of the criminal record and the leniency provided to the informant was not sufficient to negate probable cause for the warrant). “An affidavit that is purported to contain recklessly and intentionally misleading information or material omissions is reviewed under the two-part analysis in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).” Helland, 2005 SD 121, ¶ 32, 707 N.W.2d at 273. “First, [Dubois] must show by a preponderance of the evidence that a ... statement knowingly and intentionally, or with reckless disregard for the truth was [omitted] ... by the affiant in the warrant affidavit.” Id. Second, Dubois must establish the omitted fact would have defeated probable cause. Id. Applying the Franks test, Dubois’ arguments fail.

[¶ 14.] The affidavit clearly stated that Agent Riter was “contacted by South Dakota probation officer Kathy Christenson” who informed Agent Riter that Christen-son’s “client, Derek St. John, provided criminal information regarding a male subject.” The “common sense” inference drawn from these disclosures is that St. John was on probation and surely had a criminal record. Habbena, 372 N.W.2d at 456 (stating “[w]e will not read the warrant affidavit in a hyperteehnical manner; rather, we read each affidavit as a whole and interpret each in a common sense and realistic manner”) (citations omitted).

[¶ 15.] Moreover, although the specifics of St. John’s criminal record may have cast some doubt on his credibility, the omitted record does not vitiate probable cause demonstrated in the affidavit. The affidavit noted that the identity of the informant was known and that the informant furnished detailed eye-witness accounts of criminality. See State v. Sweedland, 2006 SD 77, ¶ 21, 721 N.W.2d 409, 414 (stating “explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first hand, entitles the informant’s tip to greater weight than might otherwise be the case”); see also State v. Griggs, 306 Mont. 366, 34 P.3d 101, 104 (2001) (stating when an informant “whose identity is known, who personally observes the alleged criminal activity, and who openly risks liability by accusing another person of criminal activity-may not need further law enforcement corroboration”); see also State v. Thomas, 267 Neb. 339, 673 N.W.2d 897, 908-09 (2004) (stating informants who identify themselves are considered more reliable); State v. Lammers, 267 Neb. 679, 676 N.W.2d 716, 725 (2004) (stating “an untested citizen informant who has personally observed the commission of a crime is presumptively reliable”).

[¶ 16.] Additionally, contrary to Dubois’ assertion, St. John’s statements were corroborated. St. John named two individuals who at one time lived with Dubois, both were confirmed to have been on Dubois’ lease at one time by the assistant manager of Dubois’ apartment complex. St. John also stated that Dubois had a prescription for Dextromethamphetamine for social use. Dubois was confirmed to have “numerous prescriptions” of Dextrometh-amphetamine. The State’s omission of St. John’s criminal record in the affidavit did not affect its validity.

[¶ 17.] Dubois also claims that Agent Riter intentionally omitted evidence that St. John had a dear incentive to mislead investigators because he was a scorned lover. Although Dubois describes St. John as a “jilted lover,” there was no evidence presented that would support this allegation. Other than unsupported general allegations, Dubois cannot point to any facts that show that St. John provided his testimony or statements to Agent Riter for personal gain or out of spite. In fact, the opposite appears to be true. St. John told Agent Riter that he ended the relationship with Dubois. Moreover, St. John testified that he had been over to Dubois’ residence four times after he turned Dubois in for possession of child pornography. We cannot assume Agent Riter knew St. John was a “jilted-lover” and then intentionally omitted this fact when drafting the affidavit. Contrary to Dubois’ assertion, the affidavit does not contain “intentionally misleading ... omissions” related to St. John’s criminal record or romantic history. Helland, 2005 SD 121, ¶32, 707 N.W.2d at 273.

2. Chat Room Discussions

[¶ 18.] Next Dubois contends that it was reversible error to present content of internet chat room conversations, not related to any of the pictures charged, to the jury. He claims the admission of these “prior bad acts” was a violation of SDCL 19-12-5 (Rule 404(b)) and SDCL 19-12-3 (Rule 403), as well as his right to due process and a fair trial as articulated in both the Fifth Amendment of the United States Constitution and Article VI, section 2 of the South Dakota Constitution.

[¶ 19.] It is well established that the trial court’s rulings on evidentiary matters are presumed to be correct. State v. Crawford, 2007 SD 20, ¶ 13, 729 N.W.2d 346, 349. “This Court must review the trial court’s decision to admit these prior acts under an abuse of discretion standard.” State v. Janklow, 2005 SD 25, ¶ 39, 693 N.W.2d 685, 698. Dubois “must first demonstrate error and then show that error was prejudicial.” Crawford, 2007 SD 20, ¶ 13, 729 N.W.2d at 349.

[¶ 20.] Rule 404(b) allows the State to admit evidence of a defendant’s other acts evidence for the limited purpose of proving “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” SDCL 19-12-5. Prior to the admission of other acts evidence, the trial court must undergo a two-step process. “First, the offered evidence must be relevant to a material issue in the case. Second, the trial court must determine ‘[wjhether the probative value of the evidence is substantially outweighed by its prejudicial effect.’ This balancing must be conducted on the record.” State v. Owen, 2007 SD 21, ¶ 14, 729 N.W.2d 356, 362-63.

[¶ 21.] Dubois’ defense strategy, from the opening statement and throughout the trial, focused on the claim that Dubois had no knowledge of these pictures. He asserted that these pictures were downloaded by someone else without his knowledge or by mistake. The State argued that this trial tactic opened the door for it to prove absence of mistake and that Dubois had knowledge of the content and presence of the pictures. State v. Anderson, 2000 SD 45, ¶38, 608 N.W.2d 644, 656 (noting that trial tactics may open doors for evidence which would typically not be permitted). Ultimately, the trial court permitted a single chat to be read into evidence under Rule 404(b).

[¶ 22.] Prior to the chat’s admission, the trial court conducted the two-step test as required by Rule 404(b). Initially, the test began at a pre-trial motion hearing where Dubois sought to suppress the chat logs. Dubois argued the chats were irrelevant and highly prejudicial and would only be used to “inflame and bias the jury towards [Dubois].” The State argued that the chats were relevant to combat the defense of identity and lack of knowledge. Reciting the two-step test, the trial court indicated that the chat logs might be relevant depending on Dubois’ defense strategy, yet suppressed the evidence for the time being. However, the trial court emphasized that if Dubois “presents evidence which indicates that [he’s] trying to argue it’s a mistake or there’s no knowledge or no plan or preparation, in that case the State in rebuttal, on a hearing outside the presence of the jury, I may allow them in to show one of those things.” The trial court further indicated that the chat(s) “may well be relevant and it may outweigh the prejudicial effect.”

[¶23.] After Dubois presented a defense which focused on mistake of identity and lack of knowledge, the judge revisited the issue. The trial court informed Dubois that, by arguing “someone else did it” he had opened the door for a single chat to come into evidence. Although the trial court did not repeat the two-step test at that time, the trial court indicated why the evidence was relevant and permitted the State and Dubois to argue the issue.

[¶24.] First, the State described how the evidence was relevant to rebut Dubois’ defense of identity and lack of knowledge. Second, the state argued that it was not prejudicial. Then, Dubois again claimed the evidence was irrelevant; however, he did not argue the evidence was prejudicial. Faced with the evidence presented, the trial court only permitted the admission of a single chat. Although the trial court did not repeat on the record the balancing procedure analysis previously conducted at the motion hearing, the court had clearly warned that if Dubois asserted the defense of mistake of identity and no intent, the probative value “may outweigh the prejudicial effect.”

[¶25.] To determine if the court conducted the two-part test, we consider the courts analysis at both the pre-trial motion hearing and during trial. Therefore, although the balancing test appears deficient when one merely reads the trial transcript, it becomes more complete when read in conjunction with the pre-trial motion hearing. The trial court clearly warned that its original determination of relevance and prejudice would change if Dubois claimed lack of knowledge or mistake. When Du-bois made those claims, the court admitted one chat. The court substantially applied the test, and we find no abuse of discretion in admitting the evidence.

[¶ 26.] Finally, even if the evidence was admitted in error, Dubois fails to demonstrate how the error was prejudicial. State v. Fool Bull, 2008 SD 11, ¶ 10, 745 N.W.2d 380, 385 (“Error is prejudicial when, in all probability ... it produced some effect upon the final result and affected rights of the party assigning it.”)

[¶ 27.] The State presented as a witness one of the victims, A.J., depicted in the pictures representing three of the counts. A.J. testified to being twelve to thirteen years of age during his communications with Dubois and at the time the nude pictures of himself were taken. A. J. recounted the context under which he took the images for Dubois to download. A.J. met Dubois in a Yahoo chat room, “South Dakota Chat.” The relationship began innocent enough, discussing school and other neutral topics; however, even in the first chat Dubois suggested the two trade pictures, stating: “I will show you mine, if you show me yours.” Eventually the conversations turned to sexual topics: “Like anal and oral sex.” A.J. testified that he informed Dubois of his age and Dubois was “pretty cool about it” and the two “[cjontinued to talk ... about sex stuff.” Similar to Dubois’ relationship with St. John, Dubois also provided A.J. his 1-800 number and asked A. J. if he would like to converse on the telephone. A.J. called Dubois three to four times and the contents of the conversations basically were: “How was your day. And then like sex stuff.” At first the two talked on-line or by telephone, every day for a couple of months. Overall, the two stayed in contact for a little over a year.

[¶ 28.] During these communications, Dubois sent naked pictures of himself to A.J. and then requested A.J. take “nude pictures” of himself and send them to Du-bois. Dubois specifically requested images that displayed A.J.’s penis. A.J. testified that he was “convinced” by Dubois to take nude pictures of himself and send them to Dubois. The pictures were taken by A.J. in his bedroom while A.J. was twelve or thirteen years old and engaged in a sexually charged conversation/relationship with Dubois. Although Dubois requested to meet with A.J. personally, the meeting never occurred.

[¶ 29.] Furthermore, St. John testified that he asked Dubois about the children depicted in the illicit pictures, to which Dubois allegedly replied: “they [children depicted in images] were old enough to know what they were doing ... they knew what they were doing.” Based on these and other facts presented at trial, the State presented ample evidence, even without the challenged chat-room testimony, to convict Dubois of knowingly possessing pictures of minors engaging in prohibited sex acts. SDCL 22-24A-3(3).

[¶ 30.] Dubois complains of other admissions of prior acts evidence; however, Dubois failed to object to these at trial. Consequently, we could only review them under the “plain error” test. State v. Nelson, 1998 SD 124, ¶ 8, 587 N.W.2d 439, 443. The complained of evidence does not constitute plain or prejudicial error, nor does it constitute a miscarriage of justice; thus, the plain error test does not apply. Id. ¶ 8; SDCL 23A-44-15. Therefore, because Dubois failed to object to these issues at trial, the same are waived. Interest of JMJ, 2007 SD 1, ¶ 25, 726 N.W.2d 621, 632-33 (stating that if the issue is not preserved at trial it is waived) (citation omitted).

3. Sufficiency of the Evidence

[¶ 31.] Dubois contends that the evidence presented by the State was insufficient to support the guilty verdict. We disagree.

[¶32.] This Court’s standard of review in a challenge to the sufficiency of the evidence is well settled:

In determining the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt. In making that determination, we accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict. Moreover, the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence. Therefore, this Court does not resolve conflicts in the evidence, or pass on the credibility of witnesses, or weigh the evidence.

State v. Lewis, 2005 SD 111, ¶ 8, 706 N.W.2d 252, 255 (quoting State v. Pasek, 2004 SD 132, ¶ 7, 691 N.W.2d 301, 305). Furthermore, “[n]o guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt.” State v. Barry, 2004 SD 67, ¶ 6, 681 N.W.2d 89, 91-92 (citing State v. Knecht, 1997 SD 53, ¶22, 563 N.W.2d 413, 421).

[¶ 33.] For the crime of possession of child pornography, the State must prove the individual “[k]nowingly possesses, distributes, or otherwise disseminates any visual depiction of a minor engaging in a prohibited sexual act, or in the simulation of such an act.” SDCL 22-24A-3(3) (emphasis added); see also SDCL 22-24A-2(2) (defining child pornography as: “any image or visual depiction of a minor engaged in prohibited sexual acts”). SDCL 22-24A-2 (16) defines a “prohibited sexual act” as:

... [A]ctual or simulated exhibition of the genitals, the pubic or rectal area, or the bare feminine breasts, in a lewd or lascivious manner;.... The term includes encouraging, aiding, abetting or enticing any person to commit any such acts as provided in this subdivision....

[¶ 34.] Dubois first contends that the State did not prove he had “knowingly” possessed the pictures. The evidence at trial showed otherwise. St. John testified that he confronted Dubois about these images on his computer several times. When confronted about the pictures, Du-bois stated: “they [children depicted in the images] were old enough to know what they were doing.” A.J. testified that the images representing counts IV, V, and VI were of himself at age twelve or thirteen. He also testified how Dubois solicited these pictures of A.J.’s penis during sexually charged conversations. The evidence was sufficient to satisfy the knowledge element of the charge.

[¶ 35.] Dubois next claims that the images representing counts IV, V, and VI did not depict lewd or lascivious acts but merely were naked pictures of a minor. Although the South Dakota statutes do not provide a definition of “lewd or lascivious,” Black’s Law Dictionary defines lewd as: “[o]bscene or indecent; tending to moral impurity or wantonness,” 926 (8th ed 2004); Black’s Law Dictionary defines lascivious as: “([o]f conduct) tending to excite lust; lewd; indecent; obscene.” 897 (8th ed 2004). In United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986), aff'd 812 F.2d 1239 (9th Cir.1987), cert denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987), the California district court set out factors to aid in determining whether a picture of a minor constituted “lascivious exhibition of the genitals or pubic area” under the Child Protection Act. The following factors were determined to be relevant:

1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Id. at 831-32. For a picture to be considered lascivious, the court did not require all factors to be present; rather, the court considered “the overall content of the visual depiction, taking into account the age of the minor.” Id. at 832. The Dost factors are neither exhaustive nor mandatory; however, they provide a workable criterion to an otherwise case-specific inquiry. Moreover, although these factors are not without criticism, numerous other jurisdictions utilize the Dost factors as guidance for determining whether a picture is “lewd or lascivious.” See generally People v. Lamborn, 185 Ill.2d 585, 236 Ill.Dec. 764, 708 N.E.2d 350 (1999); State v. Saulsbury, 243 Neb. 227, 498 N.W.2d 338 (1993); People v. Kongs, 30 Cal.App.4th 1741, 37 Cal.Rptr.2d 327 (Cal.App. 2 Dist.1994); Alexander v. State, 906 S.W.2d 107 (Tex.Ct.App.1995); Foster v. Commonwealth, 1989 WL 641956 (Va.App.1989); State v. Dixon, 1998 WL 712344 (Tenn.Crim.App.1998); Commonwealth v. Bean, 435 Mass. 708, 761 N.E.2d 501 (2002); Cummings v. State, 353 Ark. 618, 110 S.W.3d 272 (2003); Foster v. Commonwealth, 1989 WL 641956 (Va.Ct.App.1989); State v. Morrison, 31 P.3d 547 (Utah 2001); People v. Bimonte, 187 Misc.2d 677, 726 N.Y.S.2d 830 (N.Y.City Crim.Ct.2001).

[IT 36.] Counts IV, V, and VI are images of A.J., a minor who testified at trial. A.J. testified to the context upon which he took these images. A.J. explained that Dubois sent him naked pictures of himself and then requested A.J. to reciprocate. The pictures were taken while A.J. was twelve or thirteen years old and engaged in a sexually charged conversation with Dubois. Dubois specifically requested images that displayed A.J.’s penis.

[¶ 37.] The nature of the depicted images in counts IV and VI are such that the jury could have found them lewd or lascivious. The focus of these images is on A. J.’s genitals. A.J. is completely naked and posing in a provocative unnatural manner. Moreover, counts IV and VI are clearly “designed to elicit a sexual response,” based on the conditions in which the pictures were taken and the unnatural poses. Dost, 636 F.Supp. at 832 (noting “combined effect of the setting, attire, pose, and emphasis on the genitals is designed to elicit a sexual response in the viewer, albeit perhaps not the ‘average viewer’, but perhaps in the pedophile viewer”); George v. State, 358 Ark. 269, 189 S.W.3d 28, 34-36 (2004) (noting that the act must be viewed in the context of a child’s innocence).

[¶ 38.] Count V is arguably not as lascivious as the other counts. Again, the picture is of a minor (A.J.) entirely nude. The picture depicts the entire left side of A. J.’s body. A. J.’s pelvis is extended and slightly turned to the camera exposing the entirety of A.J.’s genitalia. Further, A.J.’s genitalia occupy the center of the picture and appear to be the focal point of the image.

[¶ 39.] Although whether count V represents a lewd or lascivious exhibition of a minor’s genitals may be arguable, it was for the jury to determine. Cummings v. State, 353 Ark. 618, 628, 110 S.W.3d 272, 277 (2003) (stating that whether an image is lewd is a question for the fact finder). Whether a picture is lewd or lascivious is a question for the fact finder, which will not be disturbed “unless it is clearly ‘unreasonable, arbitrary and unsupported by the evidence.’ ” Welch v. Haase, 2003 SD 141, ¶ 25, 672 N.W.2d 689, 697 (citation omitted); Atkins v. Stratmeyer, 1999 SD 131, ¶ 6, 600 N.W.2d 891, 894 (stating that “a jury’s verdict should not be set aside ‘except in extreme cases where it is the result of passion or prejudice or the jury has palpably mistaken the rules of law’”) (citation omitted). Moreover, “[i]f the jury’s verdict can be explained with reference to the evidence, rather than by juror passion, prejudice or mistake of law, the verdict should be affirmed.” Welch, 2003 SD 141, ¶ 25, 672 N.W.2d at 697 (citation omitted) (emphasis in original). “ ‘[A]t the appellate level we do not substitute our judgment for that of the jury or trial court.’ ” State v. Luna, 264 N.W.2d 485, 488 (S.D.1978) (citation omitted). A “verdict on appeal may not, as a matter of law, be set aside for insufficiency of the evidence if the evidence sustains some rational theory of guilt.” Id. Considering the age of the minor, the nature and the content of the picture (count V), we find that the jury’s verdict sustains a rational theory of guilt.

A Sentence of Thirty Years

[¶ 40.] For the five counts of child pornography the trial court sentenced Dubois to forty-six years, sixteen of which will run concurrently, for a total of thirty years in the South Dakota State Penitentiary. Du-bois contends that a thirty year sentence is grossly disproportionate to the crime committed and constitutes cruel and unusual punishment, in violation of the Eighth Amendment of the United States Constitution and Article VI, section 23 of the South Dakota Constitution.

[¶ 41.] “It is well-settled that we employ very limited principles in our constitutional review of sentences. These principles include giving ‘substantial deference’ to the legislature’s broad authority to determine the types and limits of punishment’ and the notion that ‘the Eighth Amendment does not mandate adoption of any one penological theory.’ ” State v. Garber, 2004 SD 2, ¶ 28, 674 N.W.2d 320, 327 (citations omitted). As a result of these principles, a sentence within the statutory maximum will rarely be disturbed. Id. When assessing the constitutionality of a particular sentence we apply the gross dis-proportionality test. State v. Williams, 2006 SD 11, ¶ 12 n. 2, 710 N.W.2d 427, 432 n. 2.

“[To] assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court.” If the sentence does not appear grossly disproportionate, no further review is necessary. If the sentence does appear grossly disproportionate, an intra- and inter-jurisdictional analysis shall be conducted. We also consider “the gravity of the offense and the harshness of the penalty;” and other relevant factors, such as the effect this type of offense has on society.

Id. ¶ 12 (citations omitted). When reviewing sentences, we evaluate the individual sentence for each count, opposed to scrutinizing the aggregate sentence. State v. Buchhold, 2007 SD 15, ¶¶ 30-32, 727 N.W.2d 816, 823-24.

[¶ 42.] We have previously noted “crimes against children especially sex offenses, have increased nationwide by epidemic proportions”; as a result, our Legislature has imposed significant penalties for persons who exploit children for sexual gratification. State v. Blair, 2006 SD 75, ¶ 24, 721 N.W.2d 55, 62. Each image of child pornography represents a separate offense, punishable by up to ten years in the state penitentiary and a $20,000 fine. State v. McKinney, 2005 SD 74, ¶ 27, 699 N.W.2d 460, 468 (citations omitted); SDCL 22-6-1(7).

[¶ 43.] Dubois contends the thirty year sentence was grossly disproportionate to the crimes. He argues that the court failed to consider that there was no evidence presented demonstrating his sexual deviance had progressed beyond mere possession of child pornography, that there was no evidence of any actual “emotional or other” harm caused to the victims, and that he has no substantial criminal record.

[¶ 44.] We first consider Dubois’ conduct. Three of the charges derived from contact (via telephone and internet) Dubois had with a twelve to thirteen-year-old (A.J.). Dubois had knowledge of his age yet continued to carry on sexually charged conversations and to solicit the child for pictures of his penis. Furthermore, Du-bois unsuccessfully attempted to set up face-to-face meetings with the minor. Additionally, evidence was presented which demonstrated similar conduct with another allegedly underage child. This predatory behavior certainly concerned the court. It stated, “[Dubois] preyed upon children half [his] age ... in an attempt to satisfy [himself].”

[¶ 45.] The court believed Dubois to be a person with psychological problems who attempted to minimize his crimes. Although Dubois claims there was no evidence presented that his sexual deviance had progressed, the pre-sentence psycho-sexual evaluation labeled him as: “self-absorbed”; “defensive”; minimizing his actions as merely conversations; and described Dubois as being in the “development stage of pedophilia.” The judge noted that in his thirty years on the bench he had never heard such a classification. The evaluations also warned of risk factors that indicated it was only a matter of time until Dubois became more confident and assertive, “in eliciting the young men.” The sentencing court relied on this evaluation heavily, acknowledging that it had read it “several times.”

[¶ 46.] Dubois’ description of his crimes as harmless is unfounded. We have recognized that there are many layers to the harm caused by child pornography. First, the fact that the image exists and was “disseminated perpetuates the abuse initiated by the producer of the materials. ‘[T]he materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.’ ... The consumer who ‘merely’ or ‘passively’ receives or possesses child pornography directly contributes to this continuing victimization.” McKinney, 2005 SD 74, ¶ 29, 699 N.W.2d at 469 (citations omitted) (emphasis in original). Second, the mere existence of child pornography is a direct violation of that child’s privacy and reputational interests. Id. (citations omitted). Third, the aficionado or consumer of this abusive material “instigates the original production of child pornography by providing an economic motive for creating and distributing the materials.” Id. (citations omitted). Congress has explicitly found:

[T]he existence of and traffic in child pornographic images ... inflames the desires of child molesters, pedophiles, and child pornographers, thereby increasing the creation and distribution of child pornography and the sexual abuse and exploitation of actual children who are victimized as a result of the existence and use of these materials[.]

Id. (quoting United States v. Norris, 159 F.3d 926, 929-30 (5thCir.1998) (quoting 1996 Act, 121, 110 Stat at 3009-27)). “The consumers of child pornography therefore victimize the children depicted in child pornography by enabling and supporting the continued production of child pornography, which entails continuous direct abuse and victimization of child subjects.” Id. (citations omitted). In this case, Dubois was more than a passive participant; he actively preyed on at least one child.

[¶ 47.] Finally, Dubois claims that the sentencing court failed to consider his minimal criminal record, which included two convictions for theft by deception. Although a court may consider past criminal conduct when sentencing, the court made it clear that its main concern was Dubois’ exploitation of children. The court stated specifically that the sentence was designed to “incapacitate” the threat of Dubois. The court expressed its belief that Dubois’ chances of rehabilitation were “slim” because of Dubois’ minimalization of his crimes and his failure to recognize that he has psychological problems. Dubois has failed to establish that the sentence constitutes cruel and unusual punishment.

[¶ 48.] We affirm.

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

      . St. John was on probation for Grand Larceny-

      . The pertinent portion of SDCL 22-24A-3 reads:
      A person is guilty of possessing, manufacturing, or distributing child pornography if the person:

      (3) Knowingly possesses, distributes, or otherwise disseminates any visual depiction of a minor engaging in a prohibited sexual act, or in the simulation of such an act. Consent to performing these proscribed acts by a minor or a minor’s parent, guardian, or custodian, or mistake as to the minor’s age is not a defense to a charge of violating this section.

      . SDCL 19-12-5 states:
      Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

      . SDCL 19-12-3 states:
      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

      . In Dubois’ brief he asserted that there were no oral or written findings to explain why the chat log was admissible. Contrary to this assertion the trial court provided Dubois with many warnings that he could potentially open the door wide enough to allow the chat room discussion into evidence. Finally, the court stated that:
      [F]rom the very beginning, in the opening statements, the defense has indicated that part of the defense was that someone else did that. There were other users and they could have been the ones who placed [the pictures] on there. In your cross-examination of Mr. Light, you went into that, that there were twenty-four others who were using this.

      . The complained of chat, which was allowed to be read into the record, was allegedly between Dubois and another boy who claimed to be fifteen years old. Dubois carried on a sexually charged conversation with this person and then sent him to a website where the alleged "fifteen-year-old” could view nude pictures of Dubois. Dubois asked the person if he had any pictures or a camera, the "fifteen-year-old” had neither. Dubois then provided the "fifteen-year-old” with his 1-800 number so they could converse telephonically and attempted to schedule a face-to-face meeting.

      . Dubois does not contest the lewdness or lasciviousness of pictures representing counts I and II.

      . In U.S. v. Hill, 322 F.Supp.2d 1081, 1086-1087 (C.D.Cal.2004), the court criticizes the Dost factors as "malleable and subjective.” Id. at 1085. While the Dost factors are not a "bright-line” test, they do provide some guidance.

      . The trial court sentenced Dubois ten years each for counts I, II and IV all set to run consecutively, and eight years each for counts V and VI, set to run concurrently with counts I, II and IV.


source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Appellee v. Allan H. RAUCH, Appellant.
    No. 07-0957.
    Supreme Court of Iowa.
    March 21, 2008.

      Allan H. Rauch, Windsor Heights, pro se.
    Charles L. Harrington and Teresa A. Yens, Des Moines, for appellee.
   STREIT, Justice.

The Iowa Supreme Court Attorney Disciplinary Board (“Board”) accused Allan Rauch of practicing law while his license was suspended, deceiving a client and the district court, neglecting a client’s matter, failing to account for and refund a portion of a client’s retainer, and failing to cooperate with the Board’s investigation. The Grievance Commission of the Supreme Court of Iowa (“Commission”) found Rauch violated the Iowa Code of Professional Responsibility for Lawyers and recommended revocation of Rauch’s license in light of his prior ethical violations. We agree with the Commission and revoke Rauch’s license.

I. Background Facts.

Rauch was admitted to the Iowa bar in 1970. He has been disciplined for violating our ethics rules on four separate occasions. In 1988, we reprimanded Rauch for failing to act with competence and proper care in representing clients in a personal injury case. Comm, on Prof'l Ethics & Conduct v. Rauch, 417 N.W.2d 459, 460 (Iowa 1988). We found he neglected his clients’ case and failed to adequately prepare for trial. Id. In 1992, we suspended Rauch’s license for one year because he misappropriated testamentary trust funds, collected a conservatorship fee without court approval, maintained disorganized client trust accounts, acted undignified and discourteous toward a tribunal, and mishandled an adoption proceeding. Comm, on Prof'l Ethics & Conduct v. Rauch, 486 N.W.2d 39, 40 (Iowa 1992). We later extended Rauch’s suspension by three months because he failed to notify his clients and opposing counsel of his suspension. Comm, on Prof'l Ethics & Conduct v. Rauch, 508 N.W.2d 628, 629 (Iowa 1993). Rauch’s license was reinstated in February 1994. In 2002, we suspended Rauch’s license for one year because he neglected a client’s case at both the trial and appellate levels, had three ex parte conversations with three judges, obtained two ex parte orders knowing there was another attorney involved in the case, and lied to a judge. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Rauch, 650 N.W.2d 574, 580 (Iowa 2002). Rauch’s license remains suspended.

The present case concerns a complaint the Board filed against Rauch in 2004. The Board made the following allegations: In Count I, the Board claimed Rauch agreed to represent Neal Howser on September 20, 2002 — fifteen days after we suspended Rauch’s law license. Howser agreed to pay Rauch $250 in two installments. Rauch did not inform Howser of the suspension. After Howser paid Rauch $100, Rauch prepared a motion to quash. Rauch took the motion to Howser’s home for Howser to sign and then filed the motion with the district court. The motion did not contain any indicia Rauch prepared it or that he represented Howser. About a week later, Howser went to Rauch’s office to pay him the final $150. Rauch’s office was completely empty. Howser was unsuccessful in his attempts to contact Rauch. Howser filed a complaint with the Board to which Rauch never responded.

Count II alleged Derrold and Dena Anderson hired Rauch to represent their nephew, Ned Osborn, in April 2001. The Andersons paid Rauch $500 to pursue a reduction in Osborn’s child support obligation. Rauch filed a motion to quash and the matter was set for hearing. However, no hearing was ever held. Rauch also wrote one letter to Child Support Recovery on behalf of Osborn. The Andersons had no further communication with Rauch. In January 2002, Mr. Anderson sent Rauch a certified letter requesting he either “do the job” or return the $500. Rauch did not respond to Mr. Anderson, nor did he respond to the Board’s notice of Mr. Anderson’s complaint.

The Board filed its complaint against Rauch in January 2004. The Commission made several attempts to serve Rauch with the complaint, all of which were unsuccessful. In February 2007, notice of the Board’s complaint was served on the clerk of the supreme court pursuant to Iowa Court Rule 36.6(3). Rauch did not file an answer to the complaint. Consequently, the Board’s allegations were deemed admitted by the Commission. See Iowa Ct. R. 36.7. The Commission held a hearing on May 14, 2007. Rauch did not appear. Thereafter, the Commission filed its decision which recommended revocation of Rauch’s law license.

On June 25, 2007, Rauch filed an “Appearance and Motion for Time” in which he stated his recent receipt of the Board’s brief was his “first and only actual notification of this action.” (Emphasis in original.) Rauch claimed he would have responded to the Board’s complaint had he received it. Rauch stated “[t]he inordinate and excessive lapses of time involved in the prosecution of this action and the use of Court Rule 36.3(3) may well constitute a denial of due process and equal protection.” He requested the opportunity to be heard on the merits of the case. In response, the Board claimed Rauch had only himself to blame for the delay. The Board noted Rauch received notices of its investigation but chose not to keep the Board informed of his current address.

We granted Rauch fourteen days to file and serve notice of his appeal. In our order, we stated Rauch could raise on appeal his challenges to notice and service in the underlying Commission proceeding. Subsequently, Rauch filed a notice of appeal. However, he failed to file a proof brief and only belatedly filed a designation of the contents of an appendix. Rauch has therefore waived any argument he had with respect to sufficiency of the notice. See Iowa R.App. P. 6.14(l)(c) (stating “[fjailure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue”).

II. Scope of Review.

We review the findings of the Grievance Commission de novo. Iowa Ct. R. 35.10(1). We give weight to the Commission’s findings but we are not bound by those findings. Iowa Supreme Ct. Att’y Disciplinary Bd. v. McGrath, 713 N.W.2d 682, 695 (Iowa 2006). The Board has the burden to prove disciplinary violations by a convincing preponderance of the evidence. Iowa Supreme Ct. Att’y Disciplinary Bd. v. D’Angelo, 710 N.W.2d 226, 230 (Iowa 2006). This burden is “ ‘less than proof beyond a reasonable doubt, but more than the preponderance standard required in the usual civil case.’ ” Id. (quoting Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lett, 674 N.W.2d 139, 142 (Iowa 2004)).

III. The Commission’s Findings.

With respect to Count I, the Commission found Rauch engaged in the unauthorized practice of law by agreeing to represent Howser while his law license was suspended. See Iowa Code of Profl Responsibility for Lawyers DR 3-101(B) (prohibiting a lawyer from practicing in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction); DR 7-106(A) (prohibiting a lawyer from disregarding a court’s ruling). It also found Rauch was guilty of deceit by failing to inform Howser that his license was suspended and by ghostwriting and filing a pleading on behalf of Howser without disclosing to the court his involvement in the matter. See DR 1-102(A)(4) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Lane, 642 N.W.2d 296, 299 (Iowa 2002) (condemning ghostwriting as a misrepresentation to the court). Finally, the Commission found Rauch committed an additional ethical violation by failing to respond to the Board, after being served with How-ser’s complaint. See DR 1-102(A)(5) (prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice); DR 1-102(A)(6) (prohibiting a lawyer from engaging in conduct that adversely reflects on the fitness to practice law); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Grotewold, 642 N.W.2d 288, 293 (Iowa 2002) (stating a lawyer’s failure to timely respond to the Board violates DR 1-102(A)(5), (6)).

The Commission did not make any specific findings with respect to Count II other than it noted Rauch failed to respond to the Board after he was served with the Andersons’ complaint. The Commission acknowledged Rauch’s representation of Osborn (at the direction of the Andersons) occurred prior to the one-year suspension we imposed in September 2002. The Commission noted it did not believe Rauch’s suspension would have been lengthened had we considered the Andersons’ complaint at that time. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Moorman, 729 N.W.2d 801, 805-06 (Iowa 2007) (imposing a concurrent sanction because it is unlikely the supreme court would have imposed a longer suspension had it been aware of the conduct that is the subject of the disciplinary proceeding at the time of its previous decision).

IV. Misconduct and Sanction.

We agree with the Commission’s findings and conclusions. We must now determine the appropriate sanction. We consider “the nature of the violations, protection of the public, deterrence of similar misconduct by others, the lawyer’s fitness to practice, and our duty to uphold the integrity of the profession in the eyes of the public.” Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Fleming, 602 N.W.2d 340, 342 (Iowa 1999) (citing Comm. on Prof'l Ethics & Conduct v. Havercamp, 442 N.W.2d 67, 69 (Iowa 1989)). We also consider both aggravating and mitigating circumstances. Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Ruth, 656 N.W.2d 93, 99 (Iowa 2002) (citing Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Sherman, 687 N.W.2d 183, 187 (Iowa 2001)). Ultimately, the form and extent of a disciplinary sanction “must be tailored to the specific facts and circumstances of each individual case.” Comm, on Prof'l Ethics & Conduct v. Rogers, 313 N.W.2d 535, 537 (Iowa 1981).

We have before us a long and troubled history of ethical violations committed by Rauch. He has demonstrated a penchant for deceit and a total lack of respect toward the courts of this state. He thumbed his nose at this court by accepting How-ser’s case just days after we suspended his license. He tried to hide his involvement by omitting his name on the motion to quash. Ghostwriting a court document is a ‘“deliberate evasion of the responsibilities imposed on an attorney.’ ” Lane, 642 N.W.2d at 299 (quoting Wesley v. Don Stein Buick, Inc., 987 F.Supp. 884, 886 (D.Kan.1997)); see Iowa R. Civ. P. 1.423 (requiring “[ejvery pleading or paper filed by a pro se party that was prepared with the drafting assistance of an attorney who contracted with the client to limit the scope of representation pursuant to Iowa R. Profl Conduct 32:1.2(c) [to] state that fact before the signature line at the end of the pleading or paper that was prepared with the attorney’s assistance”). Moreover, Rauch left Howser in a bind when he agreed to represent Howser and then promptly closed his office. Howser aptly summed it up when he stated before the Commission: “There’s enough misrepresentation in this world without having an attorney, someone that you believe is going to help you, misrepresent himself the way this gentleman did.”

Our legal system depends on zealous advocates who are diligent and honest. See Comm, on Prof'l Ethics & Conduct v. Bauerle, 460 N.W.2d 452, 453 (Iowa 1990) (“Fundamental honesty is the base line and mandatory requirement to serve in the legal profession.”). Rauch possesses neither of these qualities. When determining the appropriate sanction, we must consider both the current charges as well as Rauch’s past discipline. Comm. on Prof'l Ethics & Conduct v. Wenger, 469 N.W.2d 678, 680 (Iowa 1991) (stating past disciplinary action bears upon an attorney’s character and is considered an aggravating factor). Doling out another suspension is simply not sufficient in light of Rauch’s history of failing to obey our previous suspension orders. Rauch’s pattern of unethical conduct over a number of years warrants revocation of his law license. See Iowa Supreme Ct. Att’y Disciplinary Bd. v. Rickabaugh, 728 N.W.2d 375, 382 (Iowa 2007) (finding attorney’s history of ethical infractions demonstrates he “does not respect the awesome responsibilities of an attorney”); Iowa Supreme Ct. Bd. of Prof'l Ethics & Conduct v. Beckman, 674 N.W.2d 129, 139 (Iowa 2004) (finding attorney’s “pattern of misconduct and dishonesty demonstrates that he has no intention of complying with his legal and ethical obligations unless forced to do so”).

V. Conclusion.

We revoke Rauch’s license to practice law in the state of Iowa. Costs are taxed to Rauch pursuant to Iowa Court Rule 35.25(1).

LICENSE REVOKED.

      . It is not known why the Board took so long to serve the clerk of the supreme court with the complaint. Effective July 1, 2005, Iowa Court Rule 36.6 was amended to allow for substituted service in the event a lawyer cannot be found.


author: TERNUS, Chief Justice.

text:
    Gaylin R. RANNIGER and Janet L. Ranniger, Appellants, v. IOWA DEPARTMENT OF REVENUE AND FINANCE, Appellee.
    No. 06-0761.
    Supreme Court of Iowa.
    March 21, 2008.
    James D. Lohman of Reimer, Lohman & Reitz, Denison, for appellants.
    Thomas J. Miller, Attorney General, and Valencia Voyd McCown, Assistant Attorney General, for appellee.
   TERNUS, Chief Justice.

Appellants, Gaylin R. Ranniger and Janet L. Ranniger, protested an income tax assessment by the appellee, Iowa Department of Revenue and Finance, claiming entitlement to an exclusion from taxation on net capital gains from the sale of a business under Iowa Code section 422.7(21) (1999). The department denied the protest, concluding the taxpayers were not entitled to the capital-gains exclusion because Gaylin Ranniger’s sale of his interest in an accounting partnership did not qualify as “the sale of a business” under the statutory definition of that term. See Iowa Code § 422.7(21). The district court affirmed the department’s decision on judicial review. For the reasons that follow, we affirm the district court.

I. Background Facts and Proceedings.

From 1978 until 1989, Gaylin Ranniger (Ranniger) practiced as a certified public accountant in a partnership with Morrie Heithoff. In 1989 the partnership entered into an agreement whereby the practice was sold and merged into Darrah & Company, P.C. (Darrah), a subchapter-S corporation. Ranniger and Heithoff became shareholders and employees of Darrah. On December 31, 1991, the merger between the partnership and Darrah was terminated upon Darrah’s failure to make the payments required under the agreement. All assets that originated with the partnership were transferred back to the two partners.

The following day, on January 1, 1992, Ranniger sold his fifty-percent interest in the partnership to Heithoff, and Heithoff resumed operation of the accounting practice as a sole practitioner. Heithoff paid Ranniger for his share of the partnership in annual installment payments from 1992 through 2000.

The sale of Ranniger’s fifty-percent interest in the partnership resulted in a capital gain to Ranniger and his wife, Janet. They claimed the Iowa capital-gains exclusion on their Iowa individual income tax returns for the years 1992 through 2000. The department denied the exclusion on the taxpayers’ 1999 and 2000 Iowa returns and issued an assessment for additional taxes, penalty, and interest. The taxpayers protested the assessment, but their protest was denied by the director of the department. As noted earlier, this decision was affirmed on judicial review, and the taxpayers filed this appeal.

II. Scope of Review.

The scope of our review is determined by Iowa’s Administrative Procedure Act, Iowa Code chapter 17A. See Lange v. Iowa Dep’t of Revenue, 710 N.W.2d 242, 246 (Iowa 2006). Here, the taxpayers challenge the department’s interpretation of section 422.7(21). Because the Department of Revenue and Finance has clearly been vested with discretion to interpret chapter 422, see City of Sioux City v. Dep’t of Revenue & Fin., 666 N.W.2d 587, 590 (Iowa 2003), we will reverse the department’s interpretation of section 422.7(21) only if it was “irrational, illogical or wholly unjustifiable.” Iowa Code § 17A.19(10)(Z).

III. Discussion.

The taxpayers claim they were entitled to exclude from their taxable income the payments they received for the sale of the partnership interest. They rely on the exclusion allowed by section 422.7(21) for

[n]et capital gain .... from the sale of a business, as defined in section 422.42, in which the taxpayer was employed or in which the taxpayer materially participated for ten years, as defined in section 469(h) of the Internal Revenue Code, and which has been held for a minimum of ten years. The sale of a business means the sale of all or substantially all of the tangible personal property or service of the business.

Iowa Code § 422.7(21)(a)(l) (emphasis added). The director concluded the taxpayers were not entitled to this exclusion for several reasons, but we need only address one: the sale of the partnership interest was not “the sale of all or substantially all of the tangible personal property or service of the business.” Id.

The department’s decision to disallow the exclusion was consistent with its rule interpreting section 422.7(21), which provides in part:

In situations in which substantially all the tangible personal property or service was sold by a partnership, subchapter S corporation, limited liability company, estate or trust, and the capital gains from the sale of the assets flow through to the owners of the business entity for federal income tax purposes, the owners can exclude the capital gains from their net incomes if the owners had owned the business for ten or more years and the owners had materially participated in the business for ten years prior to the date of sale of the tangible personal property or service, irrespective of whether the type of business entity changed during the ten-year period pri- or to the sale.
Capital gains from the sale of an ownership interest in a partnership, limited liability company or other entity are not eligible for the capital gain exclusion.

Iowa Admin. Code r. 701-40.38(8) (emphasis added).

The taxpayers contend the department’s interpretation of section 422.7(21) is too narrow. They rely on the statutory definitions of “business” and “person” to support their position. In 1999 and 2000, Iowa Code section 422.42 defined a “business” as “any activity engaged in by any person or caused to be engaged in by the person with the object of gain, benefit, or advantage, either direct or indirect.” Iowa Code § 422.42(2) (now found at Iowa Code § 423.1(4) (2007)). The income tax division of chapter 422 defined “person” to “include[ ] individuals and fiduciaries.” Id. § 422.4(14); see also id. § 422.42(11) (defining “person” to include “any individual, firm, copartnership, joint adventure, association ... or any other group or combination acting as a unit-”). The taxpayers claim Ranniger’s fifty-percent partnership interest was itself a “business” and, because Ranniger sold one hundred percent of that business, he qualified for the exclusion.

We do not accept the taxpayers’ broad interpretation of section 422.7(21). The taxpayers contend “a more inclusive interpretation” than that adopted by the department is warranted because section 422.7(21) “is a remedial statute seeking to prevent an unjust Iowa income tax result due to the change in the method of the taxation of Federal capital gains.” In addition to the absence of evidence of such a legislative intent, this argument suffers from a lack of support in Iowa law governing the interpretation of tax laws. Our cases require that exclusions from taxation be “construed strictly against the taxpayer and liberally in favor of the taxing body.” See Iowa Auto Dealers Ass’n v. Iowa Dep’t of Revenue, 301 N.W.2d 760, 762 (Iowa 1981); accord Heartland Lysine, Inc. v. State, 503 N.W.2d 587, 588-89 (Iowa 1993). The department’s more narrow view of the statute is consistent with this rule of statutory interpretation; the taxpayers’ expansive view is not.

Secondly, we agree with the observation of the district court that the legislature’s use of the language “tangible personal property or service of the business” clearly reflected a focus on the sale of the tangible and intangible assets used in producing and marketing the business’s products or services, not on the sale of corporate stock or partnership interests in the business. In the case before us, Ranniger was engaged in the activity of providing accounting services with the object of gain within the meaning of the statutory definition of “business.” Accordingly, the department determined the “business” at issue for purposes of the capital-gains exclusion was the accounting partnership, not solely Ranni-ger’s ownership interest in that partnership. This determination was not irrational, illogical, or wholly unjustifiable.

Focusing, then, on the partnership, it is significant that under Iowa law “[a] partner is not a co-owner of partnership property and has no interest in partnership property which can be transferred, either voluntarily or involuntarily.” Iowa Code § 486A.501. Thus, the sale of a partnership interest, such as that sold by Ranniger, is not the sale of any tangible personal property or service of the partnership. We conclude, therefore, that the department’s ruling that Ranniger did not sell “all or substantially all of the tangible personal property or service of the business” so as to constitute “the sale of a business” under section 422.7(21) was not irrational, illogical, or wholly unjustifiable. Id. § 422.7(21).

Ranniger claims the department’s interpretation of the capital-gains exclusion is inconsistent with the federal taxing scheme and “punishes the taxpayer for the form in which his or her business is operated.” He asserts the legislature “clearly intended] that federal law be used as the basis for determining what constitutes a capital asset.”

We note that it is the province of the legislature to determine tax policy, and absent a successful constitutional challenge to a taxing statute, our role is to interpret the statute by giving effect to the plain meaning of the language chosen by the legislature. Lange, 710 N.W.2d at 247. With respect to section 422.7(21), the legislature did not expressly require the application of federal law in determining what constituted “capital gain ... from the sale of a business,” even though express reference to the Internal Revenue Code was made elsewhere in section 422.7(21) with respect to other aspects of this exclusion. Even more importantly, the legislature chose to define for itself what it meant by “the sale of a business.” As this court has observed many times in the past, “The legislature is its own lexicographer. So in searching for legislative intent, we are bound by what the legislature said, not by what it should or might have said.” Iowa Dep’t of Transp. v. Soward, 650 N.W.2d 569, 571 (Iowa 2002) (citations omitted). A review of what the legislature said in section 422.7(21) reveals no indication of a legislative intent that federal law govern whether a particular transaction results in a capital gain from “the sale of a business” under Iowa law. We think the department’s straightforward interpretation of the legislature’s definition of this phrase gave effect to the plain meaning of the statutory language as required by the rules of statutory construction.

IV. Conclusion.

For the reasons discussed, we hold the department’s interpretation of section 422.7(21) was not irrational, illogical, or wholly unjustifiable. Therefore, we affirm the judgment of the district court upholding the department’s denial of the taxpayers’ protest.

AFFIRMED.

All justices concur except LARSON and HECHT, JJ., who take no part.


author: HECHT, Justice.

text:
    STATE of Iowa, Appellee, v. Michael Byron ABRAHAMSON, Appellant.
    No. 05-1653.
    Supreme Court of Iowa.
    March 21, 2008.

      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Terry E. Rachels, County Attorney, and Douglas Eicholz, Assistant County Attorney, for appellee.
   HECHT, Justice.

This case is before us on further review of a court of appeals decision reversing defendant Abrahamson’s conviction for manufacturing methamphetamine, under Iowa Code section 124.401(1) (2004). The court of appeals concluded the conviction on the manufacturing charge must be reversed because Abrahamson’s right to a speedy trial was violated on a previous conspiracy-to-manufacture-methamphetamine charge arising from the same facts. We agree that Abrahamson’s conviction cannot stand under the circumstances presented here.

I. Background Facts and Proceedings.

In the early morning of April 23, 2004, officers initiated a traffic stop of a vehicle near Bussey, Iowa. When the officers stopped the car, Michael Abrahamson was sitting in the front passenger seat. While questioning the driver of the car, an officer observed Abrahamson reach down to the floorboard of the car. The odor of ammonia emanating from the car was overpowering, and officers discovered rubber tubing, a pair of leather gloves, and a cold Tupperware bowl with a mixture containing methamphetamine on the passenger side floorboard. The officers arrested the driver and Abrahamson, and on April 30, 2004, the State filed a trial information (in case number FECR020642) charging Abrahamson with conspiracy to manufacture methamphetamine in violation of Iowa Code section 124.401(1)(6 )(7).

On July 28, 2004, the district court found good cause to delay the trial for thirty-one days because Abrahamson had been in voluntary inpatient drug treatment. Trial was rescheduled to begin August 25, 2004. On August 13, 2004, the State moved to dismiss the conspiracy charge without prejudice “in the interests of justice,” pursuant to Iowa Rule of Criminal Procedure 2.33(1). Although the State did not provide any specific reasons for its assertion that the dismissal of the conspiracy charge was in the furtherance of justice, the district court granted the motion the same day without a hearing. The State also filed on the same day a two-count trial information (in case number FECR020894) charging Abrahamson with manufacturing methamphetamine (Count I) and conspiracy to manufacture methamphetamine (Count II), based on the facts that formed the basis for the April 23 arrest and the dismissed information in case number FECR020642.

Abrahamson filed a motion asserting the manufacturing and conspiracy charges should be dismissed. He contended the conspiracy count could not be refiled because it alleged an offense that had previously been dismissed upon the State’s motion in case number FECR020642 for the purpose of avoiding the speedy trial rule, and not in the furtherance of justice. Abrahamson’s motion further asserted the manufacturing charge must be dismissed because it was based on the same set of facts as the dismissed conspiracy charge, and because manufacturing methamphetamine and conspiracy to manufacture that substance are alternative means of committing the same offense in violation of Iowa Code section 124.401(1).

On April 4, 2005, another district court judge granted Abrahamson’s motion to dismiss the conspiracy charge. The court reasoned Abrahamson’s speedy trial rights were violated because the August 13, 2004 dismissal in case number FECR020642 was not shown to be “in the furtherance of justice.” The court denied Abrahamson’s motion to dismiss the manufacturing charge.

A jury found Abrahamson guilty of manufacturing more than five grams of methamphetamine, and the district court sentenced him to a twenty-five-year indeterminate prison sentence and a $5000 fíne. Abrahamson appealed, contending the district court erred in denying his motion to dismiss the manufacturing charge on speedy trial grounds. The court of appeals reversed Abrahamson’s conviction. We granted the State’s application for further review.

II. Scope of Review.

Abrahamson claims he was denied his right to a speedy trial. Our review is for correction of errors at law. State v. Miller, 637 N.W.2d 201, 204 (Iowa 2001).

III. Discussion.

Our analysis of whether a charge is barred by a previous speedy trial dismissal requires a two-step process. State v. Fisher, 351 N.W.2d 798, 801 (Iowa 1984) (citing State v. Moritz, 293 N.W.2d 235, 238 (Iowa 1980)). We first determine whether the initial charge was dismissed “for speedy-trial reasons, not in the ‘furtherance of justice.’” Id. If we answer that question in the affirmative, we look to whether the subsequent charge is for the “same offense” previously dismissed on speedy trial grounds. Id.

A. Speedy Trial Dismissal. Prosecutions of criminal offenses in Iowa “may be terminated only by public officers in accordance with established procedures.” State v. Swallom, 244 N.W.2d 321, 324 (Iowa 1976). Iowa Rule of Criminal Procedure 2.33 prescribes the procedure by which prosecutors may seek dismissal of pending charges without prejudice:

The court, upon its own motion or the application of the prosecuting attorney, in the furtherance of justice, may order the dismissal of any pending criminal prosecution, the reasons therefor being stated in the order and entered of record, and no such prosecution shall be discontinued or abandoned in any other manner. Such a dismissal is a bar to another prosecution for the same offense if it is a simple or serious misdemeanor; but it is not a bar if the offense charged be a felony or an aggravated misdemeanor.

(Emphasis added.) Under rule 2.33(1), after a dismissal in the furtherance of justice, the same felony or aggravated misdemeanor charges may be refiled. However, in order to obtain a valid dismissal in the interests of justice (and the resulting benefit of a dismissal without prejudice), the State must provide appropriate and sufficient reasons for the dismissal. State v. Gansz, 403 N.W.2d 778, 780 (Iowa 1987) (noting “if it could be demonstrated that the prior dismissal, regardless of its stated purpose, was without adequate cause and that it impacted unfavorably upon a defendant’s speedy trial rights, the resulting delay in prosecution would warrant a dismissal”).

A dismissal for failure to provide a speedy trial is an “absolute dismissal, a discharge with prejudice, prohibiting reinstatement or refiling of an information or indictment charging the same offense.” State v. Johnson, 217 N.W.2d 609, 612 (Iowa 1974) (stating that allowing the State to refile the same charges following a speedy trial violation would “drain [the speedy trial rule] of its effectiveness”) (citing Strunk v. United States, 412 U.S. 434, 438, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56, 61 (1973); Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101, 112 (1972); Hilbert v. Dooling, 476 F.2d 355, 358 (2d Cir.1973)).

In its April 4, 2005 order, the district court dismissed with prejudice the conspiracy charge in case number FECR20894 because the State had failed to bring Abra-hamson to trial on the conspiracy charge in case number FECR020642 within the speedy trial deadline. The State has not sought appellate review of that decision. Accordingly, we must determine if the manufacturing charge in case number FECR020894 is the same offense for speedy trial purposes as the conspiracy-to-manufacture charge that was dismissed in case number FECR020642.

B. Same Offense. In State v. Williams, 305 N.W.2d 428 (Iowa 1981), the defendant was charged in a two-count information with possession of a controlled substance with intent to deliver it and delivery of the substance in violation of Iowa Code section 204.401(1) (1977). 305 N.W.2d at 430. The State subsequently sought and obtained, over Williams’s resistance, leave to amend the information to allege in a third count that Williams also engaged in a conspiracy to manufacture, possess with intent, and deliver the same controlled substance. After he was convicted and sentenced on all three counts, Williams claimed on appeal the district court erred in granting leave to amend the information because the conspiracy charge was a “wholly new and different offense.” See Iowa R.Crim. P. 2.4(8)(a) (precluding amendment of the information “if substantial rights of the defendant are prejudiced, or if a wholly new and different offense is charged”). We rejected that claim, reasoning the conspiracy charge did not allege a new offense, but merely “[an alternative] means of committing the same offense” of drug trafficking. Williams, 305 N.W.2d at 431. Based on the same reasoning, we vacated the judgment and remanded the case for resentencing on a single drug trafficking offense because the district court erred in sentencing Williams for three offenses. Id. at 434.

The court of appeals relied on the Williams decision in deciding the conspiracy and manufacturing counts in the information filed against Abrahamson alleged alternative means of committing one offense. The court concluded just as the dismissed conspiracy charge could not be refiled as a consequence of a violation of Abrahamson’s speedy trial rights, the conviction of manufacturing methamphetamine cannot stand because it constitutes an alternative means of committing the same offense: a violation of Iowa Code section 124.401(1).

The State contends the court of appeals erred in relying on Williams because the analytical framework used in determining whether the offenses are the same for speedy trial purposes should differ from the one applied in determining whether amendments to trial informations should be granted. The State urges us to adopt a “same elements” test (sometimes called the “legal elements” test and employed in the identification of lesser included offenses, see State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995)) for the resolution of speedy trial “same offense” issues. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). Under the Block-burger analysis, the court would determine whether two offenses were the “same” by comparing the elements of proof required for each offense. Id.

We confronted the question whether charges were the “same offense” for speedy trial purposes in State v. Moritz, 293 N.W.2d 235 (Iowa 1980). In Moritz, the State filed an information claiming the defendant violated Iowa Code sections 739.10 (1977) (accepting award for public duty) and 740.1 (extortion) on January 7, 1977, and engaged in a conspiracy to commit those crimes in violation of section 719.1. The State’s motion to dismiss the information “in the interests of justice” was sustained by the court. The State later filed a new information alleging Mor-itz accepted an award for public duty on April 5, 1977, in violation of section 739.10 and engaged in a conspiracy to do so. In our decision on Moritz’s appeal following his conviction on both charges, we concluded the conspiracy charge must be dismissed because it alleged the same offense (conspiracy) charged in the earlier information; and its refiling violated Moritz’s right to a speedy trial. We held, however, the other charge (accepting an award for public duty in violation of section 739.10) was not vulnerable to Moritz’s motion to dismiss based on the speedy trial rule because it alleged a different offense committed on a different date than the offense charged under the same statute in the dismissed information.

Our decision in Moritz noted the “same offense” test applied in the speedy trial context focuses on whether the “ ‘two offenses are in substance the same, or of the same nature, or same species, so that the evidence which proves one would prove the other.’” 293 N.W.2d at 238-39 (quoting State v. Stewart, 223 N.W.2d 250, 251 (Iowa 1974)). Applying this test, we held the conspiracy count that alleged the same conspiracy as that charged in the previously dismissed trial information was the same offense for speedy trial purposes. Id. at 239. We therefore reversed Mor-itz’s conviction on the refiled conspiracy charge, but we affirmed his conviction on the other charge.

The Moritz analysis is neither controlling nor instructive in this case. Unlike Abrahamson, the appellant in Moritz did not claim the two charges (accepting an award for public duty, and engaging in a conspiracy to do so) based on statutes in different code chapters were alternative means of committing the same offense. Thus we had no occasion in that case to consider whether the conspiracy charge and the “accepting an award for public duty” charge were the same offense for purposes of the speedy trial rule. Indeed, the conspiracy charge in that case was filed under the separate conspiracy statute that appeared in a different code chapter than the other offense with which Moritz was charged. In sharp contrast, Abrahamson was charged with both manufacturing a controlled substance and conspiracy to commit that crime under a single statute, Iowa Code section 124.401(1). The legislature’s prohibition of drug conspiracies and other drug trafficking offenses in that single code section led us in Williams to conclude one commits a single criminal offense by manufacturing a controlled substance and engaging in a conspiracy to manufacture that same substance. Williams, 305 N.W.2d at 431. We reaffirmed this conclusion in State v. Maghee, 573 N.W.2d 1, 7 (Iowa 1997) (holding that as conspiracy is an alternative means of violating section 124.401(1), defendant could not be sentenced for both conspiracy and possession of illegal substance with intent to deliver).

As the State correctly notes, our decision in Williams did not address whether manufacturing and conspiracy counts arising from a common set of facts, and charged under section 124.401(1), are one offense for purposes of determining whether a dismissal with prejudice of one of them under rule 2.33 bars the refiling of both of them. We now answer that question in the affirmative. We find unpersuasive the State’s contention that manufacturing and conspiracy should be viewed as one offense in furtherance of the State’s interest in amending an information, but be viewed as separate offenses when defendants seek to enforce their right to a speedy trial.

The State contends our decision in State v. Lies, 566 N.W.2d 507 (Iowa 1997), should lead us to a different conclusion. In that case, the defendant was initially arrested and a complaint was filed against him charging burglary in the second degree. 566 N.W.2d at 507. Fifty-five days later, the State filed an information charging the defendant with conspiracy to commit a burglary. The defendant filed a motion under the speedy indictment rule, contending the information must be dismissed because he was not indicted within forty-five days after his arrest. See Iowa R.Crim. P. 2.33(2)(a) (requiring, in the absence of good cause, dismissal of a charge if defendant is not indicted within forty-five days after arrest). A jury acquitted the defendant on the burglary charge, but convicted him on the conspiracy charge. We concluded on appellate review the defendant’s right to a speedy indictment was not violated because conspiracy to commit burglary was not the same offense as the burglary for which the defendant was arrested. We noted the defendant was charged with conspiracy under Iowa Code section 706.1; and that Iowa Code section 706.4 expressly provides “[a] conspiracy to commit a public offense is an offense separate and distinct from any public offense which might be committed pursuant to such conspiracy.” As we have noted, Abrahamson was not charged with conspiracy under chapter 706. He was instead charged under section 124.401(1) which identifies conspiracy as one of several alternative means of committing the offense of drug trafficking. Thus, the rule announced in Lies is not dispositive here.

The State also relies on our decision in State v. Fintel, 689 N.W.2d 95 (Iowa 2004), in support of its assertion that conspiracy and manufacturing should be viewed as separate offenses under section 124.401(1) for speedy trial purposes. Fintel was charged with both conspiracy to manufacture methamphetamine and manufacturing methamphetamine. 689 N.W.2d at 100-01. A jury found Fintel not guilty of manufacturing a controlled substance, but guilty of conspiracy to manufacture. We rejected on appeal Fintel’s assertion that these verdicts were fatally inconsistent, reasoning that conspiracy and manufacturing are alternative means of committing a single offense under the drug trafficking statute. It was consequently possible that Fintel could be acquitted of manufacturing a controlled substance, but be convicted on the conspiracy alternative which required no proof of completed manufacture, and we therefore upheld Fintel’s conviction. Id. Our decision today is consistent with our reasoning in Fintel, because it reaffirms the proposition that manufacturing and conspiracy are alternative means of committing a single offense under section 124.40K1).

Under the interpretation favored by the State, all of the “alternatives” listed in section 124.401(1) — a total of at least thirty-six — would constitute separate crimes because they would require proof of different elements. As the alternatives would no longer be considered the “same offense,” the Williams merger rule would not apply, and a defendant could therefore be charged with, convicted of, and sentenced for, multiple violations of section 124.401(1). Our contrary interpretation of the statute as a measure enumerating alternative means of committing the singular offense of drug trafficking has been extant for more than twenty-five years. The legislature’s failure to amend the statute to enumerate multiple offenses suggests our understanding of the statute comports with the intent of the drafters. See Iowa Dep’t of Transp. v. Soward, 650 N.W.2d 569, 574 (Iowa 2002) (legislature’s failure to “correct” this court’s interpretation of a statute is entitled to considerable weight).

We have yet another concern about the consequences of the interpretation of section 124.401(1) advanced by the State. It would permit, if not encourage, the piecemeal prosecution of drug trafficking charges as a means of avoidance of the time-honored constraints of our speedy trial rule. For example, under the State’s interpretation, the dismissal of the conspiracy charge as a penalty for violation of Abrahamson’s right to a speedy trial would be of insubstantial consequence to the State because the manufacturing charge would stand in ready reserve to be charged as a separate offense. Such an interpretation would undermine the salutary purposes of the speedy trial rule. See Johnson, 217 N.W.2d at 612 (noting the remedy afforded by a dismissal with prejudice for violation of the speedy trial rule assures that the rule will not be rendered meaningless).

Accordingly, the court of appeals correctly concluded Abrahamson’s manufacturing conviction must be reversed.

IY. Conclusion.

Abrahamson was charged with alternative means of violating section 124.401(1): manufacturing methamphetamine and conspiracy to manufacture the same substance. The conspiracy charge was dismissed with prejudice as a consequence of a violation of Abrahamson’s right to a speedy trial. Because the manufacturing charge alleged the same offense — a violation of section 124.401(1) arising from the same facts — it, too, must be dismissed.

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

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

      . Iowa Rule of Criminal Procedure 2.33(1) authorizes the dismissal of a prosecution in the furtherance of justice with "the reasons therefor being stated in the order and entered of record." Although the State’s motion alleged the requested dismissal was in the “furtherance of justice,” it did not allege a factual basis for such a finding. The order granting the State’s motion stated the relief was granted “for the reasons stated in the State's motion.”

      . In a brief filed on appeal by his counsel, Abrahamson also contends the district court erred by admitting evidence of prior bad acts and allowing a recording into evidence in violation of the Confrontation Clause of the Sixth Amendment. Abrahamson raises nine other issues in his pro se appellate brief. Because we conclude the district court erred in failing to dismiss the manufacturing charge, we do not reach these issues.

      . Iowa Code section 204.401(1) (1977) was the predecessor to the current drug trafficking statute, section 124.401(1).

      . The speedy trial statute considered in Mor-itz, Iowa Code section 795.2 (1977), was substantially identical to the current speedy trial rule, rule 2.33(2)(b), with the exception that it required a trial within sixty days of the filing of an indictment or trial information rather than ninety days.

      . The defendant in Moritz was charged with conspiracy under Iowa Code chapter 719. That statute has since been renumbered and now appears in chapter 706.

      . Although our holding in this case is consistent with the fundamental principle that section 124.401 defines one offense, drug trafficking, and enumerates numerous alternative means of committing it, it should be noted that Fintel does not control our disposition in this case. There was no speedy trial violation in Fintel, a case in which both manufacturing and conspiracy alternatives were submitted to the jury. Fintel, 689 N.W.2d at 100. In sharp contrast, the conspiracy charge against Abrahamson was dismissed with prejudice as a consequence of a speedy trial violation before the manufacturing charge was submitted to the jury.

      . Given the large number of discrete offenses defined in section 124.401(1) under the State's interpretation, it is conceivable that the State could, as a matter of strategy, file an information but hold in reserve several alternative offenses in cases involving alleged manufacturing, possession and delivery of controlled substances. In drug trafficking cases involving multiple individuals, the potential array of such offenses available “in reserve” would of course be even greater under the State's interpretation of the rule, as a conspiracy offense might have been committed in such cases.