author: LAVORATO, Chief Justice.

text:
    Jodi A. DEVOSS, Appellant, v. STATE of Iowa, Appellee.
    No. 00-0633.
    Supreme Court of Iowa.
    June 12, 2002.
    Rehearing Denied Aug. 1, 2002.

      Thomas H. Preacher, Bettendorf, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, William E. Davis, Scott County Attorney, and Kelly G. Cunningham, Assistant County Attorney, for appellee.
   LAVORATO, Chief Justice.

Jodi A. DeVoss appealed from a district court ruling denying her application for postconviction relief based on a claim of prosecutorial misconduct and a claim of ineffective assistance of counsel for failing to cross-examine the victim about the claimed misconduct. DeVoss also complained because the district court did not ahow her to call the victim as a witness to establish the prosecutorial misconduct. We transferred the case to the court of appeals and that court affirmed. It did so on the grounds that DeVoss waived such claims because she did not raise them in her direct appeal of her robbery conviction.

We granted further x-eview and now hold that the State waived any error preservation claim it had by failing to raise that claim in the district court. Upon reaching the merits, however, we agree with the district court that DeVoss failed to prove her claims of prosecutorial misconduct and ineffective assistance of counsel. Additionally, we find no prejudice in the district court’s refusal to allow DeVoss to call the victim as a witness. Accordingly, we vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Background Facts and Proceedings.

On July 16, 1996, a jury convicted De-Voss of first-degree robbery in violation of Iowa Code section 711.2 (1995). The district court sentenced her to an indeterminate twenty-five year term of imprisonment. The State charged two co-defendants with first-degree robbery, second-degree sexual abuse, and going armed with intent. One codefendant pled to a lesser charge before trial. The jury convicted the remaining codefendant of first-degree robbery and second-degree sexual abuse but acquitted him of going armed with intent.

DeVoss appealed, challenging the sufficiency of the evidence and the trial court’s refusal to grant her requested continuance three days before trial. The court of appeals affirmed the conviction in an unreported opinion filed November 25, 1997. The opinion did not preserve any issues for postconviction relief proceedings.

In March 1998, DeVoss filed a pro se application for postconviction relief. She alleged (1) ineffective assistance of counsel, (2) misrepresentation of counsel, and (3) lawyer incompetence. She claimed a “conflict of interest,” “the prosecution knowingly used false evidence,” and that “the court record did not support a finding of guilt beyond a reasonable doubt.” The State filed an answer but did not raise the issue that DeVoss had not preserved these issues for postconviction relief proceedings by raising them in her direct appeal of her robbery conviction.

The district court heard the postconviction relief proceeding on January 19-20, 2000. At the hearing, DeVoss’ postconviction relief counsel explained DeVoss’ claims: (1) her trial counsel was ineffective for failing to file a motion to sever the defendants’ trials in the case; (2) her trial counsel was ineffective for failing to call her as a witness during the criminal trial; (8) the prosecutor engaged in prosecutorial misconduct by coaching the victim and main witness at trial, Kim Maggio; and (4) DeVoss’ trial counsel was ineffective for failing to ask questions about the coaching during his cross-examination of Maggio.

DeVoss subpoenaed Maggio to testify at the postconviction relief hearing. During the hearing, the State reported to the court that Maggio had appeared at the county attorney’s office on January 18, “very upset, very emotional about” receiving the subpoena. The State objected to calling Maggio as a witness in the postcon-viction relief proceeding. The district court initially reserved ruling on the issue but later during the hearing agreed to allow Maggio to testify as long as counsel limited the scope of questioning to whether the prosecutor improperly coached Mag-gio.

Maggio appeared at the courthouse on the first day of the postconviction relief hearing but could not be found when the time came for her to testify. The following morning, the State reported to the court that the day before, Maggio had become emotionally distraught over the proceedings and had left the courthouse. Further, Maggio had overdosed on a variety of substances and was subsequently hospitalized.

The State again urged the court not to allow Maggio to testify. The prosecutor in the postconviction relief proceeding (who was also the prosecutor in the underlying criminal trial) asked the court to allow another assistant county attorney to handle the remainder of the hearing so she could take the stand to testify about the coaching issue. DeVoss’ attorney refused the offer, after which the court ordered a report from Maggio’s psychiatrist about whether testifying would be harmful to Maggio. Following testimony from the State’s only witness, the court .continued the hearing pending receipt of the psychiatrist’s report. There is no record evidence that the report was ever received.

About a month later, the State filed a motion to quash the subpoena and an application for protective order. Following a hearing on the motion, the court denied DeVoss’ application for postconviction relief, finding- no 'ineffective assistance of counsel and no prosecutorial misconduct. The court found that DeVoss had failed to prove prosecutorial misconduct or resulting prejudice relating to the coaching issue. The court did not rule on the State’s motion to quash the subpoena and issue a protective order. However, a close reading of the court’s ruling indicates that is exactly what the court did.

DeVoss appealed, raising a number of issues. We transferred the case to the court of appeals.

Thé State, in its appeal brief, argued for the first time that DeVoss failed to preserve any of her postconviction relief claims because she failed to raise the claims on direct appeal of her conviction. The State admitted that it did not argue in the postconviction relief proceeding De-Voss’ failure to preserve her postconviction relief claims, and the district court did not raise the error preservation issue in its ruling. However, the State urged the court of appeals to affirm based on State v. Howard, in which we said, “[w]e can uphold the trial court’s ruling on any ground apparent in the record, whether urged at trial or ruled on by the trial court.” 509 N.W.2d 764, 768 (Iowa 1998).

The court of appeals agreed with the State, concluding that DeVoss had not preserved her postconviction relief claims because she did not raise them on direct appeal. The court therefore did not address the merits of the claims.

We granted DeVoss’ application for further review.

II. Issues.

On further review, we first address error preservation in postconviction relief proceedings. Specifically, we must determine whether the State must raise in the district court the issue of a petitioner’s failure to preserve postconviction relief claims because such claims were not raised on direct appeal. DeVoss contends the State, by failing to raise the issue in the district court, waived its claim that DeVoss failed to preserve her posteonviction relief claims.

If we decide the State waived any error preservation claim it had by failing to raise it in the district court, we must turn our attention to several other issues. The first issue we must decide is whether the district court erred in finding DeVoss’ trial counsel was not ineffective for failing to cross-examine Maggio about the coaching issue. In deciding this issue, we must necessarily determine whether DeVoss established prosecutorial misconduct. A closely related issue is whether the district court abused its discretion in not allowing DeVoss to call Maggio as a witness.

III. Scope of Review.

We review postconviction relief proceedings for errors at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

IV. Error Preservation.

DeVoss contends that implicit in the State’s argument is that error preservation is a burden that falls on postconviction relief applicants and not upon the State. DeVoss argues that the burden of error preservation should fall on both parties. For reasons that follow, we agree with DeVoss.

1. Background. Because there are some inconsistencies in our cases, we think a review of error preservation as developed over the years by this court would aid our analysis. The underlying reasons for the error preservation requirement have been well-summarized:

Trial courts must be afforded the opportunity to avoid or correct error in judicial proceedings. Similarly, appellate courts must be provided with an adequate record in reviewing errors purportedly committed during trial. This perforce requires that counsel make timely and sufficient motions or objections upon which trial judges may rule. Absent such actions, an appellate court has nothing to review. Simply stated, counsel must take necessary measures to construct a record in order to preserve error for appellate review.

Robert G. Allbee and Kasey W. Kincaid, Error Preservation in Civil Litigation: a Primer for the Iowa Practitioner, 35 Drake L.Rev. 1, 2 (1985-86).

Error preservation is based on principles of fairness:

[I]t is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider. Furthermore, it is unfair to allow a party to choose to remain silent in the trial court in the face of error, taking a chance on a favorable outcome, and subsequently assert error on appeal if the outcome in the trial court is unfavorable.

5 Am.Jur.2d Appellate Review § 690, at 360-61 (1995).

Long ago, this court held that it would not decide a case based on a ground not raised in the district court. Kriv v. Northwestern Sec. Co., 237 Iowa 1189, 1195, 24 N.W.2d 751, 754 (1946). The court said:

Perhaps the court might have entered judgment as prayed in the motion [for summary judgment] because plaintiff failed to file resistance within ten days. (The court allowed no further time for filing such resistance.) However, so far as shown, defendants sought no relief in the trial court because of delay in filing plaintiff’s resistance; the trial court’s ruling was not placed upon such ground and we do not feel justified in deciding the case on a question apparently not raised in the court below.

Id. (citation omitted).

Our cases have been consistent in applying the Kriv rationale and requiring error preservation in such matters as motions to dismiss, motions for directed verdicts, motions for judgments notwithstanding verdicts, and objections to instructions. See, e.g., Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998) (“A judgment notwithstanding the verdict must stand or fall on the grounds stated in the motion for directed verdict.”); Grefe & Sidney v. Watters, 525 N.W.2d 821, 824 (Iowa 1994) (A specific objection to jury instructions, if overruled, cannot avail the objector on appeal except as to the ground specified.); Winneshiek Mut. Ins. Ass’n v. Roach, 257 Iowa 354, 365, 132 N.W.2d 436, 443(1965) (“We have held many times the sustaining of a motion to dismiss will not be approved here upon a ground not asserted in the trial court.”); Bartels v. Cair-Dem, Inc., 255 Iowa 834, 845, 124 N.W.2d 514, 521 (1963) (“We are committed to the rule that a directed verdict will not be upheld upon appeal on a ground not asserted in the trial court.”). Iowa Rule of Civil Procedure 1.924 (formerly rule 196) codifies the error preservation requirement as to jury instructions. See Iowa R. Civ. P. 1.924 (“[n]o other grounds [but those raised to the district court] ... shall be ... considered on appeal”).

We have in a number of cases upheld a district court ruling on a ground other than the one 'upon which the district court relied provided the ground was urged in that court. See, e.g., Interstate Power Co. v. Ins. Co. of N. Am., 603 N.W.2d 751, 756-58 (Iowa 1999) (upholding summary judgment ruling based on lack of timely notice required under insurance policy, a ground urged in the district court but not relied on by that court); Iowa Tel. Ass’n v. City of Hawarden, 589 N.W.2d 245, 252-56 (Iowa 1999) (upholding summary judgment ruling based on statute urged in the district court but not relied on by that court); Regent Ins. Co. v. Estes Co., 564 N.W.2d 846, 848-49 (Iowa 1997) (upholding summary judgment ruling based on interpretation of insurance policy urged in the district court but not relied on by that court); Estate of Ross, 553 N.W.2d 878, 879 (Iowa 1996) (upholding district court ruling dismissing tort action against the state based on failure to exhaust administrative remedies because of plaintiffs lack of capacity to make a claim for wrongful death of her son against the state at the time of filing the claim, a ground urged in the district court but not relied on by that court); Krohn v. Judicial Magistrate Appointing Comm’n, 239 N.W.2d 562, 563 (Iowa 1976) (upholding a district court’s dismissal of an appeal to district court based on a statute urged in the district court but not relied on by that court).

We have likewise applied the' rule in reversing a district court ruling. See Fencl v. City of Harpers Ferry, 620 N.W.2d 808, 811-12, 818-19 (Iowa 2000) (reversing district court ruling quieting title in city and remanding for entry of judgment quieting title in plaintiff based on equitable estoppel, a ground plaintiff urged in the district court but not considered by that court).

In these cases, we have used language to the effect that “we may affirm the ruling on a proper ground urged but not relied upon by the trial court.” Krohn, 239 N.W.2d at 563. Or, “a successful party in the district court may, without appealing, save the judgment in whole or in part based on grounds urged in the district court but not included in that court’s ruling.” Interstate Power Co., 603 N.W.2d at 756. Or, “we may affirm ‘on any basis appearing in the record and urged by the prevailing party.’ ” Hawarden, 589 N.W.2d at 252 (quoting Voss, 553 N.W.2d at 879 n. 1). Or, “[ajlthough we disagree with the theory upon which the district court granted summary judgment, the motion was nonetheless properly sustained based on an alternative ground that had been presented to the district court.” Regent Ins. Co., 564 N.W.2d at 848.

In some of our cases we do not specifically refer to upholding a ruling on a ground urged in the district court but not relied on by that court. Rather, in those cases, we have used language to the effect that we would affirm if there is a proper basis for the ruling entered by the district court. See, e.g., Israel v. Farmers Mut. Ins. Ass’n of Iowa, 339 N.W.2d 143, 146 (Iowa 1983). A close examination of those cases, however, reveals that the basis this court relied on was actually urged in the district court. See id. (upholding district court ruling dismissing plaintiffs action for indemnity based on issue preclusion, a ground urged in the district court but not relied on by that court).

Notwithstanding our error preservation requirement, we have consistently applied an exception to it. That exception applies to evidentiary rulings, whether the error claimed involved rulings admitting evidence or not admitting evidence. See, e.g., Aller v. Rodgers Mach. Mfg. Co., 268 N.W.2d 830, 840 (Iowa 1978) (“Here, defendant’s objection was sustained; therefore, the ruling will be upheld if the evidence could be held inadmissible on any theory, even though not urged in the objections.”); State v. Hinkle, 229 N.W.2d 744, 748 (Iowa 1975) (“We further note our rule there is no reversible error if trial court’s ruling which admitted the evidence in controversy may be sustained on any ground.”). Perhaps, one reason for the exception is the realization that on retrial the error could easily be corrected. So for judicial economy purposes and to advance finality, we ignore the error preservation requirement.

This exception, however, crept into a case involving a substantive issue, creating the inconsistency we previously mentioned. See Bensley v. State, 468 N.W.2d 444, 445 (Iowa 1991). In Bensley, we said we were dealing with a subject matter jurisdiction issue. Id. Subject matter jurisdiction is an issue that can be raised at any time. Bailey v. Batchelder, 576 N.W.2d 334, 337 (Iowa 1998). So it was not necessary for us to say — as we did— that we could “uphold a trial court’s ruling on any ground appearing in the record, whether urged in the trial court or not.” Bensley, 468 N.W.2d at 445.

In Howard — the case upon which the State relies — we cited Bensley in upholding a district court ruling, stating that “[w]e can uphold the trial court’s ruling on any ground apparent in the record, whether urged at trial or ruled on by the trial court.” Howard, 509 N.W.2d at 768. In Howard, the State had actually urged in the district court and on appeal the very ground upon which we relied to affirm the district court’s ruling. See id. So it was not necessary for us to rely on the broad language in Bensley.

We also cited Bensley in Sievers v. Iowa Mutual Insurance Company, for the proposition that the appellate court can uphold a trial court’s ruling on any ground appearing in the record, whether urged in the trial court or not. 581 N.W.2d 633, 636 (Iowa 1998). We did so to uphold a district court’s summary judgment ruling dismissing plaintiffs action. It was unnecessary for us to cite Bensley in Sievers, however, because the ground upon which we affirmed was actually urged in the district court. See id.

Because error preservation is based on fairness, we think both parties should be bound by the rule. Ordinarily, we attempt to protect the district court from being ambushed by parties raising issues on appeal that were not raised in the district court. We see no reason why we should not apply the same rationale to the parties themselves. That is, one party should not ambush another by raising issues on appeal, which that party did not raise in the district court. To that end, we hold that we will not consider a substantive or procedural issue for the first time on appeal, even though such issue might be the only ground available to uphold a district court ruling. We disavow language to the contrary in Bensley and other cases citing Bensley. Our holding, however, does not apply to evidentiary rulings, as we previously discussed. We will continue to honor the exception involving such rulings.

2. Analysis. Iowa Code section 822.8 requires postconviction relief applicants to raise all grounds for relief available to such applicants in their original, supplemental, or amended applications. Iowa Code § 822.8 (1997). This provision provides an exception where “the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.” Id.

In Bugley v. State, we interpreted section 822.8 “to impose a burden upon a postconviction applicant to show sufficient reasons why any ground for relief asserted in a postconviction relief petition was not previously asserted on direct appeal.” 596 N.W.2d 893, 896 (Iowa 1999) (emphasis added). Not only must the applicant show sufficient reasons for not properly raising such issues on appeal, but the applicant must also demonstrate actual prejudice resulting from the alleged error. Osborn v. State, 573 N.W.2d 917, 921 (Iowa 1998).

Unquestionably, the State could have urged in the district court DeVoss’ failure to raise in her direct appeal her ineffective-assistanee-of-counsel claim regarding her trial counsel’s failure to pursue the coaching issue at the original trial. The State’s failure to do so waives DeVoss’ failure to comply with section 822.8, allowing us to proceed to the merits of DeVoss’ postconviction relief claims.

V. Postconviction Relief Claims.

On the pertinent issues here, DeVoss’ counsel explained to the postconviction relief court that the prosecutor engaged in prosecutorial misconduct by coaching Mag-gio, and DeVoss’ trial counsel was ineffective for failing to ask questions about the coaching during his cross-examination of Maggio. Counsel explained that there was a very close relationship between the prosecutor and Maggio, which was very apparent during pretrial depositions and during trial. As far as the depositions were concerned, DeVoss’ counsel pointed out that during those depositions, “there were multiple conferences ... in between the pending question and the answer given.” Counsel insisted that the only way that he could effectively get at the coaching issue was to question Maggio and that is why he wanted to call her as a witness.

To prove her claim of prosecutorial misconduct based on alleged perjured testimony, DeVoss was required to prove that (1) the prosecution either introduced or failed to correct false testimony, (2) the false or perjured testimony was given at trial, (3) the prosecution knew the perjured testimony was given at trial, (4) the testimony was “material,” and (5) the defendant has not waived the claim by failing to raise it at trial if she had reason to know of the falsity of the subject testimony. Jones v. State, 479 N.W.2d 265, 275 (Iowa 1991).

To prove her ineffective assistance of counsel claim, DeVoss had to show that her trial counsel (1) failed in an essential duty and (2) prejudice resulted from that failure. State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). She bore the burden of proving both prongs by a preponderance of the evidence. State v. Morgan, 559 N.W.2d 603, 612 (Iowa 1997); State v. Wissing, 528 N.W.2d 561, 563 (Iowa 1995). As to the first prong, DeVoss had to establish that her trial counsel’s performance was outside the range of normal competency. Wissing, 528 N.W.2d at 564. On this point there is a strong presumption trial counsel’s conduct fell within the wide range of reasonable professional assistance. Id.

As to the second prong, DeVoss had to show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984).

If by “coaching,” DeVoss means the prosecutor went over Maggio’s testimony with her, the claim simply has no merit. Attorneys certainly have the right to prepare their witnesses. It would be foolhardy not to.

However, if by “coaching,” De-Voss means the prosecutor told Maggio to commit perjury, that certainly is prosecu-torial misconduct. Prosecutors have a duty to assure the defendant a fair trial and must abide by the requirements of due process throughout the trial process. A prosecutor’s use of perjured or false testimony prevents a fair trial and violates due process. Jones, 479 N.W.2d at 275.

As the district court noted, by “coaching,” DeVoss was asserting the prosecutor told Maggio to he. DeVoss insisted that the only way she could prove it was to question Maggio.

Although DeVoss did not testify at trial, she did testify at the postconviction relief hearing. Her trial counsel also testified at the hearing. Neither offered any evidence to support the perjury claim. DeVoss’ trial counsel testified that although Maggio was well-prepared, he had “no evidence that [Maggio] was coached.” He testified further:

I didn’t see anything that I felt would allow me to raise [the coaching issue]. I think it’s a real serious issue to raise. It’s a real serious issue period. And if you’re going to make an allegation that someone was coached, you know, before you go to the judge with it you have to be able to really lay things out and show exactly how. I had concerns. Her testimony was-was so pat in some respects, but her testimony was also inconsistent every time she testified.

In the court of appeals decision on direct appeal, the court noted that DeVoss admitted to the police that she and the other defendants had used the money taken from Maggio to purchase crack and went to a motel where it was used. The court also noted that DeVoss was the only person present with Maggio when Maggio discussed hiding her money in her pockets, socks, and bra. Maggio told DeVoss she was going to hide money in her underwear, but changed her mind. Later, the other two defendants returned to the car and told Maggio to take money from her pockets, socks, and bra. After DeVoss whispered to one of the codefendants, he ordered Maggio to take money out of the other side of her bra, as well as her underwear. The court found this evidence “overwhelming to the effect that DeVoss had knowledge of the robbery or encouraged its commission.” State v. DeVoss, No. 96-1466 (Iowa Ct.App. Nov. 25, 1997). We think these findings belie any claim that Maggio lied about the material matters relative to the robbery.

In her postconviction relief testimony, DeVoss did not deny that she and the other defendants had used the money taken from Maggio to purchase “dope” and to pay for a motel room where the dope was used.

There simply was no basis in the record to alert DeVoss’ trial counsel of any possible perjury encouraged by the prosecutor. Given the evidence at trial and DeVoss’ admissions, any claim of perjured testimony about the fact that the robbery occurred and that DeVoss participated in it is frivolous. Trial counsel therefore breached no duty to cross-examine Maggio along these lines. And even if he had done so, we think that Maggio’s testimony would not have changed in any material respects. Given the strong evidence of DeVoss’ participation in the robbery, the outcome of the trial probably would not have been different. We accordingly find no prejudice resulted from counsel’s action in not cross-examining Maggio about whether the prosecutor encouraged her to lie.

Given the conclusions we reach regarding the claims of prosecutorial misconduct and the ineffective assistance of counsel, we find that the district court did not abuse its discretion in refusing to allow DeVoss to call Maggio as a witness.

VI. Disposition.

In sum, we conclude the State waived its error preservation claim. On the merits, we conclude DeVoss failed to establish her claims of prosecutorial misconduct and ineffective assistance of counsel. Additionally, we find the district court did not abuse its discretion in refusing to allow DeVoss to call Maggio as a witness. We therefore affirm the district court ruling on all of these issues.

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


source: Caselaw Access Project

author: NEUMAN, Justice.

license: Public Domain

text:
    Jeanne B. GARLAND, Appellant, v. Monroe D. BRANSTAD, Appellee.
    No. 00-0301.
    Supreme Court of Iowa.
    July 17, 2002.

      Louis R. Hockenberg and Matthew D. Gardner of Sullivan & Ward, P.Q., Des Moines, for appellant.
    Herman P. Folkers of Folkers & Keen, Mason City, Richard P. Schwarm, Lake Mills, and Steven P. Wandro of Wandro, Lyons, Wagner & Baer, P.C., Des Moines, for appellee.
   NEUMAN, Justice.

This is an appeal from the district court’s dismissal of an equitable action to enforce a promissory note and foreclose the real estate mortgage that secures it. We transferred the case to the court of appeals. That court, in a split decision, decided the district court improperly considered evidence . of an alleged oral contract that modified the note’s interest repayment provisions in exchange for commercial property management duties assumed by the promisee. We granted the defendant’s petition for further review and now vacate the court of appeals decision and affirm the judgment of the district court.

I. Background Facts and Proceedings.

Monroe “Monte” Branstad borrowed $100,000 from his maternal aunt, Jeanne Garland, to purchase farmland located in Hancock County, Iowa. The farm had been owned by Garland’s estranged husband, Ron Meyer, in partnership with Branstad. Upon her separation from her husband, Garland — who lived in California — was eager to end all family ties with Meyer and agreed to lend Branstad the cash to buy out her former husband’s interest in the real estate.

Branstad executed a promissory.note in Garland’s favor dated November 1, 1990, for the principal sum plus interest at nine per cent per annum. The note contained the following repayment provisions:

Accrued interest only on or before January 1,1992. All subsequent payments of principal and interest to be made on or before January 1 of each succeeding year, with the remaining principal balance and accumulated interest due in full on or before January 1, 2010. Lender and Borrower shall agree on or before January 1,1992, as to the amount of principal to be repaid annually. However, in no event shall this sum exceed $5,000.00 of principal per year.

Branstad also executed a mortgage pledging the real estate as security for the note.

From March 1993 through June 1997, Branstad made eight principal payments on the note totaling $33,000. On Máy 6, 1998, Garland served a notice of right to cure defaults, demanding the immediate payment of $43,998.56 in interest due. Branstad denied owing the amount claimed and made no further payments. After obtaining a mandatory mediation release upon Branstad’s decision not to participate in farmer/creditor mediation, Garland filed a petition in equity to recover sums due on the note and to foreclose the real estate mortgage. Branstad denied any interest was owing prior to the notice to cure. He asserted, by way of affirmative defense, that he and Garland — “contemporaneous with the execution of the note” — had entered into an agreement whereby Garland waived annual interest payments in return for Branstad’s services in managing her other real estate interests.

The matter proceeded to trial. Over the objection of Garland’s counsel, Branstad testified that, after the note was signed, he had a telephone conversation with Garland in which she offered to waive the annual interest on the note in exchange for his performance of management and maintenance duties on rental properties she owned in Forest City. Branstad’s wife, who was also in on the conversation, confirmed the oral agreement that resulted and testified that thereafter she advertised Garland’s apartments for rent, collected rent from tenants, kept the properties in repair and performed various other tasks on Garland’s behalf.

Branstad tendered documentary evidence supporting his claim that, in lieu of making interest payments on the note, he performed labor and paid expenses in connection with managing the apartments and another commercial building owned by Garland. Those services ended, he admitted, when Garland served the notice to cure default in early May 1998. Garland, meanwhile, denied the existence of any agreements, oral or written, changing the terms of the note and mortgage executed by Branstad. She also denied that she ever authorized Branstad to manage or otherwise take charge of her Forest City properties.

The district court plainly believed Bran-stad’s version of the facts in question. Preliminarily it decided that the parol evidence rule did not preclude Branstad from offering evidence that he and Garland entered into a separate agreement regarding waiver of interest after the promissory note was executed. The court’s decision rested on the premise that the parol evidence rule applies only to prior and contemporaneous matters, not subsequent negotiations that allegedly modify a written contract.

As for the merits of the controversy, the court found the evidence supported Bran-stad’s claim that his payments over the years were treated as principal payments, not interest. The court credited Bran-stad’s testimony that Garland advised him not to report the payments as interest because she did not intend to include them as income on her tax returns. Branstad did not deduct them on his. The court was also convinced by a preponderance of credible evidence that the parties’ agreement on interest was supported by proof that Branstad and his family did in fact manage Garland’s commercial properties, including paying for routine maintenance and repairs. That agreement lasted until the relationship soured, the particulars of which were not made part of the record. Although the precise date of their falling out was not entirely clear, the court concluded Branstad owed Garland interest on the note beginning January 1, 1998. It also ruled that because Garland’s notice to cure demanded interest from November 1, 1990, it was substantially inaccurate and could not serve as the predicate to the foreclosure action. The court therefore dismissed the suit. This appeal by Garland followed.

II. Scope of Review.

Our review of this case, tried in equity, is de novo. Iowa R.App. P. 6.4; Ralfs v. Mowry, 586 N.W.2d 369, 371 (Iowa 1998). We give weight to the findings of the trial court, particularly with regard to the credibility of witnesses, but we are not bound by them. Chapman’s Golf Ctr. v. Chapman, 524 N.W.2d 422, 424 (Iowa 1994). To the extent the parties challenge the court’s rulings on the admissibility of evidence, we review for the correction of errors at law.

III. Issues on Appeal.

The principal question on appeal is whether the district court properly admitted and relied on Branstad’s proof that the note’s interest provisions were modified by a subsequent agreement reached by Garland and him. Resolution of the controversy turns on application of the parol evidence rule. The rule generally “forbids the use of extrinsic evidence to vary, add to, or subtract from a written agreement.” Montgomery Props. Corp. v. Econ. Forms Corp., 305 N.W.2d 470, 476 (Iowa 1981). But the bar applies only to negotiations or agreements that are prior to or contemporaneous with the writing. Restatement (Second) of Contracts § 215, at 136 (1981). The district court found the rule inapplicable here because parol evidence is admissible to prove the existence of an independent oral contract. See Seastrom v. Farm Bureau Mut. Life Ins. Co., 601 N.W.2d 339, 345 (Iowa 1999). It likewise rejected Garland’s argument that the statute of frauds would apply to prevent the admissibility of the evidence.

Garland challenges the district court’s ruling on three grounds: (1) it failed to bind Branstad- by averments made in his answer; (2) it improperly considered evidence that should have been excluded under the parol evidence rule; and (3) it improperly applied the “partial-performance” exception to the statute of frauds. We shall consider the arguments in turn.

A. Branstad’s alleged “admission.” Although the district court found that Branstad and Garland reached their side agreement about interest sometime after the note and mortgage were executed, Branstad’s answer stated the agreement was reached “contemporaneous” with the note’s execution. At trial Branstad insisted “contemporaneous” was his lawyer’s word, not his. He claimed that while he and Garland had earlier discussed the management-in-exchange-for-interest possibility, an agreement on the subject was not reached until the phone conversation following execution of the note. Garland argues that Branstad’s trial testimony is immaterial on the point because he is bound by the characterization of the agreement as “contemporaneous” in his affirmative defense.

Garland’s argument rests on the well-settled rule that a party will be bound by admissions contained in a pleading. Grantham v. Potthoff-Rosene Co., 257 Iowa 224, 229, 131 N.W.2d 256, 258 (1965); accord Long v. McAllister, 319 N.W.2d 256, 258 (Iowa 1982) (defendant admitted entitlement to interest in answer, so question of interest no longer an issue); Carlson v. Vondrak, 555 N.W.2d 238, 241 (Iowa Ct.App.1996) (defendant’s answer admitted partnership status of plaintiff, thereby satisfying proof requirement); Miller v. AMF Harley-Davidson Motor Co., 328 N.W.2d 348, 352 (Iowa Ct.App.1982) (marital status of plaintiff admitted by defendant in answer, so validity of marriage established). But the rule, embodied in Iowa Rule of Civil Procedure 1.405(3), contains an important exception pertinent here. It states:

What admitted. Every fact pleaded and not denied in a subsequent pleading as permitted by these rules shall be deemed admitted except for any of the following:
(b) Averments in a pleading to which no responsive pleading is required or permitted.

Iowa R. Civ. P. 1.405(3)(b).

The “averment” at issue here was urged in Branstad’s answer, not as an admission but as part of an affirmative defense to which no responsive pleading was required or permitted. See Iowa R. Civ. P. 1.401 (allowable pleadings). In that respect the case differs markedly from the cases relied upon by Garland, all of which involved affirmative admissions on dispositive factual issues or averments in pleadings calling for a response. Grant-ham, for example, involved a counterclaim filed by the defendant that demanded damages for cancellation of a contract in response to plaintiffs suit for return of a down payment. We said the defendant’s counterclaim amounted to a “definite admission, not only of receipt of the money, but of its retention by [defendant] as payment on the claimed damages.” Grantham, 257 Iowa at 232-33, 131 N.W.2d at 260. We then held these admissions were binding on the defendant, requiring reversal of the trial court’s subsequent consideration of defendant’s proof that the down payment was actually returned to plaintiffs agent. Id. at 233, 131 N.W.2d at 260.

Under rule 1.405(3), Branstad was not bound by the use of the word “contemporaneous” in his affirmative defense. Thus, unlike the situation in Grantham, the court committed no error in weighing Branstad’s pleading against more persuasive proof urged at trial. Cf. id. at 234, 131 N.W.2d at 260 (because counterclaim never withdrawn, court erred in “weighing the conflicting showings” at trial).

B. Admissibility of parol evidence. Because the court of appeals majority misapplied rule 1.405(3)(b), it held the trial court erred when it permitted Branstad to offer parol evidence concerning his oral agreement with Garland. To the extent Branstad’s evidence was tendered to establish subsequent negotiations and a modification of the written contract, however, it was admissible. See Whalen v. Connelly, 545 N.W.2d 284, 291 (Iowa 1996) (parol evidence rule applies only to prior and contemporaneous matters).

Our de novo review of the facts leads us to concur in the district court’s conclusion that the parties agreed to suspend the note’s interest provisions so long as Branstad managed Garland’s property. Their oral agreement further provided that when their arrangement ceased — as a result of sale of the properties or dissatisfaction with their management — the note’s original terms would be reinstated.

The record reveals that the parties conducted themselves in accordance with their oral agreement for many years. Branstad and his wife expended money and performed labor on Garland’s behalf. Garland did not report Branstad’s payments as interest for income tax purposes. Branstad did not deduct them as such. Until their relationship soured in late 1997 or early 1998, each party acted in keeping with their parol agreement. Thus the evidence was properly admitted. See Gordon v. Witthauer, 258 Iowa 617, 622, 138 N.W.2d 918, 921 (1966) (oral agreement accepted and acted upon by parties may alter or modify written contract).

C. Statute of frauds. In the alternative, Garland appeals the district court’s failure to apply the statute of frauds to preclude evidence of the parties’ oral agreement on. interest. . See Iowa Code § 622.32 (1999). She specifically relies on subsection (4), relating to agreements “that are not to be performed within one year of the making thereof.” Branstad disputes the application of the rule to the facts of this case. He insists his agreement with Garland was terminable at will by either party and, thus, would not necessarily have extended beyond one year.

The statute of frauds, which is no more than a rule of evidence, “governs, not the validity of a contract, but only the manner in which one may be proven.” Johnson v. Ward, 265 N.W.2d 746, 747-48 (Iowa 1978). In deciding whether a particular oral contract is governed by the rule, the question is not whether performance must actually be completed within a year but whether it would be possible to perform the contract within that time frame. Id. at 747. Put another way, “[contracts of uncertain duration are simply excluded; the provision covers only-those contracts whose performance cannot possibly be completed within a year.” Restatement (Second) of Contracts § 130 cmt. a, at 328 (1981).

Here the district court overruled Garland’s statute of frauds objection on the ground Branstad had rendered part performance under the parties’ agreement, an exception to the statute recognized in Gardner v. Gardner, 454 N.W.2d 361, 363 (Iowa 1990). This court recently clarified, however, that the partial-performance exception applies only to contracts for the conveyance of interests in real estate, as in Gardner. Pollmann v. Belle Blaine Livestock Auction, Inc., 567 N.W.2d 405, 407 (Iowa 1997); see Iowa Code § 622.33 (limiting statutory exception to subsection (3) of section 622.32, contracts “for the creation or transfer of an interest in lands”).

We nevertheless believe the court was correct in refusing to enforce the statute of frauds to prevent Branstad’s proof. The oral contract he described was plainly of uncertain duration. It could have extended for many years, as this case demonstrates, or it could have come to an end within a month. By its terms, it was not “impossible of performance” within one year so as to come within the proscription of the statute. Johnson, 265 N.W.2d at 747. Thus we affirm, albeit on different grounds, the district court’s overruling of Garland’s evidentiary objection.

IV. Conclusion.

It is true, as Garland argues and the court of appeals observed, that the district court measured the adequacy of Garland’s notice to cure default by the standard set in the consumer credit code, Iowa Code section 537.5111(1), rather than the pertinent provision of chapter 654 relating to the foreclosure of real estate mortgages. We are nevertheless convinced, as was the district court, that the notice was substantially inaccurate with regard to interest due, all to Branstad’s prejudice. See Iowa Code § 654.2B (requirements for notice to cure). A preponderance of credible evidence establishes that, in keeping with Branstad’s subsequent agreement with Garland, no interest was due under the note and mortgage until January 1, 1998. We therefore affirm the district court’s dismissal of Garland’s action on the note and mortgage, observing — as did the district court — that Garland is not thereby prevented from serving a new notiee to cure consistent with this opinion.

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

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

      . In making this ruling, the court relied on Iowa Code section 537.5111(1) of the consumer credit code, instead of section 654.2B relating to the foreclosure of real estate mortgages. As will be explained further, our affir-mance of the district court's dismissal of the action on the merits makes it unnecessary for us to correct its error on the notice question.

      . The- court also cited its opinion in Carlson v. Vondrak for the proposition that an assertion concerning admissions may furnish grounds for reversal even if raised "for the first time on appeal.” See Carlson, 555 N.W.2d at 241. To the extent that dicta from Carlson might lead to that conclusion, we hereby disavow it. Error preservation was not an issue in Carlson.

      . The statute provides, in pertinent part:
      Except when otherwise specially provided, no evidence of the following enumerated contracts is competent, unless it be in writing and signed by the party charged or by the party’s authorized agent:

      3. Those for the creation or transfer of any interest in lands, except for leases for a term not exceeding one year.
      4. Those that are not to be performed within one year from the making thereof.


author: LAVORATO, Chief Justice. CADY, Justice

text:
    STATE of Iowa, Appellee, v. Anthony WEBB, Appellant.
    No. 00-1487.
    Supreme Court of Iowa.
    July 17, 2002.

      Linda Del Gallo, State Appellate Defender and Patricia Reynolds, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, Polk County Attorney and Daniel C. Voogt, Assistant County Attorney, for appellee.
   LAVORATO, Chief Justice.

The defendant, Anthony Webb, appeals from his conviction and sentence for possession of a controlled substance (marijuana) in violation of Iowa Code section 124.401(l)(d), failure to affix a drug tax stamp in violation of Iowa Code sections 453B.3 and 453B.12, and child endangerment in violation of Iowa Code section 726.6 (1999). He contends, among other things, that the evidence was insufficient to support these convictions. The court of appeals affirmed the judgment of the district court. On further review, we vacate the judgment of the court of appeals and reverse the judgment of the district court as to all three convictions and sentences.

Viewing the evidence in the light most favorable toward the State, we think the jury could have found the following facts.

On February 9, 2000, Urbandale police arrived at an apartment complex in response to an anonymous complaint. They came into contact with Jason Stansbury, who was in a vehicle at the time. The officers searched Stansbury’s vehicle for a handgun and illegal drugs, but found nothing.

The officers then went to the apartment shared by Stansbury, Crisee Moore, and Webb. Moore gave the officers permission to search the living room area for weapons. One officer saw “in plain sight ... several pieces of marijuana stems and seeds.” The officer asked Moore for consent to search the apartment for drugs, but she denied any further search without a search warrant. The officers secured the apartment and obtained a warrant.

Armed with the warrant, the officers searched the rest of the apartment. The officers found a marijuana-smoking bong in the northwest bedroom. They also found on a scale in a kitchen drawer small pieces of plant material, which later tested positive for marijuana.

Under the bathroom sink off the southwest bedroom (where Moore and Webb slept), the officers found a bag containing an unloaded .44-caliber handgun, five rounds for the gun, and cigarette rolling papers. Partial fingerprints lifted from the gun were inconclusive. None of the other items seized were tested for fingerprints. One officer testified that the gun and bullets found in the bathroom would have been accessible to anyone in the apartment including visitors and Moore’s minor son.

A box of plastic sandwich bags were found sitting on the couch in the living room. The officers found a coin purse containing a marijuana pipe in the apartment. In the freezer compartment of the refrigerator, the officers found a plastic container of marijuana and a plastic bag containing a brick of marijuana. The plastic container contained approximately 315 grams (11 ounces) of marijuana. The plastic baggie contained approximately 54.4 grams (2 ounces) of marijuana. No drug tax stamps were affixed to the marijuana.

Moore’s child was present in the apartment with Moore when the officers first entered. One officer put the child’s age at “older than two,” and another put the child’s age at six or seven. The child was not Webb’s son.

Webb arrived at the apartment several hours after the officers’ initial contact with Moore. When Webb arrived, the officers took $336 in cash from him. Webb told the officers he received the money from Moore.

Webb told the officers he was not employed, except for babysitting Moore’s son. Webb, however, was not babysitting the child on that day.

We present additional facts as they relate to the issues we discuss.

I. Issues.

As mentioned, Webb challenges the sufficiency of the evidence to support all three convictions. We consider separately each conviction in light of this challenge.

II. Scope of Review.

We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of errors at law. State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001). We will uphold a verdict if substantial record evidence supports it. Id. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id.

We review the evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record. Id. The court considers all the evidence in the record, not just the evidence that supports the verdict. Id.

The State must prove every fact necessary to constitute the crime with which the defendant is charged. State v. Gibbs, 239 N.W.2d 866, 867 (Iowa 1976). The evidence must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture. State v. Hamilton, 309 N.W.2d 471, 479 (Iowa 1981).

III. The Drug Convictions.

The district court instructed the jury that the charges of intent to deliver and failure to affix a drug tax stamp both include the element that the defendant knowingly possessed marijuana. In his motion for judgment of acquittal, Webb argued, as he does here, that there was insufficient evidence to connect him with the drugs. Additionally, he argued that because he did not have exclusive control of the premises, a conviction of the two charges could not be based on his constructive possession of the drugs. Therefore, Webb preserved error on the sufficiency of the evidence issue relating to the drug charges.

The State contends that it can satisfy the knowledge element of both charges by showing Webb maintained or shared exclusive dominion and control over the place where the drugs were found. To support its position, the State relies heavily on our decision in State v. Simpson, in which we held that an inference of knowledge and control is warranted when the defendant shares exclusive dominion and control over the place where the drugs are found. 528 N.W.2d 627, 632 (Iowa 1995). The State has apparently overlooked our recent decision in State v. McDowell, in which we “signalled] the court’s return to a proper application of the principles of constructive possession as set forth in State v. Reeves, 209 N.W.2d 18 (Iowa 1973)” and “implicitly reject[ed] the erroneous application of those principles made in State v. Simpson ....” McDowell, 622 N.W.2d 305, 309 (Iowa 2001) (Ternus, J., concurring specialty)-

A. Background.

Because the issue here is one of constructive possession, we think it would aid our analysis to discuss several significant cases bearing on that issue.

We begin with Reeves, a case in which this court for the first time decided what constitutes “possession” of a drug within the meaning of our controlled substance statute. 209 N.W.2d at 21. The State, we said, had to prove three elements: “(1) the accused exercised dominion and control (i.e., possession) over the contraband, (2) [the accused] had knowledge of the [contraband’s] presence, and (3) the accused had knowledge that the material was a narcotic.” Id.

Relying on precedent from other jurisdictions, the court concluded in Reeves that the State need not prove actual possession; proof of constructive possession would be enough. Id. at 22. Put another way, the “dominion and control” of the contraband necessary to constitute possession does not mean that the contraband “needs to be found on the [accused’s] person.” Rather, all that is necessary is that the accused “maintains control or a right to control” the contraband. Id. This control of the contraband or the right to control it in the absence of actual possession is constructive possession. Id.

In Reeves, we outlined the circumstances under which inferences may be used and inferences that are not available to prove constructive possession — the control or right to control the contraband:

Proof of opportunity of access to a place where [contraband is] found will not, without more, support a finding of unlawful possession.
[PJossession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.
If the premises on which [the contraband is] found [is] in the exclusive possession of the accused, knowledge of [its] presence on such premises coupled with his ability to maintain control over such [contraband] may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused the inference of knowledge is rebuttable and not conclusive. But where the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the [contraband] on the premises and the ability to maintain control over [the contraband] by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the [contraband] on the premises.

Id. at 22-23 (emphasis added).

In State v. Rudd, 454 N.W.2d 570 (Iowa 1990), we retreated from these principles regarding when inferences could be employed to support a finding of constructive possession, i.e., the control or right to control the contraband. In Rudd, we approved an instruction that defined constructive possession as follows:

Constructive possession occurs when the defendant maintains the control or a right to control the place where the controlled substance is found, and may be inferred when the substance is found in a place which is accessible to the defendant and subjected to her dominion and control, or the joint dominion and control of the defendant and other persons.

Id. at 572 (emphasis added).

In Simpson, we approved a similar instruction, relying on our decision in Rudd. Simpson, 528 N.W.2d at 631. The dissent in Simpson criticized the instruction on two grounds. First, the instruction

erroneously allowed the jury to find the defendant possessed the marijuana upon proof that the defendant jointly controlled the house in which the marijuana was found. At a minimum,' the court should have given the defendant’s requested instruction that constructive possession could not be proved by showing that the drugs were found on premises over which the defendant had joint dominion and control. Without such an instruction the jury could easily conclude that the “place” where the drugs were found was the house, not some more localized site within the house/premises.
If we are true to our holding in Reeves, we must agree with the defendant that the court’s instruction on constructive possession was wrong. That is because in Reeves we held that “where the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof.”

Id. at 637 (Ternus, J., dissenting) (citation omitted).

The dissent’s second criticism centered on the fact that the challenged instruction told the jury that

constructive possession could be inferred by proof that the drug was found “in a place which is accessible to the defendant” and subject to his sole or joint dominion and control. The original statement of this rule in Reeves required proof that the place was “immediately and exclusively accessible” to the defendant. By eliminating the “immediate and exclusive access” requirement, it becomes even more crucial for the jury to understand that mere proof of joint control of the premises is not sufficient to infer knowledge and control of drugs found on the premises.

Id. at 637-38 (citations omitted).

The dissent noted that the Reeves principles

strike a balance between two competing considerations. We want to convict persons guilty of drug offenses even though they are not caught “red-handed” with the drugs on their person. However, we also want to protect innocent bystanders from being convicted for drug offenses merety because they were in the wrong place at the wrong time.

Id. at 636 (citations omitted).

We came full-circle in McDowell, returning to the principles of constructive possession announced in Reeves. McDowell, 622 N.W.2d at 308. The issue was whether there was sufficient evidence to show that the defendant was in immediate possession and control of a firearm found in a purse in a bedroom where on a previous occasion the defendant had made two sales of a controlled substance to a confidential informant. Id. at 306-07. The defendant urged that notwithstanding the proximity of the firearm to his person, the State failed to prove he knew of the weapon’s existence. Id. at 308. The State contended that the jury could infer the defendant’s knowledge from the surrounding facts. Id.

To resolve the issue, we found helpful our pronouncements in Reeves regarding inferences that could and could not be used to establish constructive possession of controlled substances. Id. We first noted that “[p]roof of opportunity of access to a place where narcotics are found will not, without more, support a finding of unlawful possession.” Id. (quoting Reeves, 209 N.W.2d at 22).

We then quoted with approval the following from Reeves:

If the premises on which such substances are found are in the exclusive possession of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over such substances may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused the inference of knowledge is rebuttable and not conclusive. But where the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which, a jury might lawfully infer knowledge by the accused of the presence of the substances on the premises.

Id. (quoting Reeves, 209 N.W.2d at 23 (emphasis added)).

In concluding the evidence was insufficient to establish the requisite knowledge according to this latter principle, we said in McDowell:

The circumstantial evidence on which the State relies to establish defendant’s knowledge of the firearm’s presence all pertains to his frequent presence in Scott’s home and his use of the northwest bedroom to sleep and conduct drug transactions. There is no evidence that the defendant ever accessed the purse belonging to Scott in which the firearm was contained. To the extent that this evidence shows some dominion and control by defendant over various portions of Scott’s residence, that dominion or control was certainly not exclusive. There is no evidence of the type credited in the Reeves case to establish his knowledge of or control over the firearm in Scott’s purse.

Id.

We implicitly recognized in McDowell that the principles of constructive possession set out in Reeves are good law in this jurisdiction. We overrule any holding in Rudd and Simpson to the contrary.

The existence of constructive possession turns on the peculiar facts of each case. State v. Harris, 647 So.2d 337, 339 (La.1994). A number of factors may support a finding that a defendant had knowledge of the presence of drugs and the right to exercise control over them as well as access and control of the place and premises where the drugs are found. Such factors include incriminating statements made by the defendant, incriminating actions of the defendant upon the police’s discovery of drugs among or near the defendant’s personal belongings, the defendant’s fingerprints on the packages containing the drugs, and any other circumstances linking the defendant to the drugs. See Emile F. Short, Annotation, Conviction of Possession of Illicit Drugs Found in Premises of Which Defendant was in Nonexclusive Possession, 56 A.L.R.3d 948, 1974 WL 35135 (1974).

B. Analysis.

With these principles of constructive possession in mind, we turn to the record evidence in this case. The evidence shows that Webb, two other adults, and a child lived on the premises where the controlled substances were found. Webb was therefore not in exclusive possession of such premises. Because Webb was not in exclusive possession of the premises, the jury was not allowed to infer from his joint control of the premises knowledge, if any, of the presence of the controlled substances and the ability to maintain control over them. Rather, the State had the burden to prove such knowledge and ability by other evidence.

The record reveals that the State failed to meet its burden of proof. Webb was not on the premises when the officers initially entered and found the controlled substances. He arrived several hours later. The State presented no evidence about when he was last on the premises before the search. There were no fingerprints linking Webb to the controlled substances, gun, bullets, or drug paraphernalia. None of these items were found in a place that was immediately and exclusively accessible to Webb and subject to his dominion and control. Nor were any of these items found near or among Webb’s personal belongings. There was no evidence as to how long these items were on the premises. The officers found no drugs on Webb’s person. And there was no evidence that he was under the influence of any drugs.

A similar lack of evidence resulted in reversal of drug convictions in several cases where the defendant’s possession of the premises was nonexclusive. See, e.g., Osborne v. State, 278 Ark. 45, 643 S.W.2d 251, 254 (1982) (defendant’s conviction for possession of phentermine and marijuana reversed where (1) such drugs were found in bedroom of residence he shared with his wife, (2) four other persons were present in house when the drugs were found, (3) there was no testimony as to in whose bedroom drugs were found, (4) some drugs were found in suitcase in hall, (5) there was no indication how long marijuana in living room had been there, and (6) defendant was not at home when the drugs were found); Gaynus v. State, 380 So.2d 1174, 1175 (Fla.Dist.Ct.App.1980) (state failed to show defendant’s possession of heroin, cocaine, and paraphernalia where drugs were discovered in bedroom closet and in closed briefcase in kitchen and paraphernalia was found in kitchen cupboards and in pantry of residence jointly occupied by defendant and at least three others; additionally, there was no evidence that (1) defendant had exclusive possession of any portion of the premises where the drugs or paraphernalia were discovered, (2) linked defendant to the briefcase, (3) showed defendant had actual knowledge of contraband, or (4) showed incriminating statements or circumstances from which the jury could have inferred such knowledge); State v. Davis, 228 N.W.2d 67, 69, 73 (Iowa 1975) (instruction that permitted jury to consider inference of defendant’s knowledge of presence of marijuana and dominion and control over it held improper where (1) whiskey bottle containing marijuana cigarette butts was seized from drawer in dining room of multilevel apartment, (2) apartment was occupied by defendant and roommate, and (3) at time of seizure, at least six people were present); State v. Harvey, 463 So.2d 706, 708 (La.Ct.App.1985) (defendant’s conviction for possession with intent to deliver pentazocine reversed where defendant and five others were in living room of her mother’s house — where defendant may have lived — when it was searched and drugs were found on bedroom dresser and in kitchen; held that the evidence may have proved defendant was aware of presence of drugs and of distribution activities, but did not prove she exercised any dominion and control over the drugs); State v. Haynes, 25 Ohio St.2d 264, 267 N.E.2d 787, 788, 791 (1971) (evidence held insufficient to support defendant’s conviction of possession for sale of narcotics found in the living room, dining room, and kitchen of a house that he occupied with three other persons); Commonwealth v. Hicks, 243 Pa.Super. 171, 364 A.2d 505, 507 (1976) (defendant’s conviction for possession of controlled substance reversed where (1) the substance was found in a bedroom, (2) defendant was not at home when the police arrived to conduct the search, (3) at least two other people had access to the house, and (4) there was no evidence as to when the defendant was last in the house before the search and as to which room he inhabited).

When he arrived on the scene, Webb made no incriminating statements. Nor did he exhibit any suspicious behavior in connection with the discovery of the controlled substances, drug paraphernalia, gun, or bullets on the premises. See Gaynus, 380 So.2d at 1175. The only evidence on this point that the State introduced was the $336 in cash the officers found on Webb and his statement that Moore gave him the money. This evidence, we think, is too tenuous and speculative to support an inference of constructive possession;

The State did introduce evidence of Webb’s drug activities nine months earlier. The previous incident involved the seizure of marijuana, drug paraphernalia, and a gun from the same apartment shared then by Webb and Moore. Webb pled guilty to possession with intent to deliver. The State introduced this evidence to show Webb’s knowledge of the location and nature of the narcotics. See Iowa R. Evid. 5.404(b) (formerly rule 404(b)) (evidence of prior bad acts is admissible to prove knowledge). According to the State, “this evidence simply asks the jury to infer, that if the state has proven possession, the intent held by the defendant was to deliver.”

We think this evidence is likewise insufficient to support an inference of constructive possession, that is, knowledge of the presence of the controlled substances on the premises and the ability to maintain control over them. The fact that Webb knew marijuana was in the apartment on a previous occasion and he had the ability to maintain control of it is irrelevant as to whether or not he knew it was present on the date in question and irrelevant on whether he had the ability to maintain control of it on that date. See United States v. Eggleston, 165 F.3d 624, 625-26 (8th Cir.1999) (holding that, in prosecution of driver for possession of crack which he maintained belonged to his passenger, evidence that six years previously defendant had been arrested with thirty-nine individually wrapped packages of cocaine and scale in his car was not relevant to prove knowledge of presence of crack in the trunk of his car). And even assuming Webb knew the marijuana was on the premises, that knowledge alone was not enough to establish constructive possession; the evidence must also support an inference that he had the ability to maintain control of the controlled substances. Reeves, 209 N.W.2d at 22; Harvey, 463 So.2d at 708. Because two other adults shared occupancy of the residence with Webb when the search occurred, proof other than the shared occupancy was necessary to establish such control. As we said, such proof was lacking.

Additionally, we think the prior incident was too remote to support an inference of constructive possession.

When the fact or facts proposed to be established as a foundation from which indirect evidence may be drawn, by way of inference, have not a visible, plain, or necessary connection with the proposition eventually to be proved, such evidence is rejected for “remoteness.”

Black’s Law Dictionary 1295 (6th ed.1990) (emphasis added). Here the proposition eventually to be proved is Webb’s knowledge of the presence of controlled substances on the premises and his ability to maintain control of such substances. The facts forming the foundation for drawing the inference of such knowledge and ability, i.e. the prior drug incident and conviction, do not have a “visible, plain, or necessary connection” with that knowledge and ability.

We think the evidence viewed in the light most favorable to the State fell short of generating a jury question on the issue of constructive possession. The district court should therefore have sustained Webb’s motion for judgment of acquittal as to the two drug charges. It was reversible error not to do so.

IV. The Child Endangerment Conviction.

To prove Webb guilty of child endangerment, the State had to prove (1) Webb was the parent, guardian or person having custody or control of a child on or about the date in question, (2) the child was under fourteen years of age, and (3) Webb knowingly acted in a manner creating a substantial risk to the child’s physical, mental, or emotional health or safety. See Iowa Code § 726.6(1).

Webb contends the State failed to prove element one. In his motion for judgment of acquittal, Webb argued the evidence was insufficient to establish that on the date in question he was the parent, guardian, or person having custody or control of Moore’s child. He pointed to testimony in the record that he was not the biological father of the child. He also noted there was no evidence that he was a guardian of the child or that he had custody of the child. On the element of control, Webb argued that he “was not present at the apartment when the drugs were found. He was not babysitting that day. He had no supervisory responsibilities of that child.” Webb makes the same arguments here.

Although the State does not contend that Webb was the parent, guardian, or person having custody of the child, it does contend that Webb had control over the child because he was the child’s babysitter. And, contrary to Webb’s contention, the State asserts “[t]he fact that [Webb] may not have been present on the date of the arrest is not determinative. The undisputed testimony of the officers established that [Webb] earned money by babysitting Moore’s child.”

Because the statute does not define “control,” we refer to its ordinary and common meaning. IBP, Inc. v. Harker, 633 N.W.2d 322, 325 (Iowa 2001). In State v. Johnson, by way of dictum we defined the term “control” in section 726.6(1) as referring “to the state of having restricting or governing power over someone.” 528 N.W.2d 638, 641 (Iowa 1995) (citing Black’s Law Dictionary 298 (5th ed.1979)).

If Webb were babysitting at the time the drugs were found, we could easily say that there was sufficient evidence to generate a jury question on whether the child was under Webb’s control. This is because at that moment he would have restricting or governing power over the child. However, the evidence shows Webb was not babysitting the child at the time in question.

The evidence does not reveal just what kind of relationship Webb had with the child. All the evidence tells us is that he babysat the child. So whatever control Webb had over the child, he had in the context of his role as a babysitter. Given this limited role, we can hardly say that Webb had “restricting or governing power” over the child at the time in question.

Viewing the evidence in the light most favorable to the State, we conclude there was not sufficient evidence to generate a jury question on whether Webb at the time in question had control over the child. The district court should therefore have sustained Webb’s motion for judgment of acquittal on the child endangerment charge. Its failure to do so constituted reversible error.

V. Disposition.

The evidence was insufficient to support the convictions for the two drug charges and the child endangerment charge. Therefore, we vacate the decision of the court of appeals and reverse the district court’s judgment of conviction and sentence on all three charges.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGEMENT REVERSED.

All justices concur except CADY, J., who dissents.

CADY, Justice

(dissenting).

I respectfully dissent.

I agree with the interpretation of our legal principles on constructive possession as outlined by the majority. Essentially, our law provides that the elements of knowledge and control cannot be inferred from joint possession of the premise. Reeves, 209 N.W.2d at 23. I have no disagreement with this law. Instead, my disagreement is with its application to the jury verdict in this case.

If the State had based its prosecution of the offense of possession of marijuana solely on an inference that Webb possessed the drugs because he resided in the apartment with two other adults, I would have no dispute with the conclusion drawn by the majority. No person should be guilty by association. However, this case is not based on such an inference. Instead, there was other evidence from which the jury could have reasonably concluded Webb had knowledge and control of •the drugs. This other evidence included the amount and extent of the drugs and drug paraphernalia around the apartment, and the fact that Webb was unemployed but possessed a large amount of cash. The cash primarily consisted of $20 bills, and testimony revealed this was indicative of proceeds of illegal drug sales. Additionally, there was evidence Webb was found guilty of possession of marijuana with intent to deliver from the same apartment only nine months earlier. We specifically recognize this is the type of evidence that can be used to show a person’s knowledge of the presence of drugs and the intent to sell drugs. Iowa R. Evid. 5.404(6). Similarly, this evidence should logically be considered to show possession and control. Rule 5.404(6) permits evidence of other crimes to be admitted “for other purposes,” not just those specific purposes listed in the rule. Id. (Evidence may “be admissible for other purposes, such as ....” (Emphasis added.)). Although none of this evidence alone may support a finding of possession in this case, taken as a whole, it is enough to support the jury’s finding.

A verdict of possession of marijuana does not offend our law against an inference of possession based on joint occupancy as long as there is other evidence to support a finding of possession. See Reeves, 209 N.W.2d at 23. Although the evidence of possession was not overwhelming in this case, I would conclude there was sufficient evidence under our standard of review of jury verdicts to support the finding of guilt.


author: CARTER, Justice.

text:
    TAMA COUNTY, Iowa, Appellee, v. GRUNDY COUNTY, Iowa, Appellant.
    No. 00-2108.
    Supreme Court of Iowa.
    July 17, 2002.

      Bradley J. Harris, Assistant County Attorney, for appellant.
    Carlton G. Salmons of Gaudineer & Comito, L.L.P., West Des Moines, for ap-pellee.
    Diane Kutzko and Carroll Reasoner of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for amicus curiae Iowa Hospital Association.
   CARTER, Justice.

Grundy County appeals from a judgment requiring it to reimburse Tama County for the medical care, services, and treatment of S.P., an individual involuntarily hospitalized in Tama County, but whose county of legal settlement was Grundy County. The hospitalization at issue in the present case was in a private hospital in Cedar Rapids. Grundy County contends that the county of a patient’s legal settlement is only required to reimburse another county which has paid for the patient’s hospitalization expenses if the care is provided in a state hospital. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

The facts in this matter are undisputed. S.P., an adult whose county of legal settlement was Grundy County, was found in Tama County on November 23, 1999. Because of her demeanor, involuntary hospitalization proceedings were commenced. She was adjudicated as mentally ill and in need of immediate hospitalization for her health, safety, and welfare. S.P. was involuntarily hospitalized in Mercy Medical Center in Cedar Rapids, Iowa, and treated there by private physicians. Both the hospital and the physicians had been designated by Tama County as care providers under a county single-entry-point-process plan for organizing, financing, and delivering mental health services pursuant to Iowa Code section 331.439 (Supp.1999). S.P. was discharged from Mercy Medical Center on December 23, 1999. Tama County paid $2959.57 for the hospital and medical services required under the order of involuntary hospitalization.

Tama County subsequently made a demand upon Grundy County for reimbursement of the amounts paid on S.P.’s behalf. When Grundy County failed to make the reimbursement, Tama County filed a petition for declaratory judgment. The district court concluded that Grundy County was obligated to reimburse Tama County for the costs of S.P.’s involuntary hospitalization.

In seeking to overturn the district court’s order, Grundy County urges that the issue has been settled in its favor by Credit Bureau Enterprises, Inc. v. Pelo, 608 N.W.2d 20 (Iowa 2000). The issue in the Credit Bureau Enterprises case concerned the contractual liability of a patient who had been involuntarily hospitalized in a private hospital. The patient contended that the county of legal settlement was liable for the costs of the hospitalization. We noted that at the time of the patient’s hospitalization, which took place in 1995, Iowa Code section 230.1 only made the county of legal settlement liable for involuntary hospitalizations in a state hospital unless the county had contracted with a private hospital under Iowa Code section 227.14. Because the county in the Credit Bureau Enterprises case had not contracted for such services, we held that it had no responsibility to pay for the costs in a private hospital.

At the time Credit Bureau Enterprises was decided, Iowa Code section 230.1 only rendered a county of legal settlement ha-ble to pay the costs of involuntary hospitalization in a state hospital. We are convinced that this changed, however, when in 1996 the legislature added what is now subsection 3 to section 230.1. As amended, that statute now reads:

1.The necessary and legal costs and expenses attending the taking into custody, care, investigation, admission, commitment, and support of a person with mental illness admitted or committed to a state hospital shall be paid by a county or by the state as follows:
а. By the county in which such person has a legal settlement, if the person is eighteen years of age or older.
б. By the state when such person has no legal settlement in this state, when the person’s legal settlement is unknown, or if the person is under eighteen years of age.
2. The legal settlement of any person found mentally ill who is a patient of any state institution shall be that existing at the time of admission thereto.
3. A county of legal settlement is not liable for costs and expenses associated with a person with mental illness unless the costs and expenses are for services and other support authorized for the person through the single entry point process. For the purposes of this chapter, “single entry point process” means the same as defined in section 331.440.

Iowa Code § 230.1 (Supp.1999) (emphasis added).

In creating the single-entry-point process, the legislature provided persons in need of services with one location for completing the -necessary paperwork, arranging clinical assessments for determination of appropriate services, and granting eligibility determinations. See 1994 Iowa Acts ch. 1163, § 4 (codified at Iowa Code § 331.440 (1995)). Shortly thereafter, Iowa Code sections 229.11 and 229.13 were also amended to require the courts to make involuntary hospital commitments under the single-entry-point process. 1996 Iowa Acts ch. 1183, §§ 20, 21. In the case of court-ordered hospitalizations, we conclude that this language has reference to the single-entry process of the county in which the emergency or involuntary commitment is ordered.

Iowa Code section 381.440(3) provides:

An application for services may be made through the single entry point process of a person’s county of residence. However, if a person who is subject to a single entry point process has legal settlement in another county or the costs of services or other support provided to the person are the financial responsibility of the state, an authorization through the single entry point process shall be coordinated with the person’s county of legal settlement or with the state, as applicable.

It appears that this statute is aimed at the situation in which an application for mental health services is being processed outside of a court-ordered hospitalization. A recent attorney general’s opinion suggests that that is the' case. That opinion states:

In specifying the use of a single entry point process, the legislature did not specify whether to use the particular process of the person’s county of legal settlement, county of residence, or county where the person is found.... Based on the complex nature of legal settlement determinations, requiring a court to determine, prior to hearing, the person’s county of legal settlement, would place an undue burden upon the commitment process. A court should not be burdened with determining legal settlement prior to a commitment in order for liability to follow.

1997 Op. Iowa Att’y Gen. 2-1. We agree with the attorney general’s opinion.

In interpreting statutes, we consider the objects sought to be accomplished and the evils and mischief sought to be remedied, seeking^ a result that will advance rather than defeat the statute’s purpose. Danker v. Wilimek, 577 N.W.2d 634, 636 (Iowa 1998); Harris v. Olson, 558 N.W.2d 408, 410 (Iowa 1997). It is presumed that the legislature inserted every part of a statute for a purpose. In re Estate of Thomann, 649 N.W.2d 1 (Iowa 2002); Miller v. Westfield Ins. Co., 606 N.W.2d 301, 305 (Iowa 2000). Consequently, we avoid interpreting a statute so as to render a portion of it redundant or irrelevant. T & K Roofing Co. v. Iowa Dep’t of Educ., 593 N.W.2d 159, 162-63 (Iowa 1999).

In applying the foregoing principles to the interpretation of section 230.1, we conclude that the language “a county of legal settlement is not hable for costs and expenses associated with a person with mental illness unless the costs of expenses are for services and other support authorized for the person through the single-entry process,” must be read as also supporting the converse of what it declares, ie., that a county of legal settlement is liable for such costs if they are authorized through the single-entry-point process. S.P.’s hospitalization and medical expenses were authorized through the single-entry-point process. Tama County, having paid for expenses for which Grundy County is primarily responsible under the law, is entitled to reimbursement.

We have considered all issues presented and conclude that the decision of the district court was correct.

AFFIRMED.