author: NEUMAN, Justice.

text:
    STATE of Iowa, Appellee, v. Keith Floyd BLOOMER, Jr., Appellant.
    No. 99-1263.
    Supreme Court of Iowa.
    Oct. 11, 2000.
    Rehearing Denied Nov. 10, 2000.

      Roger A. Huddle, Wapello, for appellant.
    Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, Barbara A. Edmondson, County Attorney, and Eric R. Goers, Assistant County Attorney, for appellee.
   NEUMAN, Justice.

This appeal by defendant, Keith Bloomer, Jr., follows his conviction for operating while intoxicated (OWI), second offense, in violation of Iowa Code section 321J.2 (1997) Bloomer challenges the court’s failure to grant his motion to suppress, selected evidentiary rulings, and its ruling on his claim that a former conviction for aiding and abetting OWI could not be used to enhance the current charge. Finding no merit in any of these contentions, we affirm.

Bloomer was traveling westbound on highway 92 in Washington County, Iowa, when he crossed the center line, forcing Iowa State Trooper Allen Konecne — who was proceeding eastbound — to swerve out of the way to miss him. The trooper turned around and followed Bloomer for several miles. His in-car video camera captured Bloomer’s driving. After observing the vehicle repeatedly weave from one side of the highway to the other, the trooper pulled Bloomer over. Bloomer’s speech was slurred and he smelled of alcohol. The trooper administered three field sobriety tests. Bloomer failed all of them. The trooper then arrested Bloomer and transported him to the county jail.

At the jail, the trooper read the implied consent advisory to Bloomer and requested a breath sample. Bloomer reportedly wanted a urine test instead of a breath test. Although Bloomer now claims he never refused any test, the trooper testified the two of them discussed the matter for approximately forty-five minutes. He advised Bloomer that his refusal to sign the form would be deemed a refusal of the requested breath test. When Bloomer continued to insist on a urine test, Trooper Konecne marked the “refused” box on the implied consent form.

The State charged Bloomer with OWI, second offense, based on Bloomer’s prior conviction in 1993 for aiding and abetting OWI. Bloomer moved to suppress the State’s proof that he refused to submit to a breath test, and sought a ruling in advance of trial concerning his claim that aiding and abetting an OWI is insufficient, as a matter of law, to enhance an OWI conviction from first offense to second offense. The court overruled Bloomer’s motion to suppress and rejected his aiding and abetting argument. The case proceeded to trial.

At trial the State introduced the videotape of Bloomer’s driving and arrest. The State also provided a transcript of the videotape, to assist the jury in understanding the audio portion, but did not introduce the transcript into evidence. The court overruled Bloomer’s later request to replay the tape during his cross-examination of Trooper Konecne, and similarly rejected defense counsel’s proposed use of the transcript to impeach or cross-examine the officer.

The jury found Bloomer guilty of OWI. Thereafter it reconvened to consider evidence on the enhancement to second offense. From the court’s entry of judgment and conviction on the jury’s guilty verdict on the enhanced charge, Bloomer now appeals.

I. Test Refusal.

Bloomer contends the court misinterpreted the implied-consent provisions of Iowa Code sections 321J.6(2) and 321J.11 when it overruled his motion to suppress the State’s proof that he refused a breath test. When a determination of admissibility of evidence turns on statutory interpretation, our review is for the correction of errors at law. State v. Adams, 554 N.W.2d 686, 689 (Iowa 1996).

Under Iowa law, a person who operates a motor vehicle under circumstances giving rise to a reasonable belief that the person is intoxicated is deemed to have given consent to withdrawal of a specimen of blood, urine or breath to determine alcohol concentration. Iowa Code § 321J.6(1). The “implied consent” procedures provide that a “peace officer shall determine which of the three substances, breath, blood or urine, shall be tested. Refusal to submit to a chemical test of urine or breath is deemed a refusal to submit....” Id. § 321J.6(2). Proof of a defendant’s test refusal may be submitted in evidence at trial. Iowa Code § 321J.16.

Bloomer claims his test refusal under the implied consent procedures was “invoked by [the trooper] without merit.” He rests this argument on section 321J.11. The statute states, in pertinent part:

The person may have an independent chemical test or tests administered at the person’s own expense in addition to any administered at the direction of a peace officer. The failure or inability of the person to obtain an independent chemical test or tests does not preclude the admission of evidence of the results of the test or tests administered at the direction of the peace officer.

Id. § 321J.11 (emphasis added).

Our court of appeals explained the scope of this statutory entitlement in State v. Mahoney, 515 N.W.2d 47 (Iowa App.1994). In Mahoney, the court found that a person arrested for OWI must submit to the officer’s requested test before being entitled to take an independent breath, blood or urine test. Mahoney, 515 N.W.2d at 50; accord State v. Wootten, 577 N.W.2d 654, 655 (Iowa 1998). The court’s holding rested on evident legislative intent: use of the words “in addition to” in section 321J.11 makes clear that a defendant “must submit to a state-administered chemical test before being allowed to demand an independent test.” Mahoney, 515 N.W.2d at 50.

Because section 321J.ll’s entitlement to an independent test is only applicable when a defendant has submitted to a requested test, a reviewing court must determine from the facts whether a defendant has attempted to assert his right to independent testing without actually refusing the test requested by an officer. In Ginsberg v. Ioiva Department of Transportation, 508 N.W.2d 663 (Iowa 1993), this court considered an alleged test refusal in this context. We observed that factors bearing on the decision included the defendant’s and the officer’s words and conduct as well as the surrounding circumstances. Ginsberg, 508 N.W.2d at 664. In Ginsberg, as here, officers asked the defendant to submit to a breath test following his arrest for operating while intoxicated. Id. Ginsberg, having said he wanted a blood or urine test, was then asked if that meant he was refusing to take the breath test. Ginsberg reportedly stated “that he was not refusing to take the breath test but that he wanted his blood or urine tested as well.” Id. (emphasis added). The officers treated this as a refusal and this court reversed, concluding that the record revealed Ginsberg’s attempt to assert his right to independent testing rather than a refusal of the requested test. Id. We nevertheless reiterated the rule that “anything less than unqualified, unequivocal consent is a refusal.” Id. (quoting Ferguson v. Iowa Dep’t of Transp., 424 N.W.2d 464, 466 (Iowa 1988)).

The record before us, though similar to Ginsberg, contains important differences. The trooper first testified that Bloomer insisted on a urine test instead of a breath test. But he conceded on cross-examination that Bloomer stated he did not refuse the officer’s test. Bloomer, testifying on his own behalf, essentially agreed with this characterization of their conversation. Importantly, however, the record reveals that Bloomer’s actions spoke louder than his words. After forty-five minutes of discussion, Bloomer had neither signed the form nor given a breath test. The officer treated the impasse as a test refusal.

On appeal, Bloomer seeks to justify his inaction on the ground that the trooper never told him he could take an independent test in addition to the requested breath test. The officer, however, was not required to convey that information. Wootten, 577 N.W.2d at 655. Bloomer exercised his statutory right to consult with counsel. See Iowa Code § 804.20. Although Bloomer now complains about Trooper Konecne’s emphasis on his right to choose the test, the record reveals no denial by the trooper of any request by Bloomer to take an independent test. Cf. Casper v. Iowa Dep’t of Transp., 506 N.W.2d 799, 802 (Iowa App.1993) (dicta suggesting that proof of denial would require suppression of police-administered chemical test).

Under this record, we find no error by the court in refusing to suppress proof of Bloomer’s test refusal. Bloomer neither consented to the test chosen by the peace officer, nor did he invoke his statutory right to an independent test. Thus the court committed no error in admitting evidence of his refusal to submit to the requested breath test.

II. Evidentiary Rulings.

Bloomer next challenges two evi-dentiary rulings related to defense counsel’s unsuccessful attempt to use the videotape on his cross-examination of Trooper Konecne, and the court’s refusal to let him impeach or question the officer using the transcript of that tape. To the extent Bloomer claims these rulings violated his constitutional right to confront witnesses, we review his claim de novo. State v. Veal, 564 N.W.2d 797, 807 (Iowa 1997). The trial court enjoys broad discretion with respect to the scope of cross-examination and the admissibility of evidence. To succeed on a claim of reversible error, the defendant must show that (1) the trial court abused its discretion, and (2) prejudice resulted. State v. Chambers, 370 N.W.2d 600, 602 (Iowa App.1985).

A. Replaying the videotape. During cross-examination of Trooper Ko-necne, Bloomer’s counsel sought to replay portions of the videotape. He purportedly wanted to show the time when the officer first turned on the tape, and the time of the stop, to establish that the tape did not record the entire distance that the officer followed Bloomer. The State objected on the ground replaying the tape would be repetitious and immaterial to any essential element of the State’s proof. The court sustained the objection. Upon further inquiry by defense counsel, the court clarified that counsel could question the witness about the tape and the jury would have it during deliberations. • But the court reaffirmed its belief that the proposed line of inquiry was irrelevant and unduly repetitious. In the court’s words, “[I]t’s not going to be re-shown to the jury during the course of the trial. They saw it once and that’s enough.”

On appeal Bloomer challenges the court’s reasoning and fairness. He points to the fact that the state was permitted to replay a portion of the videotape during its direct examination of a witness. (Defense counsel made no objection.) And on the question of relevance and materiality, Bloomer notes the trooper conceded that the time on the videotape was wrong, not everything he observed was clearly shown on the video, and the video was turned on and off at his discretion. These were matters, however, which defense counsel explored thoroughly and vigorously on cross-examination. We are not persuaded by Bloomer’s argument, or a review of the record, that the effectiveness of counsel’s cross-examination was undermined in any way by his inability to replay the videotape for the jury. So although we are not entirely satisfied by the rationale given by the court for its ruling, we cannot say the defendant was prejudiced by it. No ground for reversal appears.

B. Use of the transcript. Somewhat inexplicably, the court also refused defense counsel’s attempt to cross-examine the trooper with the transcript of the videotape prepared by the State for the jury’s use in understanding the audio portion of the tape. Testimony by the trooper established that he used the document to refresh his recollection of the arrest. Under these circumstances, Iowa Rule of Evidence 612 comes into play. The rule states, in pertinent part:

[I]f a witness uses a writing to refresh his memory for the purpose of testifying ... [and] the court in its discretion finds a necessity in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

Iowa R. Evict 612.

The record reveals that the State objected to defense counsel’s use of the transcript on the following ground: “It sounds like he’s going to be impeaching with the transcript, and I believe the transcript has already been used for the jury and its use has been completed.” Undeterred, defense counsel proceeded to question the trooper whereupon the prosecutor renewed his objection, which was again sustained by the court. When asked about its ruling, the court replied that the transcript had not been “given” to the jury. So Bloomer’s counsel offered it into evidence. The State objected, the court sustained the objection and, when pressed for a reason, stated “I’m not aware of any legal basis for the transcript to go to the jury.” Counsel was permitted to make an offer of proof at the close of the day’s evidence but, again, his attempt to use the transcript to cross-examine the trooper was rejected by the court.

The court reconsidered and reversed its ruling before the start of the second day of trial. The record reveals, however, that neither Bloomer’s counsel nor the State thereafter tendered the transcript into evidence. Given this state of the record, Bloomer is in a poor position to claim reversible error. He has shown no prejudice but for a claim that his counsel’s trial strategy was thwarted. Although this is no small matter, we are convinced from a review of the offer of proof that the trooper’s testimony did not differ materially from his direct and cross-examination. The record — enhanced by the videotape— contains overwhelming proof of Bloomer’s intoxication at the wheel and during his interaction with the trooper. No ground for reversal appears.

III. Aiding and Abetting.

Bloomer’s final assignment of error relates to the enhancement phase of the trial. He claims that his 1993 conviction for aiding and abetting OWI cannot furnish the basis for enhancing the current charge from first-offense to second-offense under Iowa Code section 321J.2(2)(b). His argument is two-pronged. First he argues that his prior conviction cannot be used, as a matter of law, because his written plea of guilty specifically stated that he was not driving. Second he contends the court erred when it denied defense counsel the right to introduce Bloomer’s certified driving record into evidence. The document does not show the 1993 conviction and so, Bloomer argues, the prior offense cannot be used to enhance the current charge. We review these contentions for the correction of errors at law. State v. Chesmore, 474 N.W.2d 551, 552 (Iowa 1991).

Iowa Code section 703.1, the general aiding and abetting statute, provides that “[a]ll persons concerned in the commission of a public offense, whether they directly commit the act constituting the offense or aid and abet its commission, shall be charged, tried and punished as principals.” Challenges to the doctrine are most often found in cases involving robbery, kidnapping, and murder where an accomplice seeks to escape enhanced punishment on the theory it was the principal who wielded the offending weapon or struck the fatal blow. E.g., State v. Baker, 560 N.W.2d 10, 15 (Iowa 1997) (robbery); Fryer v. State, 325 N.W.2d 400, 406 (Iowa 1982) (murder); State v. Hayes, 532 N.W.2d 472, 478 (Iowa App.1995) (kidnapping). But the doctrine has been recognized, though not as recently, in prosecutions for driving while intoxicated. In a 1929 case in which a defendant and his accomplice’s “common mission in driving the car” was “to procure and drink liquor,” we reversed the accomplice’s conviction (because the trial court gave no corroboration instruction) but affirmed the aiding and abetting principle in the drunk driving context:

Even though only one person can be engaged in the physical operation of a motor vehicle at one time and even though another may be incompetent in person to commit the crime, it is plain that such other, though not engaged in such physical act, may have caused or aided in the operation by a drunken person and hence liable to indictment therefore.

State v. Myers, 207 Iowa 555, 556, 223 N.W. 166, 166 (1929). We later affirmed the Myers principle in another drunk driving case, State v. Storms, but there, too, were required to reverse the conviction based on instructional error. 233 Iowa 655, 656-57, 10 N.W.2d 53, 54 (1943).

With these cases in mind we consider Bloomer’s argument. The fact that he acknowledged in his earlier guilty plea proceeding that “he was not driving” bears only on his status as an accomplice, rather than a principal, to the crime of OWI. He cannot deny the legal fact that “[a] person found guilty as an aider and abettor is guilty as a principal.” Fryer, 325 N.W.2d at 406. Bloomer’s assertion to the contrary is without merit.

Bloomer’s second assertion on this point is likewise unavailing. His argument rests on Iowa Code section 321J.2(4)(a) (Supp.1997), which provides that “[a]ny conviction or revocation deleted from motor vehicle operating records pursuant to section 321.12 shall not be considered as a previous offense.” Bloomer reasons that because his 1993 conviction does not appear on his certified driving record, it cannot be used as the basis for enhancement. He then contends the trial court abused its discretion in refusing to submit this allegedly relevant document into evidence.

Bloomer’s argument overlooks the import of section 321.12. That statute directs the department of transportation not to delete records of convictions until twelve years after the conviction. See Iowa Code § 321.12. The fact that the department seemingly erred in its record keeping duties is essentially irrelevant to the State’s case. The State tendered proof of the defendant’s adjudication of aiding and abetting OWI in the form of a judgment entry and Bloomer’s written guilty plea to the offense. The department’s record is not dispositive of his status as a second offender. The court was within its discretion in excluding the document on relevancy grounds. Accordingly we affirm the court’s judgment and sentence for second-offense OWI.

AFFIRMED.

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

      . All statutory references in this opinion are to the 1997 Code unless otherwise indicated.

      . In post-trial rulings the judge appeared to change her reason for not allowing defense counsel to replay the videotape, asserting for the first time a "logistical” impediment. The judge explained that the small size and configuration of the courtroom prevented her from viewing the tape along with the jury and simultaneously ruling on objections. She suggested she would have considered proposals from counsel to remedy the situation "but none were proffered at the time.” With some justification, counsel on appeal points out the difficulty of satisfying the court — and perhaps making necessary accommodations — if the true (or additional) reasons for a ruling are not expressed until after the time has passed to address them.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Aurelio Javier ORTIZ, Jr., Appellant.
    No. 99-0882.
    Supreme Court of Iowa.
    Oct. 11, 2000.
    As Amended on Denial of Rehearing Nov. 7, 2000.

      Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Richard J. Meyer, Special Prosecutor for Emmet County, for appellee.
   LARSON, Justice.

Aurelio Ortiz was convicted of one count of delivery or possession with intent to deliver methamphetamine, Iowa Code § 124.401(l)(c)(6) (1997) (Count I), one count of distributing methamphetamine to a person under age eighteen within 1000 feet of a public park, Iowa Code § 124.406(l)(a) (Count II), one count of delivery or possession with intent to deliver cocaine while in possession of a firearm, Iowa Code §§ 124.401(l)(c)(2)(b), .401(1)® (Count III), and one count of distributing cocaine to a person under age eighteen within 1000 feet of a public park, Iowa Code § 124.406(l)(a) (Count IV). On appeal he challenges the court’s (1) failure to suppress evidence, (2) enhancement of his sentence on the basis of the 1000-feet statute, and (3) delay of mittimus pending release under a federal charge. We affirm on the first issue and vacate the sentences based on the second and third issues.

I. Facts and Prior Proceedings.

On May 22, 1997, Aurelio Ortiz was introduced to Abigail Moranville, age seventeen, at Ortiz’s apartment. Over the course of the next few days, Moranville returned to Ortiz’s apartment three or four times to use drugs provided to her by Ortiz and to “hang out.” Moranville agreed to let the defendant use her apartment to use and sell drugs because the police had been watching his apartment. From Saturday, May 24, through Monday, May 26, the defendant, with two of his sisters, his brother-in-law, and many others, participated in a three-day drug binge at Moranville’s residence. People were buying and using drugs, at least some of which were sold to them by the defendant.

On May 26, at approximately 7:05 p.m., an anonymous caller to the Estherville Police Department said a party was going on at Moranville’s residence. Police officers drove by Moranville’s residence (variously referred to in the record as an apartment and a house) to investigate the report. They noticed several apparently underage persons in the entryway. They checked the license plates of two vehicles and confirmed one owner was under the legal drinking age.

The officers applied for and obtained a search warrant for Moranville’s residence to look for alcohol and underage drinkers. The application for the search warrant cited the anonymous phone call, the officers’ personal observations of that evening, and the fact that “Officers of the Dept, have observed Abby and her friends on other occasions frequenting bars in Estherville and having after-bar parties at her residence with great frequency.” On the basis of this information, the Emmet County magistrate issued a search warrant for the person and residence of Abigail Moranville for alcohol and beer. Officers promptly executed the search warrant.

On the officers’ entrance to Moranville’s residence, they discovered approximately ten individuals, including the defendant and Moranville. The defendant, seated in a stuffed chair, attempted to conceal something that appeared to be a plastic bag between the cushion and the side of the chair. An officer told the defendant to stand up, and he did. That officer observed three packages lying on the chair— two plastic bags, commonly known as “eightballs,” and a piece of magazine paper folded to contain drugs, known as a “snow seal.” All of these containers were later found to contain cocaine. The defendant had a pouch around his neck with $1400 in it. Three long guns were found behind the front door. An officer also found a vial of methamphetamine upstairs, protruding from a purse. The officers also found a scale of a type used in drug transactions. The discovery of the controlled substances led to the arrest of the defendant and further search warrants. The defendant admitted the scale, money, and drugs were his. The money, he said, was needed to pay his supplier.

The defendant filed a motion to suppress all of the evidence on the basis the warrant was not supported by probable cause. The district court denied the motion on the ground Ortiz had failed to show he had a legitimate expectation of privacy while he was at the Moranville residence.

Following a trial, a jury found Ortiz guilty on all four counts charged in the trial information. However, as to one of the delivery charges, it found Ortiz was not in possession of a firearm and therefore convicted him only of delivery or possession with intent to deliver methamphetamine. The court sentenced Ortiz accordingly. The court ordered that mit-timus issue “when defendant has served any prison term for pending federal charges and is released by federal authorities.” Ortiz appealed.

II. Standard of Review.

We review claimed violations of constitutional rights under the Fourth Amendment de novo in light of the totality of the circumstances. State v. Moriarty, 566 N.W.2d 866, 867 (Iowa 1997).

III. The Search Issue.

While Ortiz challenged the search on the basis the warrant was not supported by probable cause, the district court did not reach this issue because it found Ortiz did not have an expectation of privacy in Moranville’s home and therefore could not challenge the warrant. The court observed that, if it were to reach the issue, “the existence of probable cause to support issuance of [the first search warrant for alcohol] is in grave doubt.”

Officers must ordinarily obtain a search warrant prior to searching or entering an area where a person has a reasonable expectation of privacy. State v. Breuer, 577 N.W.2d 41, 45 (Iowa 1998). A person challenging the legality of a search must first show a legitimate expectation of privacy in the area searched. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633, 641 (1980); State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995).

We have said “[t]he determination of whether a person has a legitimate expectation of privacy with respect to a certain area is made on a case-by-case basis, considering the unique facts of each particular situation.” Breuer, 571 N.W.2d at 46. Additionally, the expectation of privacy must be one that society considers reasonable, an issue that involves reference to property law or to understandings that are recognized and permitted by society. Id. The party challenging a search must establish that his or her own Fourth Amendment rights have been violated, not the rights of someone else such as, in this case, the householder. See Rakas v. Illinois, 439 U.S. 128, 131 & n. 1, 99 S.Ct. 421, 424 & n. 1, 58 L.Ed.2d 387, 393 & n. 1 (1978).

The Supreme Court has said a defendant challenging a search must show (1) a subjective expectation of privacy and (2) this expectation of privacy was reasonable in light of “long-standing social custom[s] that serve[ ] functions recognized as valuable by society.” Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 1689, 109 L.Ed.2d 85, 94 (1990); see also 5 Wayne R. LaFave, Search & Seizure § 11.8, at 118— 19 (3d ed.1996).

In December 1998 the United States Supreme Court decided Minnesota v. Carter, which compared the respective rights of overnight guests and similar persons who have a reasonable expectation of privacy with persons merely on the premises, albeit with permission, who do not have a reasonable expectation of privacy. 525 U.S. 83, 91,119 S.Ct. 469, 474,142 L.Ed.2d 373, 381 (1998). Carter was decided after the district court’s ruling on the motion to suppress in this case. The district court concluded “a guest at a party does not have a reasonable expectation of privacy in items found in the house at which the party occurs,” citing United States v. Maddox, 944 F.2d 1223, 1234 (6th Cir.1991). However, that broad conclusion must be tempered in light of Carter. In Carter, Justice Kennedy provided the fifth vote necessary for a majority, writing in a special concurrence that, “as a general rule, social guests will have an expectation of privacy in their host’s home.” Carter, 525 U.S. at 102, 119 S.Ct. at 479, 142 L.Ed.2d at 387 (Kennedy, J., concurring) (emphasis added). Justice Kennedy noted the defendants in Carter were not social guests but had used the apartment merely as a processing station to prepare drugs for sale. Relying on the specific facts presented in Carter, Justice Kennedy concluded the defendants were an exception to the rule that social guests will have an expectation of privacy. He wrote:

I join the Court’s opinion, for its reasoning is consistent with my view that almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host’s home.

Id. at 99, 119 S.Ct. at 478, 142 L.Ed.2d at 386. In deciding the present case, we must be mindful of this concurring opinion, as well as the plurality opinion, because, without Justice Kennedy’s concurrence, the Court’s finding of no reasonable expectation of privacy would not have prevailed.

The plurality opinion in Carter emphasized the lack of a social relationship between the defendant and the premises searched. Carter, 525 U.S. at 90,119 S.Ct. at 473, 142 L.Ed.2d at 380. The defendants in Carter lived in Chicago, while the apartment searched was located in Minnesota. The defendants had come to the apartment for the sole purpose of preparing cocaine for sale, they had never been to the apartment before, and they were in the apartment for only about 2½ hours. Id. at 86, 119 S.Ct. at 471, 142 L.Ed.2d at 378.

The Court in Carter discussed three factors bearing on the reasonable expectation of privacy: (1) the purely commercial nature of the transaction, (2) the defendants’ relatively short period of time on the premises, and (3) the lack of any previous connection between the defendants and the occupant of the apartment. Id. at 91, 119 S.Ct. at 474,142 L.Ed.2d at 381.

The party at Moranville’s residence appeared to lack any reasonable degree of privacy. According to Moranville’s testimony, the door was unlocked and people were walking in and out at will. This was clearly not Moranville’s party. According to her, Ortiz was in charge. At one point, according to Moranville, “there [were] so many people coming in and out, I couldn’t sleep.” She did not even know some of the participants. She explained Ortiz’s presence in her residence in the following colloquy:

Q. Would you explain to the jury how Aurelio Ortiz came to be at your apartment on Memorial Day weekend of 1997? A. He had asked me, because his apartment from what he understood was under- — the cops had been watching it for drug trafficking, and he asked me if he could use it because I lived alone and I had a very big apartment so.
Q. And did you give him permission to move in with you? A. To use it, yes. Not to move in, but to use it, yes.
Q. To use it for what? A. To do whatever he needed to do, to sell, to use, whatever.

Moranville testified about Ortiz’s activities in her apartment: “There was using. There was selling. There was a lot of using and there was a lot of selling.” As to the first factor under Carter, Ortiz was using Moranville’s apartment, at least in part, for commercial transactions. He was there because he believed the police were watching his apartment. Even assuming the party was partially for commercial purposes and partially for social purposes, a fair interpretation of the evidence is that any social aspect of the gathering was based on drug use, and that most of the drugs had been purchased from Ortiz.

It is significant that Moranville did not give Ortiz permission to move into her apartment — only to do “whatever” with respect to drugs. On our de novo review, the presence of Ortiz and the other participants appears to be merely an ongoing drug transaction with the customers consuming the merchandise on the premises. Moranville observed Ortiz selling the drugs. The presence of the scale and Ortiz’s possession of $1400 in cash confirms at least a substantial part of the deliveries were made as commercial — not social — transactions. Ortiz, feeling the heat of police surveillance at his own place, moved his drug operations to the Moran-ville residence. This finding is supported by the fact that, although Moranville had earlier observed Ortiz selling drugs in his own apartment, a search of his apartment after his arrest revealed no drugs, scales, or other paraphernalia used for such a business. The obvious inference is these items had been moved to the Moranville residence.

Comparing the facts of this case to Carter, we note first the defendant’s activity here was not limited to preparing drugs for sale as it was in Carter; here, it involved drug use as well. However, the fact Ortiz’s customers consumed the drugs on the premises does not change the primary purpose of his presence from commercial to social. We believe it was all part of his commercial activity, which was the predominant reason for his presence in Moranville’s home.

In addition, while the defendants in Carter remained on the premises a shorter time than here, and they had no previous connection with the householder, as Ortiz did here (a five-day acquaintance with Moranville), the Supreme Court did not suggest in Carter these distinctions would be dispositive if the purpose of the defendant’s presence on the premises was commercial in nature. Here, as in Carter, Ortiz was “one simply permitted on the premises,” Carter, 525 U.S. at 91, 119 S.Ct. at 474, 142 L.Ed.2d at 381, and he failed to show he had a reasonable expectation of privacy as a social guest. Accordingly, we affirm the ruling of the district court denying the motion to suppress and admitting the evidence seized. This holding makes it unnecessary to consider Ortiz’s probable-cause argument.

IV. The Sentencing Issues.

A. Enhancement of sentence. Ortiz was charged with distributing methamphetamine and cocaine to a person under the age of eighteen while within 1000 feet of a public park in violation of Iowa Code section 124.406(l)(a) (1997). This section imposes a five-year minimum for distributing drugs, or possessing with intent to distribute them, to a person under the age of eighteen. This section also enhances the mandatory minimum to ten years:

[I]f the substance was distributed in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school, or in or on the real property comprising a public park, public swimming pool, public recreation center, or on a marked school bus.

(Emphasis added.)

At trial Ortiz challenged the trial court’s application of section 124.406(l)(a) on the basis of insufficient evidence to show the land surrounding a nearby library was actually a park within the meaning of the statute. However, he did not argue, as he does on appeal, that the clause “within one thousand feet” does not modify “public park.” We believe the language “within one thousand feet” modifies only “private, elementary, or secondary school,” not “public park, public swimming pool, [or] public recreation center.” Each of these listed places has its own modifier, and the modifier for public parks is “in or on.” When the text of a statute is plain and its meaning clear, we will not look for a meaning beyond the express terms of the statute. State v. Guzmam-Juarez, 591 N.W.2d 1, 2 (Iowa 1999). Moreover, penal statutes are to be strictly construed, and all doubts resolved in favor of the accused. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998).

While Ortiz did not object to his enhanced sentence on the basis of statutory interpretation, that is not fatal to his claim on appeal because the sentence is void to the extent it is not based on a proper interpretation of a statute. The judgment may be modified by this court even in the absence of objection. See State v. Tornquist, 600 N.W.2d 301, 307 (Iowa 1999) (holding improper enhancement of statute may be corrected at any time); State v. Austin, 503 N.W.2d 604, 607 (Iowa 1993) (holding an illegal sentence is void and must be vacated even without objection by-defendant at trial). Accordingly, we vacate the sentences on counts II and IV insofar as they are enhanced by proximity to a park.

B. Withholding of mittimus. Ortiz also objects to that part of the court’s judgment in which it withheld mittimus until conclusion of federal criminal proceedings. The State concedes this was error, and we agree. Accordingly, we vacate that part of the judgment and remand for entry of a judgment to provide for immediate mittimus.

We affirm the convictions, vacate the sentences, and remand for resentencing.

CONVICTIONS AFFIRMED; SENTENCES VACATED; CASE REMANDED FOR RESENTENCING.

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

      . Ortiz argues this section does not apply to him because (1) Moranville was emancipated and therefore not a minor, and (2) the State did not show Ortiz knew she was under 18. Under the statute, the targeted distributees are persons under 18, not minors, so emancipation is irrelevant. Furthermore, nothing in § 124.406(l)(a) suggests that a defendant's knowledge of age is a prerequisite to conviction. We therefore reject these arguments.


author: TERNUS, Justice.

text:
    Donald CRIPPEN, Joan Crippen, and Barbara Maitland, d/b/a HMR Home and Business Recyclers, Appellants, v. CITY OF CEDAR RAPIDS, City Of Marion, and Bluestem Solid Waste Agency, Appellees.
    No. 98-1801.
    Supreme Court of Iowa.
    Oct. 11, 2000.

      John C. Wagner and Christopher L. Jorgensen of John C. Wagner Law Offices, P.C., Marengo, for appellants.
    James H. Flitz, Cedar Rapids, for appel-lee City of Cedar Rapids.
    John M. Bickel and Kevin J. Caster of Shuttleworth & Ingersoll, P.C., Cedar Rapids, and Donald Hoskins, Marion City Attorney, for appellee City of Marion.
    Gary Jarvis, Assistant County Attorney, for appellee Bluestem Solid Waste Agency.
   TERNUS, Justice.

The appellants/plaintiffs, Donald Crip-pen, Joan Crippen, and Barbara Maitland, operate a private recycling business under the name of HMR Home and Business Recyclers. (We will refer to the appellants collectively as “HMR”) The appel-lees/defendants, the City of Cedar Rapids and the City of Marion, implemented residential curbside recycling as a city service through their respective solid waste management departments. Appellee/defen-dant, Bluestem Solid Waste Agency, is a joint agency of the City of Cedar Rapids and Linn County; it participated in the promotion of the cities’ recycling services.

HMR brought this action for damages and injunctive relief against the defendants, claiming that the defendants were illegally interfering with HMR’s residential curbside recycling business. Because we agree with the district court’s determination that the defendants’ conduct was proper as a matter of law, we affirm the summary judgment entered against HMR.

I.Background Facts and Proceedings.

In 1989, HMR began a private recycling business that provided both commercial and residential curbside recycling services in the cities of Cedar Rapids and Marion. The residential service involved the collection of recyclable materials from residences and the sale of these materials to various buyers. Initially, HMR was the only provider of this service in the area. It made no charge for collection of recyclables until 1991 when it began charging for this service.

That same year, the City of Cedar Rapids began a recycling program. This program consisted of roving trucks that picked up recyclable materials, and permanent drop-off sites where residents could deposit such items. Later, both Cedar Rapids and Marion passed ordinances implementing curbside recycling for single-family dwellings and smaller, multiple-family dwellings. These recycling services were funded by assessments made to each qualifying dwelling, regardless of whether the residents used the cities’ recycling services.

HMR filed this suit in 1997, alleging that the defendants’ curbside recycling programs had caused HMR to lose business. Both damages and injunctive relief were sought under several theories: (1) the defendants’ recycling services competed with private enterprise in violation of Iowa Code section 28A.2 (1997); (2) the defendants engaged in a combination or conspiracy to restrain or monopolize the recycling market, in violation of Iowa Code chapter 553; (3) the cities’ collection of a fee for its recycling services was illegal; (4) the cities’ comprehensive solid waste plans failed to utilize private enterprise as required by Iowa Code sections 455B.301A and 455B.302; and (5) the defendants’ actions constituted a taking of HMR’s property.

The defendants filed motions for summary judgment, which were granted by the district court. This appeal followed.

II. Scope of Review.

The scope and standard of review of summary judgment rulings are well established. This court reviews such rulings for correction of errors of law. See Sanford v. Mantemach, 601 N.W.2d 360, 363 (Iowa 1999). If the record shows no genuine dispute of a material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. See Iowa R. Civ. P. 237(c). In assessing whether summary judgment is warranted, we view the entire record in a light most favorable to the nonmoving party. See Bearshield v. John Morrell & Co., 570 N.W.2d 915, 917 (Iowa 1997). We also indulge in every legitimate inference that the evidence will bear in an effort to ascertain the existence of a fact question. See Fogel v. Trustees of Iowa College, 446 N.W.2d 451, 454 (Iowa 1989).

III. Chapter 23A — Competition of Governmental Subdivisions with Private Enterprise.

Chapter 23A prohibits state agencies or political subdivisions from competing with private enterprises under specified circumstances:

1. A state agency or political subdivision shall not, unless specifically authorized by statute, rule, ordinance or regulation:
a. Engage in the manufacturing, processing, sale, offering for sale, rental, leasing, delivery, dispensing, distributing, or advertising of goods or services to the public which are also offered by private enterprise unless such goods or services are for use or consumption exclusively by the state agency or political subdivision.

Iowa Code § 23A.2(l)(a). There are, however, exceptions to this prohibition, including one for “[t]he operation of a city enterprise, as defined in section 384.24, subsection 2.” Id. § 23A.2(10). The district court concluded that the defendants’ recycling programs constituted a “city enterprise” and, therefore, were exempt from chapter 23A. We agree.

Section 384.24 states in relevant part:

2. “City enterprise ” means any of the following, including the real estate fixtures, equipment, accessories, appurtenances, and all property necessary or useful for the operation of any of the following:
f Solid waste collection systems and disposal systems.

Id. § 384.24(2). Based on this definition, it is clear that the legislature intended that a city could operate a solid waste collection and disposal system in competition with private enterprise.

HMR argues, nonetheless, that the exemption does not apply here for two reasons. First, HMR argues that only the “real estate, fixtures, equipment, accessories, appurtenances, and all property necessary or useful for the operation of’ the solid waste collection system, id. § 384.24(2), fall within the definition of “city enterprise,” but not the collection service itself. Second, HMR contends that recyclable materials are not “solid waste” such that collection of these materials is appropriately considered part of a solid waste collection and disposal system.

A. Scope of exemption. As noted, HMR asserts that only the tangible assets of a solid waste collection system are exempted. This interpretation of section 384.24(2) ignores the fact that it is the solid waste collection system that is the subject of the exemption. See id. (“ ‘City enterprise’ means any of the following ...: ... [sjolid waste collection systems.” (Emphasis added.)). The tangible items listed in the statute are specifically made a part of the exempted system; they are not a limitation on what is encompassed within the exemption. See id. (“ ‘City enterprise’ means any of the following, including real estate, fixtures.... ” (Emphasis added.)). Clearly, the service itself — solid waste collection and disposal — is part of the exempted system.

B. Recyclable materials as “solid waste. ” HMR argues that recyclable materials are not “solid waste” such that the collection of recyclables could be considered a “solid waste collection system.” “Solid waste” is defined in the Iowa Code as “garbage, refuse, rubbish, and other similar discarded solid or semisolid materials....” Id. § 455B.301(20) (emphasis added). To “discard” means to “get rid of as no longer useful, valuable, or pleasurable.” Webster’s Third New International Dictionary 644 (unabr. ed.1993). “Refuse” is “the worthless or useless part of something.” Id. at 1910. Similarly, “rubbish” is defined as “miscellaneous useless valueless waste or rejected matter.” Id. at 1983.

Based on the common meaning of the statutory terms, we think that recyclable materials fall within the definition of “solid waste.” Residents who put recyclable materials — tin cans, glass, paper, plastic and cardboard — at the curb surely regard these materials as “discarded”: the residents are getting rid of something that is of no use to them. Moreover, the discarded recyclables are similar in nature to the other materials residents place in a trash can at curbside for pickup by the city; all such materials, recyclables and other waste, are useless to the residents throwing them away. We hold, therefore, that recyclables left at curbside for collection fall within the definition of “solid waste.”

This holding is bolstered by other provisions in the Iowa Code that make it clear the legislature intended that a system of solid waste collection and disposal would include recyclables. Section 455B.301A declares that “[t]he protection of the health, safety, and welfare of Iowans and the protection of the environment require the safe and sanitary disposal of solid wastes.” Iowa Code § 455B.301A(1) (emphasis added). To promote this goal, the statute establishes a “solid waste management policy” that includes, “in descending order of preference”:

a. Volume reduction at the source.

b. Recycling and reuse.

Id. (emphasis added). In addition, section 455B.302 requires each city in the state to have a “comprehensive solid waste reduction program consistent with the waste management hierarchy under section 455B.301A.” Id. § 455B.302. It is apparent from the legislature’s inclusion of recycling in the statute’s waste management hierarchy that the general assembly not only envisioned, but also required, that recycling be part of a city’s solid waste system. See also id. § 455D.21 (suggesting that city councils consider the adoption of an ordinance for the “mandatory curbside collection of recyclable materials”). To interpret chapter 23A as prohibiting a municipal recycling program that competes with private enterprise would conflict with the legislature’s clear mandate that cities have a recycling program. See generally William C. Mitchell, Ltd. v. Brown, 576 N.W.2d 342, 349 (Iowa 1998) (“We must not forget in our interpretation of statutes that our primary goal is to give statutes a reasonable construction which will effectuate rather than defeat the purpose of the statute[s].”).

Because recycling is a legitimate component of the defendants’ solid waste collection and disposal systems, their residential curbside recycling programs fall within the definition of “city enterprise.” See Iowa Code § 384.24(2)(f) (defining “city enterprise” to include “[s]olid waste collection systems and disposal systems”). Accordingly, chapter 23A’s prohibition against government competition with private businesses does not apply. See id. § 23A.2(10) (exempting the operation of a “city enterprise” from the prohibitions of chapter 23A). We therefore agree with the district court’s ruling that the defendants have not violated chapter 23A as a matter of law.

IV. Chapter 558 — Iowa’s Competition Law.

HMR claims that the defendants engaged in a combination or conspiracy to restrain or monopolize the recycling activities in HMR’s market in violation of chapter 553. That chapter states that “[a] person shall not attempt to establish[,] or establish, maintain, or use a monopoly of trade or commerce in a relevant market for the purpose of excluding competition .... ” Id § 553.5. There are, however, exceptions to this prohibition. Section 553.6 states:

This chapter shall not be construed to prohibit:
4. The activities or arrangements expressly approved or regulated by any regulatory body or officer acting under authority of this state or of the United States.
5. The activities of a city ... when acting within its statutory or constitutional home rule powers and to the same extent that the activities would not be prohibited if undertaken by the state.

Id. § 553.6(4)-(5).

HMR claims there is no evidence in the record that certain allegedly anticompeti-tive activities of the defendants had been expressly approved or regulated as required by subsection (4). It claims this deficiency is fatal to any exemption under section 553.6, including the exemption contained in subsection (5). We do not agree that subsection (4)’s requirement of express approval or regulation applies to subsection (5). It is clear that each subsection describes an independent exemption from the constraints of chapter 553. Subsection (5) does not require express approval or regulation of the challenged activities and, therefore, we reject HMR’s contention that the purported lack of such approval or regulation renders the subsection (5) exemption inapplicable.

Turning to an examination of the applicability of subsection (5), we agree with the district court that this provision exempts the defendants’ activities from the scope of chapter 553. Subsection (5) applies to the activities of a city when the city is acting “within its statutory or home rule constitutional powers,” but only “to the same extent that the activities would not be prohibited if undertaken by the state.” Id. § 553.6(5).

The Iowa Constitution provides:

Municipal corporations are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government, except that they shall not have power to levy any tax unless expressly authorized by the general assembly.

Iowa Const, art. Ill, § 38A. Iowa Code section 364.1 similarly provides:

A city may, except as expressly limited by the Constitution, and if not inconsistent with the laws of the general assembly, exercise any power and perform any function it deems appropriate to protect and preserve the rights, privileges, and property of the city or of its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents.

Iowa Code § 364.1. In interpreting cities’ home rule power, this court has noted that “cities now have the authority to act unless a particular power has been denied them by statute.” City of Des Moines v. Master Builders of Iowa, 498 N.W.2d 702, 703-04 (Iowa 1993).

We have already determined that the defendants’ operation of recycling programs is a legitimate “city enterprise.” These programs clearly advance the “health, welfare, comfort, and convenience of [the cities’] residents.” Iowa Code § 364.1. Accordingly, the recycling programs fall within the cities’ home rule powers, absent a legislative enactment denying cities this authority. HMR has not directed us to any statutory provision that would deny the defendants the power to operate a recycling program. To the contrary, as discussed above, cities are mandated to incorporate recycling into their solid waste management plans. We hold, therefore, that the defendants’ operation of recycling programs is within their home rule power.

We next consider whether such programs would be prohibited if undertaken by the State. Again, HMR has not identified any statute or principle of law that would prohibit the State from undertaking a recycling program. We hold, therefore, that the cities’ recycling services fall within the exemption contained in section 553.6(5), rendering the prohibitions contained in chapter 553 inapplicable. See Water Dev. Co. v. Board of Water Works, 488 N.W.2d 158, 162-63 (Iowa 1992) (holding that section 553.6(5) exempted the city’s water works from the application of chapter 553).

V. Legality of Assessment for Recycling Programs.

Both the Cedar Rapids and Marion recycling programs are funded through an assessment charged to each residential unit, regardless of whether the particular residential unit uses the city’s curbside collection service. In Marion, this assessment is part of the monthly fee for solid waste disposal. In Cedar Rapids, a separately designated recycling fee is included in residents’ monthly bills for solid waste disposal. These fees are established by ordinance in each city. HMR asserts that the cities’ fees violate residents’ due process rights and that the fees constitute an unauthorized tax.

A. Due process. HMR claims that the recycling fee is arbitrary and capricious because all residents must pay the fee regardless of whether they use the service. It contends the imposition of an unreasonable fee violates the individual plaintiffs’ due process rights. See U.S. Const, amend. XIV, § 1; Iowa Const, art. I, § 9.

Due process requires that there be a rational nexus between a city ordinance — here the ordinances establishing the recycling fees — and the governmental purpose the ordinance is intended to advance. See State v. Klawonn, 609 N.W.2d 515, 519-20 (Iowa 2000). Chapter 455B, which requires cities to use recycling as part of their comprehensive solid waste reduction programs, contains an enlightening statement of the purpose underlying such programs. See Iowa Code §§ 455B.301A (stating that recycling is part of the solid waste management policy of the state), .302 (requiring cities to implement solid waste reduction programs consistent with the state’s solid waste management hierarchy, which includes recycling). Chapter 455B contains the following declaration of policy:

The protection of the health, safety, and welfare of Iowans and the protection of the environment require the safe and sanitary disposal of solid wastes. An effective and efficient solid waste disposal program protects the environment and the public, and provides the most practical and beneficial use of the material and energy values of solid waste. While recognizing the continuing necessity for the existence of landfills, alternative methods of managing solid waste and a reduction in the reliance upon land disposal of solid waste are encouraged. In the promotion of these goals, the following waste management hierarchy in descending order of preference, is established as the solid waste management policy of the state:
a. Volume reduction at the source.
b. Recycling and reuse.

Id. § 455B.301A(1).

We conclude from this statement of policy that recycling programs are intended to protect the environment and the public by reducing the need for land disposal of solid waste. Because all citizens benefit from a reduction in the amount of solid waste being deposited in landfills, it is not unreasonable, arbitrary, or capricious for a city operating a recycling program to assess a fee to all residents for this program.

The West Virginia Supreme Court of Appeals under similar circumstances reached the same conclusion. See City of Princeton v. Stamper, 195 W.Va. 685, 466 S.E.2d 536 (1995). In Stamper, city residents objected to paying refuse disposal charges when they did not actually use the refuse collection service provided by the city. Id. at 537. The West Virginia court held that the ordinance imposing the fee was reasonable, stating the following rationale:

The appellants fail to recognize that the municipal charge is not just for collecting and disposing of refuse from their places of residence. The sum of all charges are marshalled and designed to defray the expense of a systemic refuse disposal scheme within the City of Princeton. In other words, the purpose of the Ordinance is to protect the health, safety and welfare of the entire community.
The appellants attempt to emphasize that a service fee cannot be imposed against a non-user. The fallacy in this reasoning is that the appellants are users of the municipal service, in a real sense, regardless of how they choose to dispose of refuse because they receive the benefit from the general disposal system. All residents, regardless of how they personally choose to dispose of their refuse, receive a benefit in the collection and disposal of refuse from other premises in the community.

Id. at 539. The same rationale supports our rejection of HMR’s due process claim here.

B. Unauthorized tax. HMR also claims that the recycling charges are illegal because they constitute an unauthorized tax in violation of the Iowa Constitution and the Iowa Code. As previously noted, the Iowa Constitution grants home rule power to municipalities “except that they shall not have power to levy any tax unless expressly authorized by the general assembly.” Iowa Const, art. Ill, § 38A; accord Iowa Code § 364.3(4) (“A city may not levy a tax unless specifically authorized by a state law.”). In support of its assertion that the recycling charges are a “tax,” HMR relies on this court’s statement in Newman v. City of Indianola, 232 N.W.2d 568 (Iowa 1975), that “[a] tax is a charge to pay the cost of government without regard to special benefits conferred.” 232 N.W.2d at 573.

Accepting HMR’s characterization of the recycling charges as a tax, we think the determinative issue is whether these charges are authorized by the legislature. We conclude they are.

Iowa Code section 384.84 provides:

The governing body of a ... city enterprise ... may establish, impose, adjust, and provide for the collection of rates and charges to produce gross revenues at least sufficient to pay the expenses of operation and maintenance of the ... city enterprise.

Iowa Code § 384.84(1). As we have already determined, the cities’ solid waste management systems, which include curbside recycling services, are city enterprises. Therefore, the cities, through the action of their respective city councils, may establish rates or charges that would at least cover the costs of the programs. Witnesses for the cities testified that all of the funds generated by the recycling fees were utilized to support the cities’ waste management programs. HMR has presented no evidence to the contrary.

Based on the undisputed facts, we conclude that the charges challenged by HMR are authorized by section 384.84(1). Therefore, these charges do not violate the constitutional and statutory prohibitions against the levy of a tax by a city. The district court correctly rejected HMR’s claim that the assessments made for the recycling programs were illegal.

VI. Compliance with Iowa Code Section I55B.S01A(2).

HMR contends that the defendants have violated Iowa Code section 455B.301A(2) because they have failed to utilize private enterprise in their recycling programs. The statute upon which HMR relies states:

2. In the implementation of the solid waste management policy, the state shall:
h. Utilize the capabilities of private enterprise as well as the services of public agents to accomplish the desired objectives of an effective solid waste management program.

Id. § 455B.301A(2) (emphasis added).

The district court held that this directive did not apply to the defendants because, by the statute’s own terms, it encompassed only “the state.” HMR asserts this ruling was in error because under section 455B.302, cities are ordered to “provide for the establishment and operation of a comprehensive solid waste reduction program consistent with the waste management hierarchy under section Jf.55B.S01A." Id. § 455B.302 (emphasis added).

The flaw in HMR’s argument is that the requirement under section 455B.301A(2)— that private enterprise be utilized — is not part of “the waste management hierarchy” imposed on cities and outlined in section 455B.301A(1). See id. § 455B.301A(1) (establishing a hierarchy that includes “[v]olume reduction at the source” and “[Recycling and reuse”). Accordingly, the requirement that cities follow the waste management hierarchy cannot be interpreted to impose upon cities the additional requirement that they use private enterprise.

If the legislature had intended to obligate cities to engage private enterprise, the legislature would have said so. Instead, the legislature stated in section 455B.302 that “[c]ities ... may execute with public and private agencies contracts, leases, or other necessary instru-ments_” (Emphasis added.) To apply to cities section 455B.301A(2), which states that “the state shall ... [u]tilize the capabilities of private enterprise,” would be directly contrary to the legislature’s expressed intent in section 455B.302 making the use of private agencies optional for cities.

For the foregoing reasons, we hold that section 455B.301A(2) does not apply to cities or their agencies. Accordingly, we must reject, as did the district court, HMR’s contention that the defendants have violated this statutory provision. Accordingly, summary judgment was properly entered on this claim.

VII. Takings Claim.

The Fifth Amendment to the United States Constitution provides that private property shall not “be taken for public use, without just compensation.” U.S. Const, amend. V; accord, Iowa Const, art. I, § 18 (“Private property shall not be taken for public use without just compensation first being made.... ”). In this case, HMR asserts that the defendants’ ordinances instituting curbside recycling unfairly deprived it of customer contracts, thereby resulting in the loss of business, a private property interest.

The underlying framework for analyzing such a claim has been set out by this court as follows:

(1) Is there a constitutionally protected private property interest at stake? (2) Has this private property interest been “taken” by the government for public use? and (3) If the protected property interest has been taken, has just compensation been paid to the owner?

Bormann v. Board of Supervisors, 584 N.W.2d 309, 315 (Iowa 1998). We agree with the district court’s conclusion that HMR’s loss of business is not a protected private property interest so as to entitle it to just compensation.

We note initially that there is no allegation that the cities took possession of any tangible property of HMR. Nor does HMR claim there has been a physical invasion of its property, or that HMR’s tangible assets have been made totally worthless. Neither city has prohibited HMR from entering into contracts with city residents nor has either city required residents to break their contracts with HMR. (There is nothing in the record to show that these contracts were anything other than terminable at will by either party.) HMR is still free to use its property to provide residential curbside recycling services. The property that HMR asserts has been taken is, therefore, simply its economic loss resulting from the defendants’ legal competition.

This court considered a nearly identical claim in Water Development Co. v. Board of Water Works. In that case, the plaintiff, a private water company, sued a municipal water works after the municipality constructed its own water system in an area formerly served exclusively by the plaintiff. Water Dev. Co., 488 N.W.2d at 159. The plaintiff claimed that a taking had occurred, a contention this court rejected. Id. at 161. We relied on a United States Supreme Court case, Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938), in which the Court held that a private business had no compensable right to be free from lawful municipal competition. Id. (citing Alabama Power, 302 U.S. at 480, 58 S.Ct. at 304, 82 L.Ed. at 378). Based on the holding in Alabama Power, this court held that no taking had occurred as a result of the municipal water works’ competition where the private water company did not have an exclusive right to furnish water to the area in question. Id.

Similarly, here, HMR did not have an exclusive right to provide curbside recycling services to the residents of Cedar Rapids and Marion. As we held in Water Development, “[a]ny ‘taking’ of its business through lawful competition [is] not com-pensable.” Id.

HMR attempts to distinguish the present case from the Water Development case by pointing out that residents of Cedar Rapids and Marion were required to pay a recycling charge regardless of whether they used the cities’ services, a fact not present in Water Development. This fact presents an irrelevant distinction, however. Whether or not the cities charge a fee to residents for recycling does not affect the nature of HMR’s property interest, and it is that property interest, not municipal charges to third parties, that is determinative of HMR’s takings claim.

The Utah Supreme Court rejected a takings claim under nearly identical circumstances in Bagford v. Ephraim City, 904 P.2d 1095 (Utah 1995). In that case a private garbage hauler sued the city after the city instituted a municipal garbage collection service and required all residents to pay a fee regardless of whether they were using the city’s service. Bagford, 904 P.2d at 1096. Recognizing that contract rights are a form of private property, the Utah court noted that “to create a protectable property interest, a contract must establish rights more substantial in nature than a mere unilateral expectation of continued rights or benefits.” Id. at 1099. The mere expectation that the plaintiff would continue to service its customers was not, according to the Utah court, a contract right cognizable under the takings clause. Id.

The Utah court’s holding is consistent with decisions from other jurisdictions under similar facts. See, e.g., Tri-State Rubbish, Inc. v. Waste Management, Inc., 998 F.2d 1073, 1082 (1st Cir.1993) (rejecting argument that long-time garbage hauler’s “interests in continuing without undue interference deserve protection as ‘investment-backed expectations’ ”); Hybud Equip. Corp. v. City of Akron, 654 F.2d 1187, 1189-90, 1192 (6th Cir.1981) (rejecting takings claim where city required, among other things, that private garbage haulers take all recyclables to city’s recycling plant, noting that “[c]ourts in literally hundreds of reported eases have upheld the authority of local governments to monopolize and control local garbage collection by eliminating or restraining competition among private collectors”), judgment vacated and case remanded on other grounds, 455 U.S. 931, 102 S.Ct. 1416, 71 L.Ed.2d 640 (1982); Laidlaw Waste Sys., Inc. v. City of Phoenix, 168 Ariz. 563, 815 P.2d 932, 936 (Ct.App.1991) (holding that city’s garbage collection service in annexed area, which residents were required to subsidize through taxes and fees, was lawful competition and did not effect a taking of property of private trash haulers previously serving the area); Tracy v. City of Deshler, 253 Neb. 170, 568 N.W.2d 903, 907 (1997) (rejecting garbage hauler’s takings claim, stating that a garbage collection business “is essentially municipal work”). The general rule that can be gleaned from these cases is that a taking does not result from a local government’s competition with a private garbage collector where the private company did not have a franchise. This principle is consistent with our decision in Water Development and we apply it here.

In summary, HMR does not have a pro-tectable property interest in being free from lawful municipal competition, nor in continuing to service its customers. Therefore, the district court correctly dismissed HMR’s takings claim.

VIII. Conclusion.

We hold that the district court properly held that HMR was not entitled to recover from the defendants as a matter of law. The defendants’ recycling services did not unlawfully compete with private enterprise in violation of Iowa Code section 23A.2 because the defendants’ services constitute a city enterprise, exempt from chapter 23A. Nor did the defendants violate chapter 553 by allegedly restraining or monopolizing the recycling market. Because the defendants’ operation of recycling programs is within their home rule power and such a program would not be prohibited if undertaken by the State, the defendants’ recycling services are exempt from the prohibitions of chapter 553 pursuant to section 553.6(5). In addition, the cities’ collection of a fee for their recycling programs did not violate the Due Process Clause because the fees were reasonably related to the cities’ goal of reducing reliance on landfills. Furthermore, the recycling charges were not an unlawful tax because they were authorized by section 384.84(1). The defendants did not violate chapter 455B because the requirement that private enterprise be utilized applies only to the State, not to cities and counties. Finally, the defendants’ actions did not constitute a compensable taking of HMR’s property because HMR’s interest in continuing to provide curbside residential recycling services in Cedar Rapids and Marion is not an interest protected from legitimate governmental competition by the Fifth Amendment. Because no genuine issues of material fact exist and because, as discussed above, the defendants are entitled to judgment as a matter of law, the district court did not err in granting summary judgment to the defendants.

AFFIRMED.

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

      . HMR also sought a declaratory judgment that the Cedar Rapids ordinance did not prohibit HMR from collecting curbside recycling materials from HMR’s Cedar Rapids customers. The City concedes that its ordinance does not require HMR's customers to use the City's recycling service in lieu of HMR's service. Therefore, we need not address this issue.

      . HMR argues that there is a genuine dispute as to whether "HMR’s loss is a mere reduction of value or a significant reduction of value,” and that summary judgment is inappropriate in view of this factual uncertainty. Admittedly, the extent of harm caused to HMR is relevant to whether a private property interest has been "taken,” the second step in a takings analysis. See Bormann, 584 N.W.2d at 316 (stating that one factor court must consider in determining whether a taking has occurred is "the economic impact of the regulation on the claimant's property”). This fact is not relevant, however, to whether this type of loss is protected by the Fifth Amendment. See id. (stating that first step in takings analysis is whether “a constitutionally protected private property interest [is] at stake”). Because we conclude that the record establishes as a matter of law that HMR does not have a constitutionally protected private property interest at stake, we do not reach the second step of the analysis — whether a taking has occurred. Therefore, the factual dispute identified by HMR does not prevent entry of summary judgment in this case. See Farm & City Ins. Co. v. Anderson, 509 N.W.2d 487, 491 (Iowa 1993) (holding that dispute with respect to fact that does not affect the outcome of the lawsuit does not preclude summary judgment).


author: Alan C. Page Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Alberto O. MIERA, Jr., an Attorney at Law of the State of Minnesota.
    No. C3-97-2009.
    Supreme Court of Minnesota.
    Nov. 1, 2000.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Alberto O. Miera, Jr. committed professional misconduct warranting public discipline, namely, respondent failed to timely and sufficiently respond to reasonable requests from the Director’s Office that he create, maintain and provide proper trust account books and records in violation of the terms of respondent’s March 11, 1998, public probation, Rules 1.15 and 8.1(a)(3), Minnesota Rules of Professional Conduct (MRPC), Rule 25, Rules on Lawyers Professional Responsibility (RLPR), and Lawyers Professional Responsibility Board (LPRB) Opinion No. 9.

Respondent admits his conduct violated the rules of professional conduct, waives his rights pursuant to Rule 14, RLPR, and has entered into a stipulation with the Director wherein they jointly recommend that the appropriate discipline is a 30-day suspension followed by two years of unsupervised probation subject to the following conditions:

1.Respondent shall cooperate fully with the Director’s Office in its efforts to monitor compliance with this probation and promptly respond to the Director’s correspondence by the due date. Respondent shall cooperate with the Director’s investigation of any allegations of unprofessional conduct which may come to the Director’s attention. Upon the Director’s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
2. Respondent shall abide by the Minnesota Rules of Professional Conduct.
3. Respondent shall maintain law office and trust account books and records in compliance with Rule 1.15, MRPC, and LPRB Opinion No. 9. These books and records include the following: client subsidiary ledger, checkbook register, monthly trial balances, monthly trust account reconciliation, bank statements, canceled checks, duplicate deposit slips, and bank reports of interest, service charges, and interest payments to the Lawyer Trust Account Board. Such books and records shall be made available to the Director within 30 days of the approval of this stipulation and thereafter shall be made available to the Director at such intervals as he deems necessary to determine compliance.

This court has independently reviewed the file and approves the jointly recommended disposition.

IT IS HEREBY ORDERED that respondent be suspended from the practice of law for 30 days effective 10 days from the date of this order, that he comply with Rule 26, RLPR, and that he pay $900 in costs and disbursements pursuant to Rule 24, RLPR. Upon reinstatement by affidavit pursuant to Rule 18(f), RLPR, respondent shall be placed on unsupervised probation for two years subject to the agreed-upon conditions set forth above.

BY THE COURT:

Alan C. Page Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Karl Matthew RANUM, an Attorney at Law of the State of Minnesota.
    No. CX-00-351.
    Supreme Court of Minnesota.
    Nov. 1, 2000.
   ORDER

On June 13, 2000, this court suspended petitioner from the practice of law for a period of three months. Petitioner has filed an affidavit stating that he has fully complied with the terms of the suspension order and requests reinstatement. The Director of the Office of Lawyers Professional Responsibility does not oppose the request.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that petitioner Karl M. Ranum is reinstated to the practice of law in the State of Minnesota subject to his successful completion of the professional responsibility portion of the state bar examination by June 13, 2001. Petitioner shall be on unsupervised probation for two year's from the date of reinstatement subject to the terms and conditions set forth in this court’s June 13, 2000, order.

BY THE COURT:

Alan C. Page Associate Justice


text:
    In re Petition for REINSTATEMENT to the Practice of Law OF Michael A. PINOTTI.
    No. C8-97-1955.
    Supreme Court of Minnesota.
    Nov. 6, 2000.
   ORDER

On August 3, 1999, this court reinstated petitioner Michael A. Pinotti to the practice of law subject to one year of supervised probation and numerous conditions, including the following:

Until further order, petitioner shall not engage in litigation of any matters except routine debt collection and personal injury without associating with counsel experienced in the area of the proposed litigation and obtaining that attorney’s signature on all pleadings and briefs.

On September 12, 2000, this court denied petitioner’s motion to remove the above-stated practice restriction because the court found that petitioner had not submitted sufficient evidence to support removal. However, petitioner was instructed that the court would reconsider the motion upon the submission of additional evidence.

Petitioner has submitted additional evidence in support of his motion, including affidavits from his probation supervisor and two colleagues, all of whom offer the opinion that petitioner is fit to resume the practice of law without the above-stated restrictions.

This court has reviewed the file and concludes that petitioner appears to be fit to resume the practice of law without the above-stated restriction.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that petitioner’s motion to lift the practice restriction contained in the August 3, 1999 reinstatement order is granted.

BY THE COURT:

Alan C. Page Associate Justice

RUSSELL A. ANDERSON, J., took no part in the consideration or decision of this case.


author: DORIS 0. HUSPENI, Judge.

text:
    STATE of Minnesota, Respondent, v. Blair Christian WELTZIN, Appellant.
    No. C5-00-127.
    Court of Appeals of Minnesota.
    Oct. 31, 2000.

      Mike Hatch, Attorney General, St. Paul, MN; and Mary E. Asmus, Duluth City Attorney, Duluth, MN (for respondent).
    Cynthia L. Evenson, Assistant Public Defender, Duluth, MN (for appellant)
    Considered and decided by TOUSSAINT, Chief Judge, HARTEN, Judge, and HUSPENI, Judge.
   OPINION

DORIS 0. HUSPENI, Judge.

In this appeal from a trial court order finding appellant Blair Christian Weltzin guilty of underage consumption in violation of Duluth, Minn., Code of Ordinances § 8-27(c) (1986), Weltzin contends that he was deprived of his right to a jury trial when the court granted the prosecution’s motion to amend its complaint to charge underage consumption in violation of the Duluth city ordinance rather than under Minn.Stat. § 340A.503, subd. 1(a)(2) (1998). Because the district court did not violate the Minnesota Rules of Criminal Procedure or abrogate Weltzin’s right to a jury trial by permitting the prosecution to amend the citation, we affirm.

FACTS

On April 4, 1999, Weltzin received a police citation charging him with underage misdemeanor consumption in violation of MinmStat. § 340A.503, subd. 1(a)(2) (1998). At the time, Weltzin was 19 years old and had no prior criminal history. Weltzin was not incarcerated on the citation. He appeared for arraignment on May 5, 1999, and entered a plea of not guilty.

At the pretrial conference on May 27, 1999, respondent City of Duluth (city) moved to amend the charge to consumption by a minor in violation of Duluth, Minn., Code of Ordinances § 8 — 27(c) (1986), whereby the maximum penalty for violation is a $700 fine. Weltzin opposed the motion, the court denied it, and the case was set for jury trial on September 21.1999.

On September 13, 1999, Weltzin’s attorney phoned the city prosecutor to request a trial continuance. The city agreed, and informed Weltzin’s attorney of its intent to renew its motion to amend the citation in light of this court’s decision, released after the May pretrial hearing, in In re Welfare of D.D.B., 596 N.W.2d 666, 667-68 (Minn.App.1999) (holding that violations of the Duluth City Code are neither misdemeanors nor petty misdemeanor, but rather simply ordinance violations). The parties agreed to argue the motion to amend at a second pretrial conference on September 23.1999.

The city filed and served its formal motion to amend on September 20, 1999. Following oral arguments on September 23, the district court granted the city’s motion, reasoning that the city had the authority to dismiss and recharge the case under its own ordinances if it chose to do so. Accordingly, the district court amended the charge to minor consumption in violation of section 8-27(c) of the Duluth City Code. After a court trial on December 28, 1999, Weltzin was found guilty. This appeal follows.

ISSUE

Did the trial court abrogate Weltzin’s right to a jury trial by granting the prosecution’s motion to amend the citation to charge Weltzin with a violation of Duluth, Minn., Code of Ordinances § 8-27(c) (1986), rather than misdemeanor underage consumption in violation of Minn.Stat. § 340A.503, subd. 1(a)(2) (1998)?

ANALYSIS

Minn. R.Crim. P. 12.05 allows a complaint to “be amended at the pretrial conference as prescribed by [the Minnesota Rules of Criminal Procedure].” Weltzin, in contending that the trial court erred in permitting the city to amend the citation at the pretrial conference, argues that three Minnesota Rules of Criminal Procedure were violated, and that he was denied his statutory and constitutional right to a jury trial.

Minn. R.Crim. P. 17.05

Weltzin argues Minn. R.Crim. P. 17.05 bars the prosecution from amending the citation because the amendment abrogates his right to a jury trial under the Minnesota Constitution. There is no merit in this argument. Minn. R.Crim. P. 17.05 states:

The court may permit an indictment or complaint to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

Id. Rule 17.05 “ ‘refers to motions to amend ⅜ * ⅜ complaints after the commencement of trial.’ ” State v. Bluhm, 460 N.W.2d 22, 24 (Minn.1990) (quotation and citation omitted). Before trial commences or jeopardy attaches, “the trial court is relatively free to permit amendments to charge additional offenses * * *, provided the trial court allows continuances where needed.” Id. (citation omitted); accord State v. Guerra, 562 N.W.2d 10, 12-13 (Minn.App.1997). “In non-jury trials, jeopardy attaches when the witnesses are sworn and the court begins to hear evidence.” State v. Caswell, 551 N.W.2d 252, 254-55 (Minn.App.1996) (citations omitted).

After agreeing to continue the September 21, 1999 trial date, the prosecution served a formal motion to amend the citation on September 20, 1999, and both parties argued the motion at the September 23, 1999 pretrial conference. Because jeopardy had not attached at the pretrial conference and the trial was not held until December 28, 1999, rule 17.05 does not apply to the prosecution’s motion to amend the citation. Moreover, the policies behind Minn. R.Crim. P. 17.05 are “to protect against confusing the jury, violating due process notions of timely notice, and adversely affecting the trial tactics of the defense.” State v. Alexander, 290 N.W.2d 745, 748 (Minn.1980). There is no indication that the motion was untimely or that amending the citation would confuse the jury or unfairly affect the defense’s trial tactics.

Minn. R.Crim. P. 3.04, subd. 2

A prosecuting attorney, if moving promptly, may seek a continuance to file a new complaint during pretrial proceedings if (1) the initial complaint does not properly name or describe the defendant or offense charged; or (2) the evidence presented at the proceeding shows the defendant has committed a different offense from that charged in the complaint and that the prosecuting attorney intends to charge the defendant with that offense. Minn. R.Crim. P. 3.04, subd. 2.

The city argues initially that rule 3.04, subd. 2, is intended to apply only to cases in which criminal complaints have been issued by prosecutors, and is inapplicable in this ease because there was no “complaint” within the meaning of this rule at the time the motion to amend was brought. The city argues that because the peace officer’s citation was the only charging document in existence during the pretrial proceedings, requiring the city to meet the requirements of rule 3.04, subd. 2, would deprive the prosecutor of the right to determine what charge to bring against an accused and, in effect, transfer to the peace officer all charging discretion when a citation is issued. The argument of the city is persuasive, and we are hesitant to impose upon a prosecutor who has had no opportunity to review a criminal charge issued by citation, the burden of meeting requirements of a rule which appears to address instances where a prosecutor was involved in the original decision of which offense to charge.

Even if we were to assume, however, that rule 3.04, subd. 2, applies here, we would conclude that the city satisfied both the requirement that a motion be timely and that the amended complaint charge an offense different from that initially charged.

While Weltzin contends the prosecution failed to move promptly, the record shows the prosecution orally moved to amend the citation at the first pretrial conference on May 27, 1999; that motion was opposed by Weltzin and denied by the court. But that motion was timely.

There is no indication the citation improperly named the defendant or incorrectly described the offense charged. Thus, the only question remaining under rule 3.04, subd. 2, is whether a different offense was charged in the amended complaint. The city suggests it moved to amend the citation to charge Weltzin with a violation of the Duluth City Code to avoid giving him a criminal record, and, therefore, a different offense was, in fact, charged.

Caselaw indicates that where an amendment affects an “essential element” of the charged offense, a “different offense” is charged.” Guerra, 562 N.W.2d at 13 (citation omitted). We are cited to no authority to assist us, however, in determining whether amending a criminal misdemeanor to a civil ordinance violation affects an essential element of the charged offense. Perhaps the lack of authority can be attributed to the fact that few accused of a crime would complain about a trial court determination that a complaint charging an offense punishable by incarceration be amended to charge an offense under which no incarceration is possible.

In Minnesota, it is “unlawful for any person under the age of 21 years to consume any alcoholic beverages.” Minn. Stat. § 340A.503, subd. 1(a)(2) (1998); see also Minn.Stat. § 340A.503, subd. 1(c) (1998) (explaining that consumption “includes the ingestion of an alcoholic beverage and the physical condition of having ingested an alcoholic beverage”). Under Duluth, Minn., Code of Ordinances § 8-27(c) (1986), “no person under 21 years of age shall have any alcoholic beverage present in his body as evidence by observable symptoms or chemical tests.” While each offense proscribes essentially the same conduct, we are hesitant to declare that a trial court erred in determining that the offense ultimately charged by the prosecutor was different from the one initially charged in the citation issued by the peace officer.

Minn. R.Crim. P. 23.04

A prosecutor may not treat a misdemeanor criminal offense as a petty misdemeanor unless the defendant consents and the court approves. Minn. R.Crim. P. 23.04. Because he was originally charged with misdemeanor minor consumption in violation of Minn.Stat. § 340A.503, subd. 1(a)(2), Weltzin contends his consent was required under rule 23.04 to amend the citation to charge a violation of the Duluth City Code. This court recently held, however, that an infraction of the Duluth City Code is neither a misdemeanor nor a petty misdemeanor. See In re Welfare of D.D.B., 596 N.W.2d 666, 667-68 (Minn.App.1999) (stating that a violation of the Duluth City Code is not a misdemeanor or petty misdemeanor but simply an ordinance violation). Therefore, Weltzin’s consent was not required to amend the citation, and rule 23.04 was not violated.

Statutory and Constitutional Right to Jury Trial

Minn.Stat. § 340A.503, subd. 1(a)(2), a misdemeanor criminal offense, carries the possibility of a $700 fine and up to 90 days in jail. Minn.Stat. §§ 340A.703 and 609.02, subd. 3 (1998). The maximum penalty for a violation of section 8-27(c) of the Duluth City Code is a $700 fine. Duluth, Minn., Code of Ordinances § 1-7 (1984); see D.D.B., 596 N.W.2d at 667-68 (stating that violating the Duluth City Code is not a misdemeanor or petty misdemeanor; it is simply an ordinance violation).

Weltzin contends the trial court abrogated his statutory right to a jury trial by allowing the citation to be amended to charge a violation of the Duluth City Code. We disagree. Under the statutory law, an accused is entitled to a jury trial only if a conviction for the charged offense could result in imprisonment. Minn.Stat. § 487.25, subd. 6 (1998). Because no imprisonment was possible for a conviction of violating Duluth, Minn., Code of Ordinances § 8-27(c), no jury trial was statutorily required.

Weltzin’s argument that his constitutional right to a jury trial was violated must also fail. A crime is defined as “conduct which is prohibited by statute and for which the actor may be sentenced to imprisonment, with or without a fine.” Minn. Stat. § 609.02, subd. 1 (1998). Because no imprisonment was possible in this case, Weltzin was not charged with a crime and this case did not involve a criminal prosecution. Accordingly, Minn. Const, art. I, § 6, which guarantees the accused the right to a speedy and public trial by an impartial jury in all criminal prosecutions, is not applicable.

Finally, the city strongly argues that this case ultimately involves competing constitutional considerations of the essential functions of the prosecution and the separation-of-powers doctrine versus an accused’s claimed right to a jury trial, and that the trial court’s decision to permit amendment of the “complaint” was an appropriate recognition of the discretion vested in the prosecutor in exercising the charging function. There is merit to this argument.

As a general rule, the prosecutor’s decision whom to prosecute and what charge to file is a discretionary matter which is not subject to judicial review absent proof by defendant of deliberate discrimination based on some unjustifiable standard such as race, sex, or religion.

State v. Johnson, 514 N.W.2d 551, 556 (Minn.1994) (quoting State v. Herme, 298 N.W.2d 454, 455 (Minn.1980)). Absent contrary legislative intent and discrimination against a particular class of defendants, “the prosecutor may prosecute under any statute that the defendant’s acts violate without regard to the penalty.” State v. Chryst, 320 N.W.2d 721, 722-23 (Minn.1982) (citations omitted). In light of a prosecutor’s considerable charging-authority discretion and the separation-of-powers doctrine, “a trial court should not interfere with a prosecutor’s exercise of that discretion.” State v. Cash, 558 N.W.2d 735, 735 (Minn.1997). A prosecutor has broad charging-authority discretion and is entitled to a presumption that he or she acted fairly in charging the defendant. State v. Andrews, 282 Minn. 386, 394, 165 N.W.2d 528, 533 (1969).

Here, Weltzin has not alleged that amending the citation constituted deliberate discrimination and there is no indication the prosecutor otherwise abused her charging-authority discretion. Importantly, as the trial court noted, the prosecutor had the authority to dismiss the tab charge in its entirety, and to recharge the matter at a later time. See Minn. R.Crim. P. 30.01 (allowing prosecutor to dismiss a complaint without leave of court); State v. Pettee, 538 N.W.2d 126, 131 n. 5 (Minn.1995) (stating dismissal under rule 30.01 is without prejudice and that state may re-indict defendant on same charge at later date); State v. Couture, 587 N.W.2d 849, 853 (Minn.App.1999) (same), review denied (Minn. Apr. 20, 1999). The trial court here, in effect, permitted the prosecutor to achieve, through a motion to amend a complaint, the exact result that would have been possible under a dismissal of the statutory charge pursuant to rule 30.01 and a subsequent recharging under the Duluth City Code. We see no error in the trial court’s decision.

DECISION

The district court did not violate the Minnesota Rules of Criminal Procedure or abrogate Weltzin’s right to a jury trial by amending the citation to charge Weltzin with a violation of Duluth, Minn., Code of Ordinances § 8-27(c) (1986), rather than Minn.Stat. § 340A.503, subd. 1(a)(2) (1998).

Affirmed.

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

      . The comment to Minn. R.Crim. P. 12 states that amending a complaint under rule 12.05 must be in accordance with rule 17.05 and also references rules 3.04, subd. 2, and 17.06, subd. 4.

      . In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county or district wherein the crime shall have been committed, which county or district shall have been previously ascertained by law. * ⅜ * In all [non-felony] criminal prosecutions, the legislature may provide for the number of jurors, provided that a jury have at least six members.
      Minn. Const, art. 1, § '6.